Government’s e-toll challenge goes beyond the legal issues

The announcement on Sunday 2 September by the National Prosecuting Authority (NPA) to withdraw murder charges against the 270 Lonmin miners arrested at Marikana, while long overdue, at least demonstrates a capacity by Government to review decisions despite their strong rhetoric to the contrary over the past two weeks.

While we await the outcome of the Commission of Inquiry chaired by retired Judge Ian Farlam, the breadth and depth of dismay from within Government itself and many wide ranging organisations cannot reasonably have gone unnoticed by the senior executive within the Government and ANC. Although legal action was being threatened by the miners legal representatives, it is encouraging that their voices, be it at a price, were heard without needing to be heard by a judge, at this stage.

The relevance of this to the e-toll saga is that the decision to take the Government to court is never an easy one. It has to be a last resort! The current legal case challenging the implementation of e-tolling by the Opposition to Urban Tolling Alliance (OUTA) and its co-applicants, was not one of convenience but of necessity. The various associations, prior to the legal action, had differing levels of understanding of the impact of e-tolling on their thousands of supporters, their individual engagements with both SANRAL and Government on this matter had yielded little except arrogance, an unwillingness to hear of the practical implementation problems and a lack of interest in alternative funding solutions. The former Minister of Transport, S’bu Ndebele had captured this when he infamously said “Plan ‘A’ is e-tolling and plan ‘B’ is plan ‘A’!”.

The long list of other associations, representing the rainbow nation of South African citizens opposing e-tolling to, name a few, also includes the Automobile Association (AA), Business Unity South Africa (BUSA), Congress of South African Trade Unions (COSATU) and Road Freight Association (RFA), not to mention the public and a plethora of petitions doing the rounds. One can also clearly resupporter that before the Local Elections of 2011 even both the Gauteng ANC and ANCYL vehemently opposed e-tolling during their electoral campaigns in Gauteng. Indeed, e-tolling within the current administration has created internal divides with some trying to swallow the bitter e-toll pill while lamenting about a possible rethink of policy ‘if the clock could be turned back’. This has been followed up by the new Minister of Transport, Ben Martins, who shortly after his appointment during a recent breakfast interview, conceded that insufficient consultation had taken place around e-tolling.

Surely, at first glance, the reasonableness test suggests great concern that all is not well, if the only proponents of e-tolling threaded together are those directly vested in it like SANRAL, Tolplan and National Treasury to the clear and loud landscape of opposition from all around them?

Central to the current e-tolling debate is the cost of collection, plus its inefficiencies and burdensome processes and not that road users don’t want to pay. It also remains unrefuted that the cost of revenue collection via e-tolling will significantly exceed other collection methods like the Fuel Levy or direct collection via SARS but yet e-tolling, with all its flaws, remains Governments choice, to which one must ask, what is the motivation for this behaviour of  ‘clinging to the gantries’. Meanwhile, still to this day we  await an arm’s length of various legislation to provide for the proposed collection, exemption and enforcement of non-payment of e-tolls, never mind an indication of the amended proposed tariff’s which have not yet been published. We say again, SANRAL was never ready to launch at any one it their previous launch dates and are still not ready to do so.

While billions are being planned for public transport infrastructure, which could offer an alternative to the private vehicle owner, it is clear that all road users are under financial pressure. The next fuel hike will take us close to R12 per litre and households are slipping deeper into debt, with SA’s metropolitan municipalities owed R46.1bn by their consumers. Against such a backdrop, with a fragile global economy, we must prioritise the most economical and efficient solutions to all projects. To the contrary, in the e-toll matter we get told that policy trumps cost efficiency.

The e-toll question is as complicated as you want it to be but in reality the vast volume of opposition cannot be ignored. Despite reason to initially believe that the intervention of the Deputy President and his GFIP Inter Ministerial Commission may have prevented the need for legal action, this ray of light seems to have faded as we have not had any communication from this team in recent weeks to try and conclude the process and map out a possible solution.

While COSATU have been both vociferously opposed to e-tolling and its impact on the poor in Gauteng, their unwillingness to engage their alliance partners in legal proceedings on e-tolls does not detract from their ability to physically oppose its implementation by marching and protesting, a stance which is being echoed by thousands even outside of COSATU and sends a strong signal that e-tolling could push civil disobedience beyond the boundaries of the unions, a dangerous place for any government or society to stray into, the results and outcomes of which are evident in the scenes at Marikana and other countries and regions of civil unrest. The e-toll matter is a case of “one tax too far”

While we await the decision of the Constitutional Court and the opportunity to properly ventilate our case on 26th November during the judicial review in the Gauteng High Court, we are confident that the legal process will hear the logic and strength of OUTA’s challenge, along with the cries of a mass of opposition to e-tolling rather than present an opportunity to the tinder box of mass frustration who may, rightly or not, feel Government only listens when you are on the street rather than in court.