OUTA'S COURT CHALLENGE & DECISION ON THE WAY FORWARD

On Monday of this week, the OUTA board met to consider whether to appeal the judgment of the Supreme Court of Appeal, in which OUTAs present legal challenge to eTolling was refused. At this meeting, and during the week following the meeting, the OUTA board received input from its constituent members, legal representatives, and other organizations in order to make an informed decision on how to achieve the best long-term outcome in the challenge against the eTolling of Gauteng freeways.

The decision that has been made is that OUTA will not appeal the judgment of the Supreme Court of Appeal.

The primary reasons for this decision are two-fold:

Firstly, OUTA and the millions of people in South Africa who will be affected by eTolling can no longer afford to allow SANRAL and Government to avoid a decision on the lawfulness of eTolling by raising technical defenses.

Secondly, OUTA is constrained by a shortage of funds.

As regards the first, and this must be made clear to all, the SCA judgment neither addressed nor ruled on the lawfulness of eTolling as OUTA's legal representatives argued that it should. Rather, following the technical approach argued by SANRAL and Government, based on delay, the SCA completely avoided deciding whether eTolling is unlawful.

The result of this is that SANRAL and Government have, for the moment, succeeded in avoiding a finding that the feeble public participation process which SANRAL conducted April 2008 for the R21, and which elicited only 2 responses from the public, failed to comply with what was required by law.

The same applies to the equally inadequate public participation process in relation to the N1, N3, N4 and N12, in October 2007, these freeways being used by over a million drivers each day, where only 30 responses were received. Similarly, SANRAL and Government have avoided for the moment, by technicality, the Court from enquiring into the fact that the Transport Minister whose approval was needed for the declaration of Gauteng's freeways as toll roads, did not even consider the exorbitant cost that would be paid by the public for e-Tolling.

In deciding not to appeal the SCA judgment, OUTA is not abandoning bringing these and other unlawful aspects of e-Tolling to a head in Court. It is only avoiding the risk of SANRAL and Government defeating the legal challenge to e-Tolling in the Constitutional Court on a similar technical basis.

When e-Tolling commences and SANRAL and Government start to enforce e-Tolls in Court against the public, they will not be able to hide behind technical defences, such as the delay argument. This is because the law guarantees to any member of the public, against whom SANRAL seeks to enforce e- Tolling, the right to raise the unlawfulness of eTolling as a defense.

Here, the technicality of delay is irrelevant. OUTA and its legal representatives are presently formulating a strategy in order to assist members of the public in this regard. The public will have an authoritative decision on the lawfulness of e-Tolling. It is only a matter of time.

As regards funding, throughout this legal challenge, OUTA has been on the back foot in funding its costs. In order to proceed with the appeal to the Constitutional Court, OUTA would need a further R3,3 million to cover outstanding legal debt of R1,8 million and estimated costs of R1,5m for the appeal. Unfortunately, OUTA does not enjoy the luxury that Government has, of dipping into tax revenues to fund legal expenses. Without a sudden and massive funding injection from one or more people or institutions, our past experience indicates we will not be able to raise sufficient money to cover the costs of an appeal in the Constitutional Court.

OUTA is of the view, in any event, that the public's money would be better spent in a legal process in which SANRAL and Government cannot avoid a decision on the lawfulness of e-Tolling for technical reasons. The launching of the present litigation by OUTA and its co-applicants hoped to secure a decision up front by the Courts, before e- Tolling started and before innocent members of the public were charged for not paying e-Tolls - unfortunately, to no avail.

Moving away from the decision not to appeal, OUTA believes it has a significant role to play on behalf of society going forward, building on its experience and understanding of the serious issues which underlie the e Tolling decision. Going forward, OUTA aims to act as a catalyst to further mobilise civil society's efforts to stop e-Tolling and bring sanity into the situation. In short, this is not the end of OUTA, but rather the crossing of a threshold into a new stage, largely on a different playing field, where OUTA will work with all sectors of society in seeking a just, sustainable and efficient use of society's money to pay for GFIP.

In the process of OUTA moving forward to play a new role on behalf of the motoring public, we need to balance our books and to settle the estimated R1,8m debt. We once again make a plea to society for assistance in this regard, by donating to OUTA, the details of which can be found on our web site at www.outa.co.za.

OUTA would like to thank the almost 12,000 members of the public, along with 350 businesses and other organisations who have supported us during the legal challenge and allowed us to come this far. Please note that your support and efforts to date have not been in vain, as OUTA has enabled the public to be wiser and empowered with the knowledge of numerous serious issues related to the eToll plan.

In closing, OUTA denounces the eToll system, due to its lack of operational efficiency, strategic logic and ethical justification and due to the fact that it has not been introduced in accordance with the law. We remind the public that it is not a legal requirement to get an eTag and that citizens have every right to challenge and exercise passive resistance, within the law, to reject a policy that is not in the best interests of the people it is intended to serve.

This is not about interfering with SANRAL's activities or Government's right to govern or make policy, but rather, it is about insisting that SANRAL and Government conduct themselves lawfully, constitutionally and in the best interests of the people.

The challenge to eTolling is not over and neither is OUTA's role therein.

Statement issued by Wayne Duvenage, OUTA Chairperson, October 18 2013

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