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Outa: over, but not out

Bonnie Tubbs
By Bonnie Tubbs, ITWeb telecoms editor.
Johannesburg, 18 Oct 2013
Outa is getting out of the courtroom and onto the ground to help society fight the "unjust and illegal" e-toll system.
Outa is getting out of the courtroom and onto the ground to help society fight the "unjust and illegal" e-toll system.

The Opposition to Urban Tolling Alliance's (Outa's) 20-month legal case against what it believes is an illegal tolling system being steamrolled over SA's citizens is over.

The alliance announced this morning it would not take the Supreme Court of Appeal's (SCA's) dismissal of Outa's anti-toll case last week to the Constitutional Court.

Outa chairman Wayne Duvenage says the decision - made after a week of deliberations between Outa members, and legal representatives - was taken for two main reasons, based on the principle of the matter and the cold hard fact that funds are scarce.

"Firstly, Outa and the millions of people in SA who will be affected by e-tolling can no longer afford to allow the SA National Roads Agency (Sanral) and government to avoid a decision on the lawfulness of e-tolling by raising technical defences.

"Secondly, Outa is constrained by a shortage of funds."

Societal forces

That said, Duvenage vows not to abandon the battle. Outa will continue to fight, at a societal level.

Duvenage says Outa is not abandoning bringing the "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."

He says, when e-tolling begins and Sanral and government start to enforce the system in court against the public, "they will not be able to hide their technical defences, such as the delay argument".

"This is because the law guarantees any member of the public, against whom Sanral seeks to enforce e-tolling, the right to raise the unlawfulness of e-tolling as a defence. Here, the technicality of delay is irrelevant."

Duvenage is referring to SCA judge Fritz Brand's motivation behind his dismissal of Outa's anti-toll argument - being the technicality that the alliance brought its objections to the table too late. He says the core issue - the failure of government to follow legal and fair process throughout the e-toll project - was missed completely.

"Outa and its legal representatives are presently formulating a strategy in order to assist members of the public [with collateral challenge]. The public will have an authoritative decision on the lawfulness of e-tolling. It is only a matter of time."

Money matters

With regards to funding, Duvenage says Outa has been on the back foot from the word go. To proceed with an appeal to the Constitutional Court, he says, the alliance would need a further R3.3 million - to cover the outstanding legal debt of R1.8 million, plus the estimated R1.5 million the appeal would demand.

"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."

He says, in any event, 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.

In the process of Outa moving on to play a new role on behalf of the motoring public in the e-toll saga, Duvenage says the alliance still needs to balance its books and settle the estimated R1.8 million debt. He appeals to society to donate to the cause by visiting Outa's Web site for details.

Going forward, Duvenage concludes: "Outa aims to act as a catalyst to further mobilise civil society's efforts to stop e-tolling and bring sanity to the situation."

He says 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 to seek a more just and efficient means of funding the Gauteng Freeway Improvement Project.

"The challenge to e-tolling is not over and neither is Outa's role therein."

Meanwhile, Congress of South African Trade Unions spokesman Patrick Craven says the federation will soon decide on a date for its upcoming national protest against e-tolls. At the moment, he cannot be more specific than that the action will take place in the first week of November. "We are totally committed to this fight to get e-tolls scrapped."

The Sunday Independent this past weekend reported there is growing acceptance among congress members that e-tolls are inevitable, citing commentators inside the federation. Craven denies this, saying "this is an issue upon which we totally agree".

[Additional reporting by Nicola Mawson]

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