Sanral that is breaking the law

“WE ARE not to simply bandage the wounds of victims beneath the wheels of injustice, we are to drive a spoke into the wheel itself.”

Dietrich Bonhoeffer. Executed by Nazi regime. 1945

Sanral board member Peter Derman argues that “Not to pay e-tolls is simply breaking the law”, and refers to various court judgements which Sanral claim as sufficient vindication of the lawfulness of e-tolling. 

No, it is Sanral’s failure to meaningfully consult that is not simply breaking the law, but has in consequence created a serious crisis of legitimacy. Worse still, the GFIP cost many billions more than it should have because of Sanral’s failure to prevent tender collusion and price fixing by construction cartels. That has left an odious debt and economic crime that present and future generations cannot by any standard of justice, be expected to carry. If not vigorously prosecuted that alone renders the boycott of e-tolls a laudable act of responsible citizenship.

Two stories, and another High Court judgement further illustrate why Peter Derman is skating on thin ice in claiming the constitutional and moral high ground for Sanral.

Story One

Pasika Nontshiza is a community land rights activist from the Eastern Cape. For more than a decade he has been working to ensure the most vulnerable and disadvantaged are at the forefront of development decisions that affect them and thus helps them to become ever more the protagonists of their own development.  More than a decade ago Sanral CEO Nazir Alli was on the campaign trail to sell the controversial N2 Wild Coast Toll Road, on behalf a consortium of construction companies who had supposedly lodged an unsolicited proposal to build a short cut for the N2. A “consultative meeting” had been scheduled at the Wild Coast Sun resort. Pasika fetched as many local residents from the scattered rural homesteads as he could fit into his bakkie to drive them to the meeting.

“The attitude Nazir Alli showed to people who had come to represent their views, as well as those of the late King Justice Mpondombini Sigcau was disgusting” Nontshiza recalls. “The villagers were a far cry and worlds apart from those who had invited Nazir Alli. The supporters of the tolling were well dressed in the latest designer clothes as they had acquired a new status of being a Wild Coast consortium whereas the owners of the land and people supposed to benefit from the road showed signs of fatigue, thirst and hunger but they were armed only with one thing: ‘prevent looting of our ancestral land’.”

When the villagers rose to question what benefit the toll road would bring to them, “feathers were ruffled” for it was quite clear that it would benefit an Australian mining company which was working below the radar to prospect for heavy minerals in the coastal dunes.  Without the road the minerals could never be mined and trucked our to global commodity markets.

“Journalist were also questioning why was the King of amaMpondo not invited, or at least to send a representative” says Nontshiza.

Nazir Alli labelled Pasika Nontshiza as a “white apologist who cared nothing for the poor”!

After the meeting Pasika then had to drive the residents’ home over bad gravel roads to their remote homesteads (without a white man within 20 miles). As they neared the Nyameni River at midnight his passengers urged him to switch off his headlights to avoid attracting attention of the thugs and bullies (well known for their intimidation and fear tactics) sponsored by the mining company whose homes were nearby. Pasika managed with little more than moonlight to light his way to get through the danger zone.

When Pasika shared that experience with me years later, it occurred to me that the crossing of the Nyameni River (the "dark river" in Xhosa) was the crossing of a symbolic threshold of the start of a growing protest against Sanral manipulative and unconstitutional methods. “Little did Nazir Alli knew, consciously or unconsciously that he was sowing the seeds of a revolution, to regain the most valuable asset on earth: The right to be heard.” 

The protest has now mushroomed to millions of people from Gauteng, KZN and the Western Cape who are claiming their constitutional rights to freedom of expression, access to information, dignity and administrative justice. As Cormac Cullinan, the attorney now representing the Wild Coast villagers and the City of Cape Town over the Cape Winelands project says, “one of the fundamental methods which our Constitutional democracy uses to ensure that laws are perceived to be legitimate is by enshrining the requirements for just administrative action (and access to information) which includes providing an opportunity for the public to participate in decision-making processes by commenting on proposed measures.  This means that adequate public consultation is one of the building blocks on which legitimacy rests.”

Sanral is a public body that is required to act in the public interest and to play its part, “ to provide effective, transparent, accountable and coherent government “ (Constitution section 41(1))c)) and to  comply with the basic values and principles governing public administration (Constitution, section 195(1)) which include transparency and accountability.

“Sanrals’s persistent failure (in Gauteng, Cape Town and Wild Coast) to act transparently and provide information on likely tolls etc, has not enabled meaningful and effective public participation” Cullinan says. “Sanral’s stubborn refusal to modify its projects in response to public reaction has generated a crisis of legitimacy.”  

Judgment One

“Consultation must be more than mere opportunity that the executive gives to the consulted to make effective representations… the right to be consulted is valuable … giving those who have the right to be consulted an opportunity to be heard… at a formative stage of proposals before the mind of the executive becomes fixed [pages 22-23].”  

This excerpt is from a criminal judgement handed down in June 2006, by the Deputy Judge President of the South Gauteng High Court, Judge Phineas Mojapelo that found Sanral to have failed badly in its obligation to consult with local residents affected by the tolling concession awarded to the Trans Africa Consortium for the N4 Maputo Development Corridor Toll Road. Believing that his rights had been violated a local farmer Mr Nicolaas Smit had pleaded not guilty to criminal charges on sixteen counts for refusing to pay toll at the Nkomati Toll Plaza. He was found not guilty because the toll road in question had not been lawfully declared as such for want of a proper public consultation process that gave expression to the Bill of Rights.

Judge Mojapelo’s judgment offered some very cogent lessons for the learning.  He devoted nine of the 82 page judgment to provide legal content and definition to the term “consultation” and, based on the definition, another 35 pages to assessing and evaluating the evidence, before concluding that consultation had not in fact taken place as required by law. 

The judgment included a telling reference to Mr Alli’s conduct and attitude in a public meeting in Middelburg which ended acrimoniously. Mr Alli had been questioned whether decisions about the positioning of plaza’s had been finally determined and if not, whether opportunities to make representations existed. Judge Mojapelo notes “Mr Alli gave a somewhat long response which eventually came down to this:  “No, you cannot talk to us any further, the positions are cast in stone.”  A group of sixteen people walked out in disgust at his “intransigent attitude” and subsequently issued a media release condemning the “lack of transparency in dealing with this matter” saying that it was “totally meaningless to invite the public to a consultative meeting” if decisions had already been made [page 42 -44].

A helpful judgment is one which wisely and appropriately blends justice and mercy. Justice is served by good law and mercy by a carefully worded text that serves as a resource to help the loser learn from the experience, develop insight and come to an acceptance of the need to change their unlawful ways. Mr Alli showed no learning whatsoever from the experience.

The judgement came some months before Sanral commenced a “consultation process” leading to the declaration of the Gauteng freeways as toll roads.  Had Sanral learned the lessons offered by that judgment, they would not be in the very serious financial crisis over e-tolls that now prevails.     

Story 2

On Friday June 13 2014, Nonhle Mbuthuma, who was just out of high school when her elders were bouncing along in Pasika’s bakkie in the dark night after Nazir Alli’s shocking contempt for them and their King, found herself admitted to another “consultation meeting” about the N2 Wild Coast Toll road, also held at the Wild Coast Sun.  Nazir Alli appeared to making good his failure to consult with the Mpondo Royal Family ten years before.  Except he was consulting with the wrong "king". He and Vusi Mona were meeting with Zanuzuko Sigcau, a government-sponsored claimant to the Mpondo Kingship. Alli, with Royal honorifics and salutations, informed him and his followers that construction of the N2 Wild Coast shortcut was soon to commence, (even though two court cases have yet to be heard against it) and that Sanral would soon be arranging helicopter flights for "His Majesty" and his subject chiefs to see where Sanral planned to span the gorges.

This was not only disrespectful to the judicial review process, but in blatant contempt of the Constitutional Court judgment handed down in June 2013 that had set aside President Zuma's illegal certification of Zanuzuko as king of AmaMpondo. Mr Alli made promises that he had absolutely no legal authority to make. 

The Challenge

The Sanral board of directors have strict fiduciary duties to ensure scrupulous ethical conduct and prudent risk management.

In his presentation to the E-Toll Advisory Panel Peter Derman acknowledged that no social impact assessment had been done for the GFIP but said that based on his previous experience as a social scientist that, he “would hazard a guess” that the GFIP would benefit the poor in the long term. The Advisory Panel has now established that e-tolling is decidedly not pro-poor and in fact reinforces apartheid spatial inequalities. 

As a social scientist myself, who is also bound by professional code of practice as a social worker which obliges me to challenge social and economic injustice, I need more than guess work to convince me of the legality and legitimacy of e-tolling. Peter Derman fears an "uprising". What we really need is an ‘upwising’ within the Sanral board, the Ministry of Transport and the current National Executive.

I will not pay any fines for not paying my e-toll bill and I do not relish the thought of imprisonment. But until the Sanral board of directors acts decisively to regain public trust, vigorously proceed with prosecutions against the colluding construction industry to recover the over-charging, and shows due respect for Mpondo customary law and traditions, my Christian conscience and social work ethical code obliges me to refuse to pay my e-toll bills.

“Blaming the public for failing to comply with the law misses the more important point that this outbreak of lawlessness is a response to the prior failure by Sanral to act in accordance with the Constitution” advises my attorney Cormac Cullinan. “Whether or not tolling roads is a good policy, or whether the GFIP tolls are fair, or whether e-tolling is an effective collection method, the process which lead to the e-tolls being implemented is perceive to have been unfair and insufficiently sensitive to the impact on the public. In consequence the laws are being resisted. Refusing to comply with laws that are perceived to be unjust is an essential democratic safeguard.”

He concludes “Unless public institutions respect the spirit (and letter) of the Constitution and facilitate the emergence of a more participatory democracy they are likely to continue to face such resistance.”