Written by Wayne Duvenage //

The public protest against the introduction of an electronic tolling (eToll) system to finance an urban freeway upgrade in Gauteng – South Africa’s economic hub – is regarded as the biggest and most successful civil disobedience campaign since democracy in 1994. But how did an unjust eToll system come into being — especially in a country that had fought hard against injustice, not resting until it saw the back of apartheid rule? Why was it necessary? And why did people regard the civil disobedience campaign as successful when the system was still in operation five years after its introduction?

Despite a strong constitution and relatively good government administration during the first decade of democratic rule, signs of the South African Government straying out of touch with its constitutional obligations and promises to the people began to surface as early as 1998. That’s when the Treatment Action Campaign (TAC) formed in order to force then-President Thabo Mbeki to introduce treatment for people who had contracted HIV/AIDS.

Furthermore, corrupt government deals with business were being reported on. The most notable of these was the “Arms Deal,” which saw billions of state funds spent on an unnecessary arms procurement program at bloated prices, and which fell short of delivery and contractual obligations. Other cases began to emerge; for example, Hugh Glennister challengedPresident Zuma’s disbanding of the Scorpions in 2009.

In the midst of this corruption, in 2007, unbeknownst to the general public, the South African National Roads Agency Limited (SANRAL) convinced the Department of Transport to classify Gauteng’s freeway network as tolled roads. This was in order to finance an overpriced R20 billion bond that was required for a 190km freeway upgrade.

The big mistake (or, perhaps, deliberate plot), was that SANRAL initially kept the Gauteng motorists in the dark about their tolling plan. By late 2010 this secrecy was no longer possible; e-gantries required to manage the scheme began to be erected. Public outrage reigned supreme as SANRAL’s elaborate plan to tax motorists for their daily commute began to emerge. Over the next two years, public pressure forced the government to delay several launch dates for the toll system; not even a 50% reduction in the tariff from 60 cents per kilometer to 30c could placate the irate motorists.

This was when a consortium of business organizations formed a movement under the banner of “Opposition to Urban Tolling Alliance – OUTA,” to interdict and legally challenge the scheme’s launch in April 2012. The successful interdict had a powerful impact on the public psyche. It especially affected the normally compliant middle class sector, who now began to realize their ability to challenge the government’s irrational decisions. Over the next twelve months, under the rule of administrative law, the courts ruled that SANRAL could proceed with their eToll plan, but included a proviso that the public could raise a defensive challenge if summoned for non-payment. This was a vital element within the ruling, as it left the door open for society to remain resilient and to test the scheme’s lawfulness and rationality.

The civil disobedience action that arose was driven by a combination of public anger and OUTA’s ability to counter SANRAL’s propaganda campaign, which sought to attract, coerce, and force the public into acceptance of the unpopular scheme. In addition, OUTA launched a defense umbrella that would take up the legal challenge against SANRAL, in support and on behalf of those summoned for non-payment.

Important to OUTA’s campaign was a dedication to not promote civil disobedience for the sake of it, but because the government had ignored its constitutional obligation to conduct a meaningful public engagement process prior to launching the scheme. Furthermore, the scheme to erect the eToll was a cumbersome, expensive, and largely unworkable option, which made it  an irrational choice when compared to far cheaper and more efficient options of Treasury allocations and / or the fuel levy to finance the upgrade. In addition, this same urban freeway network was not tolled prior to its upgrade and is regarded as social infrastructure; i.e., that which the public use daily to commute to work and other societal engagements. Supporting society’s view on the project was the perspective of a committee commissioned by the president to look into the financing of State Owned Entities in 2013.This committee proposed that ‘user-pays schemes’ should be less favoured as opposed to tax allocations when financing social infrastructure — social infrastructure “including roads,” the committee clearly indicated.

In taking up the challenge, OUTA’s leadership needed to publically lead the charge by not paying their eToll bills and thereby being prepared to both defend their position in court, and face the consequences if found guilty. When big business decided to cease its funding support of OUTA (after the government applied pressure on them to do so in 2012), it became clear that this was the public’s fight. OUTA’s strategy to challenge the government needed to be funded by the public and small business. 

As part of its decision to support the public’s legal challenge (for as long as the public funded its campaign), OUTA decided to employ its own legal team to manage the cases brought against the public by SANRAL. The OUTA team also introduced an effective communication strategy to keep both its supporters and the public informed about the eToll case, as well as other instances of the government’s abuse of tax-payers’ funds.

In essence, OUTA’s challenge was to tackle an irrational government policy. In order for a policy to be classified as irrational, it must be deemed  either administratively unworkable, cumbersome, expensive, or the worse of two or more options available to the government when setting out to achieve its duties to society. When all of these issues occur, it makes sense to challenge the government’s decision; more so as these decisions (such as the eToll one) have a tendency to become difficult to administer and worse, unenforceable. When this happens, the government begins to suffer a crisis of legitimacy. No sane citizen wants to live in a society where its government struggles to manage its own policies.

The role of civil disobedience is to remind the government that it needs to rule in the best interests of its citizens and communities. Policies should not promote schemes or taxes that negatively impact the people they should serve.

Despite the eToll scheme being in operation for over five years, its compliance levels are extremely low, at 25%. As a consequence, its income barely covers the scheme’s administration costs, let alone the bonds or the interest charges thereof. Had the 10c increase in the fuel level been applied – as was suggested by OUTA – the capital portion of the inflated R20bn bond would have already been covered, which indicates that civil society’s option was the better one to apply then and still would be today.

Although the final decision to pull the plug needs to be made, the public’s case-by-case, legal resistance through OUTA has made the eToll scheme essentially ineffective. The eToll matter is an example of how a quiet, non-destructive and coordinated civil disobedience campaign can convince or force the government to cooperate with its citizens.

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Wayne Duvenage spent much of his working life was spent at Avis, where he was the Chief Executive between 2007 and 2012, whilst also fulfilling board member roles at the SA Vehicle Renting and Leasing Association (SAVRALA) and the Tourism Business Council of SA (TBCSA). Wayne has chaired the Opposition to Urban Tolling Alliance (OUTA) initiative since its inception in March 2012, which later became the Organisation Undoing Tax Abuse and expanded its mandate to tackle broader issues related to public sector maladministration and corruption. Today, OUTA is regarded as a leading civil activist organisation in the fight to address the abuse of authority within the public sector. Wayne schooled in Kwazulu Natal and is a B.SC graduate of the University of Natal. Wayne describes himself as realist, activist, writer, speaker, change agent, entrepreneur and family man all harbored in one restless soul. His favourite quote is by Tyree Scott who once said: “You can’t leave those who created the problem, in charge of finding the solution.”

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