Ruling on e-tolls opens doors

2012-05-06 10:00
Ralph Mathekga
The Sanral e-tolling system united our country by sparking resentment that spanned across race and class.

The anti-tolling campaign is the most unifying issue that has brought together trade unions and pressure groups, including the opposition parties, against government’s attempts to levy Gauteng motorists for using highways.

The battle is not over yet, as the court is yet to evaluate and decide as to whether the
e-tolling system is fair.

But the campaign and the court case have the potential to change the public’s perception of the use of the courts to review and possibly block undesirable government policy in South Africa.

Government has peddled the idea that the “white” opposition camp led by the Democratic Alliance has been using the judiciary to frustrate ANC policy.

But the e-tolling saga reveals a different picture, where the role of the judiciary as a means to block thoughtless government policy is appreciated not only by the opposition camp, but by the public who stand to be affected.

In the case against Sanral, government’s mandate has been brought into question by the public. In this instance, the ANC cannot resort to the usual line of attack that the judiciary lends itself to use by the disgruntled minorities.

Questions need to be asked about where this e-tolling saga is going, and whether the urgency and unity of public interest that has been shown in the anti-tolling campaign can survive beyond this case.

We live in a country where there are means through which government policy proposal can be interrogated.

Parliament is supposed to be the forum through which proposed legislation and policies are interrogated to see whether they are in the public interest.

But Parliament is under the control of a single political party, and opposition parties have no means to meaningfully challenge the passing of laws that could hurt the public.

To add to this problem, the ANC seems unfazed when its proposed legislation and policies encounter resistance.

For the ANC, its majority in Parliament exonerates it from needing to reassess proposals when concerns are raised.

The political system in South Africa and the political culture shown by the ruling party does not provide an opportunity to soothe dissenting opinions.

In some countries, the ruling party or president would make an effort to comfort and rein in dissenting opinions to make sure that policies are not seen to come from a single mandate and please a specific constituency while not being mindful of public interest.

It is necessary to consider that public interest is not necessarily the will of the majority, but the aggregation of the will of the majority and the dissenting minorities.

In South Africa, where the ruling party controls Parliament in a way that precludes meaningful interrogation of policy, the courts remain the only available option to provide an assessment.

Some of the questions that are going to be raised in the court review would have been raised in Parliament had the ruling party made an effort to address dissenting voices.

Not every party in Parliament would have been satisfied, but had the debate been handled well, it might have persuaded the ANC to rethink the system.

Whether or not the court’s review scraps the e-tolling system, it is clear that government has delved into the unfortunate terrain where its mandate is being questioned by the public.

While government is studying the e-tolling judgment, it should learn to heed public opinion and engage dissenting views.

Whichever way the case goes, government cannot emerge a winner for two reasons. If e-tolling goes ahead, it would have pushed for a policy through the court system and not through a popular mandate.

If the court decides to scrap the system, government would be exposed for having tried to bully the policy through, only to be stopped by the courts.

But this case should inspire more attempts to take government to court when its policies, or lack of them, seem to adversely affect the public.

If the political system continues to fail to inspire meaningful parliamentary debates on government programmes, people have the right to have government programmes evaluated in court.

But the use of the judiciary to interrogate and question government policy should not be a channel available only for the middle class and urban-based population.

The unity that prevails against Sanral e-tolling, and the use of the court to express this, is something that should be extended to vulnerable communities that need services from government as well.

Legal expenses are obviously prohibitive, but it would be interesting to see lawyers contributing their services on a pro bono basis to assist some vulnerable communities to secure certain goods from government through the courts.

It is up to the middle class to extend a helping hand to the vulnerable communities by helping them to engage government in a better way.

» Mathekga is a political analyst