Traffice is brought to a standstill during Cosatu's go-slow protest in December last year. Picture: MARTIN RHODES
A Cosatu go-slow protest last year. Picture: MARTIN RHODES

THE debate over what has now been described as the e-toll saga — or the short-hand for the proposed public funding of the Gauteng Highway Improvement Project — has raised many questions about who we are as a people, how we relate to one another as well as how we exercise our rights in our young constitutional democracy.

Unfortunately, the discourse, which returns to the courts following the granting of the leave to appeal an earlier ruling, has often elicited emotional reactions, thereby missing the opportunity to adequately address the many fundamental questions of the law. Accordingly, this piece seeks to canvass some of the jurisprudential questions arising from the issue of e-tolling or the electronic payment of tariffs for the motorists using the newly improved highways in Gauteng and warns against the unintended consequences of fellow citizens rising up against constitutional processes and lawfully enacted legislation. It isn’t an argument about the affordability of the proposed fees; nor is it a case for or against e-tolling.

Our constitution guarantees everyone a lawful administrative action. In order to give effect to this fundamental right, Parliament enacted the Promotion of Administrative Justice Act (Paja). Regulations were promulgated under Paja to provide a mechanism in terms of which government functionaries may take administrative decisions. Paja requires that persons who will be affected by an intended administrative action be heard and their representations be taken into account. The Act also recognises that other legislation may allow for a different, but fair, procedure to obtain the views of persons to be affected by an administrative action.

The judgments of the high court sitting as the review court and the constitutional court in the so-called e-toll case or between the Opposition to Urban Tolling Alliance (Outa) and others versus the minister of transport & Others record certain administrative acts that were lawfully taken by the South African National Roads Agency (Sanral) and the Minister of Transport, but later challenged. These acts include the government calling for public comments prior to declaring certain roads toll roads. There is a general disquiet that the public notices calling for comment were not explicit or visible enough. The latter statement justifies an inference that the general populace in Gauteng and the aggrieved litigants in particular had not paid sufficient attention to the relevant notices calling for certain roads to be made toll roads. The silence in the judgments on the submissions that may have been made by the review applicants adds to the probability that the public notices eluded them.

The notices in the e-toll case are not the only neglected instruments of interface between the executive branch of government and the populace. There are similar examples in other sectors where notices go unnoticed. Apathy, though an inevitable by-product of a democracy, is a threat to its longevity. In the e-toll saga, for example, having woken up to the realization that the e-toll system was about to be implemented, society’s voices, through various formations including Outa and other civil society groups, suddenly raise to a crescendo.

The foregoing, which has manifested through public protests and anti-e-toll campaigns as well as the numerous court challenges, happened despite the fact that the Act and the regulations in terms of which the tolls were to be implemented and the administrative actions intended in respect of the e-toll system were published and the public had sufficient time to influence their final content.

Was it not the duty of the public to engage the executive branch of government and acquaint itself with the details of the intended toll roads during the public consultation process? Although Outa begrudges the government for not having done enough, it also accepts that certain efforts were made by the government to consult. Why did civil society, including Outa, not attempt to influence the administrative action before it was taken? This question arises because the facts seem to suggest that the executive branch of government acted in the manner contemplated in the legislation enacted by a democratically elected parliament — a law whose constitutional validity was never an issue.

In the theories of social contract, we are instructed that human beings formed early governments and subordinated their wills to governments in order to ensure orderly resolution of disputes and peaceful co-existence. This is in contrast to a state of nature where an eye for an eye and self-preservation are the order of the day.

I dare argue that in a modern democratic state, the principle of legality requires us to obey all laws properly enacted or administrative acts properly made until reviewed and set aside by a competent court. This is necessary to ensure the efficacy of the government and to provide for certainty among various stakeholders including users of our roads as well as the financiers who funded the new roads infrastructure. Uncertainty of the kind bred by the e-toll case threatens the foundations of our democracy and the rule of law. The impact of the case extends to the government’s R1-trillion infrastructure programme – to build and extend our ports, pipeline, power, water and rail network – which promises to help enable the creation of hundreds of thousands of the much needed jobs. It is not likely to promote private sector participation or foreign direct investment in such a programme for fear that there may not be a fair return for investments made.

Left unchallenged, it will also set a dangerous precedent that, as a citizenry, we have no respect for the rule of law. The opposite to the rule of law or cavalier attachment thereto can only be step towards chaos and a recipe for tyranny.

The author, an admitted attorney, is special adviser to the Minister of Public Enterprises Malusi Gigaba, MP. He writes here in his personal capacity.