Only ourselves to blame
THE Pretoria High Court's decision to dismiss the application by the Opposition to Urban Tolling Alliance to have the decision to implement e-tolling on Gauteng freeways stopped provides a textbook example of how the media and the middle class often fail our democracy.
It also serves as a warning that citizens should not turn to the courts in the hope that judges will help them solve political problems.
It might well be that e-tolling is not the most cost-effective, fair and efficient way to pay for the major upgrading of urban roads.
It might also be that the middle class, which will now have to pay tolls every time they speed from Johannesburg to Pretoria in their sports utility vehicles and luxury sedans, will pay more than they would have if a different method were implemented to pay for the upgrading. It might even come to light, who knows, that there was some corruption or nepotism in the awarding of the e-tolling contract.
But these are not the questions acting Judge Louis Vorster was asked to answer - and rightly so. The alliance could not provide the court with evidence of corruption. The other questions raised above relate to policy issues, which must be determined through the political process, not the courts.
It is important to remember how this case landed in court in the first place. Back in July 2007, the cabinet approved the implementation of e-tolling for Gauteng and in October of that year the transport minister announced the launching of the project. As a result of the acceptance by the cabinet of the toll-road scheme, the toll-road declarations - eventually attacked in court by the alliance - took place.
As the court pointed out rather wryly, the members of the alliance were, and probably still are, in favour of the upgrading of the freeway system in Gauteng.
It was only when they learned about the proposed tariffs, published in the media, that "they became bewildered and concerned". This was almost five years after the cabinet had approved the upgrading of the roads through the e-tolling system.
The important question to ask is why members of the public became outraged only when newspapers splashed alarming news of the tariffs (since reduced) on their front pages. N o one had thought of asking back in 2007 whether e-tolling was a good idea and how high the tariffs might have to be to recover the huge expense incurred by making Gauteng's roads pretty for Sepp Blatter and his fellow raiders from Fifa.
If citizens want the government to listen to them, then they have to remain vigilant about government decisions affecting them and must be prepared to organise against such plans from an early stage. As the Right2Know campaign has shown, public campaigns can have a huge impact but they require active citizens to get their hands dirty even before it is apparent that they will be directly affected by a policy.
When the alliance finally approached the courts to stop e-tolling, it relied largely on the alleged failure of the government to weigh up the costs of the upgrading and of operating the e-tolling system. It argued that, given the cost, the decision to implement the system was unreasonable and hence invalid.
The Constitutional Court drove a stake through the heart of this argument when it overturned the interim interdict against the introduction of e-tolling.
The alliance also argued that adequate notice of the tolling system was not given to the public, making real public participation in the decision impossible.
But the court pointed out that the proposed toll-road declarations were published in the Government Gazette and in newspapers circulating in Gauteng.
The alliance suggested that this was insufficient and that notices should have been put up adjacent to the roads in question.
Judge Vorster also rejected this argument, pointing out that the South African National Roads Agency Limited published the requisite information in the media.
The argument that such notification was inadequate and therefore unfair rests on the erroneous assumption that each and every user of the proposed toll roads had a right to be informed, given the importance of knowledge of the proposed expenditure of the scheme and the proposed tariffs.
I suspect that some citizens are going to complain bitterly about the outcome of this judgment. Some might argue that the judge hid behind the separation of powers doctrine to abdicate his judicial responsibilities or to make a career-advancing ruling that would please the ANC government.
These mutterings will be irresponsible and dangerous. One criticises the substance of a judgment and the nature of the statements made by a judge. One does not impugn a judge's integrity merely because one does not like one of his judgments.
Questioning the integrity of the judge would also be ill-informed and based on the lazy assumption that judges should interfere in policy decisions even when citizens failed to do their bit to block such decisions because they were too busy making money or planning their next overseas holiday. It is the media and citizens who failed our democracy - not our courts.
- This is an edited version of an article that first appeared on De Vos's blog, Constitutionally Speaking