E-Tolls: Who really controls the puppet strings?
27 April 2012
All the ingredients were on public display - a dramatic twist in the e-tolling plot; a court hears that should the project be interdicted, the system could be on ice for more than a year; finance minister Pravin Gordhan makes a surprise cameo appearance; and the world learnt who holds the real power in South Africa.
It was almost the end of the day when SA National Roads Agency (Sanral) boss Nazir Alli and his legal team began darting in and out of the courtroom. They huddled outside in the dimly lit corridors or paced up and down, speaking frantically and furtively on cellphones. We could see on their faces that something dramatic was happening, but had no idea what.
Then, at a few minutes past 16:00, a tweet from one of the most powerful men in South Africa appeared in our Twitter timelines: "ANC & Cosatu leadership agreed to postpone implementation date for e-tolls by month to allow task team more time to explore alternative funding," Cosatu's Zwelinzima Vavi tweeted.
It felt like a silent cluster bomb exploding in the grand old North Gauteng High Court. We were at the very end of day three of - to borrow Vavi's words - "the mother of all legal battles" to stop the controversial, multibillion-rand project.
The entire case had run its course against a deadline set for Monday 30 April 2012 - the day the switch would be flipped and e-tolling would come online. The judge was mere minutes from calling a special sitting on Saturday morning to announce his verdict, volunteering to spend Freedom Day weighing up more than 3,000 pages of argument and evidence.
It was a case that could - as the treasury's advocates suggested - make legal history and this made Vavi's sudden announcement feel like that galvanising moment as a stranger bursts through the chapel doors, shouting for the priest to stop when he was about to say "I now pronounce…"
But the intrusion and the last-minute decision to postpone the launch - as dramatic as they were - are not the real issues here. What's more interesting is what went on behind-the-scenes in the lead up to this bombshell. And what it says about who wields the real power in South Africa: the government or the politicians.
How was it possible the tripartite alliance partners, Cosatu and the ANC could make such an announcement instead of the Department of Transport and Sanral, the official custodians of the project? On whose authority was this being done? If those in Luthuli House are the country's real puppet-masters holding all the strings - as it's been suggested - they should have still let the puppet do the talking.
"Obviously the ANC is making decisions on behalf of the state," said Wayne Duvenage of the Opposition to Urban Tolling Alliance (Outa) outside court. "I think they have some influence on the state, one imagines…"
Others went further to suggest Cosatu had won a political arm-wrestling match against the ANC, using its numbers and the threat of mass protest to force a victory. With an elective conference at the end of this year and reluctance for disruption along the way, the ANC then made sure the project was postponed yet again.
But a decision like this does not come without ramifications. It is hugely embarrassing to have mixed messages on e-tolling. Up until yesterday, government, through transport minister S'bu Ndebele, remained adamant it was ready to launch. That "Plan A is Plan A and Plan B is Plan A", as the jargon went. Much was made in court and in public of the oodles of time opponents of the e-tolls (read: 99.99% of Gauteng) had been given to make their voices heard. Now we were being told more time was needed for a special task team to look at alternative funding.
The question of funding is not some small glitch - it is a major and fundamental issue and the basis of the court case, which seeks to declare the entire system irrational. Also, throughout the case, Outa had argued they were not able to bring the urgent interdict because the project was plagued by ambiguity, confusion and numerous postponements (four to be exact).
In ruling on the urgency issue itself, Judge Bill Prinsloo agreed, saying clarity on the fate of the four-year-old project only emerged in February this year. What will he make of this bungled announcement of yet another delay, and even more uncertainty?
Outa believes the latest development will strengthen its case and play in its favour. We don't know what Sanral thinks because Nazir Alli walked straight out of court - past a group of journalists - without even so much as a mumbled "No comment".
A few hours later, the Department of Transport put out a one-sentence statement confirming the postponement. It claimed this was being done to "finalise regulations following input on regulatory and administrative issues from the public and interested stakeholders". The ANC was quick to add, "this shows leadership and responsiveness on the side of the government."
In other words, the party would have us believe that people-power and not politics, was behind this decision. And while Judge Prinsloo has revealed that "immense public interest and widespread protest" had factored into his thinking on urgency, the department's statement may be more difficult to swallow for many people.
Meanwhile, looking back at what happened in court on the third and final day of the hearing, perhaps the most interesting is the treasury's comments about how long a full review of e-tolling would take, should it be granted. The Treasury's Jeremy Gauntlett says by its calculation, taking into account the inevitable appeals, the review will not end this year. Should an interdict be granted, he argues, the system would gather dust for the rest of the year, at great cost to Sanral. Both Sanral and the Treasury compared it to a shop which was not able to open its doors, and was losing over R200-million a month because of it. Every month that goes by makes it more difficult to service the debt and the risk of default increases.
The court also heard metaphors relating to Eskom, suggesting that e-tolling was like the construction of a power station with everyone wanting their lights on, but nobody willing to pay for it. Sanral, through its advocate David Unterhalter, charged that complex economic policy should not be second-guessed and should remain in the realm of those who understand it. A comparison was made to the public challenging interest rate decisions or the tax imposed on whiskey. "Just look at Greece" warnings were also issued.
Unterhalter argued that the damage (stopping the tolls) would take just months to be done, but the economic effects would be felt for years. "It will reverberate through the financial markets and we will suffer because of that for years to come," he told the court. Sanral also claimed the project was a massive puzzle and the alliance had chosen to selectively use a small piece of it to make its calculations about economic viability. It said the initial calculations were done in 2008 and must be brought up to date to make sense in today's environment.
"On the right figures at the right time, the system is not irrational," Unterhalter maintained.
There was also argument about the environmental impact, about how much it would cost to chase motorists who refused to pay and about alternative transport available to commuters. On that score, Sanral claimed it had not made promises about alternative transport, but only said it would promote the use of new systems that were being developed. "A government doesn't always do what it hopes to do," Unterhalter explained. "We are not unique, this happens to governments around the world. But it does not make the project unlawful."
And finally, the court was warned (in a "tread-carefully" not a "you'd-better-not-grant-this-interdict" kind of way) that a decision to halt the project would be completely unprecedented. A polite way to say to the judge: "Do you really want to be the first to cross this line?"
On a lighter note, the day also saw some priceless exchanges. When Judge Prinsloo asked Gauntlett whether he had a plane to catch, the silk was quick to say, "This is more important than airplanes, we are dealing with roads." In another instance, Alfred Cockrell was discussing the ambiguity of a point when the judge interrupted: "Lawyers are paid to be ambiguous".
The day ended with Cockrell's final reply for Outa and the case was postponed until 11:00 on Saturday. At that point South Africa should know whether e-tolling has been interdicted.
The mystery of Pravin Gordhan's cameo for an hour or so remains unsolved. Some say he wanted to get a feel for the case. To "smell the room" like former US president Bill Clinton, used to do. Others believe it was a tactic to intimidate the court. The question that remains is, will the month-long delay of the launch affect the court case in any way?
It's difficult to say for sure, but lawyers for Outa suggest the only threat is that Judge Prinsloo may now want to take more time in writing his judgment. With the urgency of Monday's launch removed, he may buy himself more time to rule on a case which carries with it tremendous consequences. But Outa's lawyers also say the case is about first stopping the launch and then reviewing the entire project, and therefore a month's grace is quite simply not going to cut it. The triller continues.
This column also appeared in The Daily Maverick.