Why e-tolls are unconstitutional

Outa has submitted a 10,000 word complaint at the office of the Public Protector, claiming that The South African National Roads Agency (Sanral) has breached seven of the entrenched human rights contained in the Constitution.

According to a statement issued by the organisation, it has offered to mediate complaints to the Public Protector on behalf of the public – and the nature of complaints received by Outa suggested Sanral was in breach of the following human rights:

  • The right to privacy;
  • The right to access of information;
  • The right to dignity;
  • The right to just administrative action;
  • The right to freedom of movement;
  • The right to equality before the law; and
  • The right to freedom of conscience.

The consolidated complaint, issued by Opposition To Urban Tolling Alliance (Outa) spokesman John Clarke, has distilled ten “statements of grievance” to substantiate the alleged violations, with corroborating information from media sources and interviews with people visiting e-toll customer service centres, the group said.

“The grievances present a formidable challenge for Sanral and the Transport authorities. Unless there is a radical turnaround this albatross will never fly. Perhaps the most worrying aspect concerns the allegations of violations of the right to privacy on the one hand, and the failure of Sanral and its agents to respect the constitutional right of access to truthful information on the other,” Clarke said.

“Our right to privacy is not been upheld, while our right of access to information is being denied. That’s completely the wrong way around in the relationship that should prevail between citizens and the State.”

No legitimacy

Outa argues that, chiefly, Sanral has failed to do its duty in dealing with public complaints, protecting client information and operating transparently, amongst others.

Outa pointed to three security breaches in Sanral’s IT systems, as reported by MyBroadband in January 2014, which allowed anyone to access the personal details of users.

“Although ETC has apparently patched the flaws, no apology nor letter has been sent to their registered website to warn them to change their passwords/PIN numbers,” Clarke said.

According to Clarke, these “childish” security mistakes, denialism, indifference and defensive responses from the agency, undermine its position and legitimacy.

Through the Public Protector, Outa aims to get face-to-face meetings with Sanral CEO, Nazir Alli, MEC for Transport, Ismail Vadi, and Acting Director General of Transport, Mr Mawethu Vilana.

“We have to get beyond silly adversarial contest and self-deceiving media spin. Things are serious and the grievances are not a matter for media spokespersons to handle. There are critical line management issues at stake,” Clarke said.

“It is time for Sanral executives and Transport authorities to face the truth of what has surfaced over the past eight weeks.”

The 10 statements of grievance

  • Dishonesty in reporting on the sales of e-tags, by fabricating an illusionary and self-deceiving impression that the system is functioning according to plan, and for failing to take users into their confidence on the extent of the security breaches after the Sanral IT systems were hacked or notifying the user base as a whole that their personal data may have leaked.
  • Abuse of their authority and power by sending unjustified, inaccurate and offensive messages to people that have provoked needless fear and anxiety and undermined the legitimacy of the State in its function to uphold the Rule of Law.
  • Discrimination against “alternative users” of the freeways by failing to provide the promised level of service to enable them to take advantage of discounts, process their payments via internet banking, and provide them with documentation for normal accounting purposes.
  • Unfairly penalised alternative users with exorbitant and extortionist tariffs if they do not pay their e-toll bills promptly, while failing to provide users with accurate and timely tax invoices and proof of the usage charged.
  • Maladministration of the data bases and mismanagement of the IT systems by failing to ensure the necessary data integrity of primary sources and clean up the system, while expecting the users to take responsibility for initiating remedies to correct the errors and problems.
  • Obtaining personal information of people by violating their right to privacy.
  • Discourtesy to people seeking redress and explanation for errors and problems that have arisen from internal problems.
  • Failure to give complainants access to information necessary for the exercise and protection of their constitutional rights, and specifically their consumer rights.
  • Failure to provide reasonable and transparent justification for decisions taken by the authorities with respect to public money.
  • Failure to provide the advertised discounts for users who have bought e-tags and have signed Sanral terms and conditions.

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Why e-tolls are unconstitutional