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the phoenix
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4
| july 2012
W
hat got me to write this editorial was an e-mail from OUTA (the Opposition to
Urban Tolling Alliance) which I received on 7 June. The e-mail was an appeal
for those opposed to the tolling of urban roads to contribute fnancially to the
e-toll campaign, and specifcally to contribute towards the legal costs of the campaign.
All good and well, but unfortunately the money is needed to fght an organisation, namely
Sanral, backed by government, which is prepared to win their argument via a “litigation by
attrition” strategy. The real tragedy is that we, as taxpayers, are being asked to contribute
our hard earned money to fght against a government that is using our very own money, i.e.
taxpayers’ money, to force us to accept a patently unfair transport solution that has been
foisted upon us. In my outrage, words fail me, so I turn to someone far more eloquent, John
Clarke, a Wild Coast social worker who is assisting Pongoland Wild Coast rural residents
in their own fght against Sanral over the N2 Wild Coast Toll road. Clarke says that when he
interviewed Sanral CEO Nazir Alli (he who resigns then un-resigns) in July 2006 it was clear
that he was only prepared to compromise if forced to do so by the courts. “I met with him
to try and fnd a negotiated solution to the impasse, but he refused to budge and adamantly
maintained that he would ultimately be vindicated through the courts. As a social worker
every fbre of my being rebels at the thought of having to raise funds to fght court battles to
solve problems. But my head had to overrule my heart when it became obvious that Mr Alli
was banking on a ‘litigation by attrition’ strategy. As morally repugnant as this approach is, if
money is the only language one’s opponent understands, then one has to fnd the money.”
In a previous e-mail from OUTA, Clarke points out that there are at least fve common profle
points between Sanral’s e-tolling proposal and the N2 shortcut proposal: Covert deals struck
with private sector commercial interests to use public assets for private commercial gain;
well-connected politicians, former cabinet ministers and senior government ofcials appear
as signifcant benefciaries of the scheme at the expense of cash strapped road users;
massive media campaigns to market the schemes rather than open engagement; side-lining
of senior Sanral executives who question the dominant line; and recourse to adversarialism
through the courts with a ‘litigation by attrition’ strategy when opposition and discontent
inevitably surface. Clark adds pertinently that in order to achieve justice through the court
three things are necessary: the right case, the right client and the right advocates. “OUTA as
a broad based civil society organism representing the motoring public is the right client, they
have an extremely just case and their legal team have already shown they are very clever
and very hard working. The only advantage that Sanral has over OUTA is that Mr Alli has the
national treasury at his disposal to fund his defence and thus to ‘litigate by attrition’.”
Well said, but I wish to comment on Clarke’s third necessity, the right advocates. Yes, they
may be right, but if one peruses the costs of litigation just from Sanral’s side, it is R3,9
million for the high court interdict, a further R3,3 million for the constitutional court appeal,
and another R3,3 million for the high court review. And believe me, it will get even more
expensive if the government pursues its ‘litigation by attrition’ strategy. I doubt if any other
government on the planet would be able to get away with this profigate waste of taxpayers’
money, but this insane situation does not solve the problem. So back to the meaning for
my headline – for whom the till rings. As per normal, the only guys who win in the end are
the lawyers, so why can’t the Sanral legal team do this pro bono publico? After all, they as
road users will also beneft, but more importantly by reducing the legal costs they efectively
nullify Mr Alli’s litigation by attrition strategy. Food for thought, I think.
ForWhom
If I read another headline
manipulating “for whom
the bell tolls” to introduce
a story on the e-toll saga, I
shall be forced to visit the
guilty party and to physically
remove said offender to a
place of safety for old pun
perpetrators, also known
as pathetic paronomasia
pundits. Having said
that, please allow me
to perpetrate the same
offence, but with a far more
original spin.
the Till Rings