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Johannesburg - The government has managed to ensure the details of e-tolling will never be made public – despite a court review of the system coming up next month.
In order to see the documents surrounding the e-toll tender and contract, the Opposition to Urban Tolling Alliance found it had no choice but to sign confidentiality agreements.
This means the public may now never know the full agreements, pricing and subcontracts surrounding e-tolling of Gauteng’s highways.
After the Pretoria High Court ruling in May that interdicted e-tolls from going ahead in Gauteng, the alliance has been asking the SA National Roads Agency (Sanral) and the government for in-depth documentation they said was needed to prepare for a full review of the system.
But the alliance did not receive the document, even when the case was taken to the Constitutional Court and the high court interdict was overturned.
In August, the alliance brought an application before the court asking that the documents be handed to them. They wanted the full contract between Sanral and the toll operator, Electronic Toll Collection, and the complete tender documents.
In particular, Outa wanted to deal with the true costs behind the contract.
Sanral initially told the public the e-toll tender was R6.2 billion. But it later emerged this figure appeared to be escalating and figures of R9bn, R15bn and even R30bn to operate the system were surmised.
Government-appointed attorneys Werksmans responded on September 6 telling the alliance they would supply documentation only if a confidentiality agreement was signed.
The Werksmans e-mail indicated that if the alliance did not agree to the confidentiality, their clients would file opposing papers “which will challenge the issue of urgency” and they would file a “substantive response to your client’s affidavit, which will delay the hearing of the application”.
The confidentiality agreement declared that the information of the documents could not be given to any third party and that all documents be returned once the legal team had analysed it.
The e-mail also indicated that Werksmans would be seeking an order from the court ensuring confidentiality when the court review began.
This means that parts of the court case could be held in camera or that large sections of the case and legal documents could be hidden from journalists and the public.
“That some, if not all, of the information requested contains information that is proprietary to our client and that it is imperative that the integrity of this information is maintained within the parameters outlined above,” the e-mail read.
“It is and remains our client’s view… that the documentation and information requested… are and remain irrelevant to the issues required to be determined in the review application.”
Pieter Conradie, an attorney at DLA Cliffe Dekker Hofmeyr, representing the alliance, said they realised if they did not agree to Sanral’s confidentiality terms, Werksman’s opposing application would set back the review next month. This was something they decided they did not want to risk.
“So we signed the agreement,” said Conradie, adding that they had received the documents needed and had filed responding papers based on them to the court.
Because of the confidentiality, the responding papers were delivered to the Pretoria High Court in sealed boxes and given to the office of the Judge President.
The SA National Editors Forum convenor in Gauteng, Makhudu Sefara, said it was problematic for freedom of expression that large sections of the e-tolling contracts remained secret.
“When officials say to members of the public that the user-pay principle applies on Gauteng’s e-tolls, they must realise they, too, have a responsibility to account to the public on how public money is spent.
“The secret deal entered into on this highly emotive issue bodes ill for much-promised transparency and accountability. It is a slap in the face for freedom of expression,” he said.
The court review is set for November 26 to 29.