Small Business Stuff Chat about SMME issues

Parastatals – A Law Unto Themselves

I've been thinking about the role of the parastatals, prompted by the introduction of open road tolling in Gauteng.

I would like to consider the constitutionality of devolving authority to parastatals and private companies in the current manner.

To my mind, it is an essential component of law making that the process is open to public scrutiny and input. That is generally the case in the Parliamentary process, with the possible exception of the so-called "Enabling Acts".

However, Government seems to increasingly be devolving operational control of major areas of governance to either parastatals or private organisations.  They in turn develop rules, guidelines, call them what you will for the operation of their remit.  In most cases these rules then assume the force of law and are enforced by private security organisations.

The development of these rules does not include public participation and there appears to be no oversight of their operational enforcement by Government or a properly constituted legal body.

We have seen the ludicrous rule book implemented by Bombela relating to the operation of the Gautrain. That those rules are then interpreted and implemented by the sort of police wanabee uniformed security wonk you find in shopping malls is really not acceptable.

I find it extremely disturbing that parastatals can write their own laws and expect everyone to obey them.  I find it even more disturbing that they can call on the SAP to help them enforce them.   I find it yet more disturbing that there is no constituted legal body overseeing their operations and the manner in which they implement their rule book.

There are other significant questions about the role of parastatals, particularly whether they should be profit driven, or break-even with any surplus ploughed back as investment in their area of work. 

To address the Gauteng open road tolling system specifically in this context. 

It is a given that roads must be paid for. How that payment is made, through taxation, through tolling, or through a combination of both mechanisms is the issue under question.

I have both structural and operational objections to the tolling system as currently being implemented.

My first objection relates to the constitutionality of a non-Governmental body being able to criminalise individual behaviour and use State resources for enforcement.  SANRAL can ask the SAP to pull you over. You can then be arrested, charged and detained for non-payment of tolls. Non-payment of tolls seems therefore to be classed more severely than non-payment of the annual vehicle licensing fee, an omission which usually attracts a ticket.  

My second objection is that there was no public participation in the process, neither of the assessment of the need itself, the payment method, nor of the level of payment. The entire process seems to have been carried out (to quote Harold Wilson) in private sessions in a series of smoke filled rooms. 

The operator is an Austrian company, who on their website are boasting of the "handsome profits" to be made from their management of the tolling process.

I am quite sure that if public participation had taken place that there would have been a much wider and more robust discussion about the need itself, the level of charges to be paid by the user, and the need for the profits, if any, to remain in South Africa for reinvestment elsewhere in the road network.

On operational issues, one common thread that runs through all discussions is that payment must be related to usage. SANRAL say that is what open road tolling provides. This is a straw man's argument.  It is already the case. The more you drive, the more fuel you use, the more tax and levies you pay.

SANRAL also say that the tolls will provide much improved police and emergency services. Again, we already pay for the SAP, Metro police and public health services through direct taxation, and in most cases again through private security companies and medical aid schemes.

A second common thread is that we already pay for the transport infrastructure through direct and indirect taxation, particularly fuel tax and levies. So why therefore, the additional payment of road tolls?

I reiterate as a final thought - why should public infrastructure of this type be run at a profit. Surely SANRAL should operate as a non-profit organisation, and any "profits" (usually called a surplus in Government speak) ploughed back into maintenance and extension of the road infrastructure.