Constitutional Hill

E-toll civil disobedience reveals lack of respect for democracy

As the start of the levying of e-tolls in Gauteng looms, many motorists are saying that they will refuse to buy e-tags, implying that they will also refuse to pay the tolls once they are charged double the price for driving on the toll roads without an e-tag. In other words, they are implying that they will refuse to obey a validly passed law that does not infringe on the fundamental human rights of anyone. This refusal to obey a constitutionally valid law passed by a democratic government, displays a worrying lack of respect for (and understanding of) democracy.

The Rolling Stones might as well have had the voters in a democracy (or in any other system of government) in mind when they sang “you can’t always get what you want”. No citizen has a right to always get what he or she wants from the democratically elected government – whether he or she voted for the governing party or not.

You can hope for the best, but you cannot expect to agree with every single decision a democratically elected government takes. Sometimes a democratically elected government will adopt policies and pass laws that some (or even a majority of) voters will not like.

When this happens, unhappy voters who respect the democratic process cannot normally break the law to try and subvert otherwise validly passed policies or laws. When they do this, they subvert the democratic process by using non-democratic and unlawful methods to achieve an outcome that they could not achieve through the democratic process.

Such behaviour undermines democracy by subverting democratic processes and by undermining the democratically elected government and its ability to govern.

As long as the policies or laws do not infringe on the rights of anybody and do not undermine the democratic freedoms that secure meaningful on-going participation of all citizens in the democratic process, those who are committed to democracy have a moral and legal duty to obey the policies and laws with which they do not agree.

The situation may be different when the democratically elected government undermines democracy by moving to limit your democratic freedoms. When the government changes laws or policies to draw a veil of secrecy over its activities in order to avoid accountability or when it changes the rules of democratic engagement to give the incumbent party an unfair advantage in elections, citizens (as custodians of democracy) may have to resort to more drastic action to protect democracy itself. In such cases, ignoring the law is aimed at protecting democracy itself and would be morally justified.

But in the absence of such anti-democratic moves by a governing party the options for voters to influence the laws and policies of a government are limited to legal steps that respect the legitimacy of the democratically elected government and the democratic process itself.

In a democracy you vote for a political party who may or may not get enough votes to form the government. If the party of your choice fails to gain a majority of votes in an election, you have to wait until the next election in the hope that the party of your choice will be able to convince a majority of voters to vote for it.

Even if the party of your choice won the election, it may well adopt policies or pass laws with which you disagree. You can hold the governing party accountable by threatening to withdraw (or by actually withdrawing) your support for that party in the next election. After all, when you vote for a party in an election, you are merely lending your vote to that party on the condition that it acts in a manner that guarantees it your support in the future. When it acts in ways that breaks the relationship of trust with the party, you must change your vote and lend it to another party.

This does not mean that democracy requires citizens to remain passive bystanders in-between elections. All citizens have a right to participate in the democratic process by making submissions on proposed laws and policies, by organising opposition to those aspects of laws or policies they disagree with, by expressing their displeasure of laws or policies in the media, by challenging the laws or policies in court and by taking part in peaceful protests against specific laws and policies of the government.

It is clear that many middle class people living in Gauteng are very upset about the introduction of e-tolling by the government. They argue that the system of financing the upgrading of highways is inefficient and unwise and that there may well have been better and more cost-effective ways to finance the upgrading of the roads. These arguments appear to be valid, but the government of the day has decided to ignore all the objections and to go ahead with the implementation of e-tolling.

Several courts have declined to interfere with the decision to impose e-tolling on Gauteng freeways, suggesting that the laws and policies are constitutionally valid. While perhaps unwise, the imposition of e-tolls does not infringe on the human rights of anyone and neither does it subvert the democratic process. It’s a bummer, but e-tolling has been validly introduced and citizens who respect democracy must therefore obey its prescripts.

A democrat faced with such a situation is not powerless. First, he or she can decide that the government who introduced e-tolling must be punished at the next election and can lend their vote to another political party. If enough voters show their unhappiness in this manner, a new political party will gain the majority of votes and will become the governing party who will be able to scrap the introduction of e-tolls.

Secondly, he or she can take part in massive peaceful demonstrations to demonstrate to the government of the day that the policy is unpopular with citizens. I have no doubt that if a million people gathered outside the Union Buildings and remained there for a week or two to protest against the imposition of e-tolls, the government would be forced to rethink the policy.

But this has not happened. Most South Africans who oppose the introduction of e-tolls appear to be too lazy or too wedded to their own comforts to take part in a prolonged mass protest against e-tolls. Citizens want the government to listen to their protests but they could not be bothered to protest in a manner that would force the governing party to take the protests seriously.

Instead, the vast majority of those who oppose e-tolls seem to be choosing the easy, but essentially anti-democratic, way of protesting against the validly imposed and constitutionally sound policy: they are going to refuse to buy e-tags and then to pay for the tolls when they are required to do so.

But there is no moral or legal basis for opponents of e-tolls to disobey the law. They are, in fact, promoting lawlessness, the very lawlessness that members of the chattering classes complain about when strikers break the law or mini-bus taxi drivers refuse to obey traffic rules. They demand a right to be lawless in order to oppose e-tolls, while criticising others who are lawless, displaying a hypocrisy that is all too familiar.

Democracy is not something you can switch on and off as it pleases you, going along with democratic rules when you get your way and subverting the democratic process when you do not. Gauteng residence must heed the advice of Mick Jagger and accept that they cannot always get what they want – especially if they are not prepared to make the sacrifices associated with prolonged mass protest.

  • Michael Mullan

    ………its a bit like saying that storming the Bastille was wrong

  • Nathan Geffen

    Really? The mercedes owners of JHB, like the French who stormed the bastille, have been denied their liberty, freedom and equality?

  • Michael Mullan

    and the 1981 toyota corolla drivers, and the small boy-and-a-bakkie businesses, oops I forgot, joburg is full of mercs

  • Michael Mullan

    only mercs

    I battle every month, always running out of cash, and now i will be poorer

  • Nathan Geffen

    Fair enough, and you might be able to make a good argument for not paying. But your rights aren’t being infringed upon so far as I can see. Not, for example, like people being denied access to life-saving ARVs a decade ago (or the victims of the French Feudal system). If you want to convince people that Pierre is wrong, you’re going to have to come up with a better analogy than storming the Bastille.

    One response I have seen to Pierre is to compare the situation to the boycott of the Thatcher poll tax. That’s worth exploring.

  • SteveGrobler

    I’m dead against e-tolls as much as I am dead against so many other things the ANC imposes on us, but lawlessness is not the answer. Indeed, it’s the lawlessness of the past 20 years that got this country into the sorry state it is now.

  • Mike De Fleuriot

    If you do not like a law and you live in a democracy, then you have your work cut out for yourself. You need convince enough people to your point of view and have them vote as you would want for the law to be changed.

    Do not come and complain if you have not managed to get enough people to vote your way. You certainly had nothing to say when laws where put in place that you agreed to.

  • supersunbird

    A campaign where we all march the union building and staying there for 2 weeks will impact the economy very negatively (who knows how much compared to the negative effects of the e-tolls) and we are all just trying to get by in a tough situation already, ain’t nobody got time for that! The R450 per month I would have to pay (if e-tagged) will be lost to the economy. I might have to retrench the saturday garderner. I already have cut my costs a lot to keep up with the rising cost of living (no DSTV, no cellphone contract and cheap car)

  • David Blyth

    South Africa does not have a democracy!

  • monthofsundays

    Could it be that Matt Damon made a video especially for you, Pierre? Jokes aside, this arrived as a link just two tweets after the link to this article and I appreciated the concidence [ http://vimeo.com/48834336 ] I thought that perhaps you might too.

  • Henri Benade

    Just a tyranny of the majority.

  • Henri Benade

    “Such behaviour undermines democracy by subverting democratic processes and by undermining the democratically elected government and its ability to govern.”

    Ah! Great. Just what we want. I mean, if Zuma, McBride, Schaik, Jafta, Nkabinde, Hlophe, the Guptas and Selebi can get away with – so can we.

  • Rule9

    E-tolling infringes on my right not to be enslaved – enslaved to vested interests who stand to benefit from the decisions they make from their position of power over me without consulting me or abusing their power over me. E-tolling is a clear violation of my fundamental right not to be economically enslaved. Ergo, the law enabling e-tolling is void.

  • A Gentleman Scholar

    Well, here’s the problem with that: Firstly, if, as you say “Sometimes a democratically elected government will adopt policies and pass laws that some (or even a majority of) voters will not like.”, then that government does not respect democracy either. Also, the will of the government is not necessarily the will of the majority (do 51% of South Africans really support e-tolling?), especially in this case. If, as you say, other, better ways (which have garnered more support) have been proposed, surely the government has been flagrantly undemocratic by not implementing those? Finally, e-tolling deprives poor people of freedom of movement.

  • Pingback: Pierre de Vos, E-toll civil disobedience reveals lack of respect for democracy – Raymond Suttner()

  • Karl-Heinz Sittlinger

    Just wondering… Do you really think that the whole etoll saga was lawful? Do you really think there was no corruption involved? Do you think that in a country with its current scandals, from Nkandla to spy tapes, etolls are really there for the good of South Africa? Do you think it is helpful for our economy, to pump so much of our money into another country? I am no legal expert, but it is clear there is something very very wrong here. The only reason this is not in court where it should be in a proper democracy, is due to the fact that the government has unlimited funds for its legal battle.
    Your statement that it is just the middle class that is miffed is misleading or do you think that etolls will have no effect on prices of goods and services for ALL people in Gauteng?
    Generally I would agree with you: two wrongs dont make a right, but in a country where so many things are not done in the name of South Africa, but for a select few in power, we need to resist. It may not be pretty, it may raise moral and legal questions, but it seems there is no other way. If you would have a better suggestion than demonstrations with a million people, hitting our economy even harder, I may even listen, but at the end of the day this has been rammed down our throats by barely legal, mostly secretive ways and I say to all:
    Fight this atrocity and resist!

  • Rule9
  • 1Zoo1

    We do not have a functioning democracy at all Professor.

    We have a party system. Voters do not have access to any MP, and no input to law-making at all.

    Democracy would work if each and every law was the subject of voting by everyone. We can do this now with electronic systems.

    We have paid for those roads through the fuel levy. We are being double-taxed because the State has taken money for the roads and spent it elsewhere. Yes, the Apartheid government started it. It was wrong for PW Botha to do it, and it is still wrong now.

    Each and every N road in this country is going to end up being tolled. Yes Professor, you are going to soon be paying a small fortune to go sip wine in Franschoek.

    And your analysis is wrong. Because a country passes a law doesn’t mean we should obey it if it fundamentally offends us. Do you excuse the SS brigades for (lawfully at the time) conducting mass exterminations of various peoples.

    My personal displeasure is directed at OUTA. OUTA have not focused properly and should simply have forced the cancellation of the exclusion of taxi services from the payment of e-tolls.

    Taxis are not a public service. Public service is a service paid for by the public and run by a public institution.

  • Alistair Plint

    This particular Tax Revolt was bound to come at some stage, it is supported by citizens from all walks of life, from the “Merc Brigade” to the “Toyota Tazz held together by rope” people are standing together and are protesting in various ways. Just because not all protest in the same way does not mean they are not protesting 1.5 million people refusing to purchase an item for R50.00 [SIC] is a sign of solidarity. We have reached a point in South Africa’s history where normal citizens feel their rights are being withheld, they have chosen this Tax Revolt to say so and the government of the day is as expected refusing to listen. It is possibly unfortunate that the new tax brought upon the people at the “tipping point” was indeed eToll. However at a stage that people can’t take anymore, that’s when we can expect to see a revolt. Now on the rights of citizens that was brought up above, assuming the these gantry’s do start on the 3rd December our rights will have been infringed you see before that date I was permitted to freely travel on highway from Alberton to Edenvale on a Sunday to visit my Grandmother who is 87. After the 3rd December I am not permitted to travel freely to visit her unless I have R50.00 odd in my bank account for Government officials to remove. Surely my freedom of movement is infringed? Thanks for the interesting read though.

  • http://www.no-fire.co.za/ Wayne Reddek

    The
    only reason this was supposed democratic and why it is enforced is to
    create more jobs and for the anc and some unions to get the government
    and unions pension funds back, this was never a democratic process
    therefore not democratic, any normal person that does investments knows
    there is a good possibility to loose those funds in this case the dumb
    asses invested thousands of peoples pension funds, if they loose said
    funds they will loose all those votes, now they bully the legal system
    to pass this law, when a countries laws can be bullied by politicians it
    is not a democracy, so which ever way you look at this it was never
    democratic and people should stand by their rights to not just pay
    monies without seeing the correct evidence for those payments. I will
    not get a e-tag, not because i dont live in gauteng, but they already
    said it will be coming to cape town, i wont be getting one here and i
    would much rather expect them to send me the bill with each photo as i
    pass the gantries as it is my right to make sure i am not scammed

  • Mike Brooks

    Ja Pierre, the Rule of Law and democratic responsibility are the soul ambit of the exploited voter cattle. The ruling party and there stooges always tend to fall back on civil responsibility and obedience when confronted. Well here is some news for you. The South African public are tired of the State’s abuse and will react accordingly. You pay the double taxation for the rest of us….OK?

  • night_falls

    Then democracy will have to change Pierre, not the universally lawful, righteous nonco-operation of the people in their own exploitation by a government which has already shown itself to be contemptuous of the broader aspects of democracy itself. There are limits to the usefulness of rationality, and law professors.

  • night_falls

    it is better to undermine democracy than to undermine people.

  • Cecile Kiley

    Pierre I beg to differ. When democracy becomes too ‘expensive’ for us cash cows to support, what option do we have, other than to wait for the face-to-face summons at our front doors. We’re not objecting because we feel like a strike holiday. We’re objecting because we cannot even verify what the CURRENT fuel levies are funding. For all we know, they’ve already paid for the entire e-tolling debacle without our knowledge (because we aren’t privy to that information – we must only continue to ‘fork out’ without knowing)!!

  • Danielle Steen

    In terms of channels that need to be followed by the legislature in order for a bill to be passed and promulgated to the point where it is effective law, the correct process was followed and thus the legislation is legal and can be enforced by the state.

    We, as South Africans, are extremely proud of our Constitution, as we should be. We can boast with one of the most modern and complete Constitutions in the world, which has been formulated with great care and deliberation with special attention given to separation of state powers and measures to assure transparency, accountability and openness in all state matters. There is an extensive process laid out for the legislature to follow before they can pass a law in this country, including a test against the constitution to ensure that no rights or values in the Constitution are violated by the new legislation that is to be passed.

    Part of this process is the consultation with the public, this is in fact done on more than one occasion. The first occasion is when the green paper is drafted (the different policy options being suggested), it is then published for public comment. The second time is after the white paper has been drafted which states the policy that has been decided on to put forward, again it is then published for public comment.

    The outrage and unhappiness expressed by the public comes a little late in this case. Our constitution made room for the public to take part in the legislative process and to give their feedback and input. Thus there are proper channels that can be followed before the passing of the legislation and, as mentioned in the article, there are proper avenues to follow after it has been passed as well.

    The question thus begs the be asked; if we have many options available to make a difference to the governing of our country, options which are legitimate and in line with our democratic values, why is it what a more participatory process is not followed? Are people simply unaware of the proper procedures they should follow? Is there a gap in our education as a nation in terms of the legislative process? My wish is that the whole etoll saga will be seen as a learning curve for the nation in what not to do and a chance to learn for the future.