The sham of ineffectual consultation

Carol Paton

IF YOU live in Cape Town or the winelands, you were consulted about the government’s intention to toll the N1 and N2 highways.

As a resident of Gauteng, you were consulted about e-tolls. As a citizen of SA, you have been consulted not once but perhaps even three times on the government’s plan to build six new nuclear reactors to generate electricity.

If you failed to notice, it was not because you weren’t paying attention. The consultation process in each case was so devoid of the content that matters — such as what this project will cost you — that it cannot be described as anything other than a sham.

In the case of road tolling, the sham is built into the legislation that governs it. The SA National Roads Agency (Sanral) Act says that before the agency can declare a route as tolled, it must publish a notice with a map of the road and toll plazas and invite public comment. As this reveals very little, there is nothing substantial on which to comment.

Sanral then compiles a report, which includes expert opinion, for the minister of transport. The public never sees this report. In the case of the N1 and N2 now under scrutiny in the Cape High Court, the expert opinion looked at the benefits of upgrading the roads through tolling, versus the consequence of not upgrading at all. Looking at a third option — that the upgrades are financed differently — was not part of the expert’s brief.

Transport Minister Jeff Radebe signed off on all 1,560 pages the same day he received it. His conclusion — in line with Sanral’s suggestion and expert opinion — was that the routes will be tolled. The assertion in the report that the project would be implemented “with no financial contribution from the state” was no doubt an important factor in his very rapid decision. That it made no mention of the magnitude of the toll fee that would make this possible did not form part of his concerns.

It is only at a later stage, when the contracting is done — and in the case of the Gauteng freeways, the roads already built — that the question of the toll fee arises. Determining this, once again, falls to the minister, obviously on the basis of Sanral’s advice. Here, the public is again consulted on the matter.

But with the contracts signed and finance priced in there is no room to move. The public may suggest, for instance, certain exemptions, but the die has been cast and the costs decided.

Not even SA’s wonderful Promotion of Administrative Justice Act can save the situation. While the act provides for recourse to administrative fairness, in a large capital project such as a highway or nuclear power plant, once the contractual commitments are made it is too late to reverse the process.

If the public consultation process is an empty one, the best the public can hope for is that its elected representatives and accountable public officials look after its interests.

But in the case of tolling, elected representatives — with the exception of the Democratic Alliance, which is leading the fight against Sanral in the Western Cape High Court — have shown a horrifying lack of attention to detail. In the case of the nuclear deal, public representatives are yet to show if they can stand up to the executive.

Public officials — in particular the Treasury, the guardian of the nation’s finances — have been notably absent in providing scrutiny. How could it be that Treasury officials failed to notice that the draft contract in the N1 and N2 toll project exposes the government to huge liabilities? Not only does it say the government will guarantee exorbitant toll fees (and make up the difference from the fiscus, if fees are lower), it says government will guarantee all debt raised to build the road.

This brings us to the impending nuclear procurement.

In a striking similarity to road tolling, neither of the two consultation processes (three if you live in the vicinity of the proposed sites) has looked at the most important factor: what will nuclear energy cost the consumer?

The first “consultation” occurred when the Department of Energy formulated the country’s nuclear energy policy in 2008, in which it says the public were asked for comments. The second was the department drawing up the Integrated Resource Plan 2010-2030, which outlines the expected energy needs and energy mix for the next 20-year period.

This involved public hearings over four days and the submissions of 81 stakeholders and parties, including those who oppose nuclear power in principle.

These processes, together with the environmental impact assessments undertaken in communities located close to two of three proposed sites undertaken in 2008, are proof that “extensive consultations” have already taken place, says the department. No further time for talking is envisaged.

If, like Earthlife Africa and the SA Faith Communities Environment Institute (Safcei), who have indicated that they are planning a legal challenge to the nuclear deal, you feel that the consultation process has not been sufficiently meaningful, now rather than later would be a good time to say so.

Radebe signed off on all 1,560 pages the day he received it

Get commercial property news by email

Free alerts when we publish — pick a focus or get everything, unsubscribe in one click. Subscribe »