Judge Prinsloo's interdict has dealt e-tolling on Gauteng's highways a blow, and will remain in force until the court has considered the question fully. Some commentators are even predicting that government will now seek alternative funding methods. In any event, protests against e-tolling have shown the power of an aroused citizenry.
"One of the reasons the protest against the e-tolling system worked so well was that it was conducted ethically," says Professor Deon Rossouw, CEO of the Ethics Institute of South Africa (EthicsSA). "In fact, by keeping the protests ethical the protesters were able to remain focused on achieving their goal rather than getting sidetracked into inappropriate actions that could have ultimately distracted them, and even brought them into conflict with the law."
Clearly, though, there are other issues that South Africans will feel motivated to protest against, and e-tolling could itself easily return to the front burner depending on how Sanral proceeds. Professor Rossouw believes that this is a good time to consolidate what was learned during the e-toll protest and reaffirm the "rules of engagement" for ethical protesting.
Professor Rossouw believes that there are five levels of ethical protest and that it is imperative to understand what each one entails. "We are dealing here with moral disagreement which is likely to arouse strong emotions, so we need to be very conscious of acting ethically in each instance," he says.
The first two levels are verbal debate and demonstrations. Each are perfectly legitimate but must be conducted within the law and ethically-which is to say, with due respect for the rights of others, especially their right to dignity.
Boycotting is another avenue that is again legitimate, and this means refusing to participate. In the context of e-tolling, for example, it would entail not using the toll roads at all. "Boycotting is legal but it sends out an extremely strong message, as one has seen in the consumer context," says Professor Rossouw.
Passive resistance raises the bar somewhat. In this instance, one adopts an attitude of non-cooperation. In the context of e-tolling, this would mean using the toll roads without an e-tag, thus placing an added administrative burden on the system because it would have to match one's number plate to the NATIS database, issue a paper invoice and make sure it was paid. But in the end, one would have to pay the bill for the inflated rate once it was issued.
The final and most drastic level of protest is civil disobedience, something that many appeared to advocate during the e-tolling protest.
However, says Professor Rossouw, this form of protest should be reserved for matters of the highest import, such as the abuse of fundamental human rights.
"Unlike other forms of protest, civil disobedience is about changing the law, and to do that it takes the grave step of breaking the law," he explains. "As such, it must be a public and political act, and cannot be based on expediency."
Civil disobedience, in the case of e-tolling, would mean using the toll road and then refusing to pay the invoice for that use. Like passive resistance, one would then have to accept the consequence of that act, which could include a court summons and even jail if one refused to honour a court order to pay.
This kind of extreme action is only to be taken as a last resort, Professor Rossouw believes. He notes that even the morally justified anti-apartheid campaign, for example, only took this step when all other avenues had been exhausted. And once the step was taken, it accepted the consequences of breaking the law.
"We need to be clear about what type of protest is appropriate, and what the consequences of that protest are," Professor Rossouw believes. "In the case of e-tolling it would be hard to justify such an extreme form of protests as civil disobedience. At all costs, we have to steer clear of attacking the foundations of our democracy by the way we protest."