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Wayne Duvenage has been a prominent face in the battle against e-tolls, a battle which has resulted in the widespread non-payment of e-toll accounts and, arguably, its ultimate failure. For obvious reasons, Duvenage does not pay his e-toll bill. Now he is considering not paying his TV licence due to the breakdown of governance and increasing censorship at the SABC.
The potential spread of his own acts of civil disobedience sums up the evolution of hisorganisation, Outa, which earlier this year changed its name from the Opposition to Urban Tolling Alliance to the Organisation Undoing Tax Abuse.
The new name represents a change in the function and mandate of Outa, from its original narrow focus on e-tolls when Outa started in 2012 to a more general one – the misuse of taxes.
This change has led it to investigate and start various actions on, among other things, Eskom’s tariffs, the SABC, carbon tax and road construction costs.
Earlier this month Outa upped the ante, demanding that the South African Airways (SAA) board refrain from signing any agreement with or making any payment to unknown financial advisory firm BnP Capital for the sourcing of funds as the procurement process was allegedly unlawful.
Outa’s investigation into SAA revealed a number of red flags about BnP Capital, including that it had its Financial Services Board licence suspended. SAA apparently did not go through a competitive bidding process, but increased the scope of an existing agreement with BnP Capital, which stands to get a success fee of R256.5m to source R15bn of funding for SAA.
According to Outa, quotes from banks indicate the funds “could have been secured for between R170m and R214m less than the fee ‘negotiated’ with BnP”.
Outa says it may apply to have SAA chair Dudu Myeni and other board members removed as directors, and has called for them to resign.
How it started
Outa was started by Duvenage, the former CEO of car hire company Avis, to oppose e-tolls. It was originally a three-man show, with Duvenage, John Clarke and Rob Hutchinson handling everything.
“Over the years, in our quest and fight in the e-toll matter, we started getting a lot of input from the public and business, who said our manner and professionalism were something they would like to see extended to other areas, like carbon tax, Eskom’s tariffs or the conduct of SAA, and would we branch out,” he says.
This is exactly what Duvenage had wanted to do for some time, but Outa was hamstrung by capacity as it was reliant on donor funds. It initially approached some of its donors, but Outa was a strange anomaly to them as it was not a civil action movement defined in the space they felt comfortable to support.
Some were uncomfortable with it asking the public to be disobedient – which is, according to Duvenage, a last resort after it has tried reasoning, engaging with the powers that be, and litigation.
About a year ago Outa looked at a new model and funding strategy based on membership. “One thing we had to do was build litigation capacity. One of the elements of unmasking powers is holding those accountable, and we needed to do it more cost-effectively.”
With its new model in place, it has now attracted tens of thousands of individuals and a few thousand companies as members (partly because it has offered legal support and assistance for members who are summonsed for the non-payment of e-tolls).
Their monthly and annual memberships have enabled Outa to attract and pay 17 employees including researchers, investigators, legal specialists and people responsible for accounting and governance processes.
With its new, expanded mandate as a civil intervention unit, Outa had to change its name, but didn’t want to lose the acronym, which is quite well-known, hence the Organisation Undoing Tax Abuse.
Fighting tax abuse
The name implies that Outa will focus on government institutions as its focus is on those entrusted to spend taxpayers’ money. Outa’s aim, in a nutshell, is to ensure “that those entrusted to expenditure of our taxes need to do that in a responsible manner”.
For Outa, successes are going to come after a long battle. It fights against institutions that have a notion that prolonged legal battles or “attrition through lawfare”, as Duvenage calls it, and the tactic of wearing civil society down through obfuscation and delay will see any campaign against them ?run dry.
But Duvenage believes the e-toll battle has been won after years of dogged opposition. “The lights might be on and the music is playing but there is no one on the dance floor. Right now our lawyers are engaging with Sanral (The South African National Roads Agency) lawyers and they have for the first time adopted a co-operative approach rather than one which is vindictive and condescending.”
He also hopes that the battle (which Outa has taken to court) with Eskom and the regulator Nersa over electricity tariffs, which have increased at multiples of the inflation rate over the last few years while Eskom is producing very little new energy, will ?be successful.
Another issue top of Outa’s mind is to stop Sanral from introducing unnecessary routes that give toll concessions billions of rands. For example, toll concessionaires stand to make billions through a road toll development plan, which will reduce the Johannesburg-Durban distance by just 10km.
Outa is finishing off a huge research project on road construction costs which Outa says are, under Sanral’s care, 150% higher than they should be. Sanral and Outa are involved in a war of words over the research, which Sanral says is flawed and which Duvenage stands by.
Outa’s approach
In all of its work, Outa has a three-pronged strategy, looking at whether government’s tax strategies make sense (rationality), that the policy and regulatory environment is correct and whether legislation is enforceable, and that if they are, whether the conduct around them is correct or unacceptable.
It aims to challenge taxation policy and/or the regulatory environment when these are irrational, unfit or ineffective for the purpose intended. It also aims to “question and challenge the squandering, maladministration and corrupt use of taxes, through a clear and effective methodology, and to hold those responsible to account”.
Its process is to research, expose the powers, mobilise society on what the issues are and then litigate, including going after the individuals concerned who are personally liable.
Behind all of these actions is Duvenage’s belief that people, business and organisations need to stand up when they see something wrong.
“Business cannot conduct business as usual. They need to stand up more and they need to empower business associations. Even something named Business Against Crime is not tackling the criminal nature of what is going on,” he says.
“They fear the backlash, and government does [do this], and then they cower, leaving far too much to civil society to do. If they don’t want to do it themselves, they must help civil society to do it. […] I call on business leadership to look at the longevity of society and start standing up and calling Parliament and Cabinet to account.”
This is a shortened version of an article that originally appeared in the 21 July edition of finweek. Buy and download the magazine here.
