E-tolling sends motorists back to the starting line

Amid warnings of further court action and freeway blockades to protest e-tolling, it appears that motorists who have already bought e-tags may have to re-register under Sanral’s new terms and conditions.

With a little more than two weeks until the implementation of the controversial e-tolling system, the South African National Roads Agency Limited (Sanral) and the government seem hellbent on implementing the tolls on schedule, while civil society and organised labour are preparing to challenge the system in court and on the street.

And following a meeting between stakeholders, the Democratic Alliance—which is still calling for the system to be scrapped—says road users who have already signed up for e-tags will have to re-register under Sanral’s revised “consumer-friendly” terms and conditions.

On Wednesday the National Consumer Commission (NCC) blocked the media from the hearing into e-tolling where both Sanral and opposition party Democratic Alliance were present.

It is understood the NCC wished both parties involved to be “completely honest” during proceedings, and felt this would only be possible without the press in attendance.

“Sanral raised objections to the media being present as they felt information would be divulged that could lead to the process being jeopardised,” NCC commissioner Mamodupi Mohlala told the Mail & Guardian.

What do they have to hide?
NCC hearings are normally heard in public. Yusuf Abramjee, chairperson of the National Press Club, described the move to hold the press conference behind closed doors as “shocking” and of “serious concern”.

“This whole debate has been on the lips of all South Africans so there is no reason to close it to the media,” Abramjee told the Mail & Guardian.

Abramjee further said Sanral’s opposition to the media’s presence raised serious doubts about their willingness to keep the public informed.

“We live in an era where transparency is paramount and their behaviour of late begs the question: What do they have to hide?” Ambramjee added.

Sanral has previously come under harsh criticism for being abrasive in their dealings with enquires relating to e-tolling.

After Transport Minister Sibusiso Ndebele instructed Sanral’s board to make public all information pertaining to e-tolling, Cosatu allegedly received e-tolling documents with deliberately blacked out sections.

Court decision pending
When the NCC meeting adjourned, it was announced a decision to refer the matter to the Competition Tribunal or the Equality Court would be made within two weeks.

Mohlala confirmed to the M&G issues relating to the exemption of certain customers from e-tolling along with the lack of full disclosure for methods of payment and refunds were of main concern at the meeting.

“We are confident that provisions that contravene the Consumer Protection Act (CPA) will be struck down,” said Neil Campbell, the DA’s spokesperson for transport in Gauteng.

Campbell confirmed that the meeting had heard how several changes would be made to the SA National Roads Agency Limited’s current terms and conditions.

He said road users who had registered for the e-tolling system would have to re-register under the new terms and conditions.

“They [Sanral] indicated that the new set of regulations will be consumer friendly.
It is therefore essential for everyone to be registered under the new conditions,” Campbell said.

This meant that those who had already bought e-tags would have to re-register, he said.

“It only makes better economic sense for Sanral to re-start the registration process under revised terms and conditions. We have managed to negotiate on the current terms and got an indication of revised terms and conditions to be implemented,” he said.

“Despite this,” Campbell said, “we still believe that the best interests for the consumer will be served by the scrapping of the entire [tolling] system.”

Registration for the process has been low, with only around 320 000 vehicle owners signing up for the scheme, in a province where four million vehicles were anticipated to be on the system. The new toll regulations are expected to be released in two weeks.

Sanral did not respond to questions posed by the M&G on their stance following the meeting.

‘Test the legality’
In the meantime, a legal battle is due to mounted by an amalgamated group of business and civil society called the Opposition to Urban Tolling Alliance (Outa), against e-tolling in the North Gauteng High Court in Pretoria on April 24.

Wayne Duvenage, deputy president of Southern African Vehicle Rental Leasing Association—one of the bodies involved in Outa, says their case is “very strong” and will “firmly test the legality” of e-tolling.

Outa plans to challenge the e-tolling system in court based on an argument of no recourse for consumers who allege they have been incorrectly charged for using the highways, as well as the lack of proper legislation to govern e-tolling.

Outa also wants the full reasoning for the decision to implement e-tolling to be revealed.

“If they had applied their minds in the first place we wouldn’t have reached this point. We need to know why government spent this much money when they didn’t have to,” Duvenage said.

Advocate Johan Gaum believes Outa is within its rights to approach the courts, and said the government may indeed have a case to answer, based on its apparent unwillingness to look at viable alternatives.

“The court should be given the opportunity to test the legality of government’s decisions on e-tolling,” Gaum told the M&G.

Shaky legal ground
Gaum added that while the Constitution places a burden on the state to provide for its citizens, enabling it to do so through raising taxes, such mechanisms “can only be stretched so far”.

As such, Gaum believes the matter could end up in the Constitutional Court if a decision on the matter cannot be found in the high court.

However, Chris Oxtoby, Legal Research Officer at the Democratic Governance and Rights Unit at the University of Cape Town is sceptical about any challenge against e-tolling standing up in the Constitutional Court.

“Even if it does infringe on certain rights in the Constitution, you’d wonder if the infringement would stand up to the limitation clauses enshrined in the same document,” Oxtoby told the M&G.

Meanwhile, massive protest action against e-tolling is also understood to be in the offing.

Email alert
A chain email being circulated among Gauteng residents, seen by the M&G, is claiming freeways throughout the province will be shut down on April 25.

The email, which has not been officially endorsed by any of the civil or labour groups opposing e-tolling, says that rows of trucks and automobiles will position themselves across all the province’s freeways, blocking traffic in both directions.

“The aim is to shut down Gauteng for the day, thus creating hours of traffic backlogs and billions of rands in losses. This will show government they cannot just do what they like and that the true power of this country does not lie in their hands,” the email reads.

The email follows initial threats by the Cosatu to blockade Gauteng’s highways with their members should e-tolling be implemented.

Zwelinzima Vavi, Cosatu’s general secretary, would neither confirm nor deny any such action.
“We are definitely still looking at it, but that’s all I am prepared to say at this stage,” Vavi told the M&G.

In the face of opposition and legal challenges, government’s position on the matter has not changed.

“Further to the clarification of Cabinet’s position by the president himself, nothing has changed. The implementation date of April 30 still stands,” government spokesperson Jimmy Manyi told the M&G.

Nickolaus Bauer

Nickolaus Bauer

Nickolaus Bauer is the Mail & Guardian's jack of all trades news reporter that chases down stories ranging from politics and sports to big business and social justice. Armed with an iPad, SLR camera, camcorder and dictaphone, he aims to fight ignorance and pessimism through written words, photographs and videos. He believes South Africa could be the greatest country in the world if only her citizens would give her a chance to flourish instead of dwell on the negativity. When he's not begging his sub-editors for an extra twenty minutes after deadline, he's also known to dabble in the occasional poignant column that will leave you mulling around in the depths of your psyche. The quintessential workaholic, you can also catch him doing sports on the weekday breakfast show on SAfm and presenting the SAfm Sports Special over the weekend. Read more from Nickolaus Bauer