To most Gauteng drivers, e-tolls will merely be a nuisance by the end of April, but one anti-tolling campaigner is adamant that he will have nothing to do with it.
“They can lock me up if they can,” said a defiant Howard Dembovsky, chairman of the Justice Project SA, a motorists’ rights group.
“The e-tags mean nothing to me. I am not in the least bit intimidated by the threats.”
He is “amused” by the threats that motorists who refuse to pay will be prosecuted.
But there is nothing comical about Dembovsky’s stance against e-tolling.
He feels that the e-tolling issue is as serious as crime because it was driving people out of Gauteng.
“Quite frankly, I – like many people living in Joburg – am seriously considering leaving Gauteng for good as it is being turned into an oppressive, ring-fenced province where democracy has died and you cannot turn your head without being fed on by greedy state entities,” he said.
Dembovsky lives in Midvaal, south of Joburg and drives to work in Midrand, paying R4 000 in month in fuel.
But if he was to get an e-tag it would cost him an additional R550 a month according to the latest e-tolling fees, including the monthly cap, announced by Finance Minister Pravin Gordhan.
Last week, the cabinet said Transport Minister S’bu Ndebele would table the necessary legislation to provide the SA National Roads Agency Limited (Sanral) with “enforcement power for tolling”.
But according to parliamentary minutes, Ndebele acknowledged this week that enforcing e-tolls was a “new phenomenon, legally speaking”.
He said a legal framework still needed to be put in place through the mooted Transport Law Enforcement and Related Matters Amendment Bill to cover e-tolling and administrative penalties for non-payment.
The bill seeks to extend Aarto to regulate cross-border transport and streamline the processes for electronic tolling collection.
Not all fines under the Administrative Adjudication of Road Traffic Offences Act carry demerit points, but experts believe a driver who passes more than 12 e-toll gantries a day is liable to lose points once the bill is passed.
For now, though, the legal and administrative loopholes in the prosecution plan for e-toll transgressions could be used as a new weapon to derail the tolling plan, according to experts.
“I have listened to all of the threats of stern and merciless action that is going to be taken on motorists who do not comply with the e-tolling,” said Dembovsky. “I have laughed at it as hot air. I have listened to how people would be criminally summonsed for non payment of e-tolls.”
He’s not alone. While the implementation of the Gauteng e-tolls may be projected as a fait accompli, several transport and traffic law experts believe the battle is far from being won.
The DA, the Freedom Front Plus and the Southern African Vehicle Rental Leasing Association have all threatened legal action.
Next week, Cosatu is set to have a protest march in a push for e-tolling to be scrapped.
Independent transport consultant Paul Browning believes that the government has adopted a “good guy-bad guy” approach.
“The ‘good guy’ is typified by Minister Gordhan. In his Budget speech, and in interviews around that, he has stressed that the government has made a big effort to defray the costs of tolling, and now it is time for the public to accept this and fall in line. He (Gordhan) has said there should not be an ‘adversarial’ approach.
“The ‘bad guy’ is typified by Jimmy Manyi: ‘Government will not tolerate any disobedience.’ If you do not pay, you will be pursued through the courts.”
Browning said that while some of the impetus of the initial protests had dissipated, it would almost certainly resurface closer to April 30.
And the legislative processes that are not yet fully complied with may give anti-toll campaigners more ammunition, he adds.
Browning said the government and Sanral were “very obscure” at the moment how they hope to enforce payment. “They are throwing all sorts of bits and pieces to get motorists to comply.”
Another transport consultant who did not want to be named said the relevant proposed legislation including e-tolling into the Aarto bill was last published for comment two years ago.
“It might be wise for the government to republish the bill for comment again,” he said. “A lot has happened since 2010, and no matter how legally correct the government’s position may be, it runs the risk of being seen as not being fully transparent.”
AA spokesman Gary Ronald agreed. “This is by no means a fait accompli… In terms of non-payment of tolls, amendments to the existing road traffic laws still have to be made (and) published in the Government Gazette for public comment,” he said. “The processes still have to be done, but I think it will depend on the outcome of the planned legal challenge.”
Ronald stressed that there were more than sufficient grounds for legal action against e-tolling.
“There is still hope for motorists that despite the announcement last week, there are other means that they can still use to make their voices heard,” he said. “What we need now is a road oversight body that will certainly take independent decisions and be able to consider public comments which is lacking in this situation with e-tolls.”
Transport academic Vaughan Mostert bemoaned the lack of strong monitoring procedures. “In principle there is nothing wrong with tolls and in certain circumstances tolls are acceptable,” he said. “But tolling is unfair when alternatives like improved public transport do not exist. It costs a hell of a lot (more) to widen the freeway than to fix public transport.”
Mostert said a transport regulatory body should be responsible for taking big investment decisions such as the e-tolling and the Gautrain project.
“We have a situation where the engineers and construction companies are pushing everything down the public’s throat,” he said. “The government monitoring of big projects like this is weak and subject to superficial research.”
Gavin Kelly, technical and operations manager at the Road Freight Association, said there was still “much water to flow under the bridge”.
“There have been some administrative processes that are questionable – from in-house government processes to the consultation process, which was not open and transparent,” he said.
Yet Transport Director-General George Mahlalela said all the legislative processes would be in place by April 30 when e-tolling begins.
He said the Sanral Act, Road Traffic Management Corporation (RTMC) Act and the Aarto Act allowed the government to go ahead with e-tolling.
“What we are improving is to remove complex legal issues that if you are found to transgress the laws by not paying tolls you have to be taken to court,” he said.
“The legislative framework improvements will say this becomes an administrative process instead of court process.”
This week, Sanral chief executive Nazir Allie told a business newspaper that the agency would use the Criminal Procedure Act to enforce compliance.
The act was used to prosecute traffic offenders before the Aarto piloting in Joburg and Tshwane.
“People are under the wrong impression that we don’t have the ability to prosecute for the non-payment of tolls,” Allie told the newspaper. The Sanral Act of 1998 “does empower Sanral to prosecute for non-payment of tolls and the way in which we will need to do it is through the Criminal Procedure Act”.
A draft service level agreement between Sanral and the RTMC on the use of the national traffic police (NTP) to enforce e-tolling states that Sanral will be regarded as the issuing authority for offences related to non-payment of tolls.
“Sanral is regarded as the issuing authority for offences and infringements issued by the NTP for the purposes of section 32 of the Aarto Act and (is) therefore entitled to the payments made for such offences and infringements,” reads the agreement. “Sanral is also (the) beneficiary of all revenue collected in terms of Sanral Act.”
The terms and conditions of the plan reveal that prosecution relating to the collection of tolls will be executed by the RTMC on behalf of Sanral for a service fee.
Sanral and the RTMC agreed to support all draft legislation that would ensure effective law enforcement on the open-road tolling project and undertook to assist in processing through the legal process.
The RTMC is to enforce toll collection and Sanral Act provisions in relation to motorists who do not pay.
However, Dembovsky argued that the act only makes provision for the erection of toll plazas, and e-tolling is not catered for at all.
“There is no legislation that says that you must have an e-tag and if they suddenly wake up and decide that this must become standard equipment in motor vehicles, then they must make it applicable to the entire country,” he said. “Schedule 3 of the Aarto Act regulations currently makes provision for only two infringements related to failure to pay at tolling booths and plazas.”
This means, says Dembovsky, that with less than 60 days to go before e-tolling begins, the government will have to make amendments to the laws, publish them for comment and have them proclaimed to cater for e-tolling.
Without that in place, Dembovsky said, the NTP would be acting illegally if it took anyone to task for “toll transgressions”.
“No South African in their right mind can buy the story that e-tolling is necessary for infrastructure development when the greatest portion by far of each rand they pay for it is going to leave the country to enrich other people.” - Thabiso Thakali