Johannesburg – The Organisation Undoing Tax Abuse has taken its challenge against the e-toll system to the next level, serving the South African National Roads Agency Limited with responses to the summonses issued against Outa members for outstanding e-toll payments.
One in particular, a summons against Thandanani Truckers and Hauliers for R402 841.62 in unpaid e-toll fees incurred between January 2014 and August 2015, is being heard in the Pretoria High Court and will effectively become a test case for the e-toll concept, since it will be the first time that a judge will hear both sides of the argument and then make a ruling based on the merits of the case.
Outa chief operating officer Ben Theron said: “We regard the e-toll system as unjust and illegal; we’ve gathered our facts and prepared our case, and we believe the merits will speak for themselves.”
Amongst other things, Outa is arguing that:
Sanral’s declarations of the Gauteng freeways as toll roads are invalid as they don’t comply with public information and consultation requirements.
The toll declarations are unconstitutional under the provision requiring “supremacy of the constitution and the rule of law”.
Sanral’s notices of intention to toll were materially inadequate and flawed, and there was too time allowed for the public to comment – and, in any case Sanral didn’t properly consider the few comments that were made.
The minister of transport’s approval of the tolling was unlawful and invalid as these decisions were irrational; he didn’t sufficiently consider the costs, alternative means of funding, alternative routes or the impossibility of enforcing open road tolling.
The Sanral board not only failed to approve the tolling before the declarations were issued, but also failed to consider the costs of the toll operations, alternative routes, the practicality of enforcing open road tolling, the substance of public representation, or alternative funding, excluding the fuel levy as a means of funding.
Both the minister and the Sanral board wrongly abdicated their decision-making powers by considering themselves bound by cabinet’s decision in July 2007 to toll Gauteng freeways.
The environmental authorisation is invalid as it was not correctly processed by the minister of environmental affairs.
Sanral didn’t follow the legal requirements for delivering e-toll invoices, charged VAT (which it was not entitled to do) on the invoices and used ordinary mail instead of registered mail.
And in this particular case, Thandanani had an e-toll account with its address listed but Sanral sent invoices to the wrong address, and failed to send any invoices at all during some weeks.
'Now thc fight starts'
Outa Chairman Wayne Duvenage said: “It’s been a long time coming but now the real fight starts.
“We’re fighting the case on two fronts – the constitutional issues of the scheme’s introduction, and the technical merits of each case. That means each case will be different and, even if Sanral wins one of them, it won’t be able to claim a precedent.
"It’s going to get messy and, in the end, Sanral won’t be able to convince its stakeholders that this collection process is efficient or effective.”