002 Taxis and busses will be excempted from paying the levis when the tolling system is in place. Here cars going through the Gantry on the N1 Bloemfontein road. Picture: Mujahid Safodien 11 08 2011

The terms and conditions motorists have to sign when registering for an e-tag to use Gauteng’s toll roads are illegal and unfair – not in line with the Consumer Protection Act.

Today The Star can bring its readers a full response to the terms and conditions written by the Consumer Commissioner Mamodupi Mohlala.

This follows a dismissal by the South African National Roads Agency Limited (Sanral) of a story published in The Star two weeks ago. Sanral said the story was “emotive journalism which not only lacks substance but fails to provide any reasons for the allegations made”.

We asked the Consumer Commissioner for a full analysis of the terms and conditions, which Mohlala said were “excessively one sided in favour of the supplier, and as such are not in line with the spirit of the act”.

The Star reported that it was unfair that the e-tag conditions stated: “The user hereby irrevocably authorises the Agency (Sanral) or its duly authorised agent to obtain from any institution where the user may have an account, or from any credit bureau, any information concerning the user. This clause constitutes consent and an instruction to each such institution to disclose such information to the Agency or its agent”.

Sanral’s response:

Nowhere in the conditions does it indicate that Sanral would obtain more information than it otherwise needed. The information required may differ from person to person and accordingly the reason for the provisions of the clause. As to whether Sanral obtained more information than may be permitted is a factual issue which can be addressed at the relevant time. Such clause would not allow Sanral to transgress the requirements of legislation and Sanral would not seek to do so. Sanral and the institutions or credit bureaux from whom the information may be obtained are all subject to the laws of our country.

Commissioner’s response:

It is a gross violation of a consumer’s right to privacy if a service provider is allowed unrestricted access to a consumer’s accounts without any limit. There should be some restriction to the kind of information that a service provider may have access to as long as it relates to the nature of the account or to the core business. To be granted access to information beyond the nature of business amounts to abuse and is against the spirit of the legislation.

The Star reported if an e-tag account is not in credit it can be suspended or red-flagged without notice to the user.

Commissioner’s response:

It would be unfair to the consumer to have their accounts suspended or red-flagged without giving them notice and an opportunity to top up the account. The act promotes consumer rights to information; it requires suppliers of goods and services to always disclose information to allow consumers to make informed decisions. It is not enough that there are facilities where consumers can check their balances; it is the supplier’s responsibility to inform consumers about the status of their account before any action is taken. Suspension or red-flagging an account should be the last resort after the account holder has been notified about consequences in the event of failure to comply.

This point appears to also contradict Sanral’s response that road users without an e-tag must pay their tolls within seven days.

Sanral’s response:

A user who elects not to register has the responsibility to go to a customer service centre, after use of the toll road (but is granted a grace period of seven days within which to do so), and make payment of their toll charges. Users should not wait for a notice to be posted to them.

The Star reported that Sanral may change the terms and conditions and the user must be bound to the changes.

Commissioner’s response:

Terms that require consumers to waive their right are unfair and unreasonable and against the spirit of the act. To expect consumers to be bound by future terms and conditions is unfair and unjust and defeats the purpose of the act, which is to protect consumers against unfair business practices.

Under these terms and conditions consumers are left at the mercy of the supplier who can change conditions at any time; they have no recourse as they have committed to these terms. - The Star