File photo: Dumisani Sibeko

Pretoria - The Freedom Front Plus (FF+) is forging ahead with the legal challenge to the constitutionality of e-tolling, claiming motorists are entitled to refuse to pay their e-toll accounts as the system does not meet the requirements of the constitution.

Papers will be filed to the normal court roll, unlike in December when an urgent last-ditch application by the FF+ and its partners to stop the system was struck off the roll in the Pretoria High Court because of a lack of urgency.

Advocate Anton Alberts, parliamentary spokesman for the FF+, said that until the matter had been heard by the courts and judgment had been passed, the people were entitled to assume that the e-toll legislation was unconstitutional. “No one is bound to comply while the case is still pending. People should not be convicted before the constitutionality of the law has been established by the courts,” Alberts said.

The legal action against e-tolls is essentially about the incorrect classification of the Transport Laws and Related Matters Amendment Act – or e-toll legislation – in the parliamentary process.

The party will argue that the e-toll implementation date was promulgated by the acting director-general of transport. The FF+ said that, by law, the incumbent Transport Minister – Dipuo Peters – should sign off the date.

“Peters only jumped in when she announced the launch date. The minister pretty much just performed the public relations function,” Alberts said. The implementation date was also unconstitutional, as the law prescribed that it be 14 days after the promulgation of the legislation, according to the FF+.

The party said e-tolling was therefore launched on the 13th day after the legislation and related regulations became law.

The FF+ will also dispute the different discounts for Afrikaans-speaking drivers, who will be charged a third less for their e-toll bills than their English-speaking counterparts. The transport ministry has, however, admitted this mistake and said it did not invalidate the law.

Alberts said Sanral was not ready to launch e-tolling when the gantries went live on December 3.

“They implemented the system in order to make a point to the investors. This is evidenced by the chaos that has been happening, particularly with billing,” he said.

The ideal conclusion to the matter would be to come back to the people and negotiate a workable solution that would still ensure the government settled its highway upgrade debt, Alberts said.

“The e-toll legislation should be challenged before government risks alienating itself further from the people.

“This could lead to a mass civil defiance and boycotting of other forms of tax. A more complicated situation may arise if the court rules against government and orders the repayment of money that would have been paid to Sanral by then,” added Alberts.

Vusi Mona, Sanral spokesman, said they were confident that everything had been done according to the law. He said the FF+ was welcome to argue its case in the public domain.

“We shall argue ours.

“Suffice to say, the Sanral Act specifies that the director-general must make the tolls known after the minister decided on them.

“The notice states it as such. The amount of toll that may be levied is determined by the minister on the recommendation of the agency (and) must be made known by the head of the department by notice in the gazette.”

The Interpretation Act stated that any time period in legislation excluded the first date and included the last date, Mona explained.

Regarding the prospects of yet another court challenge, Mona said: “We think this indicates unhappiness and, to a degree, lack of understanding and acceptance of the rationale behind e-tolling, by certain sections of society.

“Unfortunately, there has also been a politicisation of what is purely a road infrastructure matter. It is regrettable that cases are at times brought by political parties that are represented in Parliament after having not been successful with their points of view there.”


He said Sanral implemented a government policy and laws that had been passed by Parliament. “If some people in society challenge such laws and policies in a court of law and we are cited as respondents, we will defend them,” Mona added.

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