If Sanral can prove that a road user travelled on its Gauteng freeways at a specific time and date, it would have a strong case in court to collect outstanding e-tolls related to such a trip, says law expert Professor Marinus Wiechers.
Sanral said in a statement on March 21 that road users who have persistently refused to settle their e-toll debt may receive civil summonses over the next few days.
This prompted a statement by the Organisation Undoing Tax Abuse (Outa) questioning Sanral’s method. “Sanral’s decision to tackle the high value, corporate defaulters, on the basis of a civil charge, is questionable, in that this angle is generally one taken on disputes of a contractual nature,” Outa said.
Outa came to the conclusion that road users who have not signed a contract with Sanral won’t be at risk. It further argued that even those who had signed such agreements, might have done so “under duress” based on threats of criminal prosecution against defaulters. Consensus, which is the legal basis for a binding contract, might be lacking as a result, Outa argued.
Chairperson Wayne Duvenhage said: “Outa believe there can be no consensus for e-toll defaulters, as there is no agreement between the parties and furthermore, if the road user considers the premise for Sanral’s one-sided agreement to be invalid due to the unlawful declaration of the roads as tolled roads, we fail to understand how Sanral can bring a civil claim against the road users.”
Wiechers does not agree with this argument. He equates the Sanral liability with that of property owners to pay property rates. Property owners do not sign any contract with their local authorities to pay property rates, but if they fail to do so, the municipality can claim payment of the outstanding amount through civil litigation.
He says road users incurred liability when they used the relevant roads and if Sanral can prove that a specific road user travelled on a specific stretch of tolled road at a specific date and time, it would have a strong case to demand payment.
Sanral project manager for the Gauteng Freeway Improvement Project (GFIP) Alex van Niekerk told Moneyweb that more than 1 000 summonses are due to be delivered in the next few weeks. And that’s just the beginning.
Road users who have already been contacted about outstanding debt, for example by SMS and email, and have failed to pay, will be the first to be summoned, Van Niekerk said. Other defaulters will receive summonses later, if they ignore reminders and requests to make payment.
The sheriff will be knocking on the doors of businesses as well as private individuals owing both small and large amounts, he said. Smaller amounts will be dealt with in the Magistrate’s Court in the area where the road user lives and bigger amounts will be dealt with in the North Gauteng High Court in Pretoria.
Van Niekerk said every person has a right to oppose the claims and, while some may differ, Sanral is convinced on the basis of legal advice, that it can claim payment successfully.
He said there is no indication of when the first case may be heard in court.
Road users who receive summonses will, like all other e-toll defaulters, have the option to pay their historic debt and qualify for 60% discount until May 2. Thereafter, Sanral might find it diffucult to accept a debt settlement unless it is authorised by regulation, Van Niekerk said. “Sanral is not like retail creditors that have a discretion to grant discounts,” he said.
Van Niekerk warned that road users who ignore summonses could get default judgements against them, which would affect their credit records.
Sanral is currently collecting R80 million to R90 million in e-toll revenue per month, up from R60 million around August/September last year. Van Niekerk said while this is lower than earlier projections, Sanral is encouraged by the upward trend.
He said less than 20% of defaulting road users contacted for collection flatly refuse to pay and an increasing number are making use of the 60% discount offer. Sanral however suspects that many planning to take up the offer are hanging on to their money until shortly before the May 2 deadline.
The issuing of summonses is the natural next step after government introduced its new dispensation for e-tolls with lower tariffs and 60% discount on historic debt last year, Van Niekerk said.
At the same time Sanral, like all other government agencies, has to show investors and ratings agencies that it will do what is necessary to realise the potential e-toll income stream, he said.
Sanral further has a responsibility towards the hundreds of thousands of road users who regularly pay their e-tolls, to collect outstanding debt. “Failing to do so would provide a good reason for regular payers to stop paying their e-tolls,” he said.
Cosatu rejects ‘bureaucratic bullying and arrogance’
Trade union federation Cosatu in a statement rejected Sanral’s plans to issue summonses as an “extreme form of bureaucratic bullying and arrogance”. It called on government “to reign in their marauding state entity, Sanral”.
Cosatu said the overwhelming majority of Gauteng residents have rejected e-tolls; that bullying them into it won’t work; and that it will only result in more wasting of resources.
The trade union called for the development of an efficient integrated public transport model that will provide safe, reliable and affordable transport.
“The apartheid spatial planning has left us with a legacy of the black majority that stays far away from their workplaces. These workers spend more than a quarter of their salaries on transport costs,” Cosatu said, adding that for Sanral to force these workers to pay for “illegally privatised roads” is both criminal and incomprehensible.
Cosatu said the only solution to the e-toll problem “is for government to listen to the people and totally scrap them.”