Despite what Sanral and their colleagues at the Department of Transport may try to convey, the fact is that enforcement of eToll payment was always a risk which appears to be conveniently ignored by Sanral (the eToll architects) for years and more astounding, is that this real risk was never brought to the attention of the Minister when he was requested to approve the GFIP scheme proposal in July 2007.
Furthermore, a Traffic and Toll Feasibility Study Report prepared for SANRAL by Tolplan and GOBA in November 2007 acknowledged the “low percentage of recovery of traffic fines in South Africa” and that “a culture of payment of traffic offences does not yet exist”. The report recommends actions to “ensure a perception amongst road users that there is a high probability of non-payment of toll being detected and being acted on”. It was proposed that “on-ramps should be widened and equipped to provide for non-compliant vehicles to be detected, pulled over and be fined or restrained”.
Fast forward to the GFIP Steering Committee Report published in June 2011, whose recommendations were omitted in the version circulated to the stakeholders, but included in the record submitted by the Department of Transport during OUTA’s interdict application, which highlights the lack of regulatory readiness for eToll enforcement. Despite various statements by SANRAL and other Government spokespersons in early 2011, the report is clear that the lack of a legal enforcement framework “will place SANRAL at great risk of being subject to valid legal challenges from many angles and being unable to effectively implement and enforce tolling”.
The enforcement challenge was again highlighted in an August 2011 media report, wherein the Electronic Tolling Company Chief Executive, Sal Yacoubi, mentioned that unpaid toll fees will be processed by the Administrative Adjudication of Road Traffic Offences (AARTO) and wherein he conceded that “enforcement is a matter of public perception so publicizing enforcement proceedings is a critical part of overall enforcement”. So while the initial plan was to use AARTO as the enforcement mechanism, its failed implementation has led Sanral to switch to the Criminal Procedure Act (CPA) and a detailed overview of the enforcement process has yet to be publicized.
The following year in 2012, during the OUTA legal proceedings, in his answering affidavit (Part A) the Sanral CEO (Mr Nazir Alli) said “In relation to the issuing of summonses and legal notices, the current legal process for conducting these activities exists throughout the country in relations to road traffic users. The application of these principles to the e-tolling system is similar and there are therefore no anticipated logistical difficulties that will cause the system to be impractical”. In reality though, if current road traffic violations payment successes are anything to go by, Sanral is in for a torrid time.
In July of this year, Mr Alex van Niekerk – the project manager for the Gauteng Freeway Improvement Project (GFIP) – was reported in the media to say that “monitoring and enforcement systems are in place for the South African National Roads Agency (Sanral) to go ahead with the implementation of e-tolling immediately”. He was quoted further saying that “Sanral has been ready to start tolling for more than two years but poor government support for the program — legislation to enable tolling has still not been signed”. OUTA finds it incomprehensible that SANRAL can claim to be ready to implement and enforce, yet they remain delayed by unfinished legislation. Clearly, Sanral do not realize or understand that a regulatory environment required for efficient enforcement is a critical element of readiness and successful implementation.
The above snapshots of SANRAL’s eToll enforcement journey since 2007, clearly demonstrates they were made aware of and cautioned about the need to have a clear legal framework and practical enforceability in place. A significant challenge now awaits them as the eToll enforcement saddle no longer sits on the AARTO horse but has conveniently been hitched onto the CPA, which poses significant problems for enforcement and workability of eTolling.
Today, despite the constant mantra from Sanral that eToll enforcement is ready to go and they so desperately need the funds, we have yet to see a detailed eToll enforcement process published for the road using public to review. It is almost incomprehensible that some seven years after the eToll plan was mooted, planned, designed and developed, to now be told the legal framework has become a hindrance to their tolling plans, despite their claims during the interdict court hearings last year, that they were ready and needed to launch within weeks to avoid a financial ‘Armageddon’ and further down-grading of their credit ratings.
Additional points to note why eTolling is wrong and unworkable are:-