.Image:  OUTA

ISI Legal opinion on e-toll debt write-off as unlawful - limited and unfounded

On the 13th of April 2023, the Inclusive Society Institute (ISI) released a media statement explaining their stance on the illegality of SANRAL’s ability to write off the outstanding debt under the Gauteng Freeway Improvement Project (GFIP) “in terms of the Constitution's equality provisions”.

In this, ISI states that “South African constitutional law dictates that the South African National Roads Agency Limited (SANRAL) does not have the power to retrospectively excuse non-payment of e-toll fees once incurred. However, this would not impede a future dispensation that may or may not remove e-tolling from Gauteng.”

OUTA’s CEO, Wayne Duvenage, says ISI has missed the point on a number of aspects of the e-toll saga. “They have certainly not taken into account the reasons and principles applied by those who refused to pay.”  

Duvenage says OUTA has, through the mandate of several thousand road users (who defied SANRAL by refusing to support their plan to fund the construction of the GFIP roads), raised a collateral challenge against SANRAL. This case would have presented reasons and arguments as to why the charges against these road users could’ve been unlawful. This case was ready to be heard in court, but SANRAL decided on 27 March 2019 (four years ago), that they would not pursue the collection of outstanding e-toll debt. Summonses have not been issued against millions of road users for outstanding e-toll debt, and this debt has subsequently been prescribed.

It is OUTA’s view that, if the legal challenge proceeded, the court could very well have ruled the scheme to be illegal, based on evidence of corruption with the implementation of the e-toll scheme as well as collusion on the road construction. These and other issues could not be raised due to SANRAL’s cessation of the collateral court challenge.  “This is an important aspect of the issue that has not been considered in the ISI legal opinion, which has simply taken a blinkered approach,” Duvenage says.  

OUTA says a major practical problem is that SANRAL is unable to sanction the public for non-payment and has realised this is a challenge not worth fighting over with citizens. “When it comes to outstanding e-toll revenue (bad debt) in their financial statements, the International Financial Reporting Standards (IFRS) is very clear, in the reporting of outstanding debt, which cannot be argued as collectible within a reasonable period, must be written off.”

Further practical and administrative challenges that give rise to non-payment relate to billing errors (e.g. incorrect vehicles being billed), Natis vehicle registry system inaccuracies, cloning of numberplates, and bills not received by motorists because of the inefficient postal services.  Apart from OUTA’s collateral challenge, which includes prescription, there are also the issues of freedom of movement (also a constitutional right) and a host of other arguments that could have negated road users’ liability to pay their e-toll debt. “All of this gives rise to reasons why motorists cannot, will not, or do not have to pay their e-toll bills. The ISI opinion overlooks the issue of invoices that have not been legally applied must be written off by SANRAL.” 

Technically speaking, SANRAL as a creature of statute, may choose not to write this outstanding debt off and continue to try and collect these funds from motorists. Unfortunately, the legal opinion provided by the ISI does not take into account the fact that SANRAL has chosen not to pursue the debt, and whether this remains “intact” or written off is immaterial in the current situation.   

Simply put, this is a far more complex matter than has been portrayed in the ISI legal opinion, and it will need to come down to a formal gazette by the powers that be, to absolve all road users of this debt, including refunds to those who did pay their e-toll bills, if the principle of fairness is to be applied. 

More information

Read more on OUTA’s e-toll campaign here

A soundclip with comment by OUTA CEO Wayne Duvenage is here.