It’s not unlawful to not pay e-tolls

SANRAL, through their spokesperson Mr. Vusi Mona, has attempted to persuade the public that the Organisation Undoing Tax Abuse (OUTA) is advocating lawlessness by urging the public not to “pay e-tolls lawfully levied in terms of sections 27(1) and 27(3) of the South African National Roads Act 7 of 1998 (“the SANRAL Act”)”.

In support of this assertion, SANRAL leadership has regularly stated that all the courts have found in their favour and that they have in fact lawfully levied tolls on the Gauteng Freeways. OUTA says that this statement is false, as there is no standing precedent in any court supporting this. What there is, however, are three precedents wherein courts have found that SANRAL failed dismally to obey the prescripts of the SANRAL Act and have thus run roughshod over established constitutional values and principles underlying public administration.

What follows is a summary of the past OUTA vs SANRAL legal saga, highlighting the fact that the legal question of whether the Gauteng freeways were lawfully tolled, still remains unanswered by a court. The lawfulness of Government’s decision to declare Gauteng’s freeways as toll roads, stands to be challenged defensively, if and when SANRAL attempts to coerce the public into accepting that the Gauteng freeways were lawfully tolled, when they were in the opinion of OUTA and the vast majority of the public, not.

In April 2012 OUTA successfully obtained an interdict in the North Gauteng High Court, preventing the charging of tolls pending the finalisation of a review application as to whether the Gauteng freeways were lawfully tolled.

Treasury and SANRAL urgently appealed to the Constitutional Court in 2012 to overturn the interdict granted by the North Gauteng High Court, temporarily preventing them from implementing tolls. The sole legal question the Constitutional Court had to answer was clearly stated in Paragraph 9 of the judgment, “Whether the High Court was correct in granting the temporary restraining order”. The temporary interdict was lifted by the Constitutional Court, as it was concerned that the impact on SANRAL would be greater than that on the public if SANRAL was unable to toll pending the finalisation of the review, and asserted that the public would be entitled to claim for enrichment at a later stage. Nothing more, nothing less.

Judge Moseneke very specifically stated in paragraph 48 of the judgment that  “I am unable to say without more that they bear any prospects of success. That decision I leave to the review court”. This means that the court specifically refrained from investigating the merits of the review application and did not pronounce thereon.

Subsequent to Constitutional Court judgement, the judgement by judge Louis Vorster on the 13th of December 2012 in the Pretoria High Court, sitting as the court of first instance to decide whether the review application should succeed, incorrectly held that OUTA should not succeed on the grounds of review and the evidence available to it at that stage.

This judgment and his order for costs was subsequently overturned by the Supreme Court of Appeal (SCA) on 9th October 2013, although the SCA held that the courts were precluded from pronouncing on the legality of the tolling of the Gauteng freeways because the direct review challenge was brought out of the prescribed time period of 180 days for direct review challenges. We underscore ‘direct review challenge’, as the crux of the matter is that there is a stark difference between a direct review challenge, and what has become known as a collateral challenge (defensive challenge).

The SCA fully appreciated this distinction fact, as can be seen from paragraphs 39 and 40 the judgment wherein it quoted the dicta in other judgements.

“The right to challenge the validity of an administrative act collaterally arises because the validity of the administrative act constitutes the essential prerequisite for the legal force of the action that follows, and ex hypothesi the subject may not then be precluded from challenging its validity. On the other hand, a court that is asked to set aside an invalid administrative act in proceedings for judicial review [ie a direct challenge] has a discretion whether to grant or to withhold the remedy. It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide. Each remedy thus has its separate application to its appropriate circumstances, and they ought not to be seen as interchangeable manifestations of a single remedy that arises whenever an administrative act is invalid.”

In the same judgement quoted here by the court, the nature of a collateral challenge is explained as follows:

“When construed against the background of principles underlying the rule of law, a statute will generally not be interpreted to mean that a subject is compelled to perform or refrain from performing an act in the absence of a lawful basis for that compulsion. It is in those cases – where the subject is sought to be coerced by a public authority into compliance with an unlawful administrative act – that the subject may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the validity of the administrative act”

In paragraph 40 the court further states:

“In this light it should be apparent that the 180 day time bar in s 7(1) is confined to direct challenges by way of proceedings for judicial review. It does not limit collateral challenges at all.”

In paragraph 43 the court states:

“Hence I believe that despite the appellants’ various arguments to the contrary, we are not authorised to enter into the merits of the review application.”

What is clear from the above is that should SANRAL now attempt to coerce the public into accepting tolls by either criminally or civilly forcing them to do so, the collateral challenge may be raised in defence as to the lawfulness of the actions/decisions by SANRAL and the Minister of Transport when tolling the roads.

Significant Judgments against SANRAL:

State vs Smit - 2006:

In the matter of State vs Smit, a collateral challenge was successfully launched against SANRAL when a Mr. Smit was criminally charged for his failure to pay tolls at the Nkomazi Toll Plaza between Nelspruit and Komatipoort on twelve separate occasions.

The primary question as to his liability was stated to be the following:

“The liability of the accused to pay toll was queried on the basis that the accused questioned the validity of the declaration of the N4 as a toll road”.

The legality of the declaration was challenged on the basis that there was a lack of meaningful consultation with interested and affected parties. This is an allegation that has been levelled at SANRAL with regards to the declaration of the Gauteng freeways as toll roads and the Cape Freeways as toll roads.

This challenge was successful, and Mr. Smit was found not guilty of failure to pay tolls as the road was not lawfully declared as a toll road. He was however found guilty of running a red traffic light as the toll operator did not switch the light to green for him to proceed.

City of Cape Town vs SANRAL - 2015:

In the City of Cape Town vs SANRAL, the City levelled a challenge to the validity of the declaration of the roads as toll roads on various grounds. It is important to note that the Cape freeways were declared as toll roads around the same time as the Gauteng freeways were, and in a very similar fashion.

In the City of Cape Town matter, the court invalidated the declarations of the roads as toll roads through a successful direct review challenge. The most damning indictment of SANRAL’s behaviour can be found in paragraph 205 of the judgement:

“It is clear from the discussion above that the provisions of the SANRAL Act have been ignored, or misapplied in a number of material respects.  The resultant breaches of the principle of legality are stark, especially when they are considered cumulatively.  It is of special concern that the nature of the unlawful conduct that has been identified in these proceedings goes in material part to a failure to give proper effect to the right of public participation.  That is something that is fundamental to the effective expression of everyone’s right to administrative action that is lawful, reasonable and procedurally fair.  It also a feature of the decision-making that puts it strikingly at odds with the founding values of accountability, responsiveness and openness, which are meant to underpin democratic government in this country and critically distinguish it from the authoritarian system that prevailed in the pre-Constitutional era.  As remarked in Hoexter, Administrative Law in South Africa Second Edition (Juta, 2012) at 363,116 in a passage quoted with approval by the Constitutional Court 117: Procedural fairness . . . is concerned with giving people an opportunity to participate in the decisions that will affect them, and - crucially - a chance of influencing the outcome of those decisions. Such participation is a safeguard that not only signals respect for the dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy.

There is a very evident need for corrective steps to be taken, both within SANRAL and also at the executive level of national government.”

HKML 3 Investments vs SANRAL - 2011:

In the matter of HMKL 3 Investments v SANRAL, a company sought an interdict prohibiting SANRAL from erecting an e-toll gantry that would obscure an outdoor advertising board. The question that ultimately came to the fore was whether SANRAL ever specifically consulted with HMKL 3 investments prior to the declaration of the roads as toll roads. The following passage from the judgment is extremely important.

“I am satisfied that the facts show prima facie that SANRAL failed to comply with the provisions of section 27(4) of the Act. Accordingly it follows that the applicant at least has a prima facie right to protect and that applicant should, on the probabilities succeed with an application to have the second defendant’s approval of the declaration of section 21 of the N1 as a toll road and the declaration itself reviewed and set aside.”

To the best of our knowledge the matter was never taken any further, but the above passage is indicative that although the matter has not been decided on in Gauteng, a court has intimated that there are strong reasons to believe that at least some of the freeways in Gauteng were not lawfully declared as toll roads.

OUTA’s Challenge against the Gauteng Freeway Toll Declaration:

OUTA has consistently maintained that:

1. No court has decided on the merits of whether the Gauteng freeways have lawfully been tolled.

2. No person is precluded from raising a collateral defence when SANRAL or the state attempts to coerce a person into paying tolls.

3. The Minister incorrectly approved the declaration of the roads as toll roads in contravention of Section 27(4) of the SANRAL Act, read together with the Promotion of Administrative Justice Act, in that SANRAL did not do what was required in the circumstances to meaningfully avail the public of what was coming, and thereby afford them a reasonable opportunity to influence their and the minister’s decision.

4. We maintain that SANRAL did not provide the Minister of Transport with the information required to apply his mind as to whether he should approve the declaration of the freeways as toll roads and therefore the minister could not and did not apply his mind.

5. Over and above the aforementioned, the reliability of the equipment used by SANRAL to determine the quantum of the liability of motorists has seriously been drawn into question, with thousands (that we know of) of examples existing of persons being charged incorrectly as a result of number plates being read incorrectly, vehicles not being where it is said they are, vehicles not being in the categories they are said to be etc. Furthermore, an inquest in January 2014, which relied on the e-toll gantry information supplied to a case involving a fatality on the Gauteng freeway network, resulted in the information not being used as admissible evidence, as it was grossly inaccurate.

6. The e-toll scheme’s cumbersome administrative processes, is further compromised by significant volumes of inaccurate data fed from the e-Natis system, which has prejudiced the road user, along with SANRAL’s extremely onerous dispute resolution process.

7. Additional administrative prejudice arises with delays of SA Post Office which has made it extremely difficult, at times almost impossible, for the public to receive their invoices in time to qualify for certain rate categories, is another serious flaw in the systems regulations and operability at the time.

8. The irrationality of the high costs of collection and administration of the scheme, in relation to the revenue planned for the bond repayments. This view becomes significant in light of other efficient options and current policies available to the state.

9. There are other substantive reasons and factors pertinent to each case that can be used in each defense on the e-toll matter.

Understanding the above, OUTA takes exception to SANRAL’s statement that we are encouraging or inciting disobedience, when we support the notion and view that the public need not pay their e-tolls. The public is refusing to submit to an unlawful instruction to pay tolls.

The public therefore has every right to stand their ground and to disobey that which has been introduced unlawfully.