The dilemma facing the prosecution of e-toll “offences”

I am not a political commentator, nor do I have any aspirations to be one, so this article is not a political statement by any stretch of the imagination.

Propaganda citing “patriotism”, leveling threats and other tactics

Of late, it has been the tactic of SANRAL and certain individuals in the Department of Transport to refer to “getting tagged” as being the “patriotic” thing to do – as if to say that if you don’t do so, you are some form of Enemy of the State.

Of course, patriotism involves the love and vigorous support of one’s country, but it certainly does not mean that its meaning can be extended to include blindly supporting what is unjust. South Africa presents a perfect example of how one’s love of country and love of the policies of the governing party cannot be conflated. If patriotism meant turning a blind eye to unjust laws then apartheid would simply never have ended.

People like this also seem to conveniently forget that it’s blind “patriotism” that has been used to enact such things as the USA’s controversial Patriot Act, which has removed almost every civil liberty that Americans have held dear for centuries in “the world’s oldest democracy” and this law has drawn severe criticism from people in our own country as well as elsewhere.

Appealing to one’s love of our nation and our fellow countrymen in an attempt to encourage compliance with irrational policies and is not only disingenuous, but is extremely short-sighted on the part of those who have adopted this stance.

Another tactic that has been employed has been to threaten people with prosecution and harsh consequences for non-compliance with the e-toll laws which have been hastily drafted to deal with those who refuse to comply with them.

These laws can be likened to the pass laws of the apartheid era and how the Dompas was used to restrict the movements of people. After all, the e-tag presents 21st century version of the Dompas, given the fact that free movement is restricted and not presenting one can land you in a great deal of hot water.

Due to the similarities between the Dompas and the e-tag, SANRAL hasn’t gone so far as to absolutely legislate that you MUST have one. Instead it has used a so-called “discount” structure to make it so unattractive to not have a registered and adequately funded e-tag that it would seem to be stupid not to have one.

Using economics to drive compliance

Few people realise it, but it is SANRAL’s intent to make the eRoads a prepaid system where you pay them money up front in order to use the GFIP. The purchase and registration of an e-tag is simply the first step in the process and you are expected to keep a positive balance of funds in your account in order to be entitled to the discounts and monthly caps they speak of.

I won’t go into fine detail here, since doing so would extend the length of this article would easily double in length if I did. Suffice to say that it is only registered e-tag users with positive monetary balances who will be entitled to the “low” tariffs and the monthly cap that SANRAL boasts of.

Laws and law enforcement

There is a significant difference between enacting laws designed to ensure the safety of road users and enacting what is effectively nothing more than a further taxation law.  We already have taxation laws which include a hefty fuel levy which is supposed to be used to be used to build and maintain roads infrastructure – at least, that is what the vast majority of motor vehicle owners and road users have understood its purpose to be.

It is an indisputable fact that when people violate road traffic laws, they must be taken to task. If they are not, our roads would be an even more dangerous place to be than they already are. Sadly however, most traffic laws go unenforced and people are literally allowed to do whatever they wish, so long as they do so at speeds under the speed limit.

The irrational and almost sole focus on speed-related enforcement has already led to very low compliance with the traffic laws that apply to use of our roads and this manifests itself in the unacceptably high level of road deaths and injury that plays itself out in South Africa each and every day.

Very little has been done to address the road carnage situation and both, the Criminal Procedure Act (CPA) and the Administrative Adjudication of Road Traffic Offences (AARTO) Act have failed dismally to provide an effective mechanism to deal with prosecutions for offences committed in terms of the National Road Traffic Act.

There is a distinct difference between the CPA and AARTO in that the former relies on the courts to deal with offenders, whilst the latter uses a combination of administrative justice and the courts to do so.  Under AARTO, only serious road traffic offences are dealt with by the courts, whilst lesser infringements are dealt with administratively.

It was recognised more than two decades ago that the Criminal Procedure Act had failed to address road traffic offences in an effective manner and this was the primary reason for the drafting of specific legislation, in the form or the AARTO Act, so as to better deal with road traffic offences.

In 1998, the AARTO Act came into operation and two decades later, it was finally introduced on a “pilot” basis in the operational areas of the Johannesburg and Tshwane Metropolitan Police Departments, which cover a large proportion of the freeways encompassed in the Gauteng Freeway Improvement Project (GFIP).

It is my contention that those who have chosen to confuse issues by calling for AARTO to be repealed are either dismally misinformed about the effectiveness of the Criminal Procedure Act in dealing with road traffic offences, or have alternative hidden agendas.

Jurisdiction of the Courts

The portions of the GFIP which do not fall under the operational areas of the JMPD and TMPD, fall under the jurisdiction of the Ekurhuleni Metropolitan Police Department (EMPD) and are administered by the Criminal Procedure Act.

It is here where the GFIP faces its first dilemma in the prosecution of e-toll offences, because Section 17 of the AARTO Act says “If a person is alleged to have committed an infringement, an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice”.

Of course, this can be easily overcome by schedule 3 of the AARTO Act simply defining all e-toll transgressions as offences instead of infringements, but this carries a number of other practical difficulties since offences in terms of the AARTO Act also prescribe that the alleged offender may be arrested and will incur a criminal record if they are convicted of such an offence.

Given the representations made by SANRAL representatives to the Parliamentary Portfolio Committee for transport a while ago, it appears that it is the intention of those concerned is to define all e-toll transgressions as criminal offences and therefore the Criminal Procedure Act will be applicable in the prosecution offenders.

SANRAL’s Vusi Mona has also repeatedly vacillated about the use of the Criminal Procedure Act, despite the fact that he knows little or nothing about traffic law and law in general.

The eNaTIS dilemma

SANRAL seems to have conveniently disregarded the fact that because the eNaTIS vehicle registry is so full of outdated particulars with respect to the addresses of vehicle owners and this has severely affected the ability of traffic authorities to legally serve notices on alleged offenders.

Contrary to popular belief – largely on the part of the authorities – it is not true that all vehicle owners who have moved have deliberately failed to update their address particulars.  It is in fact largely the fault of licensing authorities who blatantly ignore any attempts other than a physically separate notification of change of particulars that is submitted by vehicle owners, not the failure on the part of honest citizens who have tried to update their details.

For these reasons, the service of documents such as infringement notices, summonses etc. presents a huge problem to traffic authorities throughout South Africa and little has been done to correct this situation.

There is also a huge problem (not challenge) which is presented by the existence of false number plates on a high proportion of motor vehicles. SANRAL claims that it has technologies to overcome this, but they have failed to explain how this technology will work when false number plates are affixed to vehicles which are, to all intents and purposes, of the same make and colour as the genuine vehicles they have been copied from.

Overburdened Court rolls

When SANRAL speaks of the prosecution of e-toll transgressors, it seems to have forgotten to take into account the fact that the overcrowded court rolls are already struggling to deal with the existing matters before them. By adding to this situation, they will either effectively bring the South African criminal justice system to a grinding halt, or fail in carrying out their threats.

It is very easy to assume that all of the road traffic offences committed under the National Road Traffic Act outside of the AARTO pilot implementation would ordinarily be prosecuted in the courts, but nothing could be further from the truth.

In reality, only a very small portion of the total traffic fines issued under the Criminal Procedure Act result in the alleged offender seeing the inside of a court.

This is due to numerous reasons, not least of which is the capacity of the courts to deal with the volume of cases which must be heard. For this reason, amongst others, very few traffic fines issued under Section 341 of the Criminal Procedure Act progress to the issue and service of a summons in terms of Section 54 of the Criminal Procedure Act.

The other significant reason which cannot be ignored is the inability of authorities to serve summonses in accordance with the prescripts of the law, on alleged offenders whose details are not up to date on the eNaTIS registry.

The current position where the courts lack the capacity to deal with these matters in a timely fashion simply cannot be ignored and this needs to be put into perspective to fully understand the true extend of the problems that SANRAL will face with the prospective prosecution of the e-toll transgressors .

There are currently 14 traffic courts in the jurisdiction of the EMPD and they can deal with approximately 200 cases a week. Johannesburg has 5 and Tshwane has around 15 traffic courts too.

Given the fact that some 600,000 e-tags have allegedly been sold, at the very least, the quantum of individuals who will be regarded to be e-toll transgressors could be in the order of 1 million people or more per day.

Even if SANRAL decides to combine all of the transgressions committed by each e-toll transgressor into a single summons over a period of a month, as is being proposed by those who are explaining how they will deal with the prosecution of these matters, this will mean that 1 million matters will have to be set down for trial each month.

You really don’t have to be a professor of applied mathematics to calculate that it will be physically impossible for the courts to handle these volumes and you don’t have to be a professor of laws to understand that the courts cannot excluded from the process without seriously violating the basic fundamental human rights which are protected by the Constitution.

The criminal courts of Ekurhuleni, Johannesburg and Tshwane do not deal with 1 million matters for all crimes combined on a monthly basis, let alone traffic offences alone. In fact, they don’t deal with that many criminal matters on an annual basis and I sincerely doubt that all of South Africa’s criminal courts combined do either.

Therefore, there is no way on God’s sweet little earth that they will deal with that many for a single “crime” of e-toll transgression on a monthly basis.

Another dynamic that has been integrated into the prosecution of e-toll transgression has been the imposition of civil financial penalties. The civil penalties which have been legislated are astronomical and could easily necessitate the sequestration of anyone upon whom they are imposed, which would in turn cause serious social and economic consequences for the public who are already suffering financially because of the high costs of living. This is quite aside from the fact that sequestrations must also be heard by a court.

Because these physical “challenges” exist, it is being contrived that a few people will be made an example of by using this blatant intimidation tactic to subdue the rest into compliance.

Instilling fear is an integral part of the strategy that has been adopted and it is not in the least bit inconceivable that a large proportion of people will indeed be intimidated enough to capitulate after they see one or more parties being crucified by the authorities for daring to defy e-tolls.

It’s sad that government have chosen to resort these scare tactics in order to intimidate its citizens. Furthermore, this kind of behaviour on the part of these State institutions is in total contradiction with the “Batho Pele” principle which is supposed to be rooted and promoted in any political and legislative framework.

Defiance

To my understanding, the Opposition to Urban Tolling Alliance (OUTA) has not once suggested that people should not pay e-tolls if or when they are enacted, but then there are the other views and standpoints, like that held by COSATU who have openly stated that not only should people not register or buy e-tags, but that they should also refuse to pay e-tolls. OUTA has chosen to fight e-tolls in the courts, whilst others have taken the battle to the streets.

Whilst significant funding to fight this matter in the courts has been forthcoming, the concept of refusing to pay e-tolls at all has spread like wildfire and it would appear that many people have come to side with COSATU’s stance on this matter.

The adoption of this stance will result in SANRAL being forced into a position where it has no option but to proceed with vigorous prosecution if it is to be taken seriously by anyone – if e-tolls go ahead if the legal challenges fail.

SANRAL’s assertion that their law enforcement officers will stop motorists who allegedly haven’t paid e-tolls and escort them to the nearest “customer service centre” to pay is not only completely unlawful, but will see them getting sued blind for unlawful arrest. After all, we still live in a constitutional democracy, not a Police State – at least for now.

Standing together

For the first time in South Africa’s young democracy’s history, citizens have taken a stand to defy the irrational policies over the e-tolling issue. This has clearly angered our government who, despite having introduced some good policies and laws, seem to think that it is their right to enact any policy they wish. Somewhere along the line, they seem to have forgotten the words of their own Freedom Charter and appear to have come to believe that they may simply discard the wishes of the people.

We have recently been told by the Minister of Transport that there will be “no more public consultations” on this issue and the “low turnouts” at the so-called consultations of November 2012 have been cited to present the impression that it’s only a very few “elite” who are complaining.

What has been conveniently left out is that those “consultations” took place only in “elite” areas, at times where most people are stuck in traffic, trying to make their way home from work and in most instances, were actually overcrowded.

Not one venue was in any one of the numerous “townships” like Soweto, Katlehong, Mamelodi, etc. and it would appear that this was purposefully done in order to ensure that fingers could be pointed.

So where to from here?

If you are the kind of person who capitulates when threats are levelled against you and/or when you see others being crucified then there is no doubt that the planned tactics will have a dramatic influence on your decision of whether to comply with the daylight robbery which is personified by e-tolls or not.

Up to the stage where SANRAL and its allies chose to adopt these intimidation tactics, it had been my sincere intention to comply and pay e-tolls on the basis where SANRAL correctly invoices me and provided that they could prove beyond reasonable doubt that it was indeed me and/or my vehicle that passed under their gantries.

Subsequent to the continuous threats and intimidation tactics levelled by SANRAL and the Department of Transport, I have changed my mind. I don’t break laws and am always mindful to encourage my fellow citizens to abide by the laws of our county but I find myself in a moral dilemma over the e-toll laws because I really don’t believe they are just.

I therefore cannot, with a clear conscience, encourage people to do anything other than to resist these unjust laws with vigour and in doing so, I pledge to do the same myself.  I am prepared to openly state that I am now in total agreement with COSATU’s and other’s views that these laws are unjust and unfair and therefore cannot be complied with.

When I respectfully submit that the prosecution of e-toll transgressions will fail dismally and on a monumental scale, I am therefore not speaking from a theoretical standpoint which I am not prepared to back up, nor am I saying “do as I say, not as I do”.

I am fully prepared to put my whatsits directly on the line and show just how committed I am to what I say and therefore if SANRAL chooses to make an example of me in their prosecution of these matters, I will vigorously defend myself and demonstrate just how unworkable these prosecutions will be.

Aluta Continua!

Howard Dembovsky