RAISING FUNDS TO TO DEFEND A NON e-TOLL PAYMENT SUMMONS
Every individual citizen has the right to challenge the enforcement of a perceived unlawful action by Government against him or her. During OUTA’s previous legal challenges, the courts have not ruled on whether Sanral and the Department of Transport’s conduct to introduce e-tolling was lawful or not and have expressed that it is still open to individuals to bring a defensive (collateral) challenge against the enforcement of e-tolling on the basis that could very well be unlawful (see Sec 40 of SCA judgment).
In the instance of the first summons or prosecution issued against an individual for the non-payment of eTolls, it is critical that this first legal challenge to defend the rights of the individual is handled carefully and professionally, as it will set the precedent for the future of eTolls. The rights of all South Africans may rest on the outcome of this court decision and society’s ability to fight the legal case is important.
In this instance (of the first or qualifying summons for non-payment of eTolls) OUTA could assist and coordinate the legal support in this first test case / court challenge wherein; (a) OUTA will be able to provide the necessary knowledge and documentation which exposes the unlawfulness of the eToll decision(b) be able to provide an experienced legal team to challenge this case and (c) on the basis that sufficient funds have been raised from society to foot the legal and administrative costs.
We have estimated the need for 10,000 people to contribute R60 / month in a debit order for a period of 12 months, to cover the anticipated legal and administrative costs. If we are unable to raise sufficient support, OUTA may not be able to assist, in which case, a refund will be made (less administrative costs not exceeding 12%).
Through our safe, secure and strictly anonymous process
Managed by Collective Dynamics – FSP35478
Should we not be able to raise sufficient funds to proceed, we will refund all donors their money less 12% for the debit order, bank charges and administration costs.
Should we achieve more donors than initially required, OUTA will reduce the load on all donors by reducing the number of months the deductions will apply.
OUTA’s legal challenge to halt the introduction of eTolling was set aside on the basis that the case was brought too late. This is a technical matter that applies to judicial reviews in administrative law, were in the case needs to be brought within 180 days of the decision becoming known – i.e. the erection of the gantries. Technically. After months of engagement with SANRAL, OUTA’s members filed the legal challenge a few months too late.
That being the case, OUTA uncovered many strong points about the unlawfulness of Sanral and the Governments behaviour during the decision to declare the Gauteng Freeway Project a Toll Road. The Supreme Court expressly ruled that the lawfulness arguments of the e-tolling decision still needed to be argued at the appropriate time, if and when these are required to prevent a charge against an individual(s) for not paying toll fees. (see SCA judgment). In such a case which may arise when an individual contests being summonsed for non payment of e-tolls, the technical issues of time taken to bring the matter to court fall away and the merit of the lawfulness arguments must be argued in court.
What are these arguments which OUTA believe weigh heavily against Sanral and which will ensure society has a good chance of declaring the charing in eTolls unlawful:-
• SANRAL failed to properly consult with the public of the intent to toll Gauteng’s freeways at the outset and thereby did not conduct the legally required public participation procedure in October 2007 (for the N1, N3, N4 and N12) and April 2008 (for the R21).
• The Transport Minister (at the time Jeff Radebe) did not have sufficient information on the costs of the e-toll collection process in 2007/8, to rationally conclude that e-tolling would be the most efficient option to apply.
• The necessary and sufficient conditions for the introduction of etolling which is a complex system requiring the committed support from society at large in order to be successful, did not exist and were not sufficient to warrant a departure from the current efficient systems such as the fuel-levy and normal taxation to fund the freeway upgrade. This is turn will and has led to significant rejection of the e-toll plan by the public and which will effectively render it unworkable and too costly to administer.
• There are also other matters which add weight to the case.