OUTA v SANRAL:

The Gauteng e-tolls

OUTA'S CAMPAIGN AGAINST TOLLING GAUTENG'S URBAN FREEWAYS 

Odoo CMS - a big picture

Where we are now (2021)

OUTA’s test case against SANRAL on the constitutionality (therefore the lawfulness and enforceability) of the e-toll scheme is on hold while government decides on the future of e-tolls.  If need be, we will merely continue the case once government makes a formal decision on the future of e-tolls. Until then, we will continue challenging this irrational, failed scheme at every opportunity.


How we got here

In October 2015, OUTA set up the E-toll Defence Umbrella.

The E-toll Defence Umbrella crowd-funds the litigation process in the challenge to SANRAL’s strategy of summonsing e-toll defaulters. This is for motorists who face a summons from SANRAL for unpaid e-toll bills and who would like to use OUTA’s lawyers to defend the claim.

While the Supreme Court of Appeal (in this court’s judgment in October 2013) allowed SANRAL to continue its e-toll scheme, the court also made it clear that a defensive challenge could be raised against SANRAL if it prosecutes motorists for failing to pay e-tolls.

OUTA assists motorists who are opposed to SANRAL’s claims in two ways. Firstly, it tests the merits of each case since every case differs. Secondly, and more importantly, is the “collateral challenge”, which is the legal challenge related to the constitutionality of the e-toll scheme itself.

OUTA would like this collateral challenge to be heard prior to the merits of each specific case being heard, because if that is won, tthe entire e-toll scheme falls. OUTA believes there is a strong case, but it is slow work getting it through the courts, because there are many individual cases and a tremendous amount of paperwork involved.

The issues may be separated, so that the issues of lawfulness of the scheme are argued before the merits of each case. This means using a test case, or a group of test cases to cover all the issues, but these cases have not yet been agreed on between OUTA and SANRAL, and a court date has not been set for the first case.

When OUTA's lawyers act for the OUTA supporters, they file a notice of intention to defend each summons, which prevents SANRAL from obtaining default judgments against the defaulters. 


Key arguments

Amongst other things, OUTA is arguing that:

  • SANRAL’s declarations of the Gauteng freeways as toll roads are invalid as they don’t comply with public information and consultation requirements in the SANRAL Act and the Promotion of Administrative Justice Act;

  • SANRAL’s toll declarations are against the constitution which requires “Supremacy of the constitution and the rule of law”;

  • SANRAL’s notices of intention to toll were materially inadequate and flawed;

  • There was insufficient notification and time for the public to comment during the public engagement exercise and furthermore, SANRAL didn’t properly consider the few comments that were made;

  • The Minister of Transport’s approval of the tolling is unlawful and invalid as these decisions were irrational and he did not sufficiently consider the costs, any alternative means of funding the roads, alternative routes for motorists or the impossibility of enforcing open road tolling;

  • The SANRAL board failed to approve the tolling before the declarations were issued and furthermore, failed to consider alternative funding, excluded the fuel levy as a means of funding, failed to consider whether it was practical to enforce open road tolling, failed to consider alternative routes, failed to consider the costs of the toll operations and failed to consider the substance of public representations;

  • Both the minister and the SANRAL board wrongly abdicated their decision-making powers by considering themselves bound by cabinet’s decision in July 2007 to toll Gauteng freeways;

  • The environmental authorisation is invalid as it was not correctly processed by the M    inister of Environmental Affairs;

  • SANRAL didn’t follow the legal requirements for delivering the invoices for the e-toll fees owed;

  • SANRAL charged VAT on the e-tolls incorrectly and was not entitled to do so;

  • SANRAL did not provide reasonable alternative non-tolled routes, which violates constitutional rights to freedom of movement and equal treatment.


Progress in the case

May 2017: OUTA pulls out of attempts to work with SANRAL to jointly identify an e-toll claim test case, as it was taking too long to get to court. Instead, OUTA identifies the summons against supporter Thandanani Truckers and Hauliers as a key case and compiles papers based on this.

10 May 2017: OUTA’s E-Toll Defence Umbrella: OUTA lawyers serve SANRAL's lawyers with responding pleas to summonses issued for outstanding e-toll payments against OUTA's contributing supporters. This includes the Thandanani plea, one of the main defendants in the high court claims, who was issued with a summons for R402 841.62 in unpaid e-tolls run up from January 2014 to August 2015. Thandanani had an e-toll account with its address listed but SANRAL sent invoices to the wrong address, used ordinary mail instead of registered mail and failed to send any invoices at all during some weeks. This case effectively becomes the basis of OUTA's "test case" against the e-tolls, which will argue that the scheme was introduced unlawfully. The matter is in the Pretoria High Court. [OUTA, "Gloves are off as OUTA files e-toll court papers", 11 May 2017] The Thandanani plea papers are here.

October 2017: OUTA identifies four defendants in the high court actions and agrees with SANRAL to halt proceedings (up to close of pleadings between parties) of all other matters, pending the outcome of the test case.

2018: OUTA joins individual defendants to the now consolidated test case of representative spread of defendants, challenging the constitutionality of the e-toll scheme in a singular matter, without clogging up the court with thousands of e-toll cases. The test case now includes individuals who were sued by SANRAL in the magistrate’s court. Due to nature of the matter, the test case is allocated for case management under Judge Ronel Tolmay.

February 2018: OUTA’s E-Toll Defence Umbrella: OUTA lawyers are defending 576 cases on behalf of e-toll defaulters who received summonses from SANRAL. These had a total value of R71.3 million and were 515 cases in magistrates’ courts and 61 in the high court. [OUTA annual report 2017/18]

25 September 2018: Minister of Transport told Parliament that SANRAL has issued 15 505 summonses for e-toll debt, that only 3 724 (24%0 of these were served on the defendants and that 1 320 of those served are being defended. [Reply RNW2673, published 25 September 2018]

February 2019: OUTA’s E-Toll Defence Umbrella: OUTA lawyers are defending 1 234 cases on behalf of e-toll defaulters who received summonses from SANRAL. These were 1 205 cases in magistrates’ courts with a total value of R75.105 million and 29 cases in the high court valued at R86.126m. The highest value single claim is R20.239m and the lowest value is R1 360. [ OUTA annual report 2018/19 ]

February 2019: OUTA estimates its lawyers have by now filed about 135 000 pages of legal documents over several years and in many courts in the e-toll cases against SANRAL. [ OUTA annual report 2018/19 ]

March 2019: The test case litigation is at an advance stage and the SANRAL attorneys and OUTA’s attorneys file the discovery documents.

27 March 2019: SANRAL announces its board has decided to suspend the process of pursuing e-toll debt. [News24, “ Sanral suspends process of pursuing e-toll debt ”, 27 March 2019; and SANRAL statement, SANRAL’s board passes resolution on e-toll summonses , 27 March 2019]

18 March 2019: The Credit Bureau Association announces that e-toll debt may not be used to blacklist defaulters’ credit records. “ The Transport Laws and Related Matters Amendment Act, 2013, which amended the South African National Roads Agency Limited and National Roads Act, 1998, specifically excludes the levying and collecting of e-tolls from the provisions of the National Credit Act, 2005 (NCA). Credit bureaus receive, hold, display and remove consumer information in accordance with the provisions of the NCA and accordingly are not able to hold information which is specifically excluded from the provisions of the NCA,” said the CBA.  [ CBA statement , 18 March 2019]

March – April 2019: OUTA’s attorneys engage with SANRAL’s attorneys on the continuance of test case. SANRAL’s attorneys confirm they have received no instruction from SANRAL to continue.

February 2020: OUTA’s E-Toll Defence Umbrella: OUTA lawyers are defending 2 028 cases on behalf of e-toll defaulters who received summonses from SANRAL, with a total value of R139.192m. These were 1 029 cases in magistrates’ courts with a total value of R52.335 million and 99 cases in the high court valued at R86.858m. [OUTA annual report 2019/20]

June – July 2020: OUTA receives various queries from supporters who received letters of demand dated June 2020 from SANRAL on outstanding e-toll debt.

2021: OUTA’s test case against SANRAL on the constitutionality (therefore the lawfulness and enforceability) of the e-toll scheme is on hold while government decides on the future of e-tolls.  If need be, we will merely continue the case once government makes a formal decision on the future of e-tolls. Until then, we will continue challenging this irrational, failed scheme at every opportunity.

Odoo image and text block

The ongoing legal challenge and the E-Toll Defence Umbrella

OUTA contributing supporters who wish to challenge e-toll summonses from SANRAL may join the E-Toll Defence Umbrella.

Accessing the E-Toll Defence Umbrella

As a non-profit organisation, OUTA is crowd-funded and our work is completely dependent on public donations.

Join us and make South Africa better.