SANRAL have issued thousands of e-toll summons over the last few weeks against motorists, both in the High Court in Pretoria, and the Magistrates Courts in various districts around the country.
OUTA has noticed some serious issues which are in direct contravention with the rules of the court and the tenets of the law society. These issues range from failing to issue case numbers on defendant’s copies of e-toll summons, using lawyers operating from “virtual offices”, making material mistakes on summonses and failing to provide accurate contact details. Of additional concern is SANRAL’s use of up to four separate attorneys to issue summons, some of which are based in Durban and Cape Town, which is unnecessary and pushes up the cost to taxpayers.
After consultation with members of the public who have received summonses issued at the Pretoria Magistrate’s Court and Atteridgeville Magistrate’s Court, OUTA has ascertained that many of these summonses did not have case numbers on the defendant’s copy of the summons. This is a very serious concern and is in direct breach of the Magistrate’s Court Rules. Without a case number a defendant will not be able to defend the matter, as they will have no reference or access to his/her court file, and this will make it virtually impossible for a defendant to file a Notice of Intention to Defend.
It would be unethical, unprofessional, unlawful and most definitely reportable to the Law Society for SANRAL’s lawyers to proceed to obtain judgements by default where defendants do not file a notice to defend because they are unable to do so. But the public cannot simply ignore these irregular summons, as it opens the door for SANRAL’s lawyers to get default judgment by way of their deficient processes. This places an unnecessary burden on the public, who will have to rescind these judgments if granted.
These incidents are an outright abuse of the court process and transgress citizen’s rights to defend themselves fairly. SANRAL’s lawyers are trying to ‘sausage machine’ these complex cases and are making it difficult for the public to defend themselves. OUTA is able to launch a defense for its members who are on the receiving end of these erroneous processes, however, our concern lies with the less informed members of the public who may suffer the consequences of a judgment taken against them as a result of this unacceptable and dubious behaviour by SANRAL and its lawyers.
OUTA has also noticed that once these summonses are defended, despite the initial serving being done by attorneys from all corners of the country, their Sandton based Werksmans attorney provides notice and comes on record for SANRAL by replacing the previously appointed attorneys. It appears that four different law firms are being used where one should be sufficient. This practice is questionable as SANRAL were required from the outset to make use of attorneys situated in Pretoria for the High Court matters.
The correspondent attorney used by SANRAL in the Pretoria Magistrates Court summons is Bruce Henderson Attorneys. According to the summons, Mr Henderson’s physical address, where notices have to be delivered is 3rd Floor, Building 2, Brooklyn Bridge Office Park, 570 Fehrsen Street, Pretoria. But Mr Henderson doesn’t practice from this address, as the office constitutes nothing other than a single desk with a receptionist in a Regus office, nor is the receptionist able to answer a single question regarding issues relating to the summons.
OUTA has been informed by the Law Society that an attorney is not allowed to publish a virtual office address as his physical address on any court documents, neither register such an address as his physical address with the Law Society or in any catalog. OUTA was advised by the Law Society to lay a charge at the Law Society against Bruce Henderson Attorneys, and will be doing so shortly.
The Magistrate’s Court Rules also prescribe that the attorneys for the plaintiff will indicate on the summons their, fax, email, and telephone number. None of these appear on the summons, and it simply redirects the motorist back to Sanral’s “Less60” call centre and Sanral’s Violations Centre telephone number, whose operators are entirely clueless about the details of the summons. Queries by the public regarding the summonses are therefore not likely to bear any fruit, and once again place the public at risk of default judgment being obtained against them unfairly.
Taking into consideration that some of the amounts SANRAL had issued summons for are as little as R5000, and the costs of pursuing the money will exceed the amount claimed, the summonses are clearly an intimidation tactic aimed at coercing the public into accepting the widely rejected scheme.
OUTA finds comfort in contact received from several law firms who confirmed that they were instructed to issue summons for non-payment of e-tolls, but who refused outright to conduct these services on behalf of Sanral, as a matter of principle.
The procedural unfairness of not giving individuals adequate means to defend themselves because of abuse of the court process will serve to strengthen the resolve of an organised and widespread resistance to e-tolling.
All contributing OUTA members will receive our legal defence if summonsed for non payment of e-Tolls under our e-Toll Defence Umbrella whether they are/were registered for e-Tolls or not. Click here to become a member.