Is the new e-toll dispensation legal?

Howard Dembovsky, national chairman of the Justice Project South Africa (JPSA), states that the organisation has received numerous queries about whether the linking of unpaid e-tolls to licence disc renewals would be legal. To be honest, we’ve been wondering the same thing …

“As things stand right now, this provision, along with all the other changes announced around e-tolls on Wednesday, May 20, will have to be reduced to writing in the form of draft regulation amendments, which must then be published for public comment.

“Interested parties will then have 30 days, from the time of publication of that government gazette, to make written representations to the Department of Transport,” he begins.

“Only when that process has been completed and the minister of transport has applied her mind to all of the submissions received, may she publish amended regulations and proclaim a commencement date for the new provisions.”

Dembovsky says that this might not be as easy as it sounds. “JPSA is of the opinion that withholding the issue of licence discs, while sounding easy enough, may not pass constitutional muster.

“Among other things, it would be tantamount to forcing a person – who has in fact paid licence fees to renew their licence, but to whom a licence disc has been refused – to contravene the National Road Traffic Regulations by not displaying a current licence as prescribed.

“Even if this proposed amendment were to pass constitutional muster, there is no guarantee whatsoever that holding motorists to ransom, by withholding a licence disc, would have the desired effect of forcing people to pay their outstanding e-toll bills.”

Dembovsky notes that, in fact, the opposite may turn out to be true. “The possibility of a whole new industry of mass false licence disc production could become a very real possibility.

“Displaying a counterfeit licence disc is a serious criminal offence for which a person would be charged criminally. Such counterfeit discs can be detected by the equipment contained in the now infamous ‘e-toll roadblock’ Sanral vans and trucks.”

Under the AARTO Act, not displaying a licence disc is, however, a minor infringement that results in a R250 fine (discounted by 50 percent if paid within 32 days).

“The consequence of not paying such a fine could, after the prescribed period and processes have ensued, lead to an enforcement order being issued, thereby blocking licensing transactions on eNaTIS against the person whose licence disc has already been refused.

“In other words, that person would then not only have unpaid e-tolls and no licence disc, but would also have one or more unpaid traffic fines. However, these can currently proceed no further than an enforcement order and would, therefore, constitute no real further consequence,” Dembovsky explains.

“If this provision does go through and people dig in their heels, it may be found by the Gauteng provincial government, and all licensing authorities in Gauteng, that the tactic of withholding licence discs will have a profound negative impact on their own licensing income revenues.”

He continues: “With Gauteng’s vehicle population being the greatest in South Africa (38,87 percent of the country’s total vehicle population of 11 493 608, as at March 31) the licensing fees generated in Gauteng are far from chump-change. If people stop paying them, this will represent a significant revenue drain for the province and for the Department of Transport.

“It is, indeed, a pity that government has insisted on persisting with trying to make this system work. It has already demonstrated itself to be a failed and unworkable system, which is additionally enormously unpopular and entirely inappropriate for South Africa,” Dembovsky concludes.