Trucking company in R400,000 e-tolls test case
News24 Wire12 May 20177
A transport company that has been summonsed over R400,000 in unpaid e-tolls is set to go into battle with Sanral, in what is expected to be the first test case in court over unpaid fees.
In the civil action, Thandanani Truckers and Hauliers is disputing that it owes the SA National Roads Agency Limited R402,841.62 in e-tolls and alleges that the scheme is unlawful.
The haulier’s defence is being supported by the Organisation Undoing Tax Abuse’s (OUTA’s) legal fund, started specifically for a test case involving a member.
Sanral has previously obtained a default judgment against an e-toll user, and believed this would set a precedent, but OUTA claimed that case was meaningless because it was not opposed and there was no legal argument.
According to the transport company’s legal papers, Sanral allegedly sent invoices to the wrong address, used ordinary mail instead of registered mail, and failed to send invoices for some periods.
In addition, it alleges that Sanral and the transport department did not register to collect Value Added Tax, and were not indicating VAT as a separate item on lists of charges making it unlawful to collect VAT on e-toll use.
The company also argues that public comments were not handled properly because there was more interest in complying with a Cabinet decision to toll parts of Gauteng’s freeways, than meeting the procedural requirements of introducing the pay-per-use scheme on 201km of highway around Johannesburg.
OUTA was excited about the move, and was looking forward to other organisations opposed to e-tolls joining the application as friends of the court.
In response Sanral said on Friday that OUTA was not doing anything new.
”In Sanral’s opinion, legal certainty was previously provided by various courts , i.e. the Constitutional Court, High Court and Supreme Court of Appeal and the plea filed does not appear to introduce any new material matters which were not previously before the courts.
”Despite these judgments, OUTA continues to state that tolling is illegal and users don’t need to pay, which in our opinion is incorrect and does not reflect the findings in the previous court decisions.”
Meanwhile, the opposition Democratic Alliance has made the scrapping of e-tolls an election promise, and the Congress of SA Trade Unions has said it also is strongly opposed to e-tolls.
Since December 3, 2013, the date from which tolls could be levied for travelling on the 201km of roads upgraded under the Gauteng Freeway Improvement Project, Sanral had faced condemnation and resistance to the scheme.
A court and a date has not been set yet, as early processes are still underway.
Now read: Fight to have thousands of traffic fines in South Africa withdrawn
The Organisation Undoing Tax Abuse (OUTA) has moved to the next round of the civil challenge against the e-toll system implemented in Gauteng by the South African National Roads Agency Ltd (SANRAL). On Wednesday, OUTA served SANRAL with its responding pleas to the summonses issued for outstanding e-toll payments against OUTA’s contributing supporters.
Effectively, this becomes the “test case” which will highlight why OUTA believe the Gauteng e-toll scheme was introduced unlawfully. The matter is being heard in the Pretoria High Court.
“We regard the e-toll system as unjust and illegal for a number of reasons,” says Ben Theron, OUTA’s Chief Operating Officer. “We have gathered our facts and prepared our case over the past few years, so as to present compelling arguments and merits which will speak for themselves.”
OUTA’s case is outlined in the action which SANRAL filed against Thandanani Truckers and Hauliers who were served a summons for R402 841.62 in unpaid e-toll fees, run up from January 2014 to August 2015.
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 minister of Environmental Affairs;
- SANRAL didn’t follow the legal requirements for delivering the invoices for the e-toll fees owed;
- 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;
- 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.
“The e-toll fight has been a long journey and we value the support received from the public in this battle, however, the real fight is now only beginning,” says Wayne Duvenage, Chairman of OUTA. “The matter is being fought on two fronts: the constitutional matters of the scheme’s introduction; and the technical matters and merits of each specific case.” This, in turn, leads to each case being different and SANRAL will not be able to claim a precedent for any case it wins. The road ahead will become messy and at the end of the day, Sanral will not be able to convince its masters or investors that this collection process is efficient or effective.
“Once again, OUTA calls on the authorities to allow sanity to prevail by scrapping the e-toll decision and move forward with society to find the right solution to service the debt raised for the Gauteng freeway upgrade,” says Duvenage.
In lieu of the constitutional matters raised in the plea of this first case by OUTA, organisations and people with an interest in those constitutional matters, are invited to tender for admission as amicus curiae to the e-toll case.