On SANRAL’s website (the South African National Roadway Agency Limited), they describe the various proposed amendments to the SANRAL Act as amendments sought to clear up “grey areas”. The proposed amendments have already been submitted for approval by the legislature.
It can be argued that the amendments are indicative of much more than an intention to clear up confusion. The amendments ironically create confusion as the amendments indicate that the e-toll system is regarded as a hybrid of sorts, as will be explained later.
SANRAL is viewed as company that facilitates and manages national roads in association with other toll concession holders in South Africa. SANRAL is more controversial than other concession holders as this organisation has introduced the e-toll system in the Gauteng province.
Road users of certain highways in the Gauteng area are billed according to usage of such roads. If the road user has an e-tag, the toll funds are immediately and automatically deducted from that motorist’s e-toll account at a discounted rate. If the road user does not have an e-tag, accounts are manually posted to such motorist for payment and the account is not discounted.
Many motorists share the sentiment that they are not willing to pay their e-toll accounts as their public opinion of the e-toll system was not considered before the system was implemented. It is said that less than 10% of motorists that use the e-toll highways duly pay their e-toll accounts, while the other 90% of motorists are boycotting SANRAL and the e-toll system by refusing to pay their e-toll accounts.
SANRAL has recently introduced some major amendments to the SANRAL Act 07 of 1998. The amendments are interesting for they are indicative that e-toll funds are not only one type of public fund but in fact of hybrid, thereby escaping regulation other than that in the SANRAL Act.
One major proposed amendment is for e-toll funds to be excluded from the scope of the National Credit Act 34 of 2005. The rationale behind this amendment is for SANRAL not to be viewed as a credit provider and therefore for SANRAL not to be subject to the “reckless credit” requirements laid down in the Act. This amendment therefore arguably indicates that the e-toll system in some way currently extends credit to motorists when motorists use the particular highways. E-toll funds can therefore be said to be a type of credit.
Another major proposed amendment is that any e-toll in arrears should prevent a South African from returning to South Africa. The e-toll funds and system in this sense acts as a requirement in the customs context. In the same manner that a foreigner will not be able to cross another country’s border without a valid visa, a South African will not be able to return to our country if his or her e-toll accounts are not paid in full. It is therefore arguably considered a customs requirement.
Furthermore, it is proposed that the Act be amended so that a motorist will not be able to renew his or her motor vehicle licence if he or she has any e-toll arrears. This is indicative that e-toll funds are intended to act as a tax. Other taxes also have far-reaching punitive properties that are intended to deter the tax payer not to evade his or her taxes.
Legally-speaking, the legal properties of a construct need to be clear. Legal certainty is absolutely crucial in any functioning democracy. In the case of e-toll funds there is an obvious lack of legal certainty as this type of system or funds seem to be a hybrid between credit, customs and taxes. Such confusion places the collectors and beneficiaries of these funds in an even stronger bargaining position and places the motorist in an even weaker bargaining position as regulation is not clear.
Most jurists will argue that introduction of the e-toll system constitutes an administrative act. In other words, the system is an act that implements or gives effect to a piece of legislation with a wide impact on the public. If the introduction of this system is correctly considered as an administrative act, then PAJA requires that public participation take place. There are many types of public participation, including inquiries, surveys, round table meetings, workshops and local meetings.
The reason for mentioning the aspect of public participation is that SANRAL may argue that they have correctly complied with the requirement of public participation because introduction of the e-toll system is not really only an administrative act. From the proposed amendments to the SANRAL Act, enough confusion is created as to what the system and its funds entail for the system not to fall under the label “administrative action”.
By being a hybrid of sorts, e-toll funds also escape other types of regulation. The lack of legal certainty and proper legal regulation is worrisome, especially during a time when SANRAL has commenced with legal action against various motorists for outstanding e-toll accounts. Hopefully sound precedents will be established by our courts within the next few months in order to clarify the current confusion.