E-toll update: Legal challenge is slowly progressing

On one side, batches of text messages with debt collection warnings are repeatedly sent in a war of attrition against motorists who don’t pay Gauteng e-tolls. On the other side, OUTA’s long-awaited battle over the constitutionality of e-tolls is slowly heading for court. These are different tools in the e-tolls war and both are set to continue for a very long time, even years.

“The battle against e-tolls continues on various fronts,” says advocate Stefanie Fick, OUTA’s Head of Legal Affairs.

“We continue to deal with the cases already in court and we have to keep an eye on SANRAL’s newest antics.”

The SMSes

SANRAL’s debt collection text messages are annoying motorists as much as the e-tolls. These are SMSes warning e-toll defaulters that they are about to be or have been handed over to debt collectors. This is routine debt collection and it is continuing even while OUTA is challenging the legality of e-tolls in the courts.

In August, there was a renewed spate of SANRAL debt-collection text messages to Gauteng motorists.

“The SMSes will never stop,” says Fick.

“That’s SANRAL trying to get people to pay e-tolls,” says Fick.

There’s advice on OUTA’s website on those SMS problems. (SEE- What to do about those SMSes)

The legal case

Then there’s the big OUTA legal action against e-tolls.

This is a legal action in the civil courts. SANRAL is suing both individuals and businesses for outstanding e-toll bills.

OUTA is defending 163 individuals and businesses over their unpaid e-toll bills totalling R64.794 million.

There are 61 cases in the high court (for the higher value cases) dealing with R61.478 million and 102 cases in the magistrate’s courts for R3.316 million.

The Constitutional challenge and the individual merits

There are two elements to OUTA’s civil action against SANRAL, says Fick.

There are the merits of each specific case: someone individually is sued for unpaid e-tolls. And there are 163 different cases, each with its own specific merits which must be considered individually. This is the fight over whether the bills were sent to the right address, whether it’s the right registration plate, if the correct tariffs were applied, whether there are photographs and so on.

But before we even get to the technical merits of each case, there’s the crucial “collateral challenge”, which is the overall legal challenge to the constitutionality of the e-toll scheme itself. OUTA’s legal team hope to have this part of the application heard first before continuing with the merits of each specific case, although this isn’t yet finalised. If the constitutional issue is unsuccessful, then the case moves on to the merits of each of the 163 cases; if OUTA wins on this constitutionality issue, then the whole e-toll scheme falls.

That issue of the legality of the whole scheme is the key focus, says Fick. “That is extremely important to us.” OUTA has substantial facts to present to the courts on the flawed e-toll decision.

But that’s a long way ahead and there’s a lot of paperwork to get through first.

There are three main stages in civil cases: first the filing of pleadings by each side, then the preparation for trial which includes discovery of documents, then finally the trial phase. This case is getting to the end of the first phase, which is a long process of exchanging paperwork, adding and amending papers on all the cases.

Fick and her team are painstakingly going through all those stages, planning and waiting for the big fight.

Haven’t we been here before?

OUTA and SANRAL fought in the courts over the legality of e-tolls some years ago and, while OUTA lost that round, the courts made it clear that wasn’t the end of the road.

OUTA lost at the high court level and was landed with a massive costs bill from SANRAL, which it could only get overturned by going to the Supreme Court of Appeal.

“We couldn’t just fight the costs order, we had to fight the case,” says Wayne Duvenage, OUTA Chairman.

The judges overturned the costs order but not the legality of the e-tolls scheme. The judgment allowed the Gauteng e-tolls to go ahead as SANRAL had already built the roads and borrowed the funds but, crucially, that judgment allowed the possibility of future challenges.

“It left the door open. It basically said, if somebody is sued, that person is allowed to defend themselves on all this stuff, whatever it is, whether the bills are right, whether this was constitutionally done,” says Duvenage.

OUTA promised to defend that first e-toll case, then widened that to the general supporter base.

What to do about those SMSes

Those SMSes can feel quite threatening.

Debt collectors must be registered. If you feel threatened, go to the Council for Debt Collectors.

The only way SANRAL can legally collect outstanding e-tolls is by issuing a summons (that means instituting legal proceedings). SANRAL cannot collect money by SMS or telephone call. The matter only becomes a legal issue when you receive a summons. You cannot be blacklisted for failing to pay e-tolls before the matter is heard in court.

OUTA’s comments on SANRAL’s SMS campaign in February 2016 are here.

OUTA’s suggestions on what to do if you get a letter of demand are here.

The suggestions on what to do if SANRAL has taken a default judgment against you for not responding to an e-toll summons are here.

OUTA’s e-tolls defence umbrella information is here.