The initial and most obvious problems with the tolling system - intended to take over Gauteng's national highways in a blinding force of blue-lit gantries and e-tags - have been well-publicised. Not only did citizens complain that they were not consulted before the project was initialised and the gantries were built, but many also say they could not afford the fees that would be enforced on them.
Labour, business, opposition parties, fleet associations, licensing organisations, government officials and ordinary citizens all raised their pitchforks and charged the system that threatens their livelihoods and whose existence they don't understand.
Most of these parties argue that money for maintaining the roads should come from the fuel levy that road users already contribute to.
The great concern is that the price of everything, including basic consumer goods, would rise, placing yet another burden on the already struggling working-class individual.
The system was set to go live this month, despite strong opposition, but was suspended in January so the South African National Roads Agency Limited's (Sanral) board could study the situation further. The board will present its findings to transport minister Sibusiso Ndebele, following which the minister will present a report to Cabinet.
Ring it up
In December, government was asked what would happen in the case of fraudulent licence plates, since people without e-tags are charged for e-tolling via pictures of their licence plates, taken by overhead cameras on the gantries.
Government responded that even if a person's plates are being used fraudulently and the charges incurred are not theirs, they must prove they were not driving at the time. Government did not explain how a person could prove that, at the time that the charges were incurred, they were, in fact, sitting at home and watching the news, while their car was parked in their lock-up garage.
Ndebele, who until recently was very vocal about the e-tolling project being a done deal, has subsequently been accused of distancing himself from the project, since he said it was not initialised during his term as a Cabinet minister.
“If the road user can prove that he/she was not the driver of the vehicle with the applicable nomination form, the transactions will be moved to the correct driver, or if the vehicle in the images is not his/hers, a representation can be made.”
The problem with this, according to Cliff Johnston, vice-chairman of the SA National Consumer Union (Sancu), is that it violates the Consumer Protection Act (CPA) that protects consumers from unfair, unreasonable and unjust practices.
Within the terms and conditions of the e-toll registration contract there is a clause that says Sanral's information is correct unless a driver can prove otherwise, which is particularly salient in the case of fraudulent plates being used by criminals.
“My car could be sitting in my garage, but if my plates have been fraudulently duplicated, how do I prove that the toll fees incurred are not mine? It goes against consumer rights. That is totally wrong and unreasonable,” says Johnston.
However, Sanral has defended the terms and conditions of its e-tag registration. “E-tolling and the systems implemented will... greatly assist in preventing fraud and, in particular, the cloning of number plates. Sanral denies that this provision is contrary to the requirements of the CPA or any law,” says the agency.
Tough battle
The Democratic Alliance (DA), in January, lodged a complaint against the Gauteng toll collection system with the National Consumer Tribunal, according to DA Gauteng transport spokesperson Neil Campbell.
“We have taken this step as we do not believe the battle against the tolls is over, even though the February implementation date has been delayed. This battle's hardening up and I still think we're going to win.”
He explains that the complaint regards the system infringing the CPA. Campbell says the system is unfair and unreasonable on several grounds.
These include that users give access to their bank accounts or credit cards for unknown amounts; the high possibility of error or fraud in that an excess of 10% of licence plates are cloned or fraudulent; the lack of clarity on how disputed amounts - that have already been deducted - will be refunded; and the undisclosed administration fees, for example R5 charged for statements sent in the post and 20c for each account balance SMS notification.
Erroneous charges
In terms of administration charges, another glitch surfaced when Sanral, in December, began charging those that registered for e-tolling, even though the system hasn't been rolled out as yet.
Motorists who registered have already been charged R5 for posted statements that were not needed, since the system is not yet operational.
Sanral says the charges that occurred were levied erroneously. “This is a result of failure to deactivate them now, and reactivating those once tolling starts. We have now deactivated the charges.”
The DA, via its campaign against e-tolling, TollFreeGP, said the premature charges are just another reason to boycott the e-tolling system.
Transgressing legislation
In addition to violating the CPA, Johnston also thinks certain clauses in the registration terms and conditions violate the Financial Services Act. “As far as I know, they cannot demand information from you that they don't need.”
He refers to the clause that grants Sanral irrevocable authority to obtain information from any institution where the user may have an account, including the Credit Bureau.
“For example, if you want a prepaid account, there is no reason for them to ask for your bank details, because you're going to pay cash. It's certainly unreasonable.”
He also says there must be many drivers on the road, who, for whatever reason, don't have bank accounts. “Are they then not allowed to use the Gauteng e-toll roads?”
However, the agency says nowhere in the conditions does it indicate it would obtain more information than it otherwise needed.
“The information required may differ from person to person and, accordingly, the reason for the provisions of the clause. As to whether Sanral obtained more information than may be permitted is a factual issue, which can be addressed at the relevant time. Such a clause would not allow Sanral to transgress the requirements of legislation.”
Self-mutilation
The e-tolling system also seems to violate its own fundamental principle. From initialisation, it was always introduced as being based on a “user-pay principle”. The problem is that certain public transport vehicles don't pay for the roads they, too, use.
This was highlighted by Campbell, who also says the exception is unconstitutional. “The exemption of a certain class of road users, namely minibus taxis and buses, prima facie constitutes an unfair discrimination on the basis of economic status, a component of 'social origin', which is a prohibited ground identified by section 9 (3) of the Constitution.
“In terms of section 9 (5) of the Constitution, the exemption is presumed to be unfair and is liable to be declared invalid, unless it is shown to be justifiable in terms of section 36.”
The principle is also undermined when considering that there is as yet no way of levying charges against foreign drivers or road users, with foreign plates, under the e-tolling system. Sanral previously said it is looking into the issue, but it is still under development.
National chairman of Justice Project SA Howard Dembovsky says it is a question that needs to be answered.
“There are lots of things they haven't thought about with this system and this is just one of them. It's not like we're in the EU [European Union] where we share vehicle databases. One would think they would make provision for this.”
Sanral also has no details yet as to how it would prosecute those that defy the system and refuse to pay for e-tolling.
Premature police
Apart from prematurely charging road users for a system that is not yet operational, government also established a traffic unit, at a cost of R66 million a year, to govern the system.
The National Traffic Police (NTP) was established in April to help govern the e-tolling system, as well as the Administrative Adjudication of Road Traffic Offences (Aarto) Act, which has also not been rolled out as yet and has no implementation date.
Democratic Alliance (DA) shadow minister of transport Stuart Farrow says this new traffic unit is dangerous.
“To simply impose this newly-formed traffic police force - trained to track down toll evaders in Gauteng - on other provinces is not only arrogant but also dangerous.”
He explains that provinces and their municipalities have autonomy within their areas of jurisdiction, granted to them by the Constitution. Deploying a force such as the NTP outside of its jurisdiction will only add administrative confusion and resentment.
Draining Gauteng
Funding the Gauteng Freeway Improvement Project (GFIP), for which e-tolling was established, should be a national burden and not just Gauteng's, says the Southern African Vehicle Rental and Leasing Association (Savrala).
It strongly opposes the controversial e-tolling system and says studies show that paying for roads through taxes, or a dedicated fuel levy, is simply cheaper than imposing tolls on a road, even if this is through an ORT [open-road tolling] system.
As a benchmark, Savrala points out that the South African Revenue Service's (SARS) cost of revenue collection is just over 1%, unlike the e-toll collection process, which is expected to be around 35%.
“Some suggest that only Gauteng road users should pay an additional fuel levy to fund GFIP. It can be very strongly argued that Gauteng road users already contribute significantly more to the national funding of the operation of government and, by implication, all other provinces, than what it receives back to fund Gauteng's own needs.”
The association adds that, using various reasonable assumptions, Gauteng contributes approximately R260 billion (39%), via SARS, to the central fiscus of government.
“If one assumes that each region gets a proportionate benefit from the national departments, then the next big consideration is the provincial allocations. Including conditional grants of R14.5 billion, Gauteng received a total of approximately R65 billion (18%) during 2010/11 in stark contrast to the estimated R260 billion contributed by the province to SARS.”
Taking chances
On top of it all, Sanral staff have also allegedly taken the law into their own hands, forcing drivers to register for e-tolling or be fined. On 22 January, motorists say there was a roadblock by Sanral, on the N3 highway, where officials were trying to force motorists to register for e-tolling. Only when road users asked for the legislation that forced them to do so, were they let go, according to reports.
Sanral says it has no knowledge of the roadblock and denies that it was carried out by its staff, since they do not have the authority to set up roadblocks.
Sanral has called the allegations a “malicious rumour”, saying its investigations suggest the original incident - spread via Twitter - possibly originated from a road user who saw e-toll workers conducting a road-marking operation, and interpreted that as some form of e-toll roadblock.
“Although traffic cones and a vehicle were present, it was part of a road-marking operation and not for forcing people to register. Similar road-marking operations are taking place at various interchanges in Gauteng.”
It adds that it takes this issue very seriously, and urges users to take down detailed descriptions of the persons and vehicles involved when they encounter such roadblocks, so that the necessary action can be taken if anyone is found to be acting unlawfully.
“These unlawful activities can be reported to the appropriate authority, or can be submitted to Sanral's Fraud Hotline free call number 0800 204 558 or sanral@tip-offs.com.” Social network Twitter was flooded with complaints about the incident. One user, @Vermi-Trade, said it happened on the Linksfield onramp onto the N3 North on Sunday. “I asked them for the legislation which forces me to register at an illegal roadblock. They let me go.”
Campbell says, if the allegations are true, then it is obvious that the agency has acted illegally and “with more than a modicum of desperation”.
However, Dembovsky says none of the drivers that experienced the roadblock registered and received a fine. “I believe that the people from Sanral at these 'roadblocks' were taking a chance or were not who they seemed to be.”
Committed costs
The Department of Transport says government is committed to the repayment of Sanral's debt for GFIP.
When asked if National Treasury will repay the debt on Sanral's behalf, spokesperson Logan Maistry said Sanral's board is exploring various options and will then report to the minister.
The DA's anti-toll campaign, TollFreeGP, says the latest auditor-general's report shows that R21 billion was wasted by government - in the year to March 2011 - and this could have paid for the upgrade of Gauteng highways.
For this reason, the Road Freight Association welcomed the suspension of the implementation of the system.
“Although we are well aware that the GFIP has committed costs that need to be paid, we still believe that the proposed e-tolls are a far more expensive mechanism than a universal fuel levy to finance road infrastructure.
“Spending R9.2 billion to collect R21 billion is a major cause for concern - as is the concentric impact on inflation and disposable income of each citizen within Gauteng.”
Phase one of the GFIP, for which e-tolling was established, was undertaken at a cost of around R20 billion to complete, with most of it financed from loans.
At this stage, the implementation date for e-tolling has been delayed, indefinitely, while stakeholders further study the project and its implications. While the system could still be implemented in one form or another, it is apparent that the multitude of unresolved issues may well have sunk the high-tech project in its original iteration.
First published in the 8 February 2012 issue of iWeek magazine
Share