Bad news for anyone with outstanding e-toll debt
Road agency Sanral and the Gauteng provincial government may not be able to write off outstanding e-toll debt, leaving non-paying motorists sitting with their current tab.
This is according to non-profit organisation, the Inclusive Society Institute (ISI), which has called into question the Gauteng provincial government’s plans to write off all outstanding e-toll debts, saying that it is not just or equitable to those who have diligently been paying their toll fees since 2013.
In a letter addressed to Gauteng Premier Panyaza Lesufi, the institute expressed its concerns regarding the principle of equality and fairness in writing off the debt of those who have infringed the law without providing equitable relief to those who have abided by the law.
The group initially presumed that stakeholders would work to find a mutually acceptable agreement to meet the interests of both payers and non-payers, but it subsequently received a legal opinion that made the question moot.
“The proposed course of action aimed at writing off the outstanding e-toll debt is unlawful,” it said.
“This means that road users that have accumulated e-toll debt have no option other than to settle such debt to Sanral. The legal opinion states that the ‘South African constitutional law dictates that the South African National Roads Agency Limited does not have the power to retrospectively excuse the nonpayment of e-toll fees once incurred’.”
While this means that non-payers of e-tolls would likely have to settle their debts by law, it does not impede a future dispensation that may or may not remove e-tolling from Gauteng, the ISI said.
The ISI acknowledged that Lesufi had already expressed intent to find a solution for road users that have paid their toll fees – more specifically, plans to refund everyone – and the NGO would have preferred such a “way out”.
“But it seems, from the obtained legal opinion, (this is) not possible. Given the information at the Institute’s disposal, whilst it gives the ISI no pleasure to do so, it is morally and ethically obliged to bring this to the premier’s attention in order for him to apply his mind accordingly.”
The group said that it is crucial to ensure that the letter and spirit of the legislation are adhered to and safeguard the government and the public against potential litigation.
Clear as mud
The latest legal opinion adds to the murky waters of the e-toll saga, where the Gauteng provincial government has been slow to provide clarity or updates.
Following finance minister Enoch Godongwana’s announcement on 26 October 2022 of a new financing mechanism for the Gauteng freeway upgrade debt to replace the failed e-toll scheme – essentially the scrapping of e-tolls – Lesufi indicated that the e-tolls would be scrapped as soon as Gauteng reached an agreement with National Treasury.
The province was given until 31 December 2022 to conclude this agreement – a deadline that it missed. The provincial government said that the official shutdown would take place sometime in 2023, without providing any specific timeline.
Despite the system being scrapped on a political level, the laws that govern the system and permit billing and collection of owed fees are still very much in operation. In addition to this, many questions linger about the debt owed by the province and how this will be paid for.
The last word on this was that negotiations with the national government are still underway.
The Democratic Alliance said the lack of information or direction is “worrying”.
“The financial model for replacing e-Tolls has still not been finalised. This means this province has committed to debt for which it has no idea how to service. Inevitably funds will be taken away from other departments, and service delivery in the province will continue to suffer,” it said.
Meanwhile, whether or not money is owed is almost a moot point itself, as motorists in the province have made it clear that they will not pay for the system or any debts owed. The e-tolling system was widely rejected, with only 15% to 17% of motorists complying.
According to Lesufi, if refunds were handed to motorists who paid their bills, it would cost R6.9 billion.
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