E-toll fines, jail time and criminal records: the truth
By choosing to fight against the Gauteng e-tolling system, commuters, in theory, could face up to six months in jail – however, with no legal precedent yet set by the NPA, threats of jail time to “encourage” road users to get e-tagged are nothing more than scare tactics.
This is the view of Justice Project South Africa (JPSA) head, Howard Dembovsky, who, along with Zwelinzima Vavi, Wayne Duvenage, Bishop Geoff Davies and others, have committed to not paying e-tolls.
According to Dembovsky, Sanral has adopted the “fear of the unknown” as a scare tactic to get people to buy up e-tags – including the threat of fines, criminal records and even possible jail time through prosecution.
Speaking to Talk Radio 702’s John Robbie about the collection of e-tolls, Sanral CEO Nazir Alli explained that, while prosecution would only be explored once the company’s debt collection facilities have been exhausted, “people mustn’t forget that in terms of the Sanral act – it is illegal to use a toll road without paying for use of that particular road.”
According to Demobovsy, Alli claims that it’s not Sanral that will criminally prosecute people – but rather the National Prosecuting Authority (NPA).
“Then, when the NPA is approached for comment, they say they won’t comment until someone is prosecuted,” Dembovsky said, “Therefore, the tactic being adopted is to fuel ‘the fear of the unknown’ in the hope that people will become so scared that that they will indeed capitulate.”
Theoretically, e-toll regulations make provisions for fines and imprisonment (not exceeding six months) – but in order for this to happen, the state must prove its case beyond a reasonable doubt.
“And it is here that we don’t think they will be able to,” Dembovsky said.
Howard Dembovsky
Know the facts, know the process
Sanral has already laid out the process of toll collection, but has remained fairly silent on its debt collection facilities. Moving past Sanral’s own processes towards prosecution, things remain even more uncertain.
So what will happen if your case ever moves to prosecution?
According to Sanral, road users who do not pay their toll fees will be prosecuted in terms of the Criminal Procedure Act (CPA).
On paper, by contravening the Sanral Act (ie, not paying toll fees), road users will face a civil fine to Sanral of R1,000 or imprisonment not exceeding six months, or both a fine and imprisonment.
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Once the case heads to court, in line with the Criminal Procedure Act, the court will drag you in to plead your case – and will issue a summons or written notice to get you to its doors.
Both of these documents must be delivered to you (or your home/business) by someone empowered by the courts, at least 2 weeks before the stipulated court date. The documents must contain the charges against you.
Non-personal service of the documents is acceptable in terms of the Act, in that it may be served on a person apparently over the age of 16 working or residing with you.
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At this point, if you so choose, you can submit an admission of guilt and pay your fines without appearing in court – the bad news is you will incur a criminal record if you pay.
Incurring a criminal record only becomes a reality when a person is found guilty of, or pays an admission of guilt fine once criminal charges have been brought against them, Dembovsky notes.
“If you have been charged with a criminal offence, never simply pay an admission of guilt fine to save yourself time and money,” he warned.
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If you choose to appear in court, and the case moves to trial, you may also choose to pay your fines before entering a plea, with permission from the Minister. Entering into a plea bargain still means you will incur a criminal record.
It’s important to note that if you enter a plea, the judge presiding over the case can potentially add more to your already-imposed fines, or even sentence you to jail.
“However, it is also important to note that it is your constitutional right to a fair trial and courts may not be used to punish people for enforcing this right,” Dembovsky said.
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If you received the summons, and refuse to attend your court date, the court can issue a warrant for your arrest and you will be brought before the court to stand trial on the original charges.
e-toll payment
Paying: yay or nay?
According to Dembovsky, road users who are intent to pay their toll fees, might as well pay up front, as Sanral as been “meticulous in adding financial prejudice from the instant you drive on the road”.
However, the JPSA head notes that he believes the right time to pay is “never” – and Gauteng road users should wait to see what happens in the courts.
Legal firm, Findlay & Niemeyer Inc has offered to defend the first non-compliant e-toll road user as a test case – a move which Patrick Bracher, a director at the legal firm Norton Rose Fulbright believes could amount to incitement to commit a crime, Sapa reported.
According to Bracher, the Constitutional Court has already dealt with the question of the fairness of e-tolls in Gauteng. However, Dembovsky disagrees:
“Just because the Constitutional Court reversed the interdict does not mean that this matter has been heard on a constitutional level – and Sanral has mislead people into believing that it has.”
“There are going to be some very high profile court cases if/when the first people are prosecuted under this – and that is when it is going to get very interesting,” he said.
Demobovsky believes that that people will not be convicted because, when the matters go to trial, the public will have the opportunity to attack the constitutionality of the entire system – something that has never been done to date.
The JPSA head emphasised that he and several of his colleagues have volunteered to be the first people convicted.
“If a person is indeed convicted – and all appeal processes fail – then, and only then should others cave in,” Demobovsky said.
“Moral courage may not be easy but it is the right thing to do,” he said.
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