Punishment for toll violations ‘inhumane’

Punishment for toll violations ‘inhumane’

2012-03-18 13:21

Pretoria – The envisaged legislative amendments to enforce toll payments harks back to the apartheid era’s pass laws, reckons constitutional expert Professor Marinus Wiechers.

They will restrict one’s constitutional right to freedom of movement and criminalise to the left and the right – and the penalties are cruel and inhumane.

In so saying Wiechers was reacting to the proposed legal amendments – a copy of which is in Sake24’s possession – which have not yet been made public.

In terms of these, all motorists who drive a vehicle on a toll road have to pay toll fees and register as toll road users.

Toll road users who fail to register or pay tolls or related levies and fines will be guilty of a crime and could be sentenced to six months in jail or be given a fine, or both. In addition, a fine can be imposed which is payable to the SA National Roads Agency (Sanral).

No one with any outstanding toll fees may use a toll road.

These provisions are not restricted to the controversial Gauteng toll roads. Sanral is known to be planning additional toll roads and a widespread introduction of the e-toll system. The preferred bidder has already been appointed for the N1/N2 Winelands toll road which extends from the Boland to the southern Cape.

The department of transport has placed a moratorium on further toll roads prior to holding a summit on funding road works, but a government spokesperson has indicated that the legal amendments are going ahead.

Whether the proposal has been presented to cabinet is unknown, but public participation will have to follow before it is tabled in parliament.

It is unlikely that the legal amendments will come into force before the tolling system is implemented on Gauteng freeways on April 30.

Wiechers questioned the feasibility of countrywide registration of all vehicle operators who could possibly use toll roads.
He said it is an acknowledged principle of law that legislative provisions which cannot be implemented have no legal force. They are regarded as futile, but need to be formally declared null and void by a court.

He has serious reservations that a failure to register and pay toll fees could be declared a crime.

“You can't make everything a crime,” he said. Such criminalisation is, he believes, wrong on a politico-legal basis.

The suggestion that offenders can be sentenced to imprisonment and/or have an additional civil fine imposed that will go to Sanral’s purse, he regards as a particularly cruel punishment.

Wiechers said people think that cruel punishment would refer to physical abuse, but excessive punishment is both cruel and against the spirit of the constitution.

He said Sanral should take civil steps to collect outstanding toll fees and only if the offender ignores an order of a civil court in that regard should the criminal court be approached. The envisaged amendment is an attempt to put the cart before the horse.

Middleburg attorney André Brandmuller, who was previously involved in consultation and litigation on no-payment of toll fees on the N4 toll road, reckons the legal amendments are constitutionally contestable and he doubts whether the restriction of the constitutional right to freedom of movement is legal.

He is also worried that the Criminal Procedure Act will be used to generate an income for Sanral, while several of the country’s toll roads are being operated by private concession holders. “Sanral itself is a private company,” he said.

Fines for offences normally go to the state fiscus and not to the state institution that has been prejudiced.

Wiechers said the Administrative Adjudication of Road Traffic Offences Act (Aarto) is the proper agency for collecting tolls. This removes the process from the criminal justice system.

Last week Collins Letsoalo, chief executive of the Road Traffic Management Corporation (RTMC), told journalists that Aarto would be used to enforce the payment of tolls in Johannesburg and Pretoria, where the system is currently in operation on a trial basis.

But on Friday Sanral denied this and said that the criminal procedure system alone would be used.

The RTMC shareholder committee, which consists of the nine provincial ministers of transport and representatives of the local government sector under the chair of Minister of Transport Sbu Ndebele, recently decided to wait before implementing Aarto across the country. This was because of the huge obstacles encountered during trial runs.

  • Beata - 2012-03-18 14:11

    As a private company will the government put in jail all of my clients that failed to pay me over the last 15 years or again is this legislation to benefit only the selected few.

  • Gregory Jurgens - 2012-03-18 14:37

    The prisons aren't big enough for us all, there aren't enough courts to convict us all. Down with Sanral down.

  • Brendon Robb - 2012-03-18 14:44

    I WILL NOT pay toll fees , I pay tax and tax on fuel! They must come lock me up for 6 months , I know I won't be the only one , the jails will be bursting and all the slime of this country will be murdering , raping and stealing! Let them!

  • Gerald - 2012-03-18 15:43

    So being broke gives you a criminal record!! Tjo, thatha Mzansi.

  • phillip.havenga - 2012-03-18 16:00

    These tolls are a load of crap that are only being implemented to line the corrupt bastards in governments pockets.

  • Johnathon - 2012-03-19 09:10

    The authoritarian Government is resorting to the only measure left in its armoury. criminalizing non payment of the e-toll system. These are the exact same actions that Robert Mugabe resorted to suppress his people. The only thing that can save us, is mass action on a scale not yet seen in this country. Black and white joining hands, and the nation unifying as one. Let the Government get away with this one, and one heinous law will follow on another, until SA becomes a full police state. As the ANC's objectives were, during the struggle, let’s all make this country ungovernable, until Zuma goes. Imagine going to jail, because you put food on the table, and a roof over your head, and just cannot afford the extra burden of tolls. The constitutional court needs to rule on this, as a gross abuse of human rights. The Government has supplied Zero alternative transport to its people, yet chooses to act in this Draconian manner. For the first time in this country’s history, let the white join our black brothers in protest. It would involve taking leave to join the marches, but if we remain apathetic to this terrorist regime, our life of free choice will eventually be completely eroded. Act now or forever face the consequences, of a failing and desperate Government.The whole freedom struggle was to destroy Goverment that ruled through supression and fear, yet 18 yrs later, exactly the same attitude is now beeing adopted. Drastic time require drastic action.

  • Johnathon - 2012-03-19 09:38

    Mbeki has just made a call for the youth of this country to rebel. Why just the youth, let of us rebel against a Government that is sinking in to a stinking morass, it built for itself. The Government has a Trillion Rand budget to play around with, 67 billion a year coming inform the fuel levy. Yet this is not enough, and it is now threatening its citizens with jail, while its obsessive needs for ever more finance, to feed the bloated state monster, reared, and now fully grown. The hunger of this monster, knows not end. Its insatiable hunger can never be satisfied. Please let us not remain apathetic, and burry our heads in the sand, and carry on living our mundane routine lives, as though the beast is not waiting outside the front door. We need another De Le Rey to support Vavi , to lead this nation through the dark days ahead.

  • Johnathon - 2012-03-19 10:24

    Actually, thinking logically, the Governments threats of intimidating and arresting motorists for toll violations, is completely unenforceable, if civil disobedience on a grand scale develops. Imagine just one motorist being placed in jail. All of us could toy toy outside the courts, hurly stones and anything at our disposal at the traffic authorities, even molotofs, if we are not listened to. It happens all over the world, in both 1st & 3rd world countries. Just to make things as difficult as possible, why not smear our number plates with mud, just before the first toll, and only wash them off at the last toll on your route. Traffic cops cannot stop cars on a high speed, congested highway, only at the various off-ramps. By then all sign of mud will have vanished. Keep water and a full bucket of mud in your boot. Even if cops open your boot and threaten you, at present I know of no law, preventing motorists from carrying natural mud, straight from river banks. As we all know, swamp the system with individual offences, and it will become crippled, and unable to act, or enforce anything.

  • eradingoana - 2012-03-19 18:20

    The ANC would have been compared to NP but it is going extra mile because it is draining us financially. NP has never drained us financially even if it was limiting our movements.

  • Bryden - 2012-03-20 07:48

    "6 months in jail?" That's a bit ridiculous, the punishment doesn't fit the crime considering the risk of rape or murder that you are faced with in prison... A fine by all means but to take someone's freedom for not paying a poorly planned "tax" is just bogus, whoever thought that up is an ignorant fool!!!

      skootzie - 2012-03-20 09:40

      ^ Aye. Imagine, you go to jail because you can't afford the toll fees. Then, when you leave jail six months later, you are not only traumatized from the ordeal but have contracted HIV/AIDS as well. So, according to the ANC, if you don't pay your toll fees, you are sentenced to death by STD. .. o.O Way to go ANC, you guys rock ... Damn, the level of collective stupidity that emanates from the ANC on a regular basis quite literally continues to astound and boggle the mind.

  • Mike - 2012-03-20 08:52

    South Africa is fastly heading to a civil war, a person can smell it in the air

      Trevor - 2012-03-20 09:18

      Not civil war, civil unrest, a big difference. Right now the ANC is facing a revolt from ALL sides and for once, they do not know what to do because it is not an easy Black/White issue, something they experts in manipulating.

      Mike - 2012-03-20 10:04

      The problem is any anti government comment or protest from any race besides black is called racism, so any unrest or even war will automatically be deemed a race war, the whole reason the anc will never drop the whole racism thing

  • John - 2012-03-20 10:04

    The african spring is coming quicker than you think !!

      Deon - 2012-03-20 16:02

      Now you're talking!

  • Pierre - 2012-03-20 10:05

    What happens to retired State Old Age Pensioners who only use the toll roads perhaps once a month and dont have extra month to register for Etag for little or very little use on an ad hoc basis? Surely one does not have to register if they are not using the road regularly????????

      Keith - 2012-04-11 17:59

      Buy a taxi & you don't have to pay the toll, not so?

  • komorison - 2012-04-03 11:13

    Something smells fishy. What's behind it all is the real question. 1% another income stream? Follow the money.

  • ivan.schoultz - 2012-08-23 12:54

    They want to make it a crime for not paying toll on a road that is already paid for by our taxes??? I think NOT! I think it should be a crime to impose laws upon the people that the people have not consented to by majority vote. Those that create these laws should themselves be imprisoned.

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