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Punishment for toll violations ‘inhumane’

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.
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