Outa sees Sanral e-toll test case battle starting in late 2017

Cape Town – Outa said that while the filing of papers is about to get underway in a test case with Sanral over defaulting e-toll road users in Gauteng, the court case will likely be heard later this year.

Outa chairperson Wayne Duvenage told Fin24 on Tuesday that the organisation founded to tackle e-tolls has been preparing for the defensive challenge for years.

The test case scenario follows Sanral’s issuance of over 6 000 summonses to e-toll defaulters, including 152 motorists that Outa pledged to defend.  

“Finally, the preparation and filing of the papers is about to get underway, now that a number of discussions and clarity on specific issues have been dealt with between the respective legal parties,” he said.

“The court case will probably only happen in the latter half of the year,” he said.

Sanral will confirm test case once scope is finalised

Sanral was more reserved regarding progress in the proposed case, saying it is working with Outa to determine what argument will form part of the test case and will only confirm the intention to participate once the scope has been agreed.

Sanral spokesperson Vusi Mona told Fin24 on Wednesday that the national road agency “is involved in a process with Outa, which may result in agreement to the arguments that will form part of a test case”.

“If a test case is agreed, the parties will make the announcement,” he said.

Mona said legal clarity over the e-toll was a crucial goal for Sanral. “Given the current conflicting information that the public is exposed to related to the legality of toll, it is important that legal certainty be obtained as soon as possible,” he said.

Mona would not elaborate on what the scope of the arguments would be, saying: “The agreement with Outa is that until such time that such agreement is reached, that both parties will not discuss the matter in public forums.”

Test case follows summons of 6 000 defaulters

Duvenage told Fin24 that Outa has always been on record to say that “if and when Sanral attempted to coerce payment from the public by way of legal summonses, this would trigger the launch of a collateral (defensive) challenge to declare our intent to defend the charges against one or all of Outa’s supporters or members.  

“From the 6 200 summonses issued (as claimed by Sanral), 152 of Outa’s members were caught up in this exercise.

“Naturally, we filed our declaration of intent to defend these matters (as did many of the public who chose to do the same in their private capacities).  

“This gave rise to the question:  does Sanral want to proceed with all 152 cases against Outa’s members (and more when including others), or do we agree on a test case scenario, whereby one or more cases are chosen to cover most or all scenarios of the e-toll process, to test the lawfulness, workability, discovery and other elements of the scheme?   

“A test case made sense and we’re sure the deputy judge president of the High Court would agree that he does not need his courts to be clogged up with thousands of e-toll cases.”

Sanral has serious problem on their hands - Outa

Duvenage believes Outa’s case is strong and said, “whatever the legal outcome, Sanral has a serious problem on their hands”.

“It’s one thing to say ‘we have to collect the money’, but it’s another to actually do this, when almost three million motorists have refused to pay,” he said. “This is a case of an irrational policy and laws being met with resistance by the people and thereby making the unmanageable.

“Unfortunately, when this happens, government begins to suffer from a crisis of legitimacy,” he said. “The more laws that governments pass, which they are unable to police or manage, the more their credibility as a state suffers.

“We see this now spilling over into people driving without driver’s licenses, or vehicle licenses,” he said. “We see the red traffic lights being ignored and the growing un-roadworthiness of vehicles.  

“While it is wrong for this conduct to permeate our streets, it will continue to happen and rise, if the governing authorities don’t or cannot police the misconduct.

“In the case of e-tolls, we believe the scheme was introduced unlawfully and thus it is not wrong to defy an unlawful policy,” he said. “However, had the regulatory environment been robust and the scheme was efficient, user friendly and with the prior support of the people, and the scheme was backed by accurate administrative systems, combined with strong and good enforcement processes, I believe Sanral would not be in the predicament they find themselves in today.

“The litigation that is now unfolding is not our doing,” he said. “It is Sanral’s act of aggression against the public.  We are mealy defending their rights.”