Can a motorist be legally arrested for unpaid e-tolls?

Everyone has the right under the Constitution to equality before the law and equal protection and benefits of the law.

19/12/2013 11:06:43

Can a motorist be legally arrested for unpaid e-tolls?

This means the right to legal representation, and the presumption of innocence, until proven guilty.

The Opposition to Urban Tolling Alliance (OUTA) is confident that the prosecution of someone for non-payment of e-tolls will fail to prove the guilt of any motorist who mounts a defense based on our evidence that e-tolling is unlawful because;

•    SANRAL did not adequately inform the public.

•    SANRAL did not conduct a proper public participation process as required by the Act.

•    The Government did not consider alternative funding mechanisms.

•    The decision was authorized without having sufficiently considered the facts and true costs of e-toll collection.

•    Gauteng’s e-toll plan, at its high costs of collection, is irrational.

•    E-tolling without public acceptance and commitment is unworkable.

Many believe that the court challenge on the unlawfulness of e-tolling has been lost, but this is not so. OUTA’s past legal challenge was set aside due to the technicality that it was brought too late. Arguments pertaining to the lawfulness of SANRAL’s conduct have yet to be ruled on, a situation that will arise when someone goes to court to defend themselves for non-payment of e-tolls.

Until the court has definitively ruled on such a case, all that OUTA can suggest at this stage of defiance, is that each individual must take personal responsibility for whatever consequences may flow from whatever personal conscientious decision they make.

A group of officers employed by the Gauteng Department of Community Safety, Gauteng Traffic Police have been seconded to enforce e-toll transgressions. It is highly unlikely that summary arrest for outstanding e-toll fees will be deemed to be lawful and therefore, other processes will have to be followed. In order for a motorist to appear in court on charges of failing to pay e-tolls, a criminal summons will have to be issued and served, but this does not constitute a warrant for their arrest. Any arrest in the absence of a warrant of arrest would be unlawful and would entitle the affected party to sue the State for damages.

OUTA’s new role

OUTA has decided to work with the first criminal prosecution (which sets the precedent) by providing legal expertise and arguments of unlawful conduct uncovered during prior cases, if indeed it is able to raise the expected funds for the court challenge from society. The fund raising campaign is explained on the home page of our website and requires active citizen participation.

Behaving reasonably

Whilst many choose to believe otherwise, police officers are trained to respect the rights of citizens, under the Constitution and to be, first and foremost, agents for upholding the rule of law. The fact that some fall short of doing so should not lead us to assume that South Africa has again become a police state.

OUTA is NOT calling for violent insurrection, the destruction of property or extremist behaviour. We also urge motorists not to antagonise police officers or provoke officials.There is no reason why the passive resistance campaign against e-tolls cannot be peaceful and constructive.

Contrary to SANRAL’s utterances, OUTA has respect for democracy and the rule of law. Since neither the Constitutional Court nor the SCA decided the merits of whether e-tolling is lawful or not, this matter is still open for motorists to resist, by holding that e-tolling is in fact unlawful, until ruled otherwise in a court of law. It is OUTA’s opinion that resisting the payment of e-tolls cannot even be referred to as civil disobedience because in time, a strong possibility exists that the courts could very well decide that e-tolling is unlawful in a case where an individual successfully defends charges of failing to pay e-toll.

Deliberate intimidation by SANRAL?

Motorists who decide to refuse to pay e-tolls can expect to hear nonsense statements by the authorities, which are made to escalate a climate of fear and serve to intimidate motorists into contracting with SANRAL by registering their vehicles and buying e-tags.

While calling for civil courage we are not asking any motorist to go beyond what their individual consciences permit, nor to engage in heroics.

Many believe that e-tolling is fundamentally unjust and even if the Court should ultimately find a person guilty of an offence for refusing to pay e-tolls, many will continue to refuse to pay their e-toll bills. OUTA is fully aware of these positions taken against e-tolling by many Religious Leaders and people of faith. In that regard OUTA recognizes the right of any individual to hold such conviction as a matter of their individual conscience.

Can they refuse your Vehicle-/Drivers License with unpaid e-toll bills?

The short answer is no. These are separate legislative and regulatory matters and outstanding e-toll bills will not impact on your ability to relicense yourself or your vehicle.

Defiance is working – Those without e-tags are of the majority

There are millions of Gauteng freeway users who have not yet tagged their vehicles and who are driving on the freeways, in an act of defiance against the unjust e-toll decision. Physical vehicle counts at freeway off-ramps revealed a week after e-tolling started, less than 18% of freeway users were tagged (i.e. not even 400,000). Do not be fooled by SANRAL’s misleading information of sharply rising e-tag sales and if you are not sure about this, do your own counts. The e-tag is very visible on the vehicle windscreens.

Moral courage required

We remind the public of what the Father of the Nation Nelson Mandela, once said, (also quoted by President Jacob Zuma, at Madiba’s memorial service on 10-12-2013):

The law has made me a criminal, not because what I have done, but because I have acted according to my conscience.” -  Nelson Rolihlahla Mandela (1918 - 2013)

OUTA is a proudly South African civil action organisation, that is purely crowd funded. Our work is supported by ordinary citizens who are passionate about holding government accountable and ensuring our taxes are used to the benefit of all South Africans.