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21 FEBRUARY 2023
Prof Geo Quinot
Department of Public Law, Stellenbosch University
In 2008, government, via the South African National Roads Agency SOC Ltd (“SANRAL”), embarked on the Gauteng Freeway Improvement Project (“GFIP”). In essence, the project involved declaring several roads in Gauteng as toll roads in terms of The South African National Roads Agency Limited and National Roads Act 7 of 1998 (“the SANRAL Act”). Tolling is done via an e-tolling system that involves gantries logging the passage of vehicles and issuing a bill to the registered vehicle owner (or another registered party) for payment of fees. Tolling started in December 2013.
Following years of controversy, litigation and large-scale non-payment of toll fees by road users, the Minister of Finance announced in his medium-term budget policy statement in 2022 that SANRAL’s GFIP debt will be transferred to national and provincial government (in a 70:30 split) and that the province will take over maintenance of the roads. The Gauteng provincial government subsequently announced that e-tolling under the GFIP will be terminated. Gauteng Premier Panyaza Lesufi furthermore suggested that motorists that paid e-toll bills will be refunded.
Consultant seeks an analysis of the legal implications of a decision to write off outstanding e-tolling bills. LEGISLATIVE SCHEME
The power to levy a toll on the use of any national road is vested in SANRAL by section 27 of the SANRAL Act. In terms of that section, SANRAL may, with the approval of the Minister of Transport (“the Minister”), declare any section of a national road to be a toll road. Once so declared, the Act empowers SANRAL to levy and collect toll for the use of the road. The amount of the toll is determined by the Minister by means of a notice in the Government Gazette. The declaration of a toll road and the determination of a toll levy create an obligation in terms of section 27(5) of the SANRAL Act on all users to pay such toll. A failure to do so is an offence under the Act, punishable by imprisonment and/or a fine as well as a civil fine payable to SANRAL. The operative decisions are thus the declaration of a toll road and the determination of the amount of toll payable. Once these decisions have been taken, liability will be imposed by operation of law based on a person’s use of the toll road.
SANRAL may, in terms of the Act, grant exemption from the payment of tolls or suspend the payment of tolls, either to specific users or generally.
The SANRAL Act determines that a declaration of a toll road, the determination of the amount of toll payable, an exemption or suspension will only become effective 14 days after the relevant notice was published in the Gazette. The Act explicitly states that the toll, as determined by the Minister, will be payable from a date and time determined by the Minister, which may not be earlier than 14 days after the publication of the relevant notice in the Gazette.
In respect of the GFIP, the original notices declaring the relevant road network as toll roads were published in Government Gazette 30912 on 28 March 2008 and in Government Gazette 31273 of 28 July 2008. Various sets of regulations have been issued under the SANRAL Act to govern aspects of the implementation of the GFIP. These include the e-Road Regulations, 2016 that create the conditions for levying toll fees electronically. Notably, regulation 6(2) of the e-Road Regulations determines that “[u]nless payment is made … such registered user shall remain liable for the payment of all tolls in relation to the use of an e-road”. Successive notices have been issued under the SANRAL Act determining the amount of toll to be paid and the conditions of payment. The most recent of these notices, published in Government Gazette 45902 of 11 February 2022, set the applicable toll amounts with effect from 1 March 2022.
From the above legislative scheme, it follows that a legislative liability is placed on users of roads forming part of the GFIP, which liability arises at the time of use of the relevant road. This liability does not only constitute a civil debt towards SANRAL, but a failure to discharge the liability automatically gives rise to criminal liability under the SANRAL Act. EXCUSE OF NON-PAYMENT
The legislative scheme does not provide for e-toll liability to be waived once incurred. In terms of the scheme, an individual can only discharge their liability by either paying the toll or by nominating another person as the actual road user and thereby transferring the liability to such nominated person.
In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC), the Constitutional Court held that the legality principle in South African constitutional law dictates that “the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.” When this principle is applied in the current context, it follows that SANRAL does not have the power to excuse non-payment of e-toll fees once incurred. Nor does any other organ of state have such power.
A further problem with the contemplated excuse of non-payment of e-toll fees is that once the amount of toll to be paid under the GFIP had been determined, the Minister would be functus officio regarding that decision. This means that once the Minister took the decision to impose a particular amount of toll for use of the relevant roads for a specific period and published that decision as required under the SANRAL Act, the Minister’s decision was final, and the Minister retained no power to alter that decision in the absence of specific authorisation to do so. As noted above, the legislative scheme does not contain any authorisation for the Minister (or any other actor) to change the amount of toll retrospectively once it had been set and imposed. Any attempt to subsequently amend the amount payable (including to zero) retrospectively would fall foul of the functus officio doctrine. This does not suggest that the Minister cannot change the amount of toll payable prospectively. The Minister is explicitly authorised to do so, but subject to strict timelines that limit any retrospective effect.
The fact that the Minister’s determination of the amount of toll payable is final, is underscored by the explicit rules regarding the date of effectiveness of such determination in the legislative scheme. As noted above, both the declaration of a road as a toll road and the determination of the amount of toll payable for use of that road, which in combination would create the liability to pay toll, are subject to specific timelines regarding operation. The legislative scheme determines that such decisions may not take effect earlier than 14 days after the prescribed notice of such decision is published. It follows that any attempt to determine the liability for use of the road retrospectively would be unlawful as it would amount to an attempt to determine the amount of toll payable with effect earlier than 14 days after publication of the decision. On the same reasoning, a decision to withdraw the declaration of a road as a toll road (under section 27(1) of the SANRAL Act), as is currently anticipated in respect of the GFIP, would not retrospectively affect the liability for the prior use of the relevant road while it was a toll road.
The analysis above shows that a decision to excuse outstanding toll fees would be unlawful. It should be noted that the same reasoning applies to a decision to excuse paid fees and reimburse same.
In terms of the current legislative scheme, the dismantling of the GFIP can only operate prospectively. Such dismantling cannot alter the existing legal position in respect of tolls that are due. The transfer of the SANRAL debt relating to the GFIP to national and provincial government would also not impact on the outstanding tolls. SANRAL’s GFIP debt and outstanding tolls are distinct liabilities. Even though they were linked (SANRAL partly levied tolls in order to pay its GFIP debt), the payment of one does not automatically lead to the payment of the other. The two liabilities also arose from distinct bases – SANRAL’s debt arose from its contractual arrangements to finance the GFIP while the outstanding tolls arose statutorily from road use. It follows that government’s take-over of SANRAL’s debt does not extinguish road users’ toll liability.
While an active decision to excuse toll fees would be unlawful, the same may not be true for a passive excuse of fees. That is, it may be possible for SANRAL (or another public entity) to “excuse” toll fees by simply not enforcing the liability. It is notable that the SANRAL Act authorises SANRAL to enforce payment of toll fees, but does not oblige SANRAL to do so. Section 30(1) states that SANRAL “may institute legal proceedings to recover toll moneys owing to it” (emphasis added). This clearly indicates that SANRAL is empowered, but not obliged, to enforce payment by means of legal proceedings. SANRAL would thus not be breaching a legal duty under the SANRAL Act by simply not enforcing e-toll liabilities that have already vested.
An approach by SANRAL that amounts to simply adopting a supine attitude towards outstanding toll fees would arguably not be reviewable. While an omission, such as a failure on SANRAL’s part to enforce payment of tolls, may amount to an administrative action under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it would only be reviewable if such omission breached a duty to act. Section 6 of PAJA determines that a failure to take action would be reviewable if the administrator had a duty to act and failed to do so, either within the stipulated timeframe or, in the absence of such prescribed timeframe, a reasonable time. As the Supreme Court of Appeal noted in Commissioner for the South African Revenue Service v Trend Finance (Pty) Ltd 2007 (6) SA 117 (SCA), the section does not apply when an administrator “has a right, but no duty, to do [something]”. In the present matter, SANRAL arguably falls exactly in this position. It has a right to enforce payment, but not a duty to do so. Accordingly, a mere omission on SANRAL’s part to enforce payment would not merit a review.
The position may be different if SANRAL took an explicit decision not to enforce payment. Such a scenario would not amount to an omission on the part of SANRAL, but rather a deliberate positive action. Such an action would be subject to review under PAJA, including on the basis of reasonableness. In such a review, serious questions can be asked about how reasonable it would be for SANRAL to decide to forgo outstanding tolls while it actively enforced payment of identical tolls before. That is, the reasonableness of effectively waiving tolls for some users while it enforced payment against others could be questioned.
A final point to note relates to the criminal liability attached to non-payment of tolls, as set out above. No action by SANRAL (or any other actor) can retrospectively change such criminal liability. Section 27(5) of the SANRAL Act states that “any person liable for toll who … refuses or fails to pay the amount of toll that is due … is guilty of an offence” (emphasis added). It is evident that the criminal liability arises when a person refuses or fails to pay a toll that is due. This liability cannot be retrospectively extinguished by SANRAL. The liability could be formally pardoned by way of the presidential pardon powers or by way of a specific statutory scheme, but not by simple administrative action such as a decision by SANRAL (or another executive or administrative functionary) to “excuse” payment of tolls. The criminal liability would continue to exist even after SANRAL has formally abandoned the GFIP.
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