breaking news

By Nicky Smith

The scene is set for a major battle between civil society groups‚ private citizens and the state in the coming months‚ with temperatures already running hot during the normally sleepy holiday season over the unpopular e-toll programme.

Dedicated e-tolls opponent the Opposition to Urban Tolling Alliance (Outa)‚ which has spent the greater part of the past two years dragging the South African National Roads Agency (Sanral) and the Department of Transport to court‚ has promised to campaign to continue to undermine the programme success. Outa has repeatedly called for the state to abandon e-tolling in favour of using the fuel levy to pay for upgrades made to Gauteng’s freeways.

Outa is well supported by other nongovernmental organisations such as the Justice Project of South Africa (JPSA) and the Automobile Association‚ all opposed to the collection of tolls to pay for the road improvement and expansion programme officially dubbed the Gauteng Freeway Improvement Project.

In the week before Christmas it was clear from reports that some of the problems with e-tolls that its opponents had predicted‚ specifically regarding the collection of tolls and enforcement‚ were starting to occur.

People unregistered for e-tolls received SMS and email demands for payment of tolls without attached invoices. Call-centre workers were calling road users demanding payment and physical addresses in order to send bills.

The JPSA has voiced concern over the way in which road users’ information has been accessed‚ saying there has been a violation of the Protection of Personal Information Act as the e-toll collection company has used information from its fine-paying website to support its e-toll collection efforts.

Sanral has defended the use of the databases as legal and pointed out that people using the toll roads have a legal obligation to pay for their use.

Meanwhile‚ Outa has organised with two law firms to represent the first person to be prosecuted under the Criminal Procedure Act as a test case to argue the merits of the e-toll scheme as well as its lawfulness.

Despite having gone to court four times in the past two years‚ Outa has still not argued before a judge why it sees the e-tolling scheme as fatally flawed and unconstitutional. The court cases have largely dealt with points of law and issues such as the technicalities of when such a case should be brought before the court.

During the first test case‚ says Outa chairman Wayne Duvenage‚ the alliance would provide much of its prepared legal argument that it was never before able to argue in front on a judge. This first case will be undertaken for free.

Outa has also called for a "civil courage" campaign encouraging drivers to arm themselves with information about their rights as well as the rules of the toll roads. It has also warned people not to be bullied by Sanral into registering for an e-toll account and buying an e-tag.

There is no legal obligation to buy an e-tag or to have an account – these are used by Sanral to incentivise enforcement and payment of toll tariffs by offering discounts.

Outa has hinted at the possibility of also introducing some sort of panic button that road users would be able to use and receive advice or assistance should they be accosted by law-enforcement officials for outstanding toll fees.

It is not only Outa that has been campaigning against the new road tax. African National Congress (ANC) alliance partner the Congress of South African Trade Unions has staged regular protests. And with an election looming in the first half of 2014‚ e-tolls will be a central campaign issue for the opposition Democratic Alliance (DA)‚ which has set its sights on taking Gauteng province from the ANC.

The DA is also planning to challenge the constitutionality of e-tolling in the coming months as it says the law was improperly tagged during the legislative process‚ which may mean it would have to return to Parliament.

The state and the beleaguered Sanral may be relieved that the gantries are finally ticking over.

For the state‚ it is a vindication of its ability to form and implement policy. Also important for the government is relying on the user-pays principle‚ which is employed in electricity and water billing. Given the public outrage over e-tolling‚ however‚ devising any other new infrastructure programmes based on such a funding model may prove difficult.

For Sanral‚ the relief will be financial as the agency has been surviving on loans (worth about R5bn) for the past few months to pay its bills and payments associated with its debt programme.

It needed to borrow as it was not been able to issue bonds for the past two years while investors were unwilling to take on more Sanral debt until there was clarity on where the money would come from‚ and when.

Sanral expects to begin borrowing again by issuing bonds once it has a few months of e-tolling revenue to provide comfort to investors. The agency narrowly avoided being downgraded to junk status by rating agency Moody’s earlier this month after the toll gantries went live.

But the journey ahead will not be smooth‚ and all other large‚ new toll projects are on hold or tied up in court.

It will be a tough year for Sanral‚ which has lost the popularity battle already. Despite spending millions on marketing the e-toll programme and cutting toll tariffs by half‚ public sentiment has long since disconnected from how much it will cost and fixated on having to pay anything at all.