JPSA vindicated by Public Protector’s Report on JMPD Maladministration

Having now received and studied the full report entitled “A Matter of Interpretation” announced by the Public Protector on 18 December 2014 Justice Project South Africa feels vindicated by the fact that the JMPD has been found to have engaged in “improper conduct and maladministration” by the Public Protector.

This matter has been an uphill battle that has continued for more than four and a half years with the JMPD and other agencies repeatedly attempting to discredit JPSA along the way in order to continue engaging in their improper conduct and maladministration but the truth has prevailed and JPSA has been proven to have been right in its assertions that it has held from day one.

It is a shame however that the only remedial action that has been imposed on the JMPD is for it to “apologise” for breaking the law and to provide its "reasons" for doing so in Johannesburg Newspapers since we had hoped that at the very least they would have been compelled to cancel all of the outstanding unlawfully issued AARTO infringement notices that still exist on their system.

As things stand, the JMPD remains in a position to continue to stop motorists in roadblocks and demand payment of these infringement notices under threat of arrest, despite the fact that the notices are in fact unlawful and that the JMPD has no legal powers to arrest or otherwise detain any motorist on the basis of outstanding AARTO fines.

The purpose of traffic fines should not be about providing a revenue stream for the City of Johannesburg or any other municipality, but sadly that is exactly what they are viewed to be. This was made even more apparent in the report wherein it was stated that “the collected revenue through issuing of infringement notices between August 2010 to December 2012 has escalated to R963 871 250”. JMPD Chief, Zwelinzima Nyanda then went on to say that “the revenue collected from traffic fines is a source of general income for the City of Johannesburg and that a lesser revenue received would result in charging rate taxpayers more in order to source its budget”.

It somehow seems to have been overlooked that the illegal revenues collected by the JMPD would never have grown to nearly a billion Rand, up to half of which should have been paid to the Road Traffic Infringement Agency, should the JMPD and the City of Johannesburg have acted responsibly and ceased its unlawful actions at the time that JPSA first started engaging with them in mid-2010 over this matter.

Just because the JMPD began to comply with the AARTO Act on 22 December 2012 due to the mounting pressure which resulted from the investigation by the Public Protector and questions asked of the Minister of Transport in Parliament does not remedy the situation of the JMPD having violated the Act for 32 months prior to that and this matter has unfortunately not been addressed or remedied.

JPSA will be considering its options over the next few weeks and may consider approaching the High Court in the New Year to seek an order compelling the JMPD to cancel all illegal infringement notices that exist on their system, if the JMPD refuses to do so of its own volition. By not compelling the JMPD to cancel the remaining illegal infringement notices, the JMPD has effectively been given free license to continue to benefit from their improper conduct and maladministration.

JPSA again warns motorists not to be intimidated into paying AARTO 03 infringement notices issued by the JMPD starting with 02-4024 issued between June 2010 and 21 December 2012 since all AARTO 08 representations made to the RTIA to have these withdrawn have been successful.

The Public Protector's full report is available at the Public Protector's website.

A retrospective look at e-tolling in Gauteng

The 3rd of December 2014 marks the anniversary of the implementation of e-tolls in Gauteng. The 1st anniversary – not its birthday, because it was somewhat stillborn and has failed to materialise into the “masterpiece” and “better/only way to go” everyone, including but not limited to the highest court in the land was told it would be.

Amidst the repeated threats of dire and life-altering/ending consequences levelled at motorists for not complying with these unjust laws enacted to compel compliance, ordinary folk got angry, dug their heels in and didn’t run off to register with SANRAL. They then went further and refused to pay.  In essence, the practice of hurling rocks and burning tyres was replaced with tightly zipped wallets and the occasional drive around the GFIP by groups of defiant, fed-up and cash-strapped citizens. Banners slung over bridges on the freeway saying “hoot against e-tolls” produced a daily tumultuous, trumpeting symphony of horns.

Compliance is and remains very low and essentially, very few outside of the realms of big business and government departments have registered with and more importantly, are paying SANRAL. The “user-pays principle” is effectively the “some users pay principle” and the uncollected revenues are building by the day, just like was predicted and warned by OUTA, JPSA and others.

It’s a crying shame that the warnings and attempts to halt the e-tolls egg from being scrambled resulted in little more than the enrichment of lawyers and a materialisation of most, if not all of the warnings presented by OUTA, JPSA and others. It’s a fact that Courts are interested in what the law says and unfortunately, it’s also a fact that the law and the practical implications thereof can sometimes be worlds apart.

It’s also a shame that what looks good on paper and what happens in reality doesn’t always equate to the same thing. The policy of e-tolling, just like Marxism, looks great on paper but fails to take the human factor into account. Funnily enough, both share a common “enemy” which they like to call  “bourgeois society” and it would appear that the pro e-tolling lobby’s belief that anti e-toll sentiment was merely an attempt to protect privilege has backfired because, in actual fact e-tolling affects everyone with a motor vehicle – not just the rich.

And then came the e-tolls review panel and a ray of hope suddenly peered through the cracks in the system; but not without a concerted attempt by all sorts of naysayers to discredit it and label it a sham. Amongst the most vocal about the illegitimacy of the panel were SANRAL, the Minister of Transport, the ruling and opposition political parties.

Despite the claims of illegitimacy, Premier Makhura and the panel stood their ground and all of the critics – bar none ended up making submissions to the panel – with SANRAL taking up the lion’s share of the time afforded by the panel to individuals and organisations to present their case.

Now that the panel has delivered on its mandate to provide the Premier with its report and recommendations by 30 November, the ball is firmly in the court of the Premier and the Gauteng Provincial Government to do something constructive with it. But this too has not come without criticism and people simply can’t wait to get their hands on that report. Some have even launched renewed criticism – labelling Makhura’s decision to study and discuss the report with his Provincial Government before releasing it publicly as representing “secrecy” and lending credence to their view that the entire process was a self-serving sham.

It’s hard to blame people for distrusting anything surrounding e-tolling, given the history of the dictatorial railroading of it into existence and the repeated misinformation – otherwise referred to as lies – that’s been forthcoming from SANRAL.

One thing is for certain though – e-tolling has failed to raise the money to pay the investors in this scheme and ultimately, no matter what the political ramifications of this happen to be, a realistic financial solution to the problem has to be forthcoming. If that solution results in an increase or decrease in votes, will depend on what political solution is – or is not reached.

- Howard Dembovsky is the Chairperson of Justice Project South Africa

Amendments to e-tolls regulations published for comment

JOHANNESBURG – The Minister of Transport has published various amendments to the “e-Road” regulations in Government Gazette 38257 of 28 November 2014 for public comment. The closing date for comments on these amendments is Saturday 27 December 2014. 

Amongst the proposed amendments is a requirement that “foreigners” must now “comply with the provisions relating to the payment of toll in accordance with that made known in the Government Gazette that apply to toll tariffs on the GFIP toll roads and the Conditions for payment of toll published by the Agency in terms of section 27(1)(b) of the Act.”

This proposed amendment categorically implies that persons driving motor vehicles registered outside of South Africa have, up to the time that this provision takes effect, been exempted from the so-called “user-pays principle” on the GFIP. 

The other amendments published in this Gazette for comment apply to the timeframes in which SANRAL is compelled to issue an invoice to both, registered and non-registered or “alternative” users. This period is to be extended from 32 days to 60 days; however the “7 days grace for payment” applicable to the tariffs for registered etag users and registered VLN users as well as the “7 days grace for payment” applicable to standard tariffs has not been adjusted. 

The 51 days period referred to by the Minister of Transport in her budget vote speech on 15 July 2014 has therefore been extended to 60 days. It must be noted however that there is no compulsion for SANRAL or its contractors to wait for a further 53 days to elapse after the 7 days grace period has expired before issuing an invoice through their contacted-out Violations Processing Centre (VPC).

As unregistered users of the GFIP will attest, invoices and SMS messages to cough up the alternate user tariff started on Friday the 13th of December 2013, 10 days after the introduction of e-tolling on the GFIP. The assertion of the Minister in her budget speech wherein she said there will be a “further extension of the payment period to avoid the VPC process that would negatively affect vehicle owners” is therefore not altogether true. 

The final amendment contained in this Gazette is one compelling SANRAL or its agents to “establish and keep a register to record all transactions of day-pass users and alternate users” as opposed to just doing so for registered etag users and registered VLN users. This amendment implies that no obligation has existed for SANRAL or its agents to establish and keep a register to record all transactions incurred on the GFIP – only those that were incurred by registered etag users and registered VLN users. 

Justice Project South Africa will be submitting its comments to the Department of Transport with respect to these proposed amendments and will, amongst its comments, again be questioning what mechanisms have or will be put in place to ensure that owners of vehicles registered outside of South Africa comply with these regulations. 

The way we see it, there are only two ways to ensure that this happens. One is to detain and prohibit them from leaving the country without paying their e-tolls and the other is to seek extradition orders for foreign vehicle owners who don’t pay within 120 days of passing under a gantry. Neither is a particularly practical solution and the question must be asked: 

“What will happen if a ‘foreigner’ returning home cannot pay? Will that person be jailed until they have paid their ‘debt to society’ or will they be allowed 60 days to pay prior to an invoice being issued to them and upon failing to pay within 120 days, be extradited to stand trial?” 

The publication of this Gazette two days prior to the handover of the e-tolls panel report further goes to demonstrate the contempt with which the Premier, his e-tolls review panel and citizens are held by the Department of Transport and SANRAL.