JPSA receives confirmation of gazette “error” from Department of Transport

JOHANNESBURG – Further to our media release of Monday 27 July, 2015, Justice Project South Africa is delighted to confirm that we have just received a response to our letter addressed to Messrs Phillip Magagane and John Motsatsing of the National Department of Transport.

In his response to us, Mr Motsatsing has confirmed that “On further consultation with SANRAL it was confirmed that the 2015 regulations have not yet been published and are still being finalised. The Department will do the necessary correction notice that exclude regulation 25 as contained in the regulation published for comments.”

Simply put, this means that paragraph 2 of Notice No. R. 607 in government gazette 38997, published for comments on Friday 17 July, 2015 may be completely disregarded by members of the public wishing to submit any comments on the proposed amendments to the National Road Traffic Regulations. It also means that withholding the issue of licence discs on the basis of outstanding e-tolls will not be lawful for the immediately foreseeable future.

The remaining paragraphs (3 and 4) remain open for public comment before 14 August 2015. The correction gazette promised by Mr Motsatsing will facilitate this.

“It is both appalling and alarming that such an ‘error’ should have crept into proposed amendments to legislation, particularly when such draconian measures as withholding licence discs is proposed,” said JPSA Chairperson, Howard Dembovsky. “One would hope that legislators would pay proper attention to detail and to abiding by legislative requirements and the Constitution,” he added.

When the Department of Transport publishes amendments to the e-road regulations, seeking to facilitate withholding the issue of licence disks for public comment, JPSA will do as it has said it will do and will vigorously oppose any such proposals. 

A copy of Mr Motsatsing’s email appears below.

Latest e-toll legislative amendments are nonsensical

JOHANNESBURG – It is with some alarm and disbelief that Justice Project South Africa takes note of the fact that the Department of Transport has published proposed amendments to the National Road Traffic Regulations in order to cater for withholding the issue of licence discs on the basis of outstanding e-tolls. We were alerted to this after reading an article that appeared on the Independent Online website.

Notice No. R. 607 in government gazette 38997, published for comments on Friday 17 July, 2015 refers to “regulation 11 of the e-Road Regulations, 2015” which we have been unable to find anywhere. 

The proposed insertion under regulation 25 of the National Road Traffic Regulations reads as follows and seeks to insert a further circumstance under which a licence disc may be withheld and appears to attempt to insert it into subregulation (1) instead of subregulation (7) where it would belong if it were valid: 

“Regulation 25 of the Regulations is hereby amended by the addition of the following paragraph after paragraph (h) of subregulation (1): (i) the owner of which has failed to comply with the requirements of the e-Road Regulations, 2015 published under section 58(1)(dA) and (dC) of the South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998) for the payment of tolls where the South African National Roads Agency SOC Limited has applied a mark in terms of regulation 11 of those e-Road Regulations to the effect that the owner of the vehicle has outstanding tolls in respect of the vehicle concerned.”

According to our records, the last time that e-Road Regulations were published was in Notice No. R. 739 contained in government gazette No. 36911 of 9 October 2013. The short title of the said Regulations was “the e-Road Regulations, 2013 (two thousand and THIRTEEN)”.

Should any amendment/s to the e-Road regulations have been proposed, they should have been published for public/stakeholder comment and at least 30 days should have been made available for comments to be submitted. The proclamation thereof should have followed the public/stakeholder engagement process.

It is difficult, if not entirely impossible to believe that absolutely everyone we know would have failed to submit comments on such a serious matter and therefore we hold significant doubt that any such amendments to the e-Road regulations under the SANRAL Act would have escaped anyone’s, least of all our and the media's attention.

JPSA has written to the Department of Transport requesting that it furnishes the relevant gazettes in which such amendments were published for comments and then proclaimed and we await their response.

We have previously stated that we would vigorously oppose any amendments to legislation proposing that SANRAL should be granted the power to hold motorists hostage by having their licence discs withheld and we stand by that statement. It would appear that as a result of this stance, someone at the Department of Transport has chosen to attempt to introduce legislation by ambush and this will not be tolerated. At the very least, the Department of Transport has demonstrated extreme incompetence coupled with a high level of mala fides (bad faith).

As soon as we have received a response from the Department of Transport, we will know how to proceed and will take the appropriate action.