e-tolls prosecutions "a step closer" – despite e-tolls being “sub judice”

JOHANNESBURG – Justice Project South Africa has noted that SANRAL has again deployed its Chief Financial Officer; Ms Helga Mulder to threaten motorists with prosecution for the non-payment of e-tolls, despite the fact that e-tolling is currently under review by the Gauteng Provincial Government. 

An article which appeared on Moneyweb on Monday 27 October 2014 bears testimony to the mechanics SANRAL intends using in furthering these criminal prosecutions, which it has waited for more than 7 months after the first prosecutions should have begun in April 2014. SANRAL has thereby created an enormous amount of prejudice, both in the monies allegedly outstanding to it and the quantum of individuals that will have to be prosecuted for non-payment of e-tolls. 

On 1 September 2014, JPSA presented its submission to the Gauteng e-tolls review panel, warning of the socioeconomic disaster for South Africa as a whole that will ensue out of successful criminal prosecutions for non-payment of e-tolls but it would appear that SANRAL doesn’t much care what happens to the economy of South Africa if they are successful in creating a high volume of artificial criminals. It is still somewhat debatable whether SANRAL will be successful in prosecuting cases of the non-payment of e-tolls, but only a court will prove whether they will or will not. 

The two cases currently undergoing prosecution must not be confused with prosecutions for non-payment of e-tolls, despite the fact that SANRAL has chosen to conflate these two cases with fraud charges applicable to e-tolling. Falsifying and defacing number plates are criminal offences under the National Road Traffic Act. Falsified number plates would ordinarily be prosecuted under the criminal charge of fraud, with charges under the National Road Traffic Act forming alternative charges. 

The case of the former Deputy Chief of the Tshwane Metropolitan Police Department, Ndumiso Jaca, who fitted the same false number plates to a BMW Z4 and a Harley Davidson motorcycle which was instituted in 2011 is still ongoing. This matter is being heard in the Pretoria Regional Magistrates Court; the same court that the matter against Dr Stoyan Hristov Stoychev is being heard. 

When it comes to the prosecution of motorists for the non-payment of e-tolls, the matter is not nearly as clear-cut as someone falsifying or defacing number plates and prosecuting the two clearly criminal matters cited by SANRAL is a far cry from prosecuting hundreds of thousands, if not over a million individuals for non-payment of e-tolls. 

If SANRAL is planning to violate the Constitution by selecting a few “choice matters” to prosecute in the hope that they can scare others into submission, they need to be aware of the fact that this will not simply be overlooked. If they are successful in prosecuting large volumes of e-tolls “offenders”, they will create an environment of unemployable artificial criminals and will, as a result, cripple the economy of South Africa. 

JPSA takes a very dim view of the repeated threats of prosecution by SANRAL, despite the fact that a supposedly democratic process is currently underway. In our view, this acutely demonstrates the fact that neither SANRAL nor the Department of Transport are in any way interested in listening to what citizens, political parties and other organisations think and have absolutely no intention of deviating from their plans to persist with e-tolls, regardless of whether they are efficient in getting the job done or not.

The JMPD’s insatiable appetite for fine revenues

JOHANNESBURG – An article which appeared in the Star Newspaper on Monday 20 October 2014, again making claims that the JMPD is spending more on postages for AARTO infringement notices it issues than it collects again highlights the skewed thinking that the JMPD and the City of Johannesburg applies to traffic enforcement. 

The article quotes Chief Superintendent Wayne Minnaar as saying that: 

  • “The City of Johannesburg budgeted for R464.3m a year in income from fines in its 2014/15 budget, or about R38.7m a month”.
  • “Only 4 percent of fines were collected on Administrative Adjudication of Road Traffic Offences (AARTO) infringement notices issued by the JMPD”.
  • “This represents R5.2m collected [by the JMPD] in an average month”.
  • “The cost [to the JMPD] of posting infringements by registered mail amounts to about R9.5m a month” and the JMPD calls this “wasteful expenditure”.
  • “Approximately 400 000 infringements are produced each month [by the JMPD]”.
  • “The JMPD has been holding “smart” roadblocks and roadside checkpoints where copies of AARTO infringements are served personally on the infringer”. 

Notwithstanding that the claim that the JMPD issues approximately 400 000 infringement notices a month is down by 50 000 on the previously claimed figure, none of the other figures quoted make sense.  According to the annual reports of the Road Traffic Infringement Agency (RTIA), the vast majority of infringement notices issued by the JMPD (well over 90%) are speed camera infringement notices and the JMPD does little physical enforcement of other moving violations or ensuring that traffic flows as it should. They do however mount prolific roadblocks in order to collect what they see as due to them and have no hesitation in severely hampering traffic flow and acting unlawfully in the process. 

The penalties payable to issuing authorities under the AARTO Act ranges from R125 to R750 on each infringement notice. This excludes penalties payable at courts, should the nature of the offence be deemed by the Act to be a criminal offence. If indeed, 400 000 infringement notices are issued by it per month, the absolute minimum value of these fines would be R50 million a month, not R38.7 million a month as claimed. A R11.3 million (29%) discrepancy on its budget simply cannot be described as being chump change. 

Furthermore, the JMPD claims that it is collecting R5.2 million a month and this represents 4% of the penalties payable. If this is true, it means that the JMPD must be issuing R92 million worth of infringement notices a month or R1.1 billion a year. In return, the City of Johannesburg budgets nothing whatsoever for road safety initiatives, but instead chooses to treat traffic fines as a general tax to fund its annual budget. 

The JMPD claims that it sets up “smart roadblocks and roadside checks where copies of AARTO infringements are served personally on the infringer”. Whilst it is not in dispute that the JMPD sets up prolific roadblocks and roadside checks, it is in dispute that these are legal and what the purposes of these exercises are. It is also not a provision of the AARTO Act for personal service of AARTO 03 infringement notices to be served on the alleged infringer at the roadside. 

JPSA currently has several live complaints lodged with the JMPD with respect to roadblocks mounted by them and it has already been established that the JMPD acts unlawfully in terms of the requirements imposed on it by the South African Police Service Act. Under this Act, the JMPD is required to apply for and be granted permission to mount both roadblocks and roadside checks, regardless of what the purpose for these are. 

On Sunday 13 July 2014, the JMPD mounted simultaneous roadblocks on the N1 North and South at Malibongwe Drive and Beyers Naude Drive respectively where only the roadblock mounted on the N1 North was authorised in terms of Section 13(8) of the SAPS Act. These roadblocks lasted almost 7 hours and severely disrupted traffic, causing the people stuck in them to incur significant financial losses. 

On Friday 10 October 2014, a journalist from the SABC was stopped in roadblock mounted by the JMPD on the N1 South opposite Vlakfontein and called JPSA for advice as he was being threatened with arrest for outstanding AARTO infringement notices. When a JMPD officer spoke to Howard Dembovsky, the officer stated “we are working here not to remind people to pay their fines, but to make them pay their fines… If you say he cannot pay fines meet him at the Police Station then. You can leave where you are now and meet him at err… Diep… err… Orlando Police Station and you can help yourself with this.” 

This conversation was recorded and has been published to SoundCloud. It constitutes an attempt at extortion as well as a threat of unlawful arrest. The JMPD has repeatedly denied that their officers threaten people with arrest for outstanding AARTO infringement notices but clearly, their denials are, like most of what comes out of the JMPD, fabrications intended to make their officers out to be angels and make members of the public out to be liars. 

Although the AARTO Act does make provision for arrest and/or the issue of summonses for serious criminal offences under the National Road Traffic Act, it makes no provision for the issue of summonses and/or warrants of arrest for outstanding infringement notices as it utilises other, administrative mechanisms to deal with these matters.  When applied properly, the provisions of the AARTO Act work quite well, but obviously – constant and prolonged strikes by the South African Post Office, coupled with maladministration and deviation from the prescripts of the Act by issuing authorities and the RTIA do not help matters. 

JPSA is still awaiting the final report of the Public Protector with respect to its complaint lodged with that office on 15 June 2011, with respect to the JMPD’s maladministration under the AARTO Act. Despite having received the preliminary report of the Public Protector on this matter in December 2013, the report has not yet been finalised and we patiently await that report.  The JMPD has repeatedly complained about “wasteful expenditure” being incurred by properly serving AARTO infringement notices in compliance with the AARTO Act since it was essentially forced to stop violating it on 21 December 2012, after repeated admissions by the Minister of Transport that it was acting unlawfully. 

Despite multiple complaints having been lodged by us with the JMPD with respect to the manner in which they mount roadblocks which are primarily aimed at collecting fines revenues, no satisfactory feedback has been received and as a result, JPSA has resolved to proceed with legal action against the JMPD for their abuses and failure to act within the framework of the law.

SANRAL & NDoT to make submission to e-toll panel

JOHANNESBURG – Although there few things that could surprise JPSA when it comes to e-tolling, news that SANRAL and the National Department of Transport is reportedly to make submissions to the Gauteng e-tolls review panel “next month, ahead of the panel wrapping up its work, to ‘correct the distortions’ about the system which were now in the public domain” is a new low, even for them. 

SANRAL was invited to make its submissions to the panel a long time ago and instead of seizing the opportunity, they, the National Department of Transport and Minister Peters decided to actively try to discredit the panel, labelling it as little more than a farce and refusing to participate. Minister Peters even went so far as to say that she “has no duty to implement the findings of the panel” but now it would appear that she and her cohorts wish to manipulate those findings at a crucial time in the process – after representations and submissions have closed. 

It must not be forgotten that the schedule of the Gauteng e-tolls review panel has been and continues to be tight. It is due to present its report to Premier Makhura by no later than 30 November 2014 and as things stand it has a significant quantum of submissions to consider.  For SANRAL, the National Department of Transport and Minister Peters to now announce that they will address the panel during the time that it is supposed to be sifting through those submissions and the evidence placed before it and compiling its report is highly irregular at best. 

This action can be likened to a respondent in a court application failing to oppose such an application and then subsequently deciding to approach the Judge after the application has been heard and a Judge has reserved judgment, in an attempt to sway his or her judgment because that respondent now feels that an adverse finding may be reached against it. 

No-one is trying to or has tried to deny SANRAL, the National Department of Transport and Minister Peters their right to be heard, quite the opposite in fact. All we are saying is that there was a time and place for this to be done and all of them decided to be vindictive and dictatorial instead of seizing the moment and showing South Africans that they are reasonable people with a reasonable argument to present. They have absolutely no right to seek to interfere with the process significantly after submissions have closed and this must be viewed in a very dim light and should not be allowed.