Is the failure to pay e-tolls a criminal offence?

e-toll email

It has come to our attention that SANRAL and/or its business partners, Electronic Toll Collection (Pty) Ltd – a Kapsch TrafficCom Company, has been sending out emails in an apparent attempt to refute the notion that prescribed debt in the form of unpaid e-tolls is not simply going to be let go.

Once again, it is noted that the contents of these emails refers to the non-payment of e-tolls constituting a criminal offence for which offenders can be prosecuted and as a result, incur a criminal record.

This is in no way a new claim and/or tactic on the part of SANRAL. In fact various individuals at SANRAL have been making such claims and threats since before the go-live date of 13 December 2013 (four years ago) and every single time SANRAL sees itself backed into a corner and losing the battle in collecting monies from a public which has quite simply refused to be bullied into paying for this ridiculous scheme, they again level their threats.

But is there any truth to their threats, and if so, what are the implications which would arise out of a conviction?

The short answer is yes; failure to pay any toll arising from driving on a toll road is theoretically a criminal offence in certain jurisdictions, but just because there is some truth to SANRAL’s propaganda does not mean that it is the whole truth and nothing but the truth.

To the contrary, the level of applicability to criminal convictions is so low that SANRAL has sought to try and pull the wool over everyone’s eyes in the single prosecution it brought against Dr Stoyan Stoychev more than two years ago, in 2015.

Stoychev was prosecuted for number plate fraud and the non-payment of his e-tolls was merely a coincidental, ancillary charge which arose out of that, yet SANRAL tried its utmost to deliberately distort the facts in this matter to make it appear as if this was “the first e-tolls prosecution”, even going so far as to commission a professional quality video it published on YouTube.

Prior to and since that conviction on 10 September 2015, SANRAL has not brought even a single “vanilla” prosecution for non-payment of e-tolls, in fact it has not instituted a single criminal prosecution for non-payment of e-tolls ever, nor has it issued a single notification in terms of Section 341 of the Criminal Procedure Act (fine), let alone approached the clerk of the court to issue and serve a single summons in terms of Section 54 of the Criminal Procedure Act. A criminal conviction simply cannot arise unless the accused person is summoned and either pays an admission of guilt fine or is convicted by the Court.

The lack of mass prosecution is in no way to be interpreted as representing an indication of SANRAL’s benevolence and/or sympathy with road users. SANRAL would have dearly loved to “make examples” of a few people and in so doing, scared everyone else into submission but the fact of the matter is that this would be and has proven itself to be a lot easier said than done.

What the law says.

Section 25(5) of The South African National Roads Agency Limited and National Roads Act, 1998 (Act 7 of 1998) unequivocally prescribes that:

“Any person liable for toll who, at a toll plaza or other place for the payment of toll determined and made known in terms of subsection (1), refuses or fails to pay the amount of toll that is due—

(a) is guilty of an offence and punishable on conviction with imprisonment for a period not longer than six months or a fine, or with both the term of imprisonment and the fine; and

(b) is liable, in addition, to pay to the Agency a civil fine of R1 000. This amount may be increased in 1999 and annually thereafter in accordance with the increase in the official consumer price index for the relevant year as published in the Gazette.”

Therein lies the basis in truth where, in terms of Section 25(5)(a) of the SANRAL Act, it is indeed an offence to fail or refuse to pay tolls.

Just so you know, the SANRAL Act is road traffic legislation which falls within the ambit of legislation enacted by the Department of Transport and is therefore subject to the identical conditions any other road traffic and transport law enacted by that department is subject to, particular where it comes to the prosecution of offences created by its provisions.

Section 89(1) of the National Road Traffic Act, 1996 (Act 93 of 1996) similarly prescribes that:

“Any person who contravenes or fails to comply with any provision of this Act or with any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty of an offence”,

And Section 89(6) then goes on to prescribe that:

“Any person convicted of an offence in terms of subsection (1) read with any other provision of this Act shall be liable to a fine or to imprisonment for a period not exceeding one year.”

As you can see, the commission of any offence in terms of the National Road Traffic Act is considered, at minimum, to be twice as serious as the non-payment of toll, notwithstanding the fact that Section 25(5)(b) of the SANRAL Act contemplates a peculiar form of duplicate punishment which seeks to punish the offender twice for the same offence.

There are two different prosecution instruments used to prosecute any and all offences created by road traffic and transport law.

One of these prosecution instruments is the Criminal Procedure Act, 1977 (Act 51 of 1977) and this relic of the apartheid era has some pretty ominous provisions built into it which seek to punish “criminals”, regardless of the level of seriousness associated with the crime such persons commit. The provisions of the Criminal Procedure Act apply everywhere in South Africa except in the jurisdictions of the Metropolitan Municipalities of Tshwane and Johannesburg.

While paying a fine associated with a notification in terms of Section 341 of the Criminal Procedure Act cannot result in the recordal of a criminal record (previous conviction), paying an admission of guilt fine associated with a section 54 summons or section 56 written notice to appear in Court must, according to Section 57(6) of the Criminal Procedure Act, result in the clerk of the Court recording a conviction in the “criminal records book for admissions of guilt”.

In practical application however, the provisions of Section 57(6) of the Criminal Procedure Act do not result in a criminal record being registered on the SAPS Criminal Records Centre database when people pay admission of guilt fines for “traffic fines”. If it did, there would be few drivers and/or vehicle owners who would not be automatically precluded from employment and travel.

But in the jurisdictions of the Metropolitan Municipalities of Tshwane and Johannesburg, the provisions of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, 1998 (Act 46 of 1998) apply and these are markedly different to the Criminal Procedure Act. Through the provisions of Section 22(4) of the AARTO Act, anyone who pays an admission of guilt fine arising out of an AARTO infringement notice “does not incur previous convictions”, thereby effectively decriminalising so-called “minor offences”.

Now, given the fact that Section 17(1) of the AARTO Act is prescriptive in prescribing that If a person is alleged to have committed an infringement, an authorised officer or a person duly authorised by an issuing authority, must instead of a notice contemplated in section 56 or 341 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and subject to section 23, serve or cause to be served on that person an infringement notice,…”, it should be pretty clear to all concerned that the Criminal Procedure Act may not be used to prosecute e-toll non-payers within a large area of the current GFIP’s roads infrastructure.

Regulation 3(1)(b) of the AARTO Regulations, 2008 further goes on to prescribe that an AARTO 03 infringement notice must be issued and served by “registered mail” within 40 days of the alleged infringement and the non-payment of any toll is specifically contemplated (albeit poorly in relation to e-tolls) under charge codes 3820 and 3821 in Schedule 3 of the AARTO Regulations.

The implication of these laws.

Although they will never admit it, the anomaly of the provisions of two, distinctly different prosecutions instruments existing for the self-same offence has left SANRAL with somewhat of an administrative nightmare. As stated above, a large area of the roads which comprise the GFIP are governed by the provisions of the AARTO Act while other areas are governed by the provisions of the Criminal Procedure Act. The map below demonstrates how some of the GFIP falls within the jurisdiction of the Criminal Procedure Act and others fall within the jurisdiction of the AARTO Act.

Prosecuting e-tolls violations – What prosecution instrument applies where?

SANRAL quite simply cannot choose to use one Act or the other to issue prosecute the non-payment of e-tolls, it has to use the prescribed prosecution instrument and since a large proportion of the GFIP falls within the jurisdictions where the AARTO Act must be used, it has no choice but to comply with its provisions. Additionally, some parts of the GFIP fall within the provisions of the AARTO Act in one direction on the freeway, and within the provisions of the Criminal Procedure Act in the other.

Even though SANRAL has tried to have the provisions of the AARTO Act amended to cater for up to 100 infringements to be included on a single AARTO 03 infringement notice, this is not possible in terms of the AARTO Act and each infringement must be cited separately on its own infringement notice.

Even if only one million motorists fail to pay e-tolls, at minimum SANRAL would have to issue no less than two million infringement notices per day, but in reality, it would probably have to issue and serve well over four times that many. The current cost of the registered letter service provided by the SA Post Office is R27.30 per registered letter (there is no such service as “registered mail” or “registered post). Take that rate and times it by four and you will see that SANRAL will cost itself no less than R54.6 million a day in posting AARTO 03 infringement notices, thus further worsening its financial situation in the hope that some people will pay the fines.

Where the Criminal Procedure Act applies the service of summonses issued in terms of Section 54 of the Act must be effected in person and the process servers involved in that process do not work for free either. In fact, the cost of such personal service is considerably more expensive than the SAPO’s registered letter service and that is not the only consideration which needs to be taken into account. All criminal matters would have to be heard in the lower Courts with jurisdiction over the part of the GFIP in which the “offence” occurred and the Court rolls simply cannot cater for millions of additional prosecutions.

So where to from here?

From what has been laid out in this article, you should be able to understand that whilst SANRAL’s threats are loosely based on the facts, but ignores the practical implications and other factors which would surround criminal prosecution for the non-payment of e-tolls.

JPSA does not and never will tell people not to pay e-tolls. What it does do however is to provide you with truthful and relevant information to enable you to make your own mind up as to what you want to do about e-tolls.

It is highly unlikely that SANRAL will ever be able to prosecute everyone who refuses to buy into its ill-founded e-tolls scheme, but if you want a 100% guarantee that you will not be prosecuted, then the only way to achieve that is to go and pay what SANRAL claims you “owe” in e-tolls.

If however you wish to take a stand and take your chances, the possibilities of you actually being prosecuted are so low that they are practically negligible and all of what has been articulated in this article is relevant. If you are unlucky enough to be the one who is prosecuted, then all of the provisions of the Constitution, 1996 and various other provisions of legislation are applicable and at the very least, you are entitled to a fair trial in an ordinary public Court.

Make up your own mind, but only do so after considering all of the relevant factors – not based on “what everyone else is doing”.