Following deputy president Cyril Ramaphosa’s announcement of a “new dispensation” for e-tolls last week, many Gauteng road users are assessing their risks going forward.
According to Ramaphosa little will change for road users who used to pay their e-tolls regularly. The few who travel the e-toll roads regularly and used to pay up to R450 per month, will in the new dispensation pay no more than the reduced cap of R225 per month (light motor vehicles).
The biggest benefits are however aimed at the non-compliant road users, some of whom have huge amounts outstanding as their tariffs were multiplied by almost six times compared to the discounted e-tag tariffs.
Going forward, they will be liable for double (60c/km) the tariff e-tag holders and those without e-tags are charged (30c/km) if they pay on time.
The historic arrears will be reduced by 60% and they have six months to pay it. Sanral has however indicated to Moneyweb that road users will be allowed to conclude payment agreements if the six month period is not enough.
Road users who still refuse to pay their e-tolls will be hit when they try to renew their vehicle licences, Ramaphosa said.
According to the Department of Transport (DoT) the renewal as such will be allowed, but the licence disk will be held back.
So what does that mean?
From an insurance point of view, probably not much.
Head of corporate affairs at Santam Donald Kau says: “The short answer is that in terms of our Personal Policy wording, it is immaterial if the vehicle is registered or not. So withholding of vehicle licences will not affect cover. Cover is excluded only if the vehicle is not roadworthy.”
Zakes Sondiyazi, motor manager at the South African Insurance Association (SAIA), says the oganisation is concerned about the possibility of motorists not being able to obtain their licence discs upon renewal.
“At this stage we do not have a formal position on the matter as it is still early days and we believe it will still take some time for the DoT to amend the regulations to give them the legal authority to refuse to issue the disc due to outstanding toll fees.”
Sondiyazi says SAIA members will be discussing the implication of the announcement at its Motor Committee on June 11, taking into account it may take up to 18 months to amend the regulations.
“It should however be noted that it will very much depend on the policy wordings of our members which may differ from company to company. Most policies makes provision that the vehicle insured must be in a roadworthy condition and as you know the renewal of a vehicle license disc does not mean the vehicle is still in a road worthy condition (apart from vehicles which are being used to convey passengers for reward which requires a road worthy certificate at each licence renewal),” he says.
The legality of withholding the licence disc has been questioned by, among others, Freedom Front Plus MP adv. Anton Alberts and transport activist Howard Dembovski of the Justice Project SA (JPSA).
Alberts calls it “unconstitutional and unlawful” and bases his statement on a legal opinion that it will offend the right to administrative justice by failing to give the offender the opportunity to state his case.
“It also constitutes a contravention of the Consumer Protection Act when something like a licence is withheld due to the non-payment of an unrelated debt,” Alberts says.
“As a result motorists will be in a position where they will have no choice but to break the law by driving with unlicensed vehicles,” he says.
Dembovsky says in a JPSA press release that whilst withholding licence discs may sound easy it “may not pass constitutional muster since, among other things, it would be tantamount forcing a person who has in fact paid licence fees to renew their licence but to whom a licence disc has been refused to contravene the National Road Traffic Regulations, 2000 by not displaying a current licence as prescribed.”
DoT spokesperson Tiyani Rikhotso confirms that regulations in terms of the National Road Trafiic Act still have to be published to authorize the withholding of the disc for outstanding e-tolls. It is already being done in the case of outstanding traffice fines.
The public will get an opportunity to comment on the draft regulations, Rikhotso says.
While the detailed text will only be available later, retired legal expert prof. Marinus Wiechers does not agree with Alberts and Dembovsky that the withholding of licence disc may be unlawful.
He says it is actually quite a clever move by government and believes it will be within government’s authority to do so. He points out failing to display a valid licence disc is an infringement on its own, but whether that will be enough of a deterrant to convince motorists to pay their e-tolls, remains to be seen, he says.
He says from a Constitutional point of view the test will be whether the measure will be a justified limitation to the right to administrative justice. In order for the limitation to be justified, it has to be reasonable.
The concessions made by government in the new dispensations will count towards reasonableness, he says.
He further points out that the refusal to pay e-tolls is not the only option open to motorists. If they pay their e-tolls or avoid using the e-tolled roads, they will be entitled to be issued with licence discs upon renewal.