What Will Happen if you Can’t/Don’t/Won’t Pay Etoll Charges?
(Written by Debt Management (i[email protected]) for those who Can’t/Don’t/Won’t Pay Etoll
Thank you NewERA (www.newera.org.za).
Tony Webbstock is a practicing attorney and has been for 30 years. This is what he has to say about E-tolls.
1. Are Etoll Charges an Example of Bad Government?
1.1. Politicians (especially those chosen by majority rule) should consult with the citizens before they foist such high charges on them without 1st checking that they can afford them.
1.2. This is the basic problem of democracy – politicians are elected to do the will of the majority but end up (start off?) serving hidden interests!
1.3. That they have committed the nation’s savings to this hair-brained scheme is nothing short of criminal.
1.4. Who benefits? The Etoll System is an example of someone else other than the taxpayers benefitting from the tax!
2. Can’t Pay?
2.1. 2/3 of South African consumers (12 million out of 18 million) are unable to make their current monthly repayments to Creditors as agreed: See the article Rate Cut May be Too Late which appeared in The Sunday Independent 22nd March 2009 on page 3: “Another survey by Unisa’s bureau for economic research found that for every R10.00 earned, at least R8.40 was spent on debt owed to financial institutions.
2.1.2.Did the Government consider the inability of motorists to afford the Etoll System before implementation?
2.1.3.It is fair to say that South Africans can’t pay more taxes!
3. Don’t Pay?
3.1. Now that the Etoll System is rolling from 12/2013, expect an invoice to roll in every 7 days – beginning, middle and end of every month – month after month, year after year, without 1 iota of consideration having been given to your monthly budget (more money at the beginning of the month and less thereafter if you are balancing you budget).
3.2. If you don’t pay each invoice within the 7 day grace period then you lose the discounts making it a nightmare for the Etoll System to give itemised accounts to say nothing about your ability to keep track of what you owe them from time to time!
4. Won’t Pay!
4.1. You know that there is something wrong with the Etoll System but, other than the exorbitant Etoll Charges, you can’t quite put your finger on it.
4.2. You feel uncomfortable with civil disobedience because you don’t know what will happen if you Can’t/Don’t/Won’t Pay Etoll Charges!
5. Non-payment of Etoll Charges is the Equivalent of the Non-Payment of a Traffic Fine:
5.1. Can you go to Jail if you Can’t/Don’t/Won’t Pay Etoll Charges? Debtors cannot be jailed for non-payment of debt – see Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC). You can be arrested for failing to appear at a Section 65 (Debtor’s) Enquiry if the Notice to Appear at Court is served upon you and you ignore it, but only to be brought to Court.
5.2. Fines: The current fine system in use – infringement notices, etc – applies to the non-payment of Etoll Charges. It is unlikely that fines will be issued for failing to pay Etoll Charges as we already have a system which cannot carry the administrative weight to do this. In any event fines don’t have to be paid unless a court gives them! And a court won’t give them unless you have received notice to appear in court either:
5.2.2.By registered post.
5.3. Metro Police Involvement: Metro Police hardly have the money to print fine books let alone notices to appear in court. In the latter event, should they do this, the Traffic Courts will be clogged and the civil defences set out below will still apply.
5.4. Withholding of Licences: Unless fines are given by court and then not paid, the licensing authorities cannot refuse to withhold the issuing of vehicle licences as is the case at present.
5.5. Collection of Etoll Charges in Traffic (so-called Criminal) Courts: Sanral is trying to create the impression that it will endeavour to collect outstanding Etoll Charges in the Traffic Courts, but there is no provision in the Aarto (Traffic) Act to enable this.
5.6. Section 30 of the Sanral Act: In terms of this section, Sanral will have to sue non-payers for payment of the then outstanding balances on their Etoll Charges in the civil courts.
6. What can You do if You Can’t/Don’t/Won’t Pay Etoll Charges but have to Use the Highways?
6.1. Must road users who Can’t/Don’t/W on’t Pay Etoll Charges stop using the highways when there are no viable alternative routes?
6.2. Our government has:
6.2.1. Hijacking the Highways: The highways are part of our heritage! Those who Can’t pay the Etoll Charges have effectively been terrorised by the high charges into thinking that they can’t use them!
6.2.2. Taxing the Air: If the politicians decide to tax the air without consulting us and without providing an alternative source, must current air users who can’t pay the air tax stop breathing?
6.2.3. Squeezing the Golden Goose: Gauteng is the hub of South African commerce. Look at the number of vehicles that use the highways each day. Consider the exorbitant Etoll Charges that motorists have to pay each day on top of their existing Monthly Necessary Expenses!
6.2.4. Zimbabwe here we Come: We have seen the damage 1 clown at play can do to a nation in 20 short years proving that it is far easier to break an engine than build it up!
7. Defences to a Claim by Sanral for Non-Payment of Etoll Charges:
7.1. The Can’t Pay Defence:
7.1.1. Action instituted against those who can’t pay Etoll Charges having regard to their Monthly Income & Expenditure / Assets & Liability Form, can’t pay Etoll Charges! This fact does not change by virtue of the fact that action is instituted.
7.1.2. The fact that they cannot pay does not mean that they must stop using the highways!
It just means that they cannot pay to do so!
7.2. The Affordable Repayment Defence:
7.2.1. Having regard to some road users’ budgets, it will appear at a Section 65 (Debtor’s) Financial Enquiry that some of those who Can’t/Don’t/Won’t Pay Etoll Charges can in fact pay something towards the outstanding Etoll account at that time.
7.2.2. This can take up to 4(four) years to appear at the enquiry.
7.2.3. In the meanwhile, and thereafter, the Etoll debtors can continue using the highways!
7.3. The National Credit Act Defence:
7.3.1. Sanral is a credit provider as defined under the NCA;
7.3.2. Sanral enters into a credit agreement as defined under the NCA with road users
(consumers) without enquiring into
220.127.116.11. their proposed future use of the Etoll System; or
18.104.22.168. their financial abilities to pay for Etoll Charges whether discounted or not;
7.3.3. Entering into an agreement with consumers would be Reckless Lending on the part of Sanral.
7.3.4. Consumers who can’t/don’t/won’t pay Etoll Charges can’t enter into Sanral credit agreements knowing that they won’t be able to pay same and so making themselves parties to Reckless Lending. This could lead to them losing the Reckless Lending penalties under the NCA.
7.4. The Consumer Protection Act Defence:
7.4.1. Section 48 of the CPA provides that
(1) A supplier must not—
(a) offer to supply, supply, or enter into an agreement to supply, any goods or services—
(i) at a price that is unfair, unreasonable or unjust; or
(ii) on terms that are unfair, unreasonable or unjust;
(b) market any goods or services, or negotiate, enter into or administer a transaction or an agreement for the supply of any goods or services, in a manner that is unfair, unreasonable or unjust; or
(c) require a consumer, or other person to whom any goods or services are supplied at the direction of the consumer— (i) to waive any rights;
(ii) assume any obligation; or
(iii) waive any liability of the supplier,
on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a transaction.
7.4.2. Are Etolls Unjust/Unfair/Unreasonable?
22.214.171.124. Sanral’s service, charges and discounts contravene Section 48(a), (b) or (c)
of the CPA;
126.96.36.199. Consumers cannot enter into Sanral’s credit agreements without a financial enquiry being held havng regard to their proposed road use!
188.8.131.52. There are many billing errors that Sanral can’t / doesn’t correct!
184.108.40.206. The Etoll System violates the basic toll road principle that viable alternative routes must be provided;
220.127.116.11. No provision has been made for those road users who can’t afford the service!
18.104.22.168. The main arterial routes are involved!
22.214.171.124. The Etoll Charges are exorbitant!
126.96.36.199. The Etoll Charges are unaffordable to most road users;
188.8.131.52. It is a private tax system, not a government tax system;
184.108.40.206. No details regarding who benefits behind the system have been given;
220.127.116.11. The payment periods are unreasonable;
18.104.22.168. The discount system of attempted collection is extortionate;
7.5. The Prescription Defence:
7.5.1. Etoll Charges from 12/2013 will begin to prescribe in 12/2016 (3 years later) if you don’t make payment on your account during this period; and
7.5.2. Thereafter, Etoll Charges will become extinguished (ie- become Prescribed (Non- Existent) Debt after the 3 year period on a month by month basis for which you cannot be sued (if you have not made a single payment during this period!).
7.5.3. Payment made after 12/2016 in respect of the Etoll Charges that have prescribed cannot revive Prescribed (Non-Existent) Debt!
7.5.4. Any payment made before 12/2016 will interrupt (re-start the running of) prescription in terms of Section 14 of the Prescription Act from the beginning –ie- from 12/2013.;
7.6. The Failure to Send out an Invoice Defence:
7.6.1. Sanral must follow road use with an invoice sent out within 7 days setting out their charges before the charges become due and a road user becomes liable for the payment of Etoll Charges.
7.6.2. Sanral are sending out invoices by ordinary post;
7.6.3. How is Sanral going to prove that they sent out invoices at all if receipt is denied?
7.6.4. The postal service is notoriously unreliable!
7.7. The Itemised Account Defence:
7.7.1. The Etoll System is cumbersome to say the least! Considering Sanral trying to keep up with it all, it would have been easier for them to disrupt road users by manual tolls here and there.
7.7.2. However, to collect Sanral will have to prove – on a gantry by gantry basis: :
22.214.171.124. road usage; and
126.96.36.199. levies; and
188.8.131.52. invoice posting; and
184.108.40.206. payment; and
220.127.116.11. discount; and
18.104.22.168. discount write back; and
22.214.171.124. running balance; and
126.96.36.199. collection attendances, inter alia.
7.7.3. This is enough to keep them busy. See paragraph #8.2 below.
8. Suggested Steps to be Followed by those W ho Can’t/Don’t/W on’t Pay Etoll Charges:
8.1. Stick to your Decision Not to Pay: see the above Prescription Defence in paragraph #7.5 above. Once you make payment without a court order – see paragraph #7.1 and 7.2 above – prescription is interrupted and must start again.
8.2. Sanral Can’t/W on’t Sue those who Can’t/Don’t/W on’t Pay Etoll Charges:
8.2.1. Sanral is geared up to follow the usual Informal Collection Proceedings like sms’, letters, invoices, etc.
8.2.2. On top of what Sanral has to do to collect its day to day Etoll Charges set out in
#7.7.2 above, it is not geared up to sue consumers who Can’t/Don’t/Won’t Pay Etoll Charges;
8.2.3. Sanral will have to sell their unpaid accounts to debt collection companies who are better able to collect;
8.2.4. These debt collection companies cannot buy better rights than Sanral has at the time of sale and the same defences as set out above will still apply to their collection efforts.
8.2.5. So Debt Collectors will try in turn to bamboozle the poor consumer by the usual Informal Collection Proceedings like telephone calls, unbelievable settlement offers and scare / threat tactics into making payment of Prescribed (Non-Existent) Debt! As Outa president Duvenhage said recently – it’s a circus!
8.3. Every Formal Collection Proceeding – whether by Sanral or a debt collection company – should be defended using one or more of the defences set out above.
8.4. Don’t sign anything now or in the future no matter what they tell you –eg – that you have to sign by law / that it is only a letter to say that they saw you / that they will lock you up, etc. They are trying to get you to sign an acknowledgement of debt or a Garnishee (Salary Deduction) Order. It is easier not to sign now than it is to rectify later!
9. Humpty Dumty
9.1. Humpty Dumpty sat on a wall, Humpty Dumpty had a great fall!, All the king’s horses and all the King’s men, Couldn’t put Humpty together again….
9.2. It is going to be interesting to see how Government, good or bad, tries to put Humpty together again considering the Rat Cage Effect:
9.2.1. Only businesses will pay Etoll Charges consistently because they think that they will be able to increase their product prices to recover Etoll Charges from those who Can’t/Don’t/Won’t Pay Etoll Charges and from those few who do but are now a good deal poorer;
9.2.2. Sales will dip sharply – called stagflation – and businesses will have to increase prices to keep their turnovers the same to balance their books (now with Etoll Charges daarby!).
9.2.3. Investors will see profits eaten into and will withdraw their investments;
9.2.4. The Rand will drop further against our trading partners making imports more expensive which will force importers in turn to increase their prices which will force businesses to increase their prices in turn and so on;
10. What is the Solution to a Whole Bunch of Clowns playing on a Merry-go-round in a Circus?
10.1. Don’t give up! Never give up!
11. What Will Happen if you Can’t/Don’t/Won’t Pay Other B-Creditor Debt?
11.1. Always remember – your 1st duty to you and your family is to protect your A-Creditors like bond, vehicle and mother-in-law!
11.2. For more information on how to do so – [email protected]