Outa on a fundraising exercise: Sanral

The statement by Outa purporting that a legal agreement had been reached with the South African National Roads Agency (Sanral) on a test e-tolls case, is false.

"It is nothing more than a fundraising exercise by Outa," said Vusi Mona, spokesperson for the agency.

Whilst the legal teams from the agency and Outa are in discussions about a test case and Sanral has indicated that it agrees in principle to such a process, but an agreement can only be reached once Outa sets out its legal defences which it intends to raise in a collateral review. This will only occur once Outa has pleaded to one of the matters, which it has not yet done.

A test case will lessen the burden on the courts, costs for all parties and set legal precedent that will assist in all the other matters where similar legal arguments will follow.

Despite various cases taking place in the past with the Pretoria High Court, the Supreme Court of Appeal and the Constitutional Court all finding in favour of Sanral, Outa believes that there is an opportunity to again attack the legality of tolling based on a collateral review. Sanral is confident that the toll system is legal, given the outcome of previous toll cases but it is up to the legal system to make that determination in terms of any new challenges.

"Going to the media with a statement that an agreement exists, is a clear misrepresentation as there has been no final agreement in this regard. In particular, there is no agreement whatsoever that Outa members will be immune from legal action. Outa's statement coincides with their drive for late membership application," says Mona referring to the Outa Web site [extract below].

If one received a summonses below R50 000, a once-off payment of R5 000 is required, and above R50 000, an amount of 10% for Magistrate Court matters and 5% for High Court matters. Should you have a matter of a million rand (High Court), then an upfront fee of R50 000 is payable to join. Thereafter, there still is a monthly fee payable. For the million-rand example it amounts to R5 000 per month.

"Interestingly, for matters of R20 000, the 'guideline' is R200 per month. This against the reality that 78% users' monthly toll is less than R100 per month, and that the absolute maximum payable is R236 per month for light vehicles if you are a registered user. For the R20 000 summons example (at the alternate tariff), the monthly toll accumulated over the summons period amounts to approximately R170 at the e-tag tariff. Therefore, Outa expects payments in excess of the actual monthly costs to fight a system which brought about the upgrading of 201km of freeways, provides daily maintenance of these freeways, provides for free assistance to those involved in incidents and accidents by means of towing vehicles, paramedics and incident management personnel and providing lighting on all freeways. But such is the logic of Outa."

However, it appears from Outa's statement that they may not necessarily be interested in expediting the matter. From a revenue perspective, it will mean ongoing annuity payments from members for as long as the matter is running. Furthermore, Outa requires its members to indemnify them from the probability that they might be unsuccessful in their legal challenge, in which case their members will still be liable for the summoned values. This is clear for anyone to see if you read the fine print on the terms and conditions of its Web site.

"In the interests of transparency we call on Outa to answer the following seven questions," challenges Mona.

1. Why did they go to the media with a statement while the parties are still busy with without prejudice negotiations and Outa has not yet pleaded in any matter where it is representing a road user?

2. On what basis does Outa issue a media release on matters that are the subject of without prejudice negotiations taking place in good faith?

2. What oversight does Outa guarantee the public in terms of the management of the funds received?

3. What do they mean that they provide an "Umbrella Cover" while they are not an insurance provider?

4. What is meant with providing services "within the financial means of the organisation"? If the funds are depleted after the first few cases, will they provide no assistance to the other contributing members?

5. Why do they state their confidence that the e-toll system is unlawful, but also state that "Outa cannot and does not guarantee the outcome of any legal matter"?

6. In the event that Outa is not successful, will they refund users or assist them with the payment of summonses, including legal costs and interest?

7. Is it more important for Outa to continue with legal battles, than to support infrastructure provision to the benefit of exactly the same members that are reliant on proper freeway infrastructure?