The Organisation Undoing Tax Abuse (Outa) has filed legal action against the South African National Roads Agency Limited (Sanral) and three Ministers, asking the High Court to declare that Sanral has abandoned the collection of the outstanding e-toll debts. The action was filed in the Pretoria High Court on August 20.

The applicants are Outa and 2 028 e-toll defendants, individuals and businesses, whom Outa has been defending for years in terms of its E-Toll Defence Umbrella.

The respondents are Sanral, Transport Minister Barbara Creecy, Finance Minister Enoch Godongwana, Forestry, Fisheries and the Environment Minister Dion George, Forestry, Fisheries and the Environment director-general Nomfundo Tshabalala and South African Revenue Service Commissioner Ed Kieswetter.

Sanral has indicated that it intends to oppose Outa’s application. However, no other responses have been received so far.

The notice of motion calls on the High Court to declare that Sanral has abandoned its debt claims against the 2 028 e-toll defendants, subsequently removing these matters from court. If Outa wins, Sanral’s claims against the 2 028 e-toll defendants will fall away.

Outa is also requesting the court to make an order to force Sanral to pay Outa’s legal costs in the cases.

Sanral had instituted legal action against 2 028 individuals and businesses over unpaid e-toll debt. These individuals and businesses subsequently approached Outa for assistance. Outa took on the defence of these cases.

Outa argues that Sanral has effectively abandoned the cases after the entity’s board resolved in March 2019 to suspend the e-toll debt collection. In the six years since then, Sanral has taken no further steps on these cases, and Outa is now seeking legal finality on the matters.

Outa’s founding affidavit was made by Outa accountability executive director advocate Stefanie Fick.

Outa is represented by Andri Jennings of Jennings Inc, advocate Adrian D’Oliveira and advocate Nicole Lewis.

E-TOLLS 2013 TO 2024
The Gauteng Freeway Improvement Project (GFIP), which saw the upgrade of about 185 km of Gauteng freeways and improvements to 34 major interchanges, cost R20-billion, which Sanral funded entirely through borrowings. The e-toll system, which formed a significant part of the total cost, was set up to repay this debt.

On December 3, 2013, the e-toll gantries were switched on and e-tolling started.

Outa had campaigned against the tolling of these urban commuter roads since 2012, including through the courts. Further, after the switch-on, thousands of motorists refused to pay.

On October 26, 2022, Godongwana announced that 70% of the debt incurred on the GFIP would be funded by National Treasury and 30% by the Gauteng provincial government. On November 3, 2022, National Treasury confirmed this. On March 5, 2024, Gauteng Finance MEC Jacob Mamabolo also confirmed this.

On March 28, 2024, the notice withdrawing the declarations of the GFIP roads as tolled roads was gazetted, taking effect on April 12, 2024, and legally ending the e-tolls.

“The toll declarations were clearly withdrawn as a consequence of the decision by government that Sanral’s e-toll debt would be funded directly from the national and provincial fiscus,” Fick said in her affidavit.
 
THE CASES OUTA IS DEFENDING
In October 2015, Outa launched its E-Toll Defence Umbrella to defend those who received summonses from Sanral for failing to pay alleged e-toll debts.

The 2 028 defendants who have joined Outa in the current application were served with summonses for e-toll debts by Sanral between April 11, 2016, and April 10, 2019, and approached Outa for assistance. Outa then instructed and paid attorneys and counsel, who prepared and filed notices of intention to defend and then pleadings on behalf of many of these defendants.

The debt claimed in these cases came to more than R265-million at the time of issuing summons. The biggest claim against a business was R13.51-million and against an individual R814 978, while the smallest claim is R1 249.20 against an individual.

In every one of these cases, Outa filed notices of intention to defend and pleadings, and often further paperwork was filed by Sanral and Outa. Only a few of the High Court cases progressed to a complete set of pleadings being filed, while in the magistrates’ courts, no cases progressed beyond the pleadings stage.

“Due to the sheer number of matters, and later as a result of the test case, in many matters, the exchange of pleadings ceased after a notice of intention to defend was filed,” Fick said.

The proceedings were stayed in late 2018 by agreement pending the determination of a test case.

Outa’s current action aims to resolve these matters.
 
THE TEST CASE
A test case had a representative spread of defendants and was intended to decide key issues in the cases, including the constitutional challenge.

Outa launched this test case in May 2017.

This test case was also referred to as the collateral challenge, and was the legal challenge related to the constitutionality of the e-toll scheme itself.

During 2017 and 2018, there were various discussions between Outa and Sanral, and case management meetings presided over by a judge, on the way forward.

In December 2018, it was agreed that the test case would consolidate four high court cases and, in addition, join additional State respondents with Sanral. In January 2019, six magistrate’s court cases were added.

In March 2019, before the test case was ready for hearing, Sanral’s board resolved, with immediate effect, to suspend the collection of the e-toll debt.

“It [the board] resolved that, given the initiative led by President Cyril Ramaphosa to address the e-tolls payment impasse, Sanral will, with immediate effect, suspend the process of pursuing e-toll debt. This includes historic debt and summonses applied for from 2015. No new summonses will be applied for,” Sanral said in a statement at the time.

Since then, Sanral has taken no further steps to pursue the test case.

Outa and its attorneys approached Sanral and its attorneys to obtain certainty about the abandoned status of the debt actions and to recover legal costs, but without success.

Outa says it has attempted to obtain clarity on this litigation with Sanral by letters through lawyers, letters and emails directly from Outa CEO Wayne Duvenage to Sanral CEO Reginald Demana, and through WhatsApp messages between the CEOs, but has been unable to get it resolved.

“The test case and the actions have been abandoned.

“The applicants have sought to engage with Sanral on numerous occasions to obtain finality by confirming the abandonment of the test case and the actions, and to recover legal costs, but Sanral has avoided such engagement because of obvious financial consequences.

“Sanral’s failure to withdraw the actions and tender the costs is unfair and prejudicial to Outa and the defendants who are entitled to have certainty and obtain finality in the actions and are entitled to payment of the legal costs incurred in defending the actions,” Fick said in her affidavit.

PREVIOUS E-TOLL CASES
In March 2012, Outa filed its first legal challenge to the e-tolls.

This was a case in the Pretoria High Court, filed together with three other organisations, which asked, firstly, for an interdict to block e-tolls from going ahead and, secondly, for the decisions to declare the GFIP roads as toll roads to be reviewed and set aside.

In April 2012, Outa won an interim interdict, but in September 2012 this was overturned by the Constitutional Court.

In December 2012, Outa lost the main review application in the Pretoria High Court, and in October 2013 the Supreme Court of Appeal (SCA) dismissed Outa’s appeal, mainly on the grounds that the action was brought too late.

“The SCA decided the appeal on the basis of delay and without reaching the merits. It held that the delay rule contained in Section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 prevented the court from entertaining a review application.

“The SCA made it clear, however, that its decision did not prevent members of the public who were sued for e-toll debt in due course from defending the claims against them by collaterally challenging the lawfulness of e-tolling,” Fick said in the founding affidavit in the current application.

It is this collateral challenge that has formed a crucial part of Outa’s defence of the e-toll debt cases, the organisation said.