On Monday 29 February 2016, Mr Mark Ridgway, who is the
Chief Operating Officer (COO) of Electronic Toll Collection (ETC), was interviewed
by Xolani Gwala regarding the plans he and his cohorts have to take
their demands for payment of e-tolls to the next level.
Many listeners commented on how condescending and arrogant
he came across and I find it very difficult to disagree with their assessment of
him. An email sent to Xolani Gwala, allegedly originating from a lawyer and
which Xolani read out shortly after the interview called upon Ridgway and ETC
to summon lawyers first. Nice.
Both I and Wayne Duvenhage from OUTA called into 702 and had
our say and whilst Wayne concentrated on the assertions of a woman (almost
certainly an ETC/SANRAL plant) who called in saying that she was in full
support of e-tolls, I addressed just two of the many elephants in the room of
Ridgway’s grossly flawed strategy.
I would like to address these and a few other issues in this
Firstly, the fact that Ridgway chooses to go on public radio
and threaten the public without having the faintest clue of what section of the
SANRAL Act he is basing his threats upon must be somewhat telling.
When asked what section of the SANRAL Act was applicable to
prosecutions and debt recovery, he fumbled, saying “don’t quote me but I think
it’s somewhere around section 30 to 35” or something like that. For future reference, Mr Ridgway it’s section 27(5) and it is your duty to know this but I hasten to
add that you and your colleagues also need to be aware that there are lots of
other laws apart from the SANRAL Act and the PFMA in South Africa and focusing on just one
section of one Act is unwise, given the fact that there are other laws you and
SANRAL are compelled to comply with, but don’t.
Section 27(5) of the SANRAL Act makes it an
offence to fail to pay toll at a toll plaza and caters for both, criminal or
administrative prosecution (depending on whether the AARTO Act applies in that
jurisdiction or not) and the imposition of a civil penalty. I have stated this
from the get-go and only a complete fool would try to deny its existence, but please don't get too excited just yet.
When it comes to the practical implementation of both, the
prosecution side of things and the civil penalty catered for in the SANRAL Act,
it is clear that those who should be sure of their facts are not, as has been
repeatedly demonstrated by a plethora of officials
involved in the e-tolling project.
For more than two years, the Minister of Transport, senior
SANRAL management, as well as senior ETC management have threatened non-payers with
criminal records. They did so by asserting that contravention of the SANRAL Act
and specifically, non-payment of e-tolls would be prosecuted under the Criminal
Procedure Act, which is just what its name implies – an Act dealing with
prosecution of criminal offences.
The second they started spewing this nonsense and prior to the commencement of e-tolling, I and JPSA pointed
out that they could not use the Criminal Procedure Act to prosecute e-tolls
non-payers in Johannesburg and Tshwane since the Administrative Adjudication of Road Traffic Offences
(AARTO) Act had replaced the Criminal Procedure Act in those cities in 2008 and they were compelled to use the AARTO Act. In return, we got a snotty reply from their smartass lawyers who failed to
address the issue, and the likes of the “Propagandist in Chief”, Vusi Mona,
chose to get sarcastic and condescending, accusing me of not understanding
legislation and asking where I got my law degree from, as if he has one.
Then on 7 December 2015 the Department of Transport published
amendments intended to make the prosecution of non-payment of tolls,
particularly e-tolls – easier in terms of the AARTO Act, thereby inadvertently
acknowledging that I and JPSA were right from the outset in asserting that the
Department of Transport could not simply choose to violate its own laws because
SANRAL found it convenient to do so.
I use the term "easier"
and deliberately don’t assert like some others have, that these amendments were
proposed to introduce the prosecution
of non-payment of e-tolls into the AARTO Act, precisely because non-payment of
tolls, whether they are regular or e-tolls; has always been contemplated in the AARTO Act.
SANRAL’s concerted and elaborate efforts to make it appear that the
prosecution of Mr Stoyan Stoychev and his resultant plea agreement with the
prosecution on number plate fraud was “the first e-tolls prosecution” was
doomed to fail from the beginning. They even went so far as to produce a high definition YouTube video calling it "E-toll court case: The facts". It's only had 201 views by 2 March 2016, so here it is in all of its splendour for those of you who didn't get to watch this crude attempt at propaganda.
Stoychev’s lawyers had no option but to seek a plea
agreement with the State since he didn’t have a leg to stand on but it would be
ambitious at best for anyone to think that the majority of people run around
altering and falsifying their number plates.
I don’t feel in the least bit sorry for Mr Stoychev but it’s
interesting to note that SANRAL and
the NPA have not brought even a single other prosecution for number plate
fraud, vehicle cloning etc. against anyone else despite the fact that there are
plenty of others they could prosecute
without much effort.
Herein enters the interesting,
and I dare say, unconstitutional anomaly of the selective prosecution that SANRAL
and the NPA has become infamous for and which violates that pesky little piece of
legislation called “the Constitution” upon which every single law and action in
South Africa is supposed to be based.
I have often commented to learned legal professionals with
whom I interact that I find it somewhat disturbing that while every other law
has a schedule of penalties for offences committed under that Act, the
Constitution does not have the same. It is my view that this is one of the
major reasons why the Constitution is violated with impunity on a daily basis
and by all and sundry.
But back to Mr Ridgway’s assertions. The threats of criminal
prosecution and records have now been abandoned and instead of Vusi Mona
mouthing off about people being jailed and denied employment and travel visas,
Mark Ridgway is the latest bully-boy propagandist to be unleashed on the public.
He has asserted that civil debt summonses are to
be served on defiant non-payers within (as at 24 February) two weeks. He has
also asserted that these summonses will only be served on people who have shown
by their attitude that they refuse to pay. Once again, selective enforcement of
SANRAL’s rights is being demonstrated
since the SANRAL Act refers to any person who “refuses or fails to pay the amount of toll that is due”, now doesn't it? By my understanding, way more than a million people have failed
to pay and some have refused to pay. I am one of many who have refused to pay.
Long before anyone else did so, I challenged Dipuo Peters,
Nazir Alli, Vusi Mona and others to prosecute me for non-payment and refusal to
pay e-tolls. I did this to their faces and because I was and remain sure
of my facts and my defence. Others have followed suit in calling on SANRAL to prosecute
them and one particular person who did so, John Clarke was even publicly ridiculed by
Vusi Mona when he published his “prosecute me” challenge on YouTube. Vusi Mona likes getting personal.
If I do receive a summons, I will be surprised but I most
certainly won’t be unhappy about it. To the contrary, I will be delighted, but
that’s not the way that SANRAL and ETC rolls. In fact, it’s not how any bully operates.
I wager that those who are summonsed will be very carefully chosen from the plethora
of weak targets out there and for the sole purpose of generating even more
propaganda in an attempt to scare others into coughing up.
This “vehicle listing” database that Mark Ridgway has
repeatedly referred to is simply ridiculous and his assertion that it was the
used vehicle industry which approached ETC and/or him to create it is hilarious.
Why would any motor dealer whose livelihood depends on buying, marking up and on-selling
vehicles seek to put a barrier like this in their own way? Really Ridgway, are
you so arrogant and blind to reality to be asserting that everyone is stupid?
A motor vehicle is not
a fixed asset like a house where rates and taxes can be inherited, which I may
add is constitutionally questionable in itself. Violations of traffic laws and outstanding
debts incurred on motor vehicles cannot be inherited, no matter how much anyone
likes to assert that they can. A finance house has never and never will pursue
a person who did not incur the debt for the outstanding finance amount someone else incurred, so that argument is blown straight out the water too.
Self-driving cars, whilst being a reality in prototype terms
at the moment, are a long way off in terms of widespread usage and even further
off in the South African context. Therefore, it is simply preposterous to suggest that
a person who violates a traffic law or incurs e-tolls can pass
those problems onto someone else who buys their vehicle. Both, traffic fines
and e-tolls invoices are issued to natural or juristic persons and are their
responsibility, not the responsibility of some third party who buys their vehicle.
If Ridgway’s hare-brained theory is held to be lawful and
constitutionally sound, then the same must be held to be true of other offences,
so don’t be surprised when police pitch up at your door, arrest and charge you
with murder and the courts convict you; simply because you live at an address a
murder suspect used to live at. Wouldn’t that just be a perfect solution to our rampant crime problem since it would make things
nice and easy for the State?
Of course this example sounds outlandish and maybe even a
little childish, but I urge you to think about it carefully and then come and
tell me how it differs from Mark Ridgway’s thinking.
He basically stated that “the ends justifies the means” in his
interview with Xolani Gwala when questioned about the lack of enabling
legislation behind his “vehicle listing” brain fart he then went on to say “*chuckle*
to say whether it’s within the law or outside the law is not the question”. The
fact that he said it twice goes to demonstrate
just how disrespectful this man really is and how selective he is in his own
preparedness to abide by the law he asserts everyone else should obey.
It is this very attitude which has typified the entire
e-tolls saga and, I dare say, has been popular with government and its agencies
and contractors for a very long time now.
But when one has the presence of mind to shove all of the
clutter and red herrings aside and looks at things in a rational manner, the
flaws with SANRAL’s and ETC’s strategy becomes even more clear.
SANRAL is aware of the fact that their electronic equipment
used in generating e-tolls invoices is illegal. If they weren’t, they would never have applied for exemption (which
was not granted) from the provisions of the Legal Metrology Act in 2014. SANRAL
is aware of the fact that not only have its management committed one or more
criminal offences, but that because their equipment is not certified and
approved for use, their invoices have no legal standing.
The fact that the National Consumer Commission is currently stalling
its own processes by forcing the Freedom Front Plus to enter into “mediation”
with SANRAL instead of proceeding strait to a Consumer Tribunal doesn’t bode
well for their credibility. This is not to say that the NCC is in any way a credible
entity to start with, given the fact that as far back as 24 January 2014, the
National Consumer Commission’s Head of Advocacy, Education and Awareness, Ms
Phumeze Mlungu stated on public television (SABC TV) that SANRAL’s terms and conditions are
“90% compliant with the Consumer Protection Act”. Since that time, these terms
and conditions have not been altered in any way whatsoever. In my, and the law’s
eyes, 90% compliance equates to 100% noncompliance!
Isn’t this indicative criminal collusion of the highest order and isn’t
it possible that the latest actions of SANRAL and ETC are relying on a greatly
delayed outcome of SANRAL’s violation of the Legal Metrology Act to get in as
much money as they can ahead of an adverse ruling against them?
I cannot see the Freedom Front Plus capitulating and
deciding to simply forgive SANRAL for its violation of the law and therefore,
the NCC is further jeopardising its own legitimacy by insisting on this time-wasting mediation process. When the matter comes before the consumer tribunal, and
unless that tribunal wishes to completely destroy any credibility it may still
have, it will have no choice but to rule against SANRAL and deem their e-tolls invoices
to be illegal.
The second that someone raises this as a defence against ETC’s
pathetic civil summonses, not only will ETC and SANRAL’s litigation fail, but
the judicial officer (Judge or Magistrate) will have no choice but to refer the
matter to the Director of Public Prosecutions for consideration for the
prosecution of the individuals involved for contravention of the Legal
Metrology Act (and the preceding Trade Metrology Act), as well as fraud. I simply
can’t wait for that day, but am mindful of the reluctance of both, our courts
and the NPA to prosecute criminals in the employ of government and it is
agencies and contractors, so I won't hold my breath.
You see, the Constitution or the Republic of South Africa is
fabulous and all that, but it is violated on a daily basis and there is
seemingly no recourse. For this reason, bullies who are empowered by government
see no problem with acting in violation of the Constitution and other laws of
the country, comfortable in the knowledge that “everyone is equal before the
law” but some are most definitely more equal than others.
I’m most certainly not “nanny pants” about anything Ridgeway,
you arrogant baiter. Stop threatening people, grow some balls and come fight
with me in a court of law and bring all of your thugs with you. I will take the
lot of you on – and will win. My details are and always have been 100% up to date on eNaTIS and I don't falsify or hide my number plates, so you don't need to use TMT Services' databases to track me down.
You’ve been served – again!