The long-awaited legal test case between roads agency Sanral and the Organisation Undoing Tax Abuse (Outa) over unpaid e-tolls appears to have moved a step closer, but could still take several years before it is finally heard in court.

Sanral has issued several thousand summonses against Gauteng drivers for non-payment of e-tolls in recent months, but agreement has been reached between Outa and Sanral lawyers to have the matter decided in court over a just three cases of unpaid bills.

Outa says agreement has also been reached with Sanral’s lawyers provisionally immunising its current and future members from legal claims by Sanral for non-payment of e-tolls. Because non-Outa members are not covered by the immunity, Outa is expecting a spike in membership in the coming weeks.

Vusi Mona, Sanral’s communications GM, appeared to dispute Outa’s assertion that the matter will be decided by a test case, rather than thousands of individual cases, which would buckle the judicial system. “The Sanral and Outa legal teams are exploring the possibility of a test case,” says Mona. “No agreement has been reached as yet. The process is ongoing between the parties.”

Outa replies that Mona is at odds with his own legal team, which have agreed to settle the matter by way of test cases.

The test case could still take several years before it is finally heard in court due to what Outa says are technical deficiencies in Sanral’s summonses. For example, most of the summonses issued by Sanral are “simple summonses”, meaning they are simple claims for repayment of outstanding debt, without the supporting evidence, such as photographs of vehicles passing under the e-toll gantries. Outa, on behalf of its members, is demanding that Sanral provide photographs and other supporting evidence.

“The agreement effectively grants the entire Outa member community immunity until the case is complete. Our aim is to show that e-tolling is unlawful in the test case, and should we succeed, the stay of legal claims will become permanent,” says Wayne Duvenage, chairman of Outa.

Outa has consistently argued that the e-tolls are unlawful on the grounds that they were imposed on Gauteng drivers without the necessary public engagement and planning, and are far more costly than other alternatives.

Mona says it is in everyone’s interest that a test case is not dragged out unnecessarily. “In the end, road users in Gauteng will be directly and negatively affected by such a strategy to deliberately drag out legal proceedings. The test case is not the only legal option. Criminal charges can also be brought or the test case can be abandoned and the normal civil claim process followed.”

According to figures reported to parliament, 2,9m Gauteng freeway users have outstanding debts to Sanral, totalling R7,9bn. This means a huge proportion of Gauteng’s car pool of 3,5m vehicles is in default. It was also reported to parliament that Sanral spent R177m on advertising, much of it on its 60% discount on outstanding e-tolls, for which it received about R109m in payments. Duvenage says this proves that Sanral’s 60% discount campaign was a complete failure.

Duvenage says Sanral has clearly indicated its intention to continue issuing summonses against non-Outa members. “All indications are that new rounds of summons are being issued by Sanral,” he says.

“More worrying for Sanral is the fact that all their summonses issued between March 2016 and mid-August 2016, were seriously erroneous and significantly flawed to the extent that these can be regarded as excipiable (not allowed), and we believe that Sanral will have no option but to start again with all these e-toll summonses.”

Duvenage says until the authorities “stop listening to Sanral’s nonsense and come to their senses by pulling the plug on the scheme, Outa will continue to fight for the rights of society and seek to put a stop to the e-toll debacle”.

It was recently reported that Austrian firm Kapsch had increased its stake in the e-tolls collection firm ETC from 87% to 100%. Outa says ETC receives up to R70m/month for administering the Gauteng freeways, regardless of the collections received by Sanral.

In reply to questions put to it by Moneyweb, Mona says ETC’s payment is not determined by the toll income, but by the services it renders to Sanral as determined by the tender contract.

All operational costs are paid within South Africa; costs such as employee costs, administration costs, communication costs, banking fees, facilities – including maintenance and asset refresh, rates and taxes. All these are paid in the country to local service providers.”