FF Plus investigation finds that all e-toll accounts are illegal

Adv Anton Alberts

Sanral’s equipment being used by the Gauteng e-toll system does not meet legal requirements and regulations and all money collected to date or will be collected, is or will be done in an illegal manner, Adv. Anton Alberts, the FF Plus’ parliamentary spokesperson on Transport says.

He said Sanral first has to meet the requirements as set out in the Legal Metrology Act, 9 of 2014 before it may collect fees from motorists.

According to Adv. Alberts received confirmation from the National Regulator for Compulsory Specifications (NRCS) that the e-toll equipment had never been certified as required by the Act. The NRCS also confirmed that there was never an application for certification.

The contravention of the Act could have serious implications for the contravening body and a maximum sentence of ten year imprisonment or a fine, or both, could be imposed. In this case it appears that various aspects of the Act were contravened, Adv. Alberts says.

Sanral’s failure to adhere to the legal requirements at the same time also constitutes a contravention of five Sections of the National Consumer Protection Act.

The Sections include: Section 40 (unconscionable conduct); Section 41(false, misleading or deceptive representations); Section 48 (unfair, unreasonable or unjust contract terms); Section 49 (notice required for certain terms and conditions) and Section 54 (consumer’s right to safe, good quality goods).

Adv. Alberts says the FF Plus today submitted a complaint with the Consumer Commission.

He said the FF Plus had asked the Consumer Commission to make a ruling that all accounts are declared illegal until such time and while the specifications of Sanral’s e-toll equipment is granted approval by the NRCS.

A finding must also be made that Sanral reimburses all consumers for funds which have been paid for e-tolls to date.

“It is of the greatest importance that this case, which directly affects ten thousands of motorists and the country’s economy as a whole, is cleared as quickly as possible and that urgent corrective steps are taken.

The FF Plus also requested the Consumer Commission to obtain a finding about the matter from the Consumer Tribunal, if necessary,” Adv. Alberts said.

The letter to the Consumer Protection Commission follows below.


Contact no.: 082 391 3117 / 083 419 5403



2 November 2015


(NCC) National Consumer Commission

Commisioner: Mr. Ebrahim Mohamed

08 Bauhinia Road,

Block 10, Berkley Office Park,

Techno Park,



Tel: (012) 761 3000

Delivered by:



E-Mail: E.Mohamed@thencc.org.za


Dear Sir/Madam,


The above matter refers.

We would like to submit the attached complaint for your attention and investigation.

The central focus of the complaint is on SANRAL’s non-compliance with the legislation relating to the compulsory certification of E-Toll equipment in term of the Trade Metrology and Legal Metrology legislation and the resultant breaches of the National Consumer Protection Act.

1. Details of the Complaint:

This complaint in essence deals with the legality of the Gauteng E-Toll (“E-Toll”) bills issued since the system and gantries were activated in December 2013. The FF Plus wrote a letter to the National Regulator for Compulsory Specifications (“NRCS”) requesting information with regards to the certification of the entire system and equipment used in the e-toll system. In terms of the previous Trade Metrology Act 77 of 1973 (in operation when the E-Toll system was activated) and the new Legal Metrology Act 9 of 2014 (superceding the previous Trade Metrology Act), toll equipment must be certified before being used – Section 34(1) of the Legal Metrology Act. (See attached FF Plus letter dated 12 August 2015).

The NCRS duly replied that no E-Toll equipment have been certified and that no request was made to do so. (See attached NCRS letter dated 14 August 2015). The NCRS indicated that SANRAL requested exemption from this requirement, but the NCRS declined this request. The NCRS also replied that where the specifications for use are not prescribed as yet, the CEO may give interim direction with regards to the use of such equipment. The CEO indicated in the letter that he is in process to deal with the matter on this basis.

Section 30(2) of the Legal Metrology Act states explicitly that no person may use an unverified measuring instrument unless he or she has obtained permission from the CEO (the legacy Trade Metrology Act has a similar provision. In this case it is clear that no such permission has been given and SANRAL is, accordingly, in breach of the Act. Section 31 (3)(b) makes the breach of Section 30(2) an offence. Clearly SANRAL is guilty of an offence for operating the E-Toll system without compliance of certification.

SANRAL is also in breach of Section 33(1) as it knows that the E-Toll equipment is nonc-ompliant yet issues bills for road usage. This is an offence as well.

Any person found guilty ito the Act is liable for a fine or not more than 10 years in prison, or both.

We, therefore, submit that the failure by SANRAL to comply with the NRCS legislation they are violating the following provisions of the National Comsumer Protection Act, namely Sections 40, 41, 48, 49 and 54, as set out below:


Section 40:

• This section deals with unconscionable conduct. It prohibits a supplier from using underhand tactics in the marketing, supply and demand for payment.

• SANRAL`s failure to comply with the NRCS regulations which were meant to ensure the accuracy of equipment which are used to bill consumers means that SANRAL was acting unconscionably. There is a general public expectation that when anyone, government in particular, place a collection system in place, such system has complied with all laws which are meant to ensure that citizens are not subjected to the whims of government officials. Consumers must have confidence that when they are told/informed that they owe a certain amount of money, the system that is being used to remotely measure the liability to pay is compliant with all laws and regulations. If however these consumers are not confident in these measurements of amounts, then the users of the system are being subjected to the whims of the state and that is unconscionable.


Section 41:

• This section deals with false, misleading or deceptive representation.

• Tolling equipment has been installed to measure or calculate the number of times a vehicle passes through, for example a gantry, in order to give accurate readings so that a charge can be generated. If the laws that were meant to ensure that the system does what it is supposed to do and perform accurately have not been complied with, any representation that is made that a charge is correct, is misleading. It is misleading because the person who incurred the charge will accept it as correct. However, many users complain that their charges are not correctly reflected.

• Subsection (1)(b) talks about “…failure to disclose material fact if that failure amounts to a deception” It is deceptive not to inform the public that a system that is being used to charge them for tolling fees has not been certified and calibrated and that it is not in compliance with laws that were meant to ensure that the system is accurate.


Section 48:

• This section prohibits a supplier from providing goods or offering a service on terms that are unjust, unfair and unreasonable. One of such terms that are deemed unfair and unjust is found in section 41(1)(c). In terms of this subsection, it is unjust and unfair to contract with a consumer where a consumer is expected to waive his rights. The section requires that where that is to happen, a supplier must give a consumer notice.

• For a consumer to exercise his/her rights fully in for example questioning his bill, SANRAL is supposed to advise consumers that the system is not certified. Failure to do so means that consumers are not aware of their rights, and are therefore not able to fully exercise their right or fully protect their consumer rights.


Section 49:

• This section takes the matter further and states that “In addition to subsection (1), if a provision or Notice concerns any activity or facility that is subject to any risk (a) of unusual character or nature, (b) the presence of which the consumer could not reasonably be expected to be aware or which an ordinarily alert consumer could not reasonably be expected to notice or contemplate in the circumstance…”

• The fact that a system has not been taken through all the compliance standard is something that consumers could not reasonably expect that government would not comply with. It is therefore a risk which even an alert consumer would not reasonably expect and therefore a risk that must be brought to the attention of consumers specifically.


Section 54:

• This section deals with a consumer’s right to demand quality service. Where the standard of particular goods or service is subject to any Act, and the goods have not been verified against standards as set out in that Act, one cannot ascertain whether such goods are good or poor.

• Subsection (1)(b) requires that when a service is provided, or a service provider undertakes to provide any goods or service, such goods or service must be of a standard that is generally expected and/or accepted by consumers.

• Consumers do not expect that the provision of E-Toll bills/accounts which place an obligation on them to pay that bill is based on a system that has not complied with the law.

• Subsection (c) even speaks of refund of a reasonable portion of the price paid for the service having regard to the failure. If a system is used to charge a consumer and it turns out that that system was faulty, a consumer is entitled to a refund. This is on assumption that a consumer can go back and check if for example his bill is correct. In this instance it cannot be done because the system that is used to charge a consumer is illegal in the sense that it has not been tested or has not complied with the laws that are meant to ensure that a bill is correct in the first place.

With regard to the abovementioned sections in the National Comsumer Protection Act we propose the following finding:

• A ruling that all accounts up until the satisfaction of the NRCS requirements in future be declared illegal and not payable;

• A ruling that the money already paid can be claimed back or must be paid back by SANRAL; and

• If necessary, to launch an application to the Consumer Tribunal to obtain an order in this regard.


2. Details of steps taken to resolve the complaint:

• Writing to the NCRS to ascertain the status of the certification of the E-Toll equipment.

• Obtaining an advisory opinion from the NCC`s Mr. O.C Thupayatlase in this regard in order to ensure that the matter may well be referred to the NCC.

We shall appreciate your urgent attention in this regard for the sake of all consumers and the public in general. We humbly request that an investigation is launched to establish what should have been done and what actually happened and advise what remedial action must be implemented. Note that if necessary the matter may be referred to the Consumer Tribunal in order to achieve a verdict herein.


Yours truly,


Adv. Anton Alberts

Member of Parliament & Gauteng Leader : FF Plus

Cell: 082 391 3117

Office: 012 665 1679

Fax: 012 665 2420

anton.alberts@vfplus.org.za // jennifer@vfplus.org.za