Who collects e-tolls from 3 December 2020?

The five-year e-toll collection contract awarded in 2013 was supposed to end on 2 December 2018 and was extended to December 2020, with no further extension legally permitted. The question is: who will be collecting e-tolls within the prescripts of the law from 3 December?

SANRAL faces a legal obligation to halt its contract with the Electronic Toll Collections (ETC) company tomorrow, 2 December 2020, as the contract comes to an end and cannot be extended again after the two single-year extensions since December 2018. This means that SANRAL should in law be unable to collect e-tolls until a legal fight over the tender process for a new contract is finalised.

“The initial five-year e-toll collection contract with ETC came to an end on 2 December 2018. However, due to the demise of the system and SANRAL’s state of confusion over its future, the ETC contract was extended twice by a year each to December 2019 and again to December 2020,” says Advocate Stefanie Fick, OUTA executive director.

SANRAL is bound by public finance legislation that prevents it from continuous extensions to limited-period contracts with outsourced service providers. As SANRAL has now reached the end of its e-toll collections agreement and has not appointed another service provider through a formal tender process, if the law is to be strictly applied, the state-owned entity’s service providers may not bill motorists for e-tolls from Thursday 3 December 2020.

SANRAL issued two tenders for a new collections contract: one in August 2019, which it subsequently cancelled, and another in July 2020. The tenders were to seek a new contractor for the Gauteng open road tolling system, including the transaction clearing house and violations processing centre. However, a recent court challenge over the tender process has halted the announcement of a new service provider.

After SANRAL cancelled the August 2019 tender, bidder Kusa Kokutsha brought an application against SANRAL to review the process, award it the first tender and stop SANRAL from awarding the new tender. In August 2020, the Pretoria High Count dismissed Kusa Kokutsha’s application for an urgent interim interdict to stop the award of the second tender; the court heard that SANRAL had been due to award the new e-toll contract on 2 December 2020 but undertook not to award it pending the outcome of the review application. The court review was heard on 11 and 12 November 2020 and the judgment was reserved.

In the new round of bids to take over the e-toll collection process, SANRAL listed three bidders for the first contract – Kusa Kokutsha, Phambili JV and SAeTO – and two bidders for the second – South African E-Toll Operator (SAeTO) and Phambili JV Gijima. OUTA could not find a business registration for SAeTO or Phambili. OUTA previously pointed out that Kusa Kokutsha is largely the current ETC JV consortium in another guise and was registered as a business only after the first tender was advertised.

“Even if the judge makes a ruling on SANRAL’s latest e-toll collection tender debacle this week, there is the formality of appointing a new service provider and a long hand-over period with the current operator, which is surely not possible within a few days,” says OUTA CEO Wayne Duvenage.

“This entire e-toll debacle has been an embarrassment for SANRAL since its inception over a decade ago. To date no-one has been held accountable for obvious corruption and gross waste of money that has unfolded throughout this saga,” adds Duvenage.

In a further complication, Gauteng motorists and SANRAL are still waiting for a long-promised Cabinet decision on the future of e-tolls.

In July 2019, President Ramaphosa instructed Transport Minister Fikile Mbalula, Finance Minister Tito Mboweni and Gauteng Premier David Makhura to resolve the e-toll impasse so Cabinet could make a decision on funding the Gauteng freeways, but no decision has ever been announced. This makes the awarding of a new e-tolls collection contract financially risky.