DEMANDS RECEIVED FROM SANRAL BY SMS MESSAGES
The implementation of the e tolls in Gauteng amidst much publication and controversy has brought with it the receipt by many consumers of sms text messages on their cell phones which message reads as follows:-
“You have overdue e toll fees in the amount of R which have been handed over for collection to VPC. Call 0800SANRAL (726725) REF ”.
Section 40(1) of the Consumer Protection Act No 68 of 2008 (“THE CPA”) germane to the contents of the above communication reads as follows:
(1) A supplier or an agent of the supplier must not use physical force against a consumer,coercion, undue influence, pressure, duress or harassment, unfair tactics or any othersimilar conduct, in connection with any—
(d) demand for, or collection of, payment for goods or services by a consumer; or
(3) Section 51 [sic] applies to any court proceedings concerning this section”
It is submitted that an analysis of the above sms text messages, leads one to the following ineluctable conclusion:-
- The use of the word “overdue” is incorrect and inappropriate in the face of the receipt of this message being the first communication the recipient has received intimating the fact that he is liable for the amount reflected. If this is indeed the first communication, then the debt cannot be overdue.
- In the face of the receipt of the sms message being the first communication, it cannot be binding until:-
- The vehicle is identified;
- The gantry(ies) through which the vehicle proceeded should also be identified;
- The date and time the vehicle proceeded through the Gantry should be identified;
- The Recipient should be afforded an opportunity in which the information can be queried if incorrect.
- The most appropriate form of communication is not a bland sms text message but it should be in the form of a statement or invoice handed to the recipient through the post.
- The use of the words “has been handed over for collection” implies that the recipient is in arrear and that legal action to collect the amount is being taken.
- The institution of legal proceedings cannot be commenced until SANRAL (The Creditor) has complied with the provisions of Section 129(1) (b) of the National Credit Act 34 of 2005.
Section 129(1) (b) of the National Credit Act 34 of 2005 reads as follows instating that the Creditor
“(b) subject to section 130(2), may not commence any legal proceedings to enforce
the agreement before-
(i) first providing notice to the consumer, as contemplated in paragraph (a),
or in section 86(10), as the case may be; and
(ii) meeting any further requirements set out in section 130.”
Section 130 (1) provides that
“130. (1) Subject to subsection (2), a credit provider may approach the court for an
order to enforce a credit agreement only if, at that time, the consumer is in default and has been in default under that credit agreement for at least 20 business days and-
(a) at least 10 business days have elapsed since the credit provider delivered a
notice to the consumer as contemplated in section 86(9), or section 129(l), as
the case may be;
(b) in the case of a notice contemplated in section 129(l), the consumer has-
(i) not responded to that notice; or
(ii) responded to the notice by rejecting the credit provider’s proposals;”
Thus before any legal proceedings can be commenced in any Court for the collection by SANRAL of amounts owing in respect of e tolls it must give written notice to the consumer calling upon him her to pay the debt which at the time of the notice have been outstanding for at least 20business days calling upon the consumer to pay the debut within ten days or to submit to credit counselling. This is in terms of Section 129(1) (a). Section 86(10) only applies if the Consumer is applying for or is applying for debt review. Only if the consumer ignores this Notice is the Creditor entitled to commence legal proceedings.
Now to advance this matter further the question must be posed- assume that SANRAL does not respond to a written communication sent to it drawing its attention to the fact that its text message sent by sms message.
Section 40of the CPA only prohibits unconscionable conduct. It does not set the consequencesof such conduct in any detail, apart from stating that “section 51 appliesto any court proceedings concerning this section”. However, section 51 seems only to deal with “blacklisted” or prohibited terms. It is submitted that the legislature presumably
intended to refer to section 52, which deals with the powers of courts to ensurefair and just conduct, terms and conditions, and which contains a cross-referenceto section 40.
When section 40 is read together with sections 4(1) and 69 of the CPA it is appears t that a variety ofinstitutions could be approached in the event of unconscionable conduct. Theseinclude:-
- an ombud with jurisdiction;
- an accredited industry ombud;
- a consumercourt;
- an alternative dispute resolution agent;
- the Commission;
- TheTribunal; and:
- a court other than the consumer court with jurisdiction over the
It is apparent that theCPA does not spell out these consequences clearlyand the forum to which the dispute must be referred is dependent upon the consequence of the unconscionableconduct complained of.
It is therefore necessary to examine the consequences for a recipient of the text message who receives no response from SANRAL to the letter sent requesting details he requires to assess whether the amount demanded relates to him and is correct. The most likely result of this is that SANRAL will ignore your response and will institute action to recover the debt or may issue out a criminal summons.
If a criminal summons is issued the recipient would be entitled to attend the criminal court hearing and would plead not guilty to the criminal charge. It is submitted that if the Accused presents a copy of his letter to SANRAL together with proof of its transmission or delivery to SANRAL it is likely that a conviction would be avoided. In the event though that SANRAL decides to proceed civilly and in the unlikely event that it obtains a judgment against the recipient on account of the recipient failing to defend the Action timeously the recipient would be entitled to apply to the Court in which the judgment was obtained for an order rescinding the Judgment and could counterclaim for the damages sustained by the recipient as a result of the judgment out of that Court.
Recent newspaper and media reports have drawn attention to the plethora of text messages which have been sent out by SANRAL referred to in this Article and it has been reported that the Organization known as OUTA has already reported this conduct to the Public Protector for investigation. As a result of this publicity it seems likely that SANRAL will cease and desist from the process which to a large degree will make the contents of this Article of academic interest only. It is recommended though those readers of this article who receive this text message should refer this matter to their Attorneys for urgent advice and attention.
DATED AT JOHANNESBURG ON THIS 13TH JANUARY 2014
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