PROVINCE OF THE WESTERN CAPE

PROVINCIAL GAZETTE EXTRAORDINARY

5370

13 August 1999

Registered at the Post Office as a Newspaper

CONTENTS

The following Bill is hereby published for general information:-

Western Cape Provincial Toll Roads Bill, 1999

Any person or organisation wishing to comment on the said Bill is requested  to lodge such comment in writing before or on 13 September 1999:

P.J.C. Pretorius
Secretary to Parliament

BILL

To provide for the tolling of provincial public roads in the Western Cape and for the planning, design, declaration, construction, operation, management, control, maintenance and rehabilitation of provincial toll roads; and to provide for matters related thereto.

BE IT ENACTED by the Provincial of the Western cape, as follows:-

CONTENTS

1. Definitions
2. Declaration of toll roads by Minister
3. Levying and collection of toll by Minister
4. Exemption, restriction or suspension of tolls
5. Specification of dates in notices
6. Operation of toll roads and levying of toll by authorised persons
7. Powers of Minister
8. Information and management system
9. Funding of toll roads
10. Minister may institute legal proceedings to recover outstanding toll moneys
11. Agreements with other provinces
12. Agreements with municipalities
13. Agreements with The South African National Roads Agency Limited
14. Joint ventures
15. Provincial toll roads policy
16. Regulations
17. Limitation on legal proceedings against Minister
18. Minister may pay certain costs incurred by municipalities or other provinces, and compensation for damage or loss due to activities under this Act
19. Law enforcement on toll roads
20. Offences
21. State bound by this Act
22. Short tittle and commencement

Definitions

1. In this Act, unless inconsistent with the context-

"Department" means the Department of Transport referred to in Schedule 2 of the Public Service Act, 1994, under the section "Western Cape";
"Minister" means the member of the Provincial Cabinet of the Province responsible for transport affairs;
"Minister of Finance" means the member of the Provincial Cabinet of the Province responsible for financial and fiscal affairs;
"municipality"-

1. until the legislation envisaged in section 155(2) of the Constitution takes effect, means any local government body vested with municipal legislative and executive jurisdiction (whether on an exclusive or a shared basis) in respect of a particular are in terms of the Local Government Transition Act, 1993 (Act 209 of 1993), in compliance with section 155(1) of the Constitution;
2. as from the date upon which that legislation takes effect, means any municipality as contemplated in that legislation;

"prescribed" means prescribed by the Minister by regulation;
"Province" means the province of the Western Cape;
"public road" means a public road as defined in the Roads Ordinance;
"Roads Ordinance" means the Roads Ordinance, 1976 (Ordinance 19 of 1976), insofar as it applies in the Western Cape;
"this Act" includes any regulations promulgated thereunder;
"toll plaza", in relation to a toll payable under this Act, means-

1. a structure on a toll road where the toll must be paid;
2. an electric or electronic or a mechanical device on a toll road for recording the amount of toll which must be paid and for accepting the payment of the toll;
3. a combination of a structure referred to in paragraph (a) and a device referred to in paragraph (b); or
4. a toll-gate;

"toll road" means a toll road declared in terms of section 2.

Declaration of toll roads by Minister

2. (1) Subject to the procedural requirements of subsections (2) and (3) and section 5, and in accordance with the policy made known in terms of section 15, the Minister may, by notice in the Gazette and from a date specified in the notice-

1. declare a public road or a portion thereof (including a bridge or tunnel on the public road), in respect of which the Province is the road authority as defined in the Roads Ordinance, to be a toll road for the purposes of this Act; and
2. amend ox. withdraw a notice in terms of paragraph (a).

(2) Before the Minister declares a toll road under subsection (1)(a)-

1. the Head of the Department must, in the prescribed manner, give notice generally of the proposed declaration of the toll road, and must in the notice-

1. give an indication of the type of toll plaza or plazas contemplated for the proposed toll road and the approximate position or positions thereof on the toll road:

2. invite interested persons to comment on or make representations regarding the proposed declaration of the toll road, the type of toll plaza or plazas contemplated and the proposed position or positions thereof
3. direct the persons referred to in subparagraph (ii) to furnish their written comments or representations to the Department not later than a date mentioned in the notice, but a period of at least 30 days must be allowed for that purpose;

2. the Head of the Department must in writing give every municipality in whose area of jurisdiction the proposed toll road will be situated an opportunity to comment on the proposed declaration of the toll road and any other matter with regard to that toll road (and particularly, as to the proposed position and type of the toll plaza or plazas) within a specified period (which may not be shorter than 60 days);

3. the Department must forward its proposals in that regard to the Minster together with a report on the comments and representations that have been received (if any), and must, in the report, indicate the extent to which any of the matters raised in the comments and representations have been accommodated in the proposals; and

4. the Minister must be satisfied that the Department has considered the comments and representations.

(3) The procedural requirements in subsection (2) apply, with the necessary changes, if the Minister wishes to amend or withdraw a notice in terms of subsection (1)(b).

3. (1) Subject to subsections (2), (3) and (4) and section 5, the Minister may, by notice in the Gazette and from a date specified in the notice, levy and collect a toll, the amount of which is likewise specified, for the driving or use of a vehicle on the toll road specified in the notice.

(2) A toll levied in terms, of subsection (1) is payable front the date specified in the notice-

1. by a person driving or using a vehicle on the toll road specified in the notice referred to in that subsection; and
2. at a toll plaza or plazas on the toll road concerned or at any other place subject to the conditions which the Minister determines in that notice.

(3) The amount of toll that may be levied under subsection (1), any rebate thereon and any increase or reduction thereof may differ in respect of-

1. different toll roads;
2. different vehicles or different categories of vehicles driven or used on a toll road,
3. different times at which any vehicle or any vehicle of a particular category is driven or used on a toll road;
4. different categories of road users irrespective of the vehicles driven or used by them.

(4) Subject to section 5, the Minister may, by notice in the Gazette and from a date specified in the notice, increase the amount of toll levied in terms of subsection (1) or grant a rebate on or a reduction of such a toll.

Exemption, restriction or suspension of tolls

4. Subject to section 5, the Minister may, by notice in the Gazette, and from a date specified in the notice-

1. grant exemption from the payment of toll on a particular toll road-

1. in respect of all vehicles of a category determined by the Minister and specified in the notice, either generally or at times so determined and specified;
2. to all users of the toll road of a category determined by the Minister and specified in the notice, irrespective of the vehicles driven or used by them, either generally or at times so determined and specified;

2. (b) restrict the levying of toll on a particular toll road to the hours or other times determined by the Minister and specified in the notice:

3. suspend the levying of toll on a particular toll road for any specified or unspecified period, whether in respect of vehicles generally or in respect of all vehicles of a category determined by the Minister and specified in the notice, and resume the levying of toll after the suspension;

4. amend or withdraw-

1. an exemption under paragraph (a);
2. a restriction under paragraph (b);
3. a suspension under paragraph (c).

Specification of dates in notices

5. A date specified in a notice issued in terms of section 2, 3 or 4 must not be earlier than 14 days after the date on which the notice is published in the Gazette.

Operation of toll roads and levying of toll by authorised persons

6. (1) Despite sections 2 and 3, the Minister may enter into an agreement with any person, including a municipality, in terms of which that person is authorised (hereafter in this section called an authorised person), for the period and in accordance with the terms and conditions of the agreement-

1. to operate, manage, control and maintain a public road or portion thereof which is a toll road in terms of section 2 or to operate, manage and control a toll plaza on any toll road; or
2. to finance, plan, design, construct, maintain or rehabilitate such a public road or such a portion of a public road and to operate, manage and control it as a toll road.

(2) Subject to subsections (3) and (4) an authorised person will be entitled,-

1. to levy and collect toll for the authorised person's own account or for the Minister

1. on the toll road specified in the agreement;
2. during the period so specified; and
3. in accordance with the provisions of the agreement only; and

2. in the circumstances mentioned in subsection (1)(b), to construct or erect. at the authorised person's own cost, a toll plaza and any facilities connected therewith for the purpose of levying and collecting toll.

(3) Where an agreement provides for any of the matters mentioned in section 3 or 4, an authorised person will be subject in all respects to the duties imposed on the Minister or the Department by that section as if the authorised person were the Minister or the Department.

(4) The amount of the toll that may be levied by an authorised person and any rebate on that amount or any increase or reduction thereof will he determined by the Minister in terms of section 3.

Powers of Minister

7. (1) The Minister is responsible for, and is hereby given power to perform. all strategic planning with regard to the Province's toll road system, as well as the planning, design, construction, operation, management, control, maintenance and rehabilitation of toll roads for the Province.

(2) In addition to the other powers provided for by this Act, the Minister may-

1. provide, establish, erect and maintain facilities on toll roads for the convenience and safety of road users;

2. charge a levy, fee or rent for any authorisation, approval or permission that may be granted or given by the Minister to any person for the provision, construction, erection, establishment, carrying on or operation on, over or underneath a toll road of anything provided for in this Act;

3. subject to this Act, use any portion of a toll road that is not immediately required for traffic purposes, for any purposes which the Minister considers fit;

4. undertake or conduct any research, investigations or inquiries and collect any information in connection with toll roads, whether in the Republic or elsewhere;

5. take out insurance against any risk, loss or damage connected with the exercise of the powers or the performance of the functions or duties in terms of this Act;

6. liaise with bodies of professional persons performing work with regard to toll roads in the Province or similar roads elsewhere;

7. liaise and exchange information, knowledge and expertise with the official bodies or authorities entrusted with the control of toll roads, whether of a provincial, national or municipal character, in other countries, and participate in the conferences, seminars and workshops of those bodies or authorities and in the activities of any multinational or international association of those bodies or authorities;

8. grant a bursary, loan or subsidy to any person for study or research in any subject or field in connection with toll roads, or grant a subsidy to any institution or body engaged in research of that nature, if the study or research, in the Minister's opinion, will help to achieve the objects and perform the functions contemplated in this Act;

9. do anything else which is reasonably ancillary to any of the main functions and powers in terms of this Act.

Information and management system

8. The Minister must establish and operate an information and management system for toll roads in the Province.

Funding of toll roads

9. There is a Toll Road Account in the Provincial Revenue Fund contemplated in section 226(1) of the Constitution, into which must be paid-

1. appropriations from the Provincial Parliament for purposes related to this Act.,
2. subject to section 6(2), toll payable in terms of this Act;
3. income generated through developing, leasing out or otherwise managing assets related to toll roads within the scope of this Act;
4. any other levies and any fees, rentals or other moneys charged by and payable to the Province in terms of this Act;
5. income earned from participation in joint ventures in terms of section 14,
6. fines payable by persons as penalty on their conviction for offences contemplated in section 16(2) or 20(a), and all civil fines payable in terms of 5 section 20(b)
7. moneys received in connection with toll roads by way of grant or donation or from any source, whether inside or outside the province of the Republic.

Minister may institute legal proceedings to recover outstanding toll moneys

10. (1) The Minister may institute legal proceedings to recover toll moneys owing by persons liable for toll in terms of this Act or to recover a civil fine payable in terms of section 20(b).

(2) The Minister's right to recover toll moneys will not be reduced, limited or affected in any other way where, and only because, the person concerned has been convicted and sentenced in the circumstances mentioned in section 20, or has paid or is liable to pay the civil fine provided for in paragraph (b) of that section.

1. which, in terms of this Act, the Minister is competent to perform or undertake in the Province, if and to the extent designated for that purpose by a provision of the agreement; and
2. in accordance with an operating agreement entered into between the Minister and the administration of that other province.

(2) The Minister may charge a fee for performing a function or work or undertaking operations under subsection (1).

(3) The Minister may charge a fee for a service rendered under this subsection.

13. The Minister may conclude an agreement with The South African National Roads Agency Limited established by section 1. of The South African National Roads Agency Limited and National Roads Act, 1998 (Act 7 of 1998), in terms of which-

1. that Agency may do work in connection, with a toll road, including the planning, design, construction and management of such a road or of a toll plaza, or have the work done under its supervision, for the account of the Province, or the Province will do such work for the account of the Agency, or otherwise in terms of the agreement;
2. the Province will manage or maintain a toll road belonging to that Agency, or the Agency will manage or maintain a toll road declared under this Act, in which case the agreement may provide for the sharing of tolls and costs.

Joint ventures

14. The Minister may, with the approval of the Minister of Finance, in regard to ventures involving provincial toll roads or infrastructure and other roads or infrastructure, participate jointly with the road authorities, or with a private person or body who has or will have ownership or control of the other roads or infrastructure, as the case may be.

Provincial toll roads policy

15. (1) The Minister must make known the Province's policy with regard to toll roads by notice in the Gazette. The notice must state, among other things-

1. the goals with regard to toll roads that the Province wishes to achieve;
2. the policy objectives to be pursued so that those goals can be achieved; and
3. the general requirements for- the declaration of a toll road or the levying of a toll or the amendment thereof.

(2) Whenever proposals relevant to determining or amending the toll roads policy are to be considered and decided, the Minister by notice published in the Gazette must make known those proposals and in that notice invite interested persons and the public to comment on the proposals and make representations with regard thereto, and must submit the proposed policy, or any amendment thereto, to the responsible Standing Committee of the Provincial Parliament for that Committee's comments.

Regulations

16. (1) The Minister may make regulations not inconsistent with this Act-

1. about traffic on a toll road or the use or protection of a toll road or the use or presence of vehicles or animals or any other thing on a toll road, on condition that such a regulation is not in conflict with any road traffic law;
2. prescribing a form to be used in connection with any claim for compensation or in connection with any application, authorisation, approval, permission or exemption provided for in this Act, or prescribing the information to be furnished and procedure to be followed in connection with any of those matters;
3. prescribing a fee to be paid for any application, authorisation, approval, permission or exemption provided for in this Act;
4. with regard to anything which in terms of this Act may or must be prescribed, governed or determined by regulation or which. in terms of this Act, may or must be provided for by regulation.

(2) Different regulations may be made under subsection (1) for different toll roads, and the regulations may provide that a person who contravenes or fails to comply with a regulation will be guilty of at offence and on conviction punishable with a term of imprisonment or a fine not exceeding that prescribed in the regulations. However, the maximum period of a term of imprisonment so prescribed may not exceed six months, and a fine imposed in conjunction therewith or as an alternative thereto may not exceed R20 000.

(3) The making or amendment of regulations under subsection (1) that have financial implications must be carried out in consultation with the Minister of Finance.

Limitation on legal proceedings against Minister

17. (1) (a) Except as provided in subsection (2), legal proceedings may not be brought against the Minister, an employee of the Provincial Administration: Western Cape or any other person for damage or loss allegedly suffered by a person (hereafter in this section called the claimant) as a result of any act or omission with regard to a toll road which allegedly was performed or omitted by any of the persons mentioned in paragraph (b)-

1. unless instituted within 15 calendar months after the date upon which the claimant became aware of the alleged act or omission, or after the date upon which the claimant may reasonably be expected to have become aware of the alleged act or omission, whichever is the earlier; and

2. before the expiry of at least three calendar months after written notification of the claimant's intention to institute the legal proceedings containing sufficient particulars of the alleged act or omission, has been served on the defendant or respondent, unless the defendant or respondent has denied liability in writing.

1. For the purposes of paragraph (a), the persons concerned include a person acting on behalf of the Minister in terms of this Act.

(2) The High Court that has jurisdiction to determine the legal proceedings contemplated by the claimant in any particular case may, on application by that claimant, order that any requirement of subsection (1)(a) be dispensed with or relaxed or that non-compliance therewith be condoned if the interests of justice so require.

(3) Neither the Minister nor a person mentioned in susbsection (1)(b) or a person who operates or has constructed a toll road will be liable for damage or loss suffered by a person through the use of any part of the road other than the roadway, as defined in the Roads Ordinance. or as a result of the closure or deviation of a toll road under this Act.

Minister may pay certain costs incurred by municipalities or other provinces, and compensation for damage or loss due to activities under this Act

18. The Minister may subject to any conditions considered fit-

1. pay the cost or part of the cost incurred by a municipality or another province as a result of the construction. maintenance or rehabilitation of a toll road which, by agreement between the Minister and the municipality or the other province, as the case may be, may have become necessary.

2. pay an amount to any person for damage, loss or inconvenience which, in the opinion of the Minister, has been or will be suffered by the person as a result of the exercise or performance of any of the powers, functions or duties entrusted to the Minister or any other person by or in terms of this Act, and for which no compensation is payable in terms of this Act or any other law.

1. is guilty of an offence and on conviction punishable with imprisonment for a period not exceeding six months or a fine, or with both the term of imprisonment and the fine; and

2. is liable, in addition, to pay to the Department a civil fine of R1 000; provided that the Minister may annually, after the date of the commencement of this Act, by notice in the Gazette, increase the amount of the aforesaid civil fine by an amount equivalent to, but not exceeding, an increase of that amount based on the increase in the official consumer price index for the relevant year as published in the Government Gazette

State bound by this Act

21. This Act binds the State.

22. This Act is called the Western Cape Toll Roads Act, 1999, and comes into operation on a date determined by the Premier by proclamation in the Gazette

MEMORANDUM
WESTERN CAPE TOLL ROADS BILL

The roads of the Western Cape, like those in other provinces, have suffered extensive deterioration in the past mainly due to a lack of funding. The policy of the Transport and Works Branch of the Western Cape Department of Economic Affairs, Agriculture and Tourism (the Department) as stated in the White Paper on Western Cape Provincial Transport Policy, which was published in June 1997, is that the transportation Infrastructure of the Western Cape represents a major asset which is the operational base of economic And social interaction throughout the province and beyond. Such an important asset must be effectively managed, administered and financed to ensure that it is adequately maintained, meets user requirements and is expanded and improved where necessary. The White Paper also states that funds from all levels of government for transport are diminishing in real terms, and are generally considered to be far less than required to address present infrastructural and other shortcomings.

• The Department is also of the opinion that:
• A sound financial base must be fostered for transport infrastructure;
• Co-ordination of strategic planning for this infrastructure must be promoted;
• A comprehensive management system for infrastructure must be developed;
• User charges must be implemented;
• New sources of financing for infrastructure must be developed;
• Public involvement processes must be developed.

The Bill is designed to implement the policy set out above. It provides that the provincial Minister responsible for transport (the Minister) may declare specified provincial public roads or portions thereof to be toll roads and collect toll on those roads at toll plazas erected for that purpose or by other methods. Similar legislation is currently being considered by the Gauteng administration, and the administration of KwaZulu-Natal his indicated that it is also considering the implementation of a provincial toll road system.

The Bill provides that a road may not be declared a toll road unless the Department has given notice of its intention to do so and has invited the public to submit comments and make representations. The Department will also have to give affected municipalities specific invitation to make such comments and recommendations. Notices in this regard will have to indicate the approximate positions of proposed toll plazas or envisaged methods of toll collection.

The Minister will be empowered to enter into agreements authorising municipalities or private persons to operate, manage, control and maintain toll roads or toll plazas or to finance plan, design, construct, maintain or rehabilitate toll roads. In such a case, however, the Minister will still be responsible for declaring declaiming the toll roads and determining tolls.

The Bill provides that the Minister will enjoy certain powers related to toll roads including the power:

• To provide, establish, erect and maintain facilities on toll roads for the convenience and safety of road users;
• To charge a levy, fee or rent for authorisations, approvals or permission granted under the Bill;
• To use portions of toll roads that are not immediately required for other purposes, subject to the Bill;
• To undertake or conduct research, investigations or inquiries and collect information in connection with toll roads;
• To do other things that are reasonably related to any of the main functions and powers in terms of the Bill.

The Bill provides for the establishment of a Toll Road Account within the Provincial Revenue Fund into which toll money and other money collected under the Bill, or related to toll roads, will be paid. The Provincial Parliament is empowered to transfer additional moneys to such account which is intended to be used for building, maintaining and operating toll roads and other provincial public roads and related functions, and for performing the other functions under the Bill.

municipality may do work in connection with a provincial toll road., including the planning, design, construction and management of such a road or of a toll plaza or the collection of toll fees, for the account of the Province. Also, at the request of a municipality, the Minister will be able to do work in connection with toll roads (whether a public road or a road of which that municipality is the road authority), including the planning, design and construction of such a road, or have it done under the Minister's supervision, for the account of the municipality. The Minister will be able to charge a fee for such a service.

The Bill also provides that the Minister may enter into agreements with the South African National Roads Agency Limited, in terms of which that Agency may do work in connection with a provincial toll road or toll plaza or have the work done under its supervision for the account of the Province, or that the Province may do such work for the account of the Agency or may manage or maintain a toll road belonging to the Agency, or that the Agency may manage or maintain a toll road declared under the Bill. In this case an agreement will provide for the rights and responsibilities of parties to the agreement.

The Bill will also empower the Minister to participate in joint ventures involving toll roads with other road authorities or with private persons or bodies.

The Bill provides for the Minister to publish provincial policy relating to toll roads in the Provincial Gazette after inviting comments on the proposals for such policy.

The Bill will empower the Minister to pay compensation to persons whose rights are affected by the exercise of the powers under the Bill.

Persons who are liable to pay toll and fail or refuse to do so will commit an offence. The Bill lays down penalties in this regard, as well as a civil penalty of R1000, which will escalate annually according to the consumer price index. The Bill provides for the Minister to enter into agreements with municipalities regarding law enforcement on toll roads.

In addition, the Bill provides for related matters, such as the making of regulations by the Minister.