The expansion of the transport system through the rehabilitation and/or construction of roads and bridges along the country will entail the need to pay toll charges for the access and use of many of these infrastructures.
According to what has been reported by the press, the Government’s intention is to introduce tolls, namely in Maputo Ring Road, in the bridge to Catembe and the road to Ponta do Ouro, in the EN6 connecting the Beira to Machipanda and also in certain sections of the EN1.
The introduction of tolls can be undertaken in one of the two ways: by assigning a concession to a private entity (under the framework of Public-Private Partnership), or directly by ANE (public body in charge for the management of the road transport of the country).
In case of assigning concessions to a private entity, these will be subject to certain legal and contractual duties, such as the need to keep the road in good condition and ensure comfort and safety for the users (cfr. Framework for Concession of Roads and Toll Bridges, approved by Decree 31/96 of 16 July).
Thus, there is a question to be raised as to the nature of the liability of the concessionaires of toll roads in case of traffic accidents where there is a causal relationship between the circumstances of the road and the damages suffered by the user, i.e., accidents arising from the breach of legal and contractual duties mentioned in the aforegoing paragraph.
Some examples of road circumstances causing damage or harm to the users may be the existence of groundwater (“aquaplaning”) or oil stains, roadkill on the road or the existence of holes.
In these cases, where there has been payment of toll charges by the user and the latter suffered damage due to road circumstances, is the liability of the concessionaire to the user contractual or non-contractual?
This matter has not been the object of huge discussion in Mozambique, but in Portugal there is broad jurisprudence and case law that briefly takes on the following opinions:
- It is contractual civil liability. There is a conclusion of a contract (atypical, innominate and autonomous) between the concessionaire and every road user or a contract in favour of a third party in which the State concludes with the concessionaire a concession contract for the benefit of users;
- There is no contract. As this is a non-contractual civil liability, the user can only obtain relief from the general principle of civil liability for unlawful acts laid down in Article 483 of the Civil Code. This view is notwithstanding those who argue that it is damage that can fit the provisions of Article 493 of the Civil Code, which deals with damage from things, animals or activities.
The two opinions also have an impact on the distribution of the burden of proof. In contractual liability, the burden is on the debtor to prove that the breach was not committed as a result of the debtor’s fault, whereas in non-contractual liability, the burden is on the injured party to prove the guilt of the author of the injury. Taking into account the amount of toll road concessions underway and expected road accidents associated with this issue, we look forward to the opinion to be taken by the courts and the Mozambican jurisconsults.
Article compiled by Paulo Ferreira (Energy, Natural Resources and Infrastructures Department), Lawyer of our member firm CGA Advogados in Mozambique