Cape Town A scathing court judgment on Intercape’s complaints regarding inaction on violent attacks aimed at the bus company has found that Transport Minister Fikile Mbalula and Eastern Cape Transport MEC completely failed to discharge their legal obligations.
After more than 150 violent attacks directed at buses, drivers, and passengers, Intercape approached the court to compel authorities to act to protect the transport business.
The matter was heard in the Makhanda High Court, Eastern Cape, where accusations were that taxi associations were behind the violence targeting Intercape.
Last month, on 30 September, Judge John Smith ordered that Minister Mbalula and the Eastern Cape Transport MEC liaise with the South African Police Service (SAPS) to formulate an action plan.
Mbalula and the MEC were ordered, to ensure that reasonable and effective measures are put in place to provide for the safety and security of long-distance bus drivers and passengers in the Eastern Cape.
The Judge also ordered that the action plan be delivered within 20 days, on the 28th of October 2022.
On Friday (7 October 2022), Judge Smith slammed the minister and MEC for having persistently and unjustifiably breached their legal duties to intervene in the current crisis facing Intercape.
I am of the view that the evidence clearly establishes that the MEC has failed to intervene in the current crisis in any meaningful way. Insofar as the Minister is concerned, the sum total of his contended intervention was to attend a single meeting in the Eastern Cape
Since 2015, Intercape has been the victim of widespread and ongoing acts of violence and intimidation.
During this time, the company lodged more than 150 complaints with the police.
More than 70 of the complaints were made to the police in the Eastern Cape.
They have also consistently failed to respond to various requests for intervention from Intercape, Judge Smith found.
And it is manifest that nothing will happen if they are not compelled to comply with their constitutional and statutory obligations under court supervision.
Noting that the wheels of bureaucracy generally turn slowly, Judge Smith remarked: Alas, in this case, it is manifest that the ‘grinding of the wheels will not even begin unless the MEC and the Minister are enjoined by this court to comply with their constitutional and statutory obligations.
In addition to the order for the Minister and MEC to come up with an action plan within 20 days, Judge Smith also awarded costs in Intercapes favour, on a punitive scale against the Eastern Cape Transport MEC and Minister of Transport.
Reacting to Fridays judgment, Intercape CEO Johann Ferreira said: This judgment is a shocking indictment on the national Minister and MEC for Transport in the Eastern Cape.
Minister Mbalula has shown no political or administrative will to intervene in the critical public transport sector which resides under him, Ferreira said.
He never took any of the issues we raised seriously and this amounts to gross negligence and an abdication of his constitutional responsibilities.
That it has taken an order of the court to compel him and the provincial minister to take responsibility for their portfolios is outrageous.
Ferreira said that if Mbalula had acted as he was required to have done in the first place, none of this unrelenting violence, as the Judge described it, would have happened.
Repeated warnings were ignored and shrugged off and, because of this inaction, a young driver of ours was murdered and that is unforgivable.
The Judge found that [it is not disputed that] the violence (directed at Intercape) is not random, but part of a deliberate strategy on the part of certain taxi associations.
“The violence is aimed at intimidating and coercing Intercape into agreeing to the unlawful demands of those taxi associations, which, amongst others, are that Intercape must [increase] its prices and [reduce] the number of buses operating on different routes and must pay levies to operate in certain areas.
Intercape’s dogged refusal to agree to those unlawful demands were met with further acts of violence directed at their buses, drivers, and passengers.
“‘One of these incidents led to a fatality, and the instigators of the violence have succeeded in establishing ‘no-go zones’, making it impossible for Intercape to operate in certain areas.
Neither the Minister nor MEC had bothered to file answering affidavits, leading Judge Smith to remark:
The result is that harrowing allegations regarding brazen acts of criminality, governmental indifference, and – even more concerning – a MEC’s acquiescence in criminal conduct, remain unchallenged. This is indeed a troubling aspect of this case.
The Judge had found that the former MEC for Transport in the Eastern Cape, Weziwe Tikana-Gxothiwe, had acted unlawfully when she directed Intercape to enter into negotiations with the minibus taxi industry and to suspend its services in certain towns in the Eastern Cape pending the outcome of these negotiations.
Judge Smith concluded by saying: Finally, it would be remiss of me not to commend Mr. Ferreira for his resolute resistance to unabashed official bullying. His company has paid dearly for this brave stance, but hopefully, this judgment will also serve to vindicate his belief that it was the right thing to do.
Commenting on the judgment Intercape CEO Johann Ferreira said: That we could be instructed by an officer of the State to do something that was patently illegal to benefit a criminal enterprise is an outrage.
“‘Our lawyers told the MEC so at the time this was a complete dereliction of duty by an elected office bearer who took an oath of office to uphold the Constitution of this country.
Ferreira said he hoped that the judgment would be precedent-setting and that other sectors of the economy which suffered as a result of government failure would use this as legal leverage.
My other hope is that political heads and senior officials are held personally liable for costs, he said.
I find it deeply unfair that the costs for this judgment will be borne not by the implicated individuals, but by ordinary taxpayers.
Intercape Demands
- The minister and MEC to ensure that the no-go zones in the Eastern Cape are opened immediately so that festive season and tourist travellers can travel through the towns of Cofimvaba, Butterworth, Ngcobo, Tsomo, and Dutywa safely and without incident;
- The minister uses his broad powers of inquiry and urgently commences hearings with the impugned taxi associations, to take action against the taxi operators acting unlawfully;
- The former MEC for Transport in the Eastern Cape is to submit all information available to her regarding all meetings with taxi associations responsible for the N2 blockade in May 2022, as well as any other information which may lead to the arrest of the perpetrators. This is especially urgent as the SAPS in the Eastern Cape has yet to make a single arrest, despite the numerous cases opened in the province.
Ferreira said: We know that many interventions are required to restore stability to the Public Transport Sector in the Eastern Cape. However, these first practical steps will serve as a message to all operators who operate outside of the public transport laws that intimidation and extortion will not be tolerated.
Complains lodged with the SA Police Service
- Intercape has lodged more than 150 criminal cases with the South African Police Services (SAPS)
- More than 70 of these are in the Eastern Cape
- The ongoing violence and disruptions of its operations prompted Intercape to address no less than six letters to the MEC and the minister, respectively, imploring urgent intervention
- Intercape’s refusal to accede to these demands resulted in an unprecedented escalation of the violence
- Between January 2021 and February 2022, serious acts of violence and intimidation were perpetrated against Intercape’s drivers and passengers. These acts continue to take place, as Judge Smith also notes in the judgment
- These acts include drivers held at gunpoint and forced to abandon passengers; perpetrators preventing drivers from picking up or dropping off passengers in certain areas; blocking of routes; threatening to assault drivers if they proceeded along certain routes; shooting and wounding of a passenger; assaults on bus drivers; illegal impounding of a bus which had been stopped at a taxi blockade; and shooting incidents involving Intercape buses, including one fatality of an Intercape employee
