Judge slams Government for ‘complete failure’ to act to stop attacks on Intercape coaches
8 October 2022
Nothing will even begin to happen unless this court forces the MEC and Minister to comply with their constitutional and statutory obligations
A scathing judgement handed down by the Makhanda High Court on Friday found that there was a “complete failure” by Transport Minister Fikile Mbalula and the MEC for Transport in the Eastern Cape to discharge their legal obligations.
This was in respect of repeated pleas by long-distance coach company Intercape for government to intervene to stop the ongoing violent attacks against it by taxi associations.
Judge John Smith, on 30 September, ordered that Mbalula and the MEC must liaise with the South African Police Service (SAPS) and co-ordinate to formulate an action plan “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 ordered that the action plan must be delivered within 20 days, being the 28th of October 2022.
Judge Smith slammed the two political office bearers 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 has lodged more than 150 criminal cases with the police, with more than 70 of those 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 Intercape’s favour, on a punitive scale against the Eastern Cape Transport MEC and Minister of Transport.
Reacting to Friday’s judgement, Intercape CEO Johann Ferreira said: “This judgement 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 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 or 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 - an 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.
“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.
Ferreira said he hoped that the judgement 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 judgement will be borne not by the implicated individuals, but by ordinary taxpayers.”
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 judgement will also serve to vindicate his belief that it was the right thing to do.”
Issued by Intercape, 8 October 2022
