High Court forces Transport Minister Mbalula to address attacks against Intercape

20 December 2022

The Makhanda High Court on Tuesday 20 December ordered that Transport Minister Fikile Mbalula immediately, and with the utmost urgency, develop and implement an action plan to ensure the safety of long-distance coach drivers and passengers.

The court order is the latest development in a long battle by long-distance coach operator Intercape to force authorities to address a spate of violent attacks directed at the company.

Minister Mbalula had sought leave to appeal an earlier order by the same court which had compelled him and the MEC for Transport in the Eastern Cape to coordinate with the South African Police Service to come up with an effective plan of action to stop violent attacks on long-distance coaches.

Judge John Smith’s order provides that: “The Court Order shall continue to operate against, and be executed and given effect to by the Minister pending the outcome of any application for leave to appeal.”

Intercape has come under attack by elements of the minibus taxi industry who are intent on forcing the company out of operating in parts of the Eastern Cape.

On 30 September, Judge Smith had found that the Minister of Transport and the MEC had failed in their obligations to ensure the safety of bus drivers and passengers in the Eastern Cape. Judge Smith gave the respondents 20 days to come up with an effective plan of action.

According to Intercape CEO Johann Ferreira, whilst the office of the MEC agreed to implement the order of the court, Minister Mbalula “regrettably decided not to participate in the formulation of an action plan and rather focused his attention on challenging the Court’s decision by lodging an application for leave to appeal”.

The application for leave to appeal had the effect of suspending the operation of the court order.

This compelled Intercape to again approach the High Court to seek a further order to compel the Minister to act.

Legal representatives for Intercape argued before court that the crisis in the long-distance coach industry continues, “with devastating impact on Intercape and the traveling public” – all while the Minister failed in his Constitutional obligations.

“We were shocked that the Minister preferred to be engaged in legal proceedings rather than to use his powers to come to the assistance of the travelling public,” Ferreira said. “We had pleaded with the Minister to take part in the formulation of the action plan whilst the appeal process unfolded. He refused.”

Intercape then sought the further court order to compel the Minister to discharge his Constitutional obligations whilst the appeal process was ongoing.  The Minister opposed the application, but on the eve of having to file his answering affidavit, he withdrew his opposition to the application.

On Tuesday, Judge Smith ruled that the earlier order of 30 September 2022 would remain enforceable notwithstanding the Minister’s application for leave to appeal. The court judgment in respect of the Minister’s application for leave to appeal is expected early in the New Year.

Ferreira said Judge Smith’s order brought to an end any debate over whether the Minister must comply with the Court’s order to formulate an effective action plan to deal with the crisis.

“The Minister and the MEC now have no other option but to focus on their constitutional obligations to the public,” Ferreira said.

“We want to see a meaningful, coherent and implementable plan of action to put an end to this blatant criminality in the public transport sector which falls under the auspices of the Minister of Transport.”

Ferreira described Mbalula’s conduct as “disgraceful” and likened it to what was taking place at power utility Eskom and other sectors of the economy where government inaction had resulted in massive corruption, criminality and the destruction of key infrastructure.

“When Government fails to fulfil its basic Constitutional obligations, then our country is on a fast and slippery slope to destruction,” he said. “We only have to look at the current situation with Eskom and loadshedding to understand the devastating implications for our economy, our country and our future.”

Ferreira added: “Not everyone in this country can be bought or bullied and people must begin to stand up for what is right and demand accountability from those in power.”

In terms of the initial order, the Minister and the MEC “must 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”.

This includes responding to acts of intimidation and violence perpetrated against long-distance bus operators in the Eastern Cape, by cooperating and co-ordinating with the South African Police Services.

Intercape said it had already provided detailed input on what is required for the action plan to be effective and was willing to work with Government. It lamented the fact that progress had been “regrettably slow and much time has already been lost”.

The Minister and the MEC had also sought a time extension to provide an improved action plan by no later than Monday 19 December, but again failed to meet the deadline. 

According to Ferreira, the plan will have to set out the “where, what, when and how” of the actions that will be undertaken to provide for the safety and security of long-distance bus drivers and passengers in the Eastern Cape.

“The plan cannot be a continuation of business as usual,” he said. “That time has come and gone long ago. If the Minister and MEC fail to come up with a proper plan, we will approach the High Court again. We will keep going until they get this right.”

“Intercape’s interest is in ensuring that it can render its services to the South African public in a safe and dignified way,” he concluded. “The time has come for the Minister, the MEC for Transport in the Eastern Cape and the SAPS to do their part.”

Issued by Intercape, 20 December 2022