Long distance bus operator Intercape has been subjected to ongoing acts of violence and intimidation by taxi associations since 2015 – and the “sum total” of Transport Minister Fikile Mbalula’s intervention was “to attend a single meeting”, a high court judge has found.
Judge John Smith said a task team was formed at this meeting in the Eastern Cape on 11 October 2019 and had to report back to Mbalula.
However, Smith said this intervention failed to yield a resolution and nothing of consequence has transpired subsequently.
He said Mbalula has also “unfortunately decided to remain silent in the face of allegations that he has haughtily dismissed Intercape’s desperate pleas for intervention in the crisis by adopting the attitude that it is an Eastern Cape problem”.
He said the evidence also clearly establishes that former Eastern Cape transport MEC Weziwe Tikana-Gxothiwe “has failed to intervene in the current crisis in any meaningful way”.
This is contained in the reasons, published on Friday (7 October), for Smith’s order in the High Court in Makhanda on 30 September 2022.
The order, among other things, declared the Eastern Cape transport MEC and Mbalula obligated to take positive steps 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, and that they have failed to fulfil that obligation.
Comment on the judgment and order was requested from the Department of Transport but a response has not yet been received.
The order also required:
Mbalula and the MEC to implement practical measures, including the formulation of an action plan with the SA Police Service (SAPS), which must be delivered within 20 days or by 28 October 2022, on steps they intend taking 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.
Measures provided for in the National Land Transport Act be considered, including extraordinary measures, such as the closure of taxi routes and ranks in a declared area and the suspension of operating licences or permits in a declared area.
Smith on 30 September awarded costs in favour of Intercape on a punitive scale against the MEC and Mbalula.
The court heard that since 2015 Intercape has lodged more than 150 criminal cases with the SAPS – more than 70 of which are in the Eastern Cape.
Violence part of ‘deliberate strategy’
Smith said it is not disputed that the violence 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, among others, are that Intercape must reduce its prices and the number of buses operating on different routes and must pay levies to operate in certain areas,” he said.
In his reasons for his order, Smith said the Transport Act vests in the MEC and the minister extensive powers to intervene decisively and effectively to ensure the safety of members of the public when there is violence, unrest or instability in any sector of public transport.
He said Section 5(6) of the act also gives the minister the power to intervene if the provincial executive or a municipality fails to fulfil its obligations in terms of the act.
Smith said the Constitutional Court held in Glenister v President of the Republic of South Africa and Others that the constitution imposes a positive obligation on the state and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection.
‘Reasonable and effective’ intervention required
“Implicit in Section 7(2) [of the constitution] is the requirement that the steps the state takes to respect, protect, promote and fulfil constitutional rights, must be reasonable and effective,” he said.
It was submitted in argument on behalf of the MEC that in considering whether or not the MEC has taken adequate steps, Smith must have regard to the interventions undertaken by the provincial department.
Smith quoted the provincial director explanation of why the MEC has not invoked Section 91 of the Transport Act: “The MEC has not utilised the extraordinary measures provided for in Section 91 to date as the department does not consider the circumstances to justify the implementation of those extraordinary measures.
“This does not mean that it may not be used in the future should all other intervention measures and the co-ordinated efforts of the SAPS and other law enforcement and intelligence agencies … not curb the problem and there is a further escalation that meets the requirements in Section 91.
“Section 91 is not a ‘silver bullet’ that will suddenly resolve the issues as the measures provided therein are extraordinary and will impact multiple parties on multiple levels. If deemed necessary by all stakeholders, however, it will be implemented.”
MEC must decide if intervention is necessary – judge
Smith said this approach, which appears to be endorsed by current Eastern Cape MEC Xolile Nqatha, evinces a fundamental misunderstanding of the MEC’s powers.
He said Section 91 states unambiguously it is the MEC who must take the decision whether or not it is necessary to intervene if instability in the sector has deteriorated to an unacceptable level.
“At another level it evokes the more troubling inference, namely that the current MEC [Nqatha] is also of the view that intervention can only be at the behest of the taxi associations and on their terms.”
Smith said Intercape’s case is founded not only upon allegations that Mbalula and the MEC have failed to exercise powers vested in them by the constitution and the Transport Act, but serious allegations against Tikana-Gxothiwe that she attempted to coerce the company into acceding to the unlawful demands of taxi associations.
MEC’s ‘acquiescence in criminal conduct’
He referred to harrowing allegations regarding brazen acts of criminality, governmental indifference “and – even more concerning – an MEC’s acquiescence in criminal conduct” and pandering to rogue taxi associations.
Intercape alleged that after taxi associations blockaded the N2 through Idutywa on 27 May 2022, in an attempt to exert pressure on Intercape to comply with their demands, Tikana-Gxothiwe told the company that:
Intercape must urgently meet with the taxi associations to reach agreement regarding changes to its routes and fares; and
Until such time it had done so, Intercape was barred from travelling to certain specified areas.
Smith rejected the contentions of the minister and the MEC that the use of the word ‘may’ in sections of the Transport Act mean the MEC and the minister have discretion whether or not to intervene.
He stressed that it is established law that the use of the word ‘may’ in statutes does not imply that, under circumstances where there is a positive duty on the functionary to exercise the power, they have a discretion to refuse to do so.
Smith said the relief sought by Intercape is based on the fact that the minister and the MEC have persistently and unjustifiably breached their legal duties to intervene in the current crisis and also consistently failed to respond to various requests for intervention from Intercape.
“It is manifest that nothing will happen if they are not compelled to comply with their constitutional and statutory obligations under court supervision,” said Smith.
He also rejected contentions by the minister and MEC that the granting of structural relief will breach the constitutional imperative of separation of powers.
“The relief sought by the applicant will do no more than to compel the Minister and the MEC to do what they are required to in terms of the Constitution and the Transport Act,” he said.
“The action plan that they will be required to present will be theirs and will be based on their own reasonable assessment of their resources and the exigencies of the prevailing circumstances.”
Smith commended Intercape CEO Johann 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.”