A judgment handed down by the Makhanda High Court on Friday [October 7] found that Transport Minister Fikile Mbalula and his Eastern Cape counterpart have failed to fulfil their legal obligation with regards to stopping the attacks on long-distance coach company Intercape.

Intercape turned to the courts after it “repeatedly requested” government to intervene and stop the ongoing attacks on the bus service by taxi associations.

The company reports that it has been the victim of widespread and ongoing acts of violence and intimidation since 2015.

During this time, it has lodged more than 150 criminal cases with the police, with more than 70 of those in the Eastern Cape. 

Judge John Smith has ordered Mbalula and Transport and Safety MEC Xolile Nqatha to liaise with the South African Police Service 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”. 

Smith ordered that the action plan must be delivered within 20 days – October 28.

He also slammed the Mbalula and the office of the 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 [former] MEC Weziwe Tikana-Gxothiwe 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.

“[The parties] have consistently failed to respond to various requests for intervention from Intercape,” 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.”

In addition to the order for the Minister and new MEC Nqatha – appointed in August – to come up with an action plan within 20 days, Judge Smith also awarded costs in Intercape’s favour. 

Commenting on the judgment, Intercape CEO Johann Ferreira says it is a “shocking indictment” on both Mbalula and Tikana-Gxothiwe.

“Minister Mbalula has shown no political or administrative will to intervene in the critical public transport sector which resides under him,” notes Ferreira. 

“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.”

Deliberate Strategy
Smith also found 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, among 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,” noted Smith.

The judge also found that 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,” says Ferreira.

“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 adds that he hopes that the judgment will be precedent-setting and that other sectors of the economy which have been suffering as a result of government failure will use it as legal leverage to prompt government into action.

The Department of Transport has not yet responded to a request for comment.