24 August 2023
The Makhanda High Court has granted an order directing the Minister of Transport and the Eastern Cape MEC for Transport, in consultation with SAPS to quell the violent attacks on Intercape bus drivers and passengers. Archive photo: Ashraf Hendricks
Makhanda High Court Judge John Smith has put his foot down and directed the Minister of Transport, the MEC for transport in the Eastern Cape, and police bosses to come up with workable plan, providing details of timelines and resources to quell a spate of violent attacks on Intercape bus drivers and passengers.
Referring to a previous ruling in an application brought by Intercape in September 2022, in which he made adverse findings against the minister and the MEC, and had ordered they come up with an action plan, Judge Smith said he had been “naive” in believing they had listened.
“Perhaps my message was not understood … Well, I am determined to make sure that I am not misunderstood again,” he said.
In September last year, Judge Smith granted an order directing the minister and the MEC, in consultation with SAPS and the Eastern Cape Regulatory Entity, to develop a comprehensive plan to ensure the safety and security of long-distance bus drivers and passengers in the Eastern Cape.
He also ordered them to indicate time periods within which steps would be taken and present it on oath to the court.
Judge Smith said the order was compelled by unrefuted evidence of a protracted and sustained campaign of violence against Intercape by rogue taxi associations.
The minister had filed an application for leave to appeal and refused to participate in the development of the action plan. That application was refused.
In the meantime, Intercape had launched an application in terms of the Superior Courts Act, implementing the application pending any leave to appeal.
The action plan was subsequently developed and filed by the MEC without the minister’s involvement, but apparently endorsed later by the minister, Judge Smith said.
Intercape said the plan was manifestly inadequate. During December 2022, Intercape and its attorneys met with representatives of the MEC and minister as well as SAPS officials to discuss the contended deficiencies of the plan.
At that meeting the provincial department presented an updated version. Intercape said this was little more than a single amendment.
Plagued by ongoing attacks on its buses and being of the view that there were no reasonable prospects of further engagements bearing any fruit, Intercape approached the court in June this year for the interim order.
The bus company sought, and was granted an interim order, enjoining the MEC and the minister to come up with a revised plan, and directing SAPS to maintain a visible police presence in hotspot areas and provide police escorts on certain routes.
The matter came before Judge Smith for a confirmation of the interim order, which was opposed by the respondents.
In his ruling handed down this week, Judge Smith said the action plan was “woefully inadequate”, demonstrated by the ongoing attacks on buses.
He said between January and May this year, Intercape had lodged at least 30 criminal complaints, including stoning of buses, preventing drivers from loading or offloading passengers, intimidation of drivers and passengers, buses being shot at, and a passenger struck by a bullet.
“All incidents were marked by brazenness and impunity on the part of perpetrators who were apparently emboldened by the lack of visible policing.
“These events also serve to confirm my view that a vague action plan, which lacks specificity, will send an unfortunate message to perpetrators of the unlawful acts that the authorities do not intend to use their extensive statutory powers to quell the violence. Paradoxically, for this reason, it might be better to have no action plan at all.”
Judge Smith said: “It was manifest that by directing the MEC and the minister to present a plan the court required of it to present a scheme that at the very least demonstrated an appreciation of the nature and exigency of the circumstances and set out implementable measures and key interventions.
“The action plan filed by the MEC is manifestly bereft of any such specificity and is instead replete with deliberately vague and ambiguous phrases,” he said.
He said the order he was now granting was more unequivocal. It required the MEC and the minister to specify in measurable terms, inter alia the date and the frequency of measures implemented; the functionaries, governmental agencies or departments that will be responsible for their implementations; the planned interventions in the no-go zones; the exercise of statutory powers and the appointment of a task team to oversee and monitor the implementation of the action plan.
The judge said the insinuation that Intercape was seeking preferential treatment primarily to protect its commercial interests had been a constant refrain.
“This unfounded assertion is both wrong and unfortunate. And it has regrettably been used by SAPS as an excuse for not performing their constitutional duties.
“These proceedings have, from the start, focussed on the safety and security of long-distance bus drivers and passengers.
“It boggles the mind why it is so difficult for a law enforcement agency to appreciate that when armed assailants take pot shots at moving buses, deleterious consequences inevitably ensue, and sooner than later will result in serious injuries, or heaven forbid, loss of life,” said the judge.