Mbalula wants to appeal against Intercape judgment
MEC makes effort to comply with action plan, but minister says ruling is judicial overreach
It is regrettable that the minister continues to shirk his responsibilities to make a meaningful intervention in the crisis in the Eastern Cape
Transport minister Fikile Mbalula is seeking leave to appeal against a Makhanda high court judgment which says it is his job to provide for the safety of longdistance bus operators and their passengers.
The court in September slammed Mbalula and provincial transport MEC Xolile Nqatha for what it termed their “lamentable indifference” to the deadly violence being perpetrated by the taxi industry against long-haul bus operators such as Intercape.
Intercape resorted to court in desperation after being subjected to what it termed intolerable and unprecedented acts of intimidation and violence at the hands of the taxi industry, with the Eastern Cape forming the “epicentre” of these hostilities.
Judge John Smith in October directed Nqatha and Mbalula to step up and meet their legal obligations in terms of the Transport Act.
They were told to provide an action plan to address the ongoing violence and intimidation.
Though Nqatha has at least provided the court with an action plan of sorts, Mbalula suggested that Smith’s judgment — as far as it involved him — constituted judicial overreach.
In the application for leave to appeal, court documents filed on behalf of Mbalula said it was Nqatha’s duty to ensure safety on provincial roads.
The minister was only required to intervene if the MEC failed in his duties.
The papers said the Transport Act provided for functions and powers to be discharged either by the minister or the MEC but never for them to “act collectively and/or jointly”.
In his responding papers, Intercape CEO Johann Ferreira said the application for leave to appeal was indicative of Mbalula’s
ongoing dereliction of duty and disregard for the acts of violence which were threatening peoples’ lives.
He said even if Mbalula chose to appeal, he should still have participated in the action plan in line with the judgment.
“It is regrettable that the minister continues to shirk his responsibilities to make a meaningful intervention in the crisis in the Eastern Cape.”
In the meantime, even though it was not optimal, he said Intercape would work with Nqatha alone to address the horrific violence and intimidation.
Nqatha confirmed in an affidavit that the plan was drafted without the input of the minister’s office or the national transport department.
But he said it was done with the input of the police in the province as well as with regulatory entities.
The 10-page plan sets out immediate, medium and longterm interventions.
Short term, police and provincial traffic police would be deployed in the hotspot districts of OR Tambo, Chris Hani and Amathole.
Medium-term, the department would review and update the provincial land transport framework at provincial level, while collaborating with districts and municipalities to formulate action plans.
Longer-term plans appeared to include implementing, monitoring and evaluating plans to address the violence as well as appointing people responsible for carrying out the plan.
But, Ferreira said the plan lacked detail, specificity and timelines and was generally inadequate to provide for the reasonable protection of longdistance bus employees and passengers.
This was not in line with the court’s order to develop a comprehensive plan.
It also lacked plans to address the areas which had become, and remained, no-go areas for Intercape, including Butterworth, Cofimvaba, Engcobo, Tshomo and Idutywa.
“The action plan’s failure to mention the no-go zones, let alone provide a single initiative to address them, means it has failed to grapple with one of the main problems facing Intercape buses — that they are subjected to acts of vigilantism and no-go zones.”
A key focus of the plan should have been on providing protection to buses in these zones.
Ferreira commended Nqatha for coming up with the action plan but said it did not meet the terms of the court order.
He said Intercape was willing to engage with his office to assist in re-drafting the plan.
He warned that if the MEC failed to do so, Intercape would consider taking the matter back to court.