Bureaucratic rot continues

Strange case involving two garages — one called Marikana Motors — lands before acting judge with links to massacre investigation

You can only imagine the frustration when Bantubonke Tokota, senior advocate at the Pretoria Bar and an acting high court judge, read the papers for a case he was to hear. Tokota had helped investigate failures of SA’s new constitutional order that led to the massacre of striking miners at Marikana.

Now here he was, an acting judge, chastising officials once again in the case of Marikana Motors. Granted, it was a matter of less significance (no-one was dead, the problem’s scale was quite different). But again the questions arise as to why officials don’t do their work properly; why the transparency and accountability promised by the new dispensation still elude us.

This case began when Eldora CC bought a property to develop a petrol station. Provincial requirements cleared, Eldora applied to the national energy department for a licence. Newspaper adverts followed, giving notice of the project and how to lodge objections. Enter Marikana Motors. Its owners, running a similar business nearby, said there were already too many garages in the area, and their lawyers filed notice of objection.

Then the real trouble started, via an official bearing the strange title “Controller: Petroleum Products”. This official — two different people held the post during the period of the dispute — later claimed not to have received the objection. The controller said Marikana Motors used an invalid e-mail address and, when it was pointed out that the address appeared in the department’s own advert calling for objections, replied that the advert listed the e-mail under “contact” information while a physical address was provided for lodging objections.

Some time after objecting, Marikana’s owners saw work proceeding at the Eldora site. Assuming a licence had been granted despite their objections, Marikana’s owners filed an appeal. But the controller decided not to notify the minister of the appeal, also failing to acknowledge receipt of Marikana’s notice of appeal or to inform the owners of the decision not to tell the minister.

In September 2014 Marikana’s owners wrote to the minister and the controller, saying since work at the Eldora site was continuing it was clear the appeal had failed. A court application would thus be made to halt proceedings pending a challenge to the outcome of the appeal. Meanwhile, would the minister provide a copy of all the appeal documentation?

That’s how Marikana learnt its appeal had been ignored and that the minister knew nothing about it. Lawyers for the controller and the department said since there had been no appeal (and it was now too late for such an appeal) Marikana’s challenge was misconceived.

This is where Tokota drew the line: the problem was not Marikana’s, he said. “Every step (Marikana) took was ignored and the department did not fulfil its constitutional obligations to (Marikana).” The state had to maintain high standards of professional ethics, including transparency and an accountable public administration, but the department failed in this.

The controller was not authorised by any legislation to withhold an appeal application from the minister. That behaviour was a dereliction of duty, and the department could not then benefit from this “misconduct” by arguing that Marikana had not exhausted its internal remedies. The controller had not even acknowledged receipt of Marikana’s correspondence, let alone informed Marikana of the decision not to refer the appeal application to the minister.

Tokota ordered the appeal to be forwarded to the minister for consideration. Regardless of outcome, the case shows again the bureaucratic rot still plaguing SA so long after the constitutional changes meant to usher in a new, responsive administration. Private individuals and business suffer as a result, and we are left asking if threats of personal liability for costs or damages are the only way to make civil servants behave, and make these promised changes a reality?