Those who flout the Constitution must go

AN IMPORTANT High Court judgment this week sent a rare puff of reviving oxygen into the stale fug of gloom and misery that is South Africans’ daily lot.

If not overturned on an appeal, a declaratory order awarded by Judge John Smith against Transport Minister Fikile Mbalula and his Eastern Cape MEC counterpart may encourage our feckless politicians to take their jobs a little more seriously.

In pushing wide open a door that was ajar, it will give hope to frustrated individuals and businesses who have too long suffered at the hands of buck-passing bureaucrats and dishonest politicians.

The ruling is bad news, too, for the notoriously corrupt taxi associations that have been allowed by a timid ANC government to get away scot-free with violent campaigns to destroy their competitors.

It’s also a reminder that the judiciary is perhaps the last institution that retains sufficient independence to curb a government rotten with criminality and largely indifferent to the nation it’s supposed to serve.

The action was brought by the long-distance bus operator Intercape, which has been at the sharp end of a seven-year campaign of violent intimidation by Eastern Cape taxi associations.

The main respondents were the national and Eastern Cape Transport ministers, who are supposed to ensure the safety and security of operators in the sector.

The objective of the violence – which encompassed roadblocks, hijackings, no-go areas, stonings, shootings and murder – was simple.

It was to erode Intercape’s capacity to compete with the taxi associations, by demanding that they have veto power over Intercape’s routes, ticket prices and the numbers of buses allowed to operate, as well as to extort protection payments to allow Intercape to operate without fear of attacks.

Similarly despicable was the behaviour of Mbalula and his then provincial sidekick, Weziwe Tikana-Gxothiwe. When Intercape CEO Johann Ferreira asked them to use the provisions of the act to protect his business, they ignored him and then threatened to close down Intercape routes unless he did a deal with the taxi mafia.

Despite 150 separate attacks on Intercape buses and staff, during the entire terror campaign, Mbalula and Tikana-Gxothiwe did nothing.

Without exception, every effort by Intercape and Ferreira to get the government to do what it is constitutionally obligated to do, was ignored.

They didn’t even bother to acknowledge a single one of six letters from Ferreira pleading for them to act. This “deafening silence”, Judge Smith writes, was “an ominous portent of the government’s lamentable indifference to an ongoing crisis”.

Eventually Mbalula deigned to attend a meeting at which a “task force” was formed, but nothing came of it. Nor of a later “joint operational plan”. Nor of a “priority committee”.

In March this year, Ferreira was “told in no uncertain terms” at a meeting with Codeta (the Cape Organisation for Democratic Taxi Associations) that Intercape “had to pay to make the problem go away”.

Continued intransigence on his part would “trigger a campaign” against Intercape buses and staff “involving every single taxi association” in the country.

Tikana-Gxothiwe didn’t bother to hide where her sympathies lay. She told Ferreira that the only thing to do was for him to “reach an agreement” with the taxi associations. If he failed to do so, she would bar Intercape from operating in certain areas.

Matters did not improve when Tikana-Gxothiwe was dumped in a provincial cabinet reshuffle.

Her successor, Xolile Nqatha, followed Mbalula’s example by not “bothering” to file answering affidavits to Intercape’s application.

“The result,” writes Judge Smith, “is that harrowing allegations regarding brazen acts of criminality, government indifference, and, even more concerning, an MEC’s acquiescence in criminal conduct, remain unchallenged.”

The judge is forthright about Mbalula’s and his provincial equivalents’ failure to meet their obligations. He goes further, to say that they don’t understand these obligations and, in the case of Tikana-Gxothiwe, she was willing to tolerate criminal violence.

Judge Smith has ordered Mbalula and Nqatha, in consultation with the SAPS, as well as the national and provincial commissioners of police, to within 20 days develop an actionable plan to address the violence.

There has not yet been any word about whether the State will appeal. It surely will. Whatever the legal merits of the State’s case, the political imperative to remove the cloud over Mbalula will be strong.

After all, when a senior Cabinet minister – Mbalula was previously deputy-minister, then minister of police – is found by a court to not understand his constitutional and statutory obligations, there should be only two alternatives: overturn the finding on appeal, or sack the minister.