Turning a blind eye to criminal terror

William Saunderson-Meyer writes on Judge John Smith's declaratory order against Mbalula & Co. in the Intercape matter


The contempt that the ruling elite has towards ordinary South Africans was illustrated by two events this week.

Public forums bristled with anger over the news that President Cyril Ramaphosa had quietly scrapped the R5,000 limit that the State pays monthly towards a minister’s water and electricity bills. At a moment that ordinary citizens face crippling electricity and water shortages, the sky is now the limit for politicians. And boy, will they take advantage.

The second event touched on the lack of accountability for poor ministerial performance. Here the news is better. A High Court judge breathed a rare puff of reviving oxygen into the stale fug of gloom and misery that is currently our 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 just encourage our feckless politicians to take their jobs a little more seriously.

And in opening wider a door that previously was only ajar, it will bring cheer to individuals and businesses who have for too long had buck-passing bureaucrats and dishonest politicians torment them with impunity.

It’s 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. The railways, bus lines, and ride-hailing operators have all been the targets of violence, calculated to force passengers to use the more expensive taxis, whose owners, just coincidentally, are influential in African National Congress circles. ___STEADY_PAYWALL___

The ruling is also a reminder that the judiciary, in pockets, is perhaps the only remaining institution that retains sufficient independence to curb an incompetent government that is rotten with criminality and largely indifferent to the South African nation it’s supposed to serve. Given the ANC’s cadre-placement efforts, which have the unstated aim of ensuring pliable judges, those pockets are shrinking.

The application 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 Transport minister and the Eastern Cape Transport MEC, who are enjoined by the Transport Act to ensure the safety and security of operators in the sector. 

Although the action also cited the national and Eastern Cape commissioners of Police, and the national and Eastern Cape Transport Regulator, no specific relief was sought regarding their roles. It was, however, a resounding shot across their bows, warning of future trouble if they don’t carry out their duties.

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 number of buses allowed to operate, as well as to extort protection payments that would allow Intercape to operate in peace.

Similarly despicable was the behaviour of Mbalula and his then-provincial sidekick, Weziwe Tikana-Gxothiwe. When Intercape CEO Johann Ferreira asked this disgraceful duo to use the mechanisms existing in the Act to protect his business, he was at first ignored and then threatened with the closure of Intercape routes unless he did a deal with the taxi bosses.

Despite an average of one attack every fortnight on Intercape buses and staff for seven years, without any arrests, 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 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”.

When the violence escalated in 2019 and the taxi associations, in the words of the judge, “became more brazen” Mbalula bestirred himself to attend a meeting at which a “task force” was formed to “report back”. 

Nothing came of that. Nor of a later “joint operational plan”. Nor of a “priority committee” that “achieved [nothing] other than to meet on a few occasions”.

Last year, Mbalula tried a new tack. This was a provincial matter, not a national one, he announced. He would feedback from Tikana-Gxothiwe. That never transpired either. 

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 would trigger against Intercape busses and staff “a campaign involving every taxi association” in the country.

While Mbalula’s style was to pretend to be invisible, Tikana-Gxothiwe was shameless and made no effort to disguise where her sympathies lay. In May, she told Ferreira that the only thing for him to do was “to reach an agreement” with the taxi associations. 

If he failed to do so, she said she would bar Intercape from operating in certain areas. This “undisputed evidence of an MEC pandering to rogue taxi associations and acquiescing in their criminal conduct” was “shocking” writes Judge Smith.

A couple of months ago, Tikana-Gxothiwe was dumped as Transport MEC following a fallout with the provincial premier on unrelated issues. This made no difference. Her successor, Xolile Nqatha, was equally disinclined to act and emulated Mbalula’s indifference towards the judiciary, with both men not bothering to file answering affidavits to Intercape’s court 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. This is indeed a troubling aspect of the case.” 

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

The judge is highly critical of Mbalula’s and provincial equivalents’ failure to meet their ministerial obligations. He goes further, to say that they don’t understand these obligations. In the case of Tikana-Gxothiwe, this extended to the toleration of criminal violence.

“[Mbalula’s] rather curt reply to Intercape’s request for intervention … evinces a clear and fundamental misunderstanding of his constitutional and statutory obligations.” While “the reason for the Minister’s action is unclear … it is manifest that he did not give any consideration to intervening and exercising his powers under the Transport Act, in the light of the MEC’s demonstrable failure to do so”.

Smith has now ordered Mbalula and Nqatha, in consultation with the SA Police Service, as well as the National and Provincial Commissioners of Police, to develop an actionable plan and timeline to address the issue. They have 20 days to do so.

The judge offered encouragement to those who dare to challenge the might of the State: “It would be remiss of me not to commend Mr Ferreira for his resolute resistance to unabashed official bullying. His company has paid dearly for this brave stance but hopefully this judgment will also serve to vindicate his belief that it was the right thing to do.”

There has not yet been any word as to whether the State will appeal. They surely will. Whatever the legal merits of any appeal — which would probably revolve around the State claiming that the order flouts the constitutional principle of separation of legislative, executive and judicial powers — the political imperative to remove the cloud over Mbalula, a close ally of President Cyril Ramaphosa, 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 or sack the minister.

Follow WSM on Twitter @TheJaundicedEye