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[2024] ZAECMKHC 15
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Intercape Ferreira Mainliner (Pty) Ltd v Minister of Police and Others (1013/2023) [2024] ZAECMKHC 15 (6 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
Case No.: 1013/2023
Date Heard:20
September 2023
Date Delivered: 6
February 2024
In
the matter between:
INTERCAPE
FERREIRA MAINLINER (PTY) LTD
Appplicant
and
MINISTER
OF POLICE
First
Respondent
NATIONAL
COMMISSIONER,
SOUTH
AFRICAN POLICE SERVICE
Second
Respondent
PROVINCIAL
COMMISSIONER, EASTERN CAPE,
SOUTH
AFRICAN POLICE SERVICE
Third
Respondent
PROVINCIAL
COMMISSIONER, WESTERN CAPE,
SOUTH
AFRICAN POLICE SERVICE
Fourth
Respondent
PROVINCIAL
COMMISSIONER, KWA-ZULU NATAL,
SOUTH
AFRICAN POLICE SERVICE
Fifth
Respondent
PROVINCIAL
COMMISSIONER, GAUTENG,
SOUTH
AFRICAN POLICE SERVICE
Sixth
Respondent
PROVINCIAL
COMMISSIONER, NORTH-WEST,
SOUTH
AFRICAN POLICE SERVICE
Seventh
Respondent
NATIONAL
HEAD OF THE DIRECTORATE FOR
PRIORITY
CRIME INVESTIGATION
Eighth
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Ninth
Respondent
HEAD
OF THE INVESTIGATING DIRECTORATE
Tenth
Respondent
JUDGMENT
RONAASEN AJ:
Introduction
General
[1]
The following words are attributed to the late
Robert Kennedy, a former attorney-general of the United States of
America:
“
We
know that we cannot live together without rules which tell us what is
right and what is wrong, what is permitted and what is
prohibited. We
know that it is law which enables men to live together, that creates
order out of chaos. We know that law is the
glue that holds
civilization together.”
[2]
The intention of our Constitution is surely that
it is designed to be the legal “glue” which is required
to hold a functioning
society together. If, however, its imperatives
and laws enacted to give effect to those imperatives are not adhered
to, are not
applied, or are simply ignored, society, which is meant
to function for the benefit of all its members, becomes unstuck.
[3]
Central to this opposed application are the
constitutional obligations imposed on the South African Police
Service (“the Police”)
in terms of section 205(3) of the
Constitution, to the following effect:
“
The
objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure
the
inhabitants of the Republic and their property, and to uphold and
enforce the law.”
[4]
The essential issues to be determined are whether,
on the facts before me,
4.1.
the Police have lived up to their constitutional
obligations; and
4.2.
if not, the relief I should grant to ensure that
they do.
The parties to
this application
[5]
The applicant is Intercape Ferreira Mainliner
(Pty) Ltd. It describes itself as one of the country’s foremost
long-distance
bus operators (“Intercape”).
[6]
The first respondent is the national Minister of
Police (“the Minister”).
[7]
The second to the seventh respondents are the
national and provincial commissioners of the South African Police
Service for the
provinces of the Eastern Cape, the Western,
KwaZulu-Natal, Gauteng and the North West, respectively (“the
Commissioners”).
[8]
The eighth respondent is the national head of the
Directorate for Priority Crime Investigation (“DPCI”).
[9]
The ninth respondent is the National Director of
Public Prosecutions.
[10]
The tenth respondent is the head of the
investigating directorate of the ninth respondent.
[11]
All respondents opposed the application. No relief
is sought by Intercape against the ninth and tenth respondents and
Intercape,
at the hearing of the application, confirmed that it was
not seeking relief against these respondents and advised, if
successful,
that it would not seek costs from them.
Brief summary of
the facts underlying the application and the relief sought by
Intercape
[12]
I shall, below, in greater detail deal with the
facts relied upon by Intercape to support its application and the
respondents’
response.
[13]
Intercape contends that for several years, during
the conduct of its operations, it has been subjected to widespread,
ongoing and
well-documented acts of intimidation and violence at the
hands of the taxi industry.
[14]
The alleged acts of violence and intimidation are
numerous and severe. During 2022 Intercape’s buses were shot at
23 times.
On one of these occasions a bus driver was fatally wounded.
In the early part of 2023, prior to the launching of this
application,
further shootings occurred with some of Intercape’s
passengers having been wounded and hospitalised as a result of
gunfire
directed at the buses. The buses have also been targeted by
rock-throwing.
[15]
The acts of violence and intimidation experienced
by Intercape and its passengers are not random. The ongoing
criminality, so Intercape
submits, is part of an organised scheme by
taxi operators who have demanded that Intercape and other
long-distance bus operators
adapt their prices, limit the number of
buses operating on particular routes, amend their timetables to
ensure that all buses depart
Eastern Cape towns prior to noon every
day and cease operations entirely in certain towns.
[16]
The apparent aim of the countrywide orchestrated
attacks on buses is to drive long-distance bus operators out of
certain parts of
South Africa, thereby enabling taxi operators to
monopolise transport routes in those areas. This, as Intercape
contends, clearly
establishes a pattern of racketeering activity and
constitutes organised crime as statutorily contemplated.
[17]
At the time when this application was launched
Intercape had lodged 165 criminal complaints with the Police in
respect of acts of
violence and intimidation allegedly perpetrated
against its drivers, passengers and buses. Despite this not a single
person is
under arrest for these offences and no prosecutions are
imminent or pending.
[18]
Intercape says it was constrained to bring this
application out of desperation after a year of engagement with the
respondents had
proved fruitless. The application is a final attempt
to get the police to take Intercape’s complaint seriously so
that further
acts of criminality against members of the public who
rely on Intercape’s services may be prevented.
[19]
Thus, Intercape seeks orders declaring that in
respect of the 165 offences reported by it at the time of the
launching of this application:
19.1.
the Police have failed to comply with their duties
in terms of section 205 (3) of the Constitution, particularly in
their duties
to investigate and prevent the offences;
19.2.
the provincial Commissioners have failed in their
statutory obligations to report the offences to the DPCI as instances
of organised
crime, as required by section 16(4)(b) of the South
African Police Service Act, 68 of 1995 (“the SAPS Act”);
and
19.3.
the DPCI has failed investigate and prevent the
crimes as instances of national priority offences, as required by
section 17D(1)(a)
of the SAPS Act.
[20]
Intercape, furthermore, asks for mandatory relief
requiring the Police, the Commissioners and the DPCI to investigate
the alleged
offences and thereafter to prepare reports on the
findings of the investigations to be shared with the ninth
respondent, this court
and Intercape.
Related litigation
[21]
In
Intercape Ferreira
Mainliner (Pty) Ltd v The MEC for Transport, Eastern Cape and Five
Others,
a
judgment of this court in case number 2099/2022; Smith J, on 30
September 2022, granted an order at the instance of Intercape
declaring the MEC for Transport, Eastern Cape and the Minister of
Transport to be obligated to take positive steps to ensure that
reasonable and effective measures were put in place to provide for
the safety and security of long-distance bus drivers and passengers
in the Eastern Cape Province and that they failed to comply with this
obligation. Smith J also granted consequential structural
relief in
terms of section 172(1) of the Constitution in terms of which the MEC
and the Minister were directed to take steps to
comply with their
obligation.
[22]
The provincial commissioner of the Police in the
Eastern Cape Province and the national commissioner were cited as the
third and
fourth respondents, respectively, in case number 2099/2022.
Although the relief granted was principally directed at the transport
authorities, those authorities were directed to pursue their
obligations in terms of the order of this court in conjunction with
the Police.
[23]
Smith J furnished reasons for the order on 7
October 2022 in which he confirmed that:
23.1.
since 2015 Intercape had been the victim of
widespread and ongoing acts of violence and intimidation throughout
the country orchestrated
by the taxi industry;
23.2.
during this time Intercape had lodged more than
150 criminal cases with the Police, 70 of which related to acts of
violence and
intimidation perpetrated in the Eastern Cape Province;
23.3.
it was not disputed by the parties to the
application that the violence was not random, but part of a
deliberate strategy on the
part of certain taxi associations. The
violence was aimed at intimidating and coercing Intercape into
agreeing to the unlawful
demands of those taxi associations, which
included the demands that Intercape reduce its prices and the number
of buses operating
on various routes and had to pay levies to the
taxi associations to operate in certain areas;
23.4.
Intercape’s refusal to accede to these
unlawful demands led to further and increased acts of violence
directed at the buses,
drivers and passengers, which included the
death of a driver. The instigators of the violence succeeded in
establishing “no-go
zones”, making it possible for
Intercape to continue operating in certain areas in the Eastern Cape
Province.
[24]
In view of the alleged failure by the transport
authorities to submit an adequate action plan to address the ongoing
violence and
intimidation against Intercape buses as envisaged in the
order of Smith J in case number 2099/2022, Intercape, on 13 June
2023,
under the same case number, approached Smith J for a rule
nisi
in terms of which:
24.1.
the MEC and Minister for Transport were required
to prepare a revised action plan that would meet the objectives of
Smith J’s
initial order;
24.2.
specific issues, raised by Intercape, would be
incorporated in the plan;
24.3.
interim relief was sought against the Police in
terms of which the Police were directed to implement the existing
action plan by
maintaining a visible police presence in “hotspot”
areas and providing police escorts along certain routes when
requested
to do so by Intercape.
[25]
After hearing argument Smith J granted Intercape a
rule
nisi
,
which included the interim interdict sought against the Police. The
rule was made final on 22 August 2023.
[26]
In his second judgment Smith J emphasised that his
earlier order had been premised on unrefuted evidence of a protracted
and sustained
campaign of violence against Intercape undertaken by
rogue taxi associations and which had placed the lives of Intercape
Bus drivers
and passengers at risk. See
Intercape
Ferreira Mainliner (Pty) Ltd v The MEC for Transport, Eastern Cape
and Five Others
[2023] ZAECMKHC 91 (22
August 2023) at [2].
Consideration of
the facts relied on by Intercape to support its application
General
[27]
The factual background against which I must
determine this application is largely identical to the factual
background which confronted
Smith J in respect of the two judgments
authored by him.
[28]
Intercape’s case is based on unrefuted
evidence of an ongoing campaign of violence and intimidation
committed against its
passengers, bus drivers and buses at the
instigation of the taxi industry. The conduct described is not
confined to a specific
area but occurs countrywide. The
principal issue in dispute between the parties, particularly between
Intercape and the Police
respondents, is rather the adequacy of the
Police’s response to Intercape’s complaints and whether
the Police have
met their constitutional obligations in their
response to Intercape’s litany of well-documented examples of
the violence
and intimidation.
Intercape’s
engagement with the taxi industry
[29]
The orchestrated nature of the taxi industry’s
campaign against long-distance bus operators is illustrated by
Intercape’s
fruitless attempts to engage with representatives
of the taxi industry.
[30]
The outcome of a series of negotiations involving
Intercape and various representatives of the taxi industry, during
March and April
2022 can be summarised as follows:
30.1.
rather than the engagements serving as a platform
to resolve differences, they were utilised by the representatives of
the taxi
industry to threaten long-distance bus operators, including
Intercape, with ongoing violence unless the operators acceded to
certain
demands;
30.2.
the demands made of the long-distance bus
operators to resolve issues, namely, to stop the violence, can only
be described as extortionate
and included:
30.2.1.
an immediate increase in their prices in
accordance with the pricing structure determined by the taxi
associations;
30.2.2.
an amendment of the departure timetables to ensure
that all buses departed towns in the Eastern Cape before noon, daily;
30.2.3.
a restriction requiring each operator to operate
only two buses per day throughout the Eastern Cape;
30.2.4.
the maintenance of a single price throughout the
year with no price fluctuations in accordance with demand;
30.2.5.
restrictions in terms of which bus operators were
not allowed to stop in various towns; and
30.2.6.
the payment by Intercape of the sum of R5 million
to two taxi associations to ensure its continued operations in the
Western Cape.
[31]
It became apparent during the engagements that the
representatives of the taxi industry, who were clearly attempting to
extort compliance
from long-distance bus operators. were acting on
behalf of an organised movement intent on putting the long-distance
bus operators
out of business.
[32]
The timing of attacks on Intercape’s buses
coincided with its engagements with the taxi industry which gave an
indication
that the industry was using the violence in an endeavour
to intimidate Intercape to secure compliance with its extortionate
demands.
Intercape’s
engagements with the Police
[33]
In its founding affidavit Intercape, in great
detail, sets out particulars of five requests made to the Police for
their urgent
investigation of its complaints. Despite Intercape’s
assistance, by providing the Police with extensive concrete evidence
of acts of intimidation and violence Intercape’s engagements
with the Police bore no fruit.
[34]
In respect of the 165 cases opened by Intercape
with the Police, no significant investigations have occurred, no-one
is under arrest
and no prosecutions have ensued.
[35]
There were some effective interventions by the
Police in the form of protective measures, patrols and the escorting
of buses. These
interventions have, however proved to be wholly
deficient, in isolation. At best, according to Intercape, they served
to mitigate
some of the symptoms of the campaign of organised crime
pursued by the taxi industry against long-distance bus operators, but
they
did nothing to remedy or address the underlying cause of the
ongoing intimidation and violence. In any event the Police did not
persist with the interventions.
[36]
Despite Intercape having furnished the Police with
an extensive amount of evidence and having throughout made itself
available to
assist the Police with their investigations and despite
the Police’s assurance that Intercape’s complaints would
be
investigated no meaningful investigation has occurred.
[37]
Of particular concern is the failure by the
Commissioners to refer any investigations to the DPCI as matters of
organised crime
which requires investigation at a national level,
utilising the specialised skills of that body. In so doing the
Commissioners
have acted in breach of their obligations in terms of
section 16(4)(b) of the SAPS Act.
Intercape’s
engagement with the DPCI
[38]
Intercape contends that the criminal conduct
underlying the violence and intimidation against its operations
constitute organised
crime and falls within the definition of a
“
pattern of racketeering
activities
”
as defined in section
1 of the Prevention of Organised Crime Act, 121 of 1998 (“POCA”)
read with Schedule 1 of POCA.
[39]
The further contention is that the DPCI’s
involvement in the investigation is therefore required, as:
39.1.
the pattern of racketeering activity bears the
characteristics of serious organised crime on a national scale; and
39.2.
the DPCI is best equipped to deal with offences on
this extensive scale, as this is its speciality and, furthermore, its
statutory
obligation in terms of sections 17B and 17D of the SAPS
Act. This Act also empowers the DPCI to utilise a multi-disciplinary
approach
involving the cooperation of relevant government departments
and institutions.
[40]
Startlingly Intercape’s three motivated
written requests for it to become involved, were ignored by the DPCI.
It would later
transpire that DPCI’s command structure was
unaware of Intercape’s requests.
Intercape’s
engagement with the National Prosecuting Authority (“the NPA”)
[41]
The only really positive result of Intercape’s
engagement with the NPA was an acknowledgement by its functionaries
that the
issue concerned organised crime, which required
investigation at a national level.
[42]
During the process of its engagement with the NPA,
Intercape came to the shocking realisation (confirmed by the
provincial heads
of the DPCI in the Eastern Cape, Western Cape and
Gauteng) that the DPCI was completely unaware of the issue facing
long-distance
bus operators and in particular Intercape. This despite
Intercape’s written entreaties, on three occasions, to the
DPCI.
[43]
Of the 165 cases opened by Intercape with the
Police only a tiny fraction have received the attention of the NPA
and no prosecutions
were underway at the time of the launching of
this application. More disquieting was the fact that it was apparent
that the Police
had been trying to investigate and the NPA had been
trying to prosecute Intercape’s complaints as individual
stone-throwing
cases and not as part of the campaign of organised
crime levelled against Intercape by the taxi industry - something
Intercape
was at pains to make clear all along with reference to
relevant statutory provisions and offences created in terms of those
provisions.
[44]
Thus, the seemingly positive response received by
Intercape from the NPA at a national and local level, in fact, did
not translate
into any positive action either nationally or locally.
[45]
As matters stood, at the time of the launching of
this application, it therefore remained uncertain whether there would
be any coordination
of the investigative and prosecutorial processes
in respect of the offences reported by Intercape to the Police, at a
national
level.
Overview of the
Police respondents’ response
General
[46]
The Police’s response must be viewed against
the background of their acceptance in their principal opposing
affidavit that:
46.1.
Intercape brought its application under case
number 2099/2022 in this court (referred to above) in view of the
ongoing violence
being perpetrated against it and its passengers;
46.2.
this court in case number 2099/2022 accepted the
uncontested version of Intercape that there was a deliberate strategy
on the part
of certain taxi organisations to intimidate and coerce
the applicant into agreeing to their unlawful demands regarding the
fixing
of the prices the payment of “levies”;
46.3.
their vision is to create a safe and secure
environment for all people in South Africa; and
46.4.
their mission is to prevent anything that may
threaten the safety and security of the citizens of any community and
that this includes
an obligation to investigate any crimes that
threaten the safety and security all any such community and to ensure
that criminals
are brought to justice. They accept that they
are required to participate in the process of addressing the root
causes of
crime.
Points in limine
[47]
Although the Police respondents raised a number of
points
in limine
,
only two still require consideration (both of which I shall address
later) namely:
47.1.
the contention that this court lacks jurisdiction
in respect of the fourth-seventh respondents;
47.2.
the existence of certain disputes of fact as to
the extent to which the Police had investigated Intercape’s
complaints, which
precluded Intercape from commencing these
proceedings by way of a notice of motion.
Response on the
merits of Intercape’s application
[48]
Essentially the Police contend that, subject to
constraints beyond their control, they are complying with the
constitutional imperatives
imposed on them by section 205 of the
Constitution. Any failure to do so can principally be
attributed to a lack of resources.
[49]
Their response can be summarised, as follows:
49.1.
their acceptance of the situation, detailed in
paragraphs 46.1 and 46.2, above;
49.2.
the contention that Intercape is not entitled to
priority policing, to the exclusion of other deserving parties;
49.3.
the fact that the Police are constrained by a lack
of resources;
49.4.
the assertion, supported by a table of examples,
that incidents of crime reported by Intercape are being investigated,
but as individual
crimes and not as forming part of an overall
strategy of organised crime involving an orchestrated campaign of
intimidation against
Intercape by the taxi industry;
49.5.
the contention that, therefore, the incidents of
crime reported by Intercape do not fall within the purview of the
DPCI.
[50]
It is important to note that the Police
respondents’ opposing affidavits were deposed to prior to the
second of Smith J’s
judgments under case number 2099/2022,
referred to above, in terms of which the Police were ordered to
implement his earlier order
(action plan) which had been premised on
unrefuted evidence of a protracted and sustained campaign of violence
against Intercape
undertaken by rogue taxi associations and which had
placed the lives of Intercape bus drivers and passengers at risk.
Their
opposing affidavit must accordingly be read bearing this in
mind.
Legal principles
Jurisdiction
[51]
The
causae
continentia
rule is to the effect that
where a cause of action arises across territories, a court will have
jurisdiction in respect of the entire
matter if it has jurisdiction
over some parties to that cause of action. The essence of the
rule is one of convenience -
where an issue can be determined and
disposed of before one judge it should not serve before multiple
judges in various jurisdictions.
Roberts
Construction Co Ltd v Willcox Bros (Pty) Ltd
1962
(4) SA 326
(A) at 332-333.
[52]
It is not contended by any of the respondents that
any other division of this court has jurisdiction over all the
parties to this
application on the basis of any other recognised
ground of jurisdiction. See
D Pistorius
–
Pollak on Jurisdiction, 2
nd
edition at p 26.
[53]
This rule is intended to avoid the uncertainty
which could arise from a multiplicity of judgments and is no doubt
what the legislator
had in mind when framing the provisions of
section 21(2)
of the
Superior Courts Act, 10 of 2013
, in the
following terms:
“
A
Division also has jurisdiction over any person residing or
being outside its area of jurisdiction who is joined as a party
to
any cause of action in relation to which such court has jurisdiction
or who in terms of a third party notice became a party
to such cause,
if the said person resides or is within the area of jurisdiction of
any other Division.”
General duty on
Police to investigate crimes reported to them
[54]
In confirming the Police’s constitutional
obligation to investigate crimes reported to them, the Constitutional
Court in
AK v Minister of Police
2023 (1) SA 321
(CC) at [91] adopted the following
general principles gleaned from the jurisprudence of the European
Court of Human Rights:
“
The
investigation must be capable, firstly, of ascertaining the
circumstances in which the incident took place and, secondly, of
leading to the identification and punishment of those responsible.
This is not an obligation of result, but of means.
The
authorities must have taken the reasonable steps available to them to
secure the evidence concerning the incident including,
inter-alia,
eyewitness testimony and forensic evidence. A requirement of
promptness and reasonable expedition is implicit
in this context.
Any deficiency in the investigation which undermines the capability
of establishing the circumstances of
the case or the person
responsible is liable to fall foul of the required standard of
effectiveness.”
[55]
This judgment sets the standard against which the
duty of the Police to investigate crime must be measured and, in
particular, emphasises
that:
55.1.
a proper investigation requires the Police to
follow up on all reasonable leads (at [84]);
55.2.
the victim of a crime has no obligation to
investigate the crime itself, as this would relieve the Police of a
responsibility that
is theirs only (at [85]).
[56]
The Constitutional Court, in
AK
,
at [95] then went on to describe the obligation of the South African
Police Service’s duty to investigate crime, as follows:
“
The
police are under a duty to act promptly and expeditiously, and they
must furthermore take all reasonable measures which are
available to
them in the circumstances. It is not sufficient that they
mobilise resources at hand, they must also deploy
those resources
diligently and effectively. They must act with haste.
They must take appropriate steps to secure the
available evidence,
including eyewitness accounts, potential leads and suspects and they
must subject all relevant evidence to
forensic analysis. They
must never act in a cavalier manner or display indifference to the
plight of women in the position
of the applicant.”
Salient
provisions of POCA and the SAPS Act
[57]
In POCA a pattern of racketeering activities
defined as meaning the planned, ongoing, continuous or repeated
participation or involvement
in any offence referred to in Schedule 1
of that Act.
[58]
Section 16 of the SAPS Act is found in
chapter 6 of that Act, which deals with organised crime, and reads
like this:
“
16 National
prevention and investigation of crime
(1)
Circumstances amounting to criminal conduct or an endeavour thereto,
as set out in
subsection (2), shall be regarded as organised crime,
crime which requires national prevention or investigation, or crime
which
requires specialised skills in the prevention and investigation
thereof.
(2)
Circumstances contemplated in subsection (1) comprise criminal
conduct or endeavour
thereto-
(a)
by a person, group of persons or syndicate acting in-
(i)
an organised fashion; or
(ii)
a manner which could result in substantial financial gain for the
person, group of persons
or syndicate involved.
(b)
(i)
by a person or persons in positions of trust and making use of
specialised or exclusive
knowledge;
(ii)
in respect of the revenue or expenditure of the national government;
or
(iii)
in respect of the national economy or the integrity of currencies;
(c)
which takes on such proportions or is of such a nature that the
prevention or investigation thereof
at national level would be in the
national interest;
(d)
in respect of unwrought precious metals or unpolished diamonds;
(e)
in respect of the hunting, importation, exportation, possession,
buying and selling of endangered
species or any products thereof as
may be prescribed;
(f)
in more than one province or outside the borders of the Republic by
the same perpetrator
or perpetrators, and in respect of which the
prevention or investigation at national level would be in the
national interest;
(g)
in respect of which the prevention or investigation requires the
application of specialised skills
and where expedience requires that
it be prevented or investigated at national level;
(h)
which a Provincial Commissioner requests the National Head of the
Directorate for Priority Crime
Investigation, referred to in section
17C (2), to prevent or investigate by employing expertise and making
resources available
at national level and to which request the
National Head of the Directorate for Priority Crime Investigation
accedes in accordance
with the approved policy guidelines;
(i)
in respect of which the investigation in the Republic by the Service
is requested by an
international police agency or
the police of a foreign country;
(iA) in
respect of the commission of any alleged offence mentioned in the
Schedule; or
(j)
in respect of which the prevention or investigation by members under
the command of a Provincial
Commissioner will detrimentally affect or
hamper the prevention or investigation of circumstances referred to
in paragraphs
(a)
to
(i
A
)
.
(2A)
For the purpose of subparagraph
(a)
(i),
'organised
fashion'
includes the planned, ongoing, continuous or
repeated participation, involvement or engagement in at least two
incidents of
criminal or unlawful conduct that has the same or
similar intents, results, accomplices, victims or methods of
commission, or otherwise
are related by distinguishing
characteristics.
(3)
In the event of a dispute between the National Head of the
Directorate for Priority
Crime Investigation and the National
Commissioner or the National Head for Priority Crime Investigation
and a Provincial Commissioner
regarding the question whether criminal
conduct or endeavour thereto falls within the mandate of the
Directorate, the determination
by the National Head of the
Directorate for Priority Crime Investigation in accordance with the
approved policy guidelines, shall
prevail.
(4)
(a) Notwithstanding the provisions of subsections
(1), (2) and (3),
the Provincial Commissioner shall be responsible
for the prevention and investigation of all crimes or alleged crimes
committed
in the province concerned.
(b)
Where an investigation of a crime or alleged crime reveals that the
circumstances referred to in subsection
(2) are present, the
Provincial Commissioner shall report the matter to the National Head
of the Directorate for Priority Crime
Investigation as soon as
possible.
(c) The
National Head of the Directorate for Priority Crime Investigation
may, after consultation with the Provincial
Commissioner concerned,
notwithstanding the presence of the circumstances referred to in
subsection (2), direct that the investigation
or any part thereof, be
conducted by the Provincial Commissioner.
(5)
All members of the Service shall cooperate with one another in
accordance with the principles
provided for in Chapter 3 of the
Constitution of the Republic of South Africa, 1996.”
[59]
Section 17B of the SAPS Act recognises the need to
establish a Directorate to prevent, combat and investigate national
priority
offences, in particular serious organised crime, serious
commercial crime and serious corruption. That directorate is
the
DPCI.
[60]
Section 17D(1) of the SAPS Act goes on to provide
that the functions of the DPCI are to prevent, combat and investigate
such national
priority offences which are in the opinion of the
national head of the directorate necessary to be addressed by the
DPCI.
Declaratory and
structural relief
[61]
The alleged failure by the Police to fulfil their
constitutional obligations must be addressed through the mechanisms
envisaged
in section 172 of the Constitution. Section 172(1)(a)
requires that any failure in this regard must be declared
inconsistent
with the Constitution. Concomitantly such a
declaration requires a court to exercise its just and equitable
jurisdiction
in terms of section 172(1)(b).
[62]
The Constitutional Court in respect of a breach of
constitutional rights, in
Minister of
Health v Treatment Action Campaign (2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC) at
[106]
, expressed itself as follows:
“
Where
a breach of any right has taken place, including a socio-economic
right, a court is under a duty to ensure that effective
relief is
granted. The nature of the right infringed and the nature of
the infringement will provide guidance as to the appropriate
relief
in a particular case. Where necessary this may include both a
mandamus and the exercise of supervisory jurisdiction.”
[63]
The judgment of the Constitutional Court in
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2 SA 359
(CC) enjoyed
prominence in the first of Smith J’s two abovementioned
judgments. It is apposite to refer to paragraph
[107] thereof,
which reads:
“
It
is quite clear that before it makes a declaratory order a court must
consider all the relevant circumstances. A declaratory
order is
a flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection
and enforcement of our Constitution and its values. Declaratory
orders, of course, may be accompanied by other forms of relief,
such
as mandatory or prohibitory orders, but they may also stand on their
own. In considering whether it is desirable to
order mandatory
or prohibitory relief in addition to the declarator, a court will
consider all the relevant circumstances.”
Discussion and
application of principles
General
[64]
In the opposing affidavit filed by the third
respondent it is acknowledged that Intercape’s application
under case number
2099/2022 was precipitated by “
the
ongoing violence
”
directed
against its buses, drivers and passengers. The following is then
stated on the behalf of the third respondent (and incorporated
by
reference into the affidavits of the other Police respondents) in
respect of Smith J’s first judgment:
“
[93]
The court accepted the uncontested version of the applicant that
there was a deliberate strategy on the part of certain taxi
organisations to intimidate and coerce the applicant into agreeing to
unlawful demands including the reduction of ticket prices
and for
levies to be paid. The court further accepted the uncontested version
that there was one fatality in the Western Cape in
April 2022 as a
result of the violence. I point out that there are no reported
fatalities in the Eastern Cape relating to the applicant
and its
operation.”
[65]
Thus, the Police respondents accept that:
65.1.
the facts on which I must determine this
application are largely the same as the facts which confronted Smith
J in respect of his
two judgments; and
65.2.
Intercape’s case is based on unrefuted
evidence of an ongoing campaign of violence and intimidation
committed against its
passengers, bus drivers and buses at the
instigation of the taxi industry. The campaign is not confined to a
specific province
or area but occurs countrywide.
[66]
Therefore, the main issue in dispute between
Intercape and the Police respondents concerns rather the extent and
adequacy of the
Police’s response to Intercape’s
complaints and whether the Police have lived up to their
constitutional obligations
in responding to the complaints.
[67]
I have summarised the Police respondents’
response to Intercape’s case in paragraph [49], above. Central
to that response
is the assertion that incidents of crime reported by
Intercape are being investigated, but as individual crimes are not as
forming
part of an overall strategy of organised crime involving an
orchestrated campaign of intimidation against Intercape by the taxi
industry. Given this it is contended by the Police respondents that
they have met their constitutional obligations. It is on this
aspect
that this case turns and must be determined.
[68]
In my view any dispute of fact as to the extent
and adequacy of the investigations being conducted by the Police is
immaterial.
For purposes of this judgment, I am prepared to accept
that the Police have and are investigating some incidents of crime
reported
to them by Intercape. At issue is the fact that whilst the
Police accept that the version of Intercape that it is the victim of
a deliberate and countrywide strategy on the part of certain taxi
organisations to intimidate and coerce it into agreeing to their
unlawful demands (and it has been found by this court to be the case
in case number 2099/2022) their response is not tailored to
such
acceptance in circumstances where reports of crime are continuing to
be investigated as individual and unrelated incidents.
[69]
Intercape’s uncontested version of the
criminal activity directed towards it by the taxi industry and the
factors on which
Smith J’s second judgment under case number
2099/2022 was premised, point to:
69.1.
a pattern of racketeering activity as defined in
POCA;
69.2.
the existence of the circumstances envisaged in
sections 16(2) and (2A) of the SAPS Act;
69.3.
the necessity by the Police to act in terms of
section 16(4)(b) of the SAPS Act by referring the matter to DPCI; and
69.4.
the necessity for the DPCI to fulfil its statutory
functions.
[70]
The limited extent to which the Police have, to
date, investigated complaints emanating from Intercape are not
indicative of compliance
with their obligations in terms of the
Constitution, as:
70.1.
no prosecutions have resulted from the
investigations;
70.2.
the Police tend to blame Intercape for the lack of
evidence presented to the Police, which ignores the obligations on
the Police
to investigate incidents of crime reported to them;
70.3.
the unlawful conduct has not abated, despite the
second of Smith J’s orders in case number 2099/2022, which
resulted in further
proceedings regarding the enforcement of that
order late last year; and
70.4.
the refusal by the Police (including the DPCI) to
recognise and comply with statutory provisions in POCA and the SAPS
Act, designed
to give effect to the imperatives reflected in section
205(3) of the Constitution.
Jurisdiction
[71]
I have accepted (as indeed did Smith J in case
number 299/2022) that it is uncontested that Intercape is the subject
of an ongoing
campaign of violence and intimidation committed against
its passengers, bus drivers and buses. It is a single campaign which
targets
Intercape countrywide. The campaign fits the mould of a
pattern of racketeering activity as defined in POCA and organised
crime
as contemplated in section 16 of the SAPS Act. The existence of
the campaign is acknowledged by the Police and the prosecuting
authorities and this acknowledgement triggers,
inter
alia,
the provisions of section
16(4)(b) of the SAPS Act.
[72]
The campaign is one cause of action, which
manifests itself countrywide. I am thus satisfied, in terms of
section 21(2)
of the
Superior Courts Act, that
I have jurisdiction
over all the Police respondents.
Conclusion in
respect of appropriate relief
[73]
The Police have consistently suggested that
Intercape seeks favourable treatment - something Smith J in the first
of his two above-mentioned
judgments described as a “
constant
refrain
”
. Smith J dispelled this
notion in emphatic terms in his first judgment. Nothing new has been
advanced to suggest that I should
depart from Smith J’s
findings in this regard. I am satisfied that in respect of
these proceedings, too, the focus
is on the safety and security of
long-distance bus drivers and passengers and the buses in which they
are conveyed.
[74]
On the facts advanced by Intercape and taking into
account the contentions of the Police respondents, I am satisfied
that the Police
are not meeting their constitutional and statutory
obligations and that therefore Intercape has established a case for
declaratory
relief.
[75]
In my view circumstances, such as the fact that
the campaign of violence against Intercape has continued unabated,
requiring a second
order from Smith J in case number 2099/2022
confirm the necessity also for structural/mandatory relief.
[76]
Intercape is therefore entitled to the relief
sought in terms of the notice of motion.
Costs
[77]
Intercape’s notice of motion is silent on
the question of costs. In its heads of argument, however, it
indicated that it was
seeking costs against the respondents who
opposed this application, and the question of costs was argued before
me by the parties.
When the matter was argued it was accepted
by all parties that the failure of the notice of motion to mention
the question
of costs was an oversight.
[78]
There is no reason why costs should not follow the
result of my order. Given the obvious complexity of this matter and
the fact
that all parties employed at least two counsel, the costs
attendant on such employment are warranted.
Order
[79]
I therefore make the order set out below:
1.
It is declared, in relation to the 165
instances of intimidation and violence perpetrated against the
applicant’s (“Intercape’s”
or “Intercape”,
as the case may be) buses, drivers and passengers and the cases
Intercape has opened in this regard
(as set out in the schedule
attached as annexure “FA3” to the founding affidavit)
(“the crimes”) that:
1.1
the South African Police Service (“the
Police”) failed to investigate and prevent the crimes as
required in terms of
section 205(3) of the Constitution of the
Republic of South Africa, 1996;
1.2
the third to seventh respondents (“the
Provincial Commissioners”) have failed to report the crimes to
the National Head
and Directorate for Priority Crime Investigation
(“the DPCI”) as instances of organised crime, crime which
requires
national prevention or investigation, and/or crime which
requires specialised skills in the prevention and investigation
thereof,
as required in terms of section 16(4)(b) of the South
African Police Service Act, 68 of 1995 (“the SAPS Act); and
1.3
the DPCI has failed to investigate and prevent
the crimes as instances of national priority offences as required in
terms of section
17D(1)(a) of the SAPS Act.
2.
The Police are directed to:
2.1
investigate each of the crimes to enable the
effective prosecution of each crime individually;
2.2
submit a report to the National Director of
Public Prosecutions (“the NPA”) within 60 days of this
order detailing all
steps taken and progress made in investigating
each of the crimes and the status of each investigation, to enable
the NPA to coordinate
the investigation and prosecution of each of
the crimes individually; and
2.3
submit a confidential copy of the report to the
Court and to Intercape.
3.
The Provincial Commissioners are directed to:
3.1
report to the National Head of the DPCI those
cases opened by Intercape in respect of the crimes which reveal the
presence of organised
crime, crime which requires national prevention
or investigation and/or crime which requires specialised skills in
the prevention
and investigation thereof;
3.2
submit a report to the Investigating
Directorate within 30 days of this order confirming that they have
reported the relevant cases
as directed; and
3.3
submit a confidential copy of the report to the
Court and to Intercape.
4.
The DPCI is directed to:
4.1
investigate the cases reported to it to enable
the effective prosecution thereof as instances of at a collective
level, as national
priority offences, and specifically as organised
crime;
4.2
submit a report to the Investigating
Directorate within 60 days of this order detailing all steps taken
and progress made in investigating
the cases and the status of its
investigations, to enable the Investigating Directorate to coordinate
the investigation and prosecution
of these cases as national priority
offences; and
4.3
submit a confidential copy of the report to the
Court and to Intercape.
5.
Should Intercape consider, having regard to the
confidential reports to be filed in terms of paragraphs 2.3, 3.3 and
4.3 respectively,
that the Police, the Provincial Commissioners
and/or the DPCI have failed to comply with any of their obligations
under this order
or otherwise to give effect to this order, Intercape
shall be entitled to set the matter down for further hearing on duly
supplemented
papers to seek such further relief as may be necessary.
6.
The first-eighth respondents, jointly and
severally, the one paying the other to be absolved, are directed to
pay Intercape’s
costs of this application, including the costs
attendant on the employment of two counsel and the costs of the
interlocutory application
on the question of joinder.
O H RONAASEN
ACTING JUDGE OF THE
HIGH COURT
Appearances:
K Hofmeyr SC, A Molver and SA Karim for the applicant,
instructed by Adams and
Adams, Pretoria c/o Huxtable Attorneys, Makhanda (Mr O Huxtable)
A Rawjee, X Nogantshi and
AN Masiza for the first – eighth respondent
instructed by the State
Attorney, Gqeberha c/o Whitesides Attorneys, Makhanda (Mr G Barrow)
A Beyleveld SC and M
Morgan for the ninth and tenth respondents
instructed by the State
Attorney, Gqeberha c/o Whitesides Attorneys, Makhanda (Mr G Barrow)