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[2023] ZAECMKHC 91
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Intercape Ferreira Mainliner (Pty) Ltd v MEC for Transport, Eastern Cape and Others (2099/2022) [2023] ZAECMKHC 91 (22 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISON, MAKHANDA)
Case
No: 2099/2022
Date
of hearing: 13 July 2023
Judgment
delivered on: 22 August 2023
REPORTABLE: YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
Date:22/08/2023
In
the matter between:
INTERCAPE
FERREIRA MAINLINER (PTY) LTD
APPLICANT
And
THE
MEC FOR TRANSPORT, EASTERN CAPE
FIRST
RESPONDENT
THE
MINISTER OF TRANSPORT
SECOND
RESPONDENT
PROVINCIAL
COMMISSIONER, EASTERN CAPE
SOUTH
AFRICAN POLICE SERVICES
THIRD
RESPONDENT
NATIONAL
COMMISSIONER, SOUTH AFRICAN
POLICE
SERVICES
FOURTH
RESPONDENT
NATIONAL
PUBLIC TRANSPORT REGULATOR
FIFTH
RESPONDENT
EASTERN
CAPE PROVINCIAL REGULATORY
ENTITY
SIXTH
RESPONDENT
JUDGMENT
Smith
J
Introduction
[1]
On 30 September 2022, I granted an order directing the
Minister of
Transport and the Eastern Cape MEC for Transport, in consultation
with the South African Police Services (the SAPS),
and the Eastern
Cape Provincial Regulatory Entity, to develop 'a comprehensive plan
on the steps they intend taking to ensure that
reasonable and
effective measures are put in place to provide for the safety and
security of long-distance bus drivers and passengers
in the Eastern
Cape'. I also ordered them to indicate the time periods within which
the steps outlined in the action plan will
be taken and to present it
on oath to the court.
[2]
The order was compelled by: (a) unrefuted evidence of a protracted
and sustained campaign of violence against the applicant (lntercape)
undertaken by rogue taxi associations and which has placed
the lives
of lntercape bus drivers and passengers at risk; and (b) my finding
that the MEC and the Minister failed to fulfil their
constitutional
and statutory obligations under the National Land Transport Act 5 of
2009 (the Transport Act), to ensure that the
abovementioned measures
are put in place.
[3]
In terms of paragraph 6 of the order, lntercape was entitled,
within
10 days of its presentation, to respond on oath to the action plan
and to set the matter down for hearing regarding the
adequacy of the
plan.
[4]
The Minister filed an application for leave to appeal
and declared in
no uncertain terms that he did not intend to participate either in
the conceptualisation or implementation of the
action plan. This
prompted lntercape to launch an application for an order in terms of
section 18
of the
Superior Courts Act 10 of 2013
, implementing the
order pending any application for leave to appeal or the outcome of
an appeal. The Minister, after having filed
his answering affidavit,
withdrew his opposition to the
section 18
application and the order
was accordingly granted on an unopposed basis. The Minister's
application for leave to appeal was also
subsequently dismissed.
[5]
The action plan was subsequently developed and filed
by the MEC
without the Minister's involvement. Understandably, lntercape was not
appeased and, contending that the plan was manifestly
inadequate, it
delivered an affidavit setting out the alleged deficiencies and
inviting the MEC to prepare a revised plan. It furthermore
declared
itself willing to engage further with the MEC to clarify its
criticisms of the plan and to assist in the finalisation
of the
revised plan. It stated, however, that if those engagements did not
yield the desired results, it would set the matter down
for argument
regarding the adequacy of the plan, as envisaged in terms of
paragraph 6.1 of the order.
[6]
During December 2022, lntercape and its attorneys met
with
representatives from the MEC's and the Minister's offices, as well as
the SAPS officials, to discuss the contended deficiencies
of the
plan. At that meeting the Provincial Department presented an updated
version of the plan. According to lntercape, the update
was little
more than a single amendment to the plan by adding another column
setting out progress allegedly achieved in its implementation
during
December 2022. lntercape also contended that an updated version of
the Implementation Schedule submitted by the National
Department did
not address their criticisms of the plan and instead substituted
specific implementation dates and allocations of
responsibilities to
specific functionaries or entities with vague and ambiguous clauses.
[7]
Plagued by ongoing attacks on its buses and being of the view that
there were no reasonable prospects of further engagement with the MEC
and the Minister bearing any fruit, lntercape set the matter
down for
hearing regarding the adequacy of the plan.
[8]
The matter came before me on 13 June 2023, when lntercape
sought an
order, in the form of a
rule nisi,
enjoining the MEC and the
Minister to prepare a revised plan that would meet the objectives of
the initial order and issuing directives
in respect of specific
issues that they need to incorporate into the plan. It also sought an
interim order directing the SAPS to
implement the existing action
plan (which incorporated the Implementation Schedule), by maintaining
a visible police presence in
'hotspot' areas and providing police
escorts along certain routes when requested to do so by lntercape.
After hearing argument,
I granted a
rule nisi,
returnable on
12 July 2023, and incorporating the interim interdict against the
SAPS.
Adequacy
of the action plan
[9]
In my view, the action plan developed by the MEC does
not accord with
the purpose and objective of the court order and therefore requires
fundamental reconsideration. The fact that
the Minister did not
participate in the development of the plan despite having been
explicitly ordered by the court to so, is itself
a compelling reason
why it must be revised. The MEC's assertion that the Minister has
subsequently considered and endorsed the
plan cannot constitute
sufficient compliance with the court order. The Minister was enjoined
to participate in the development
of the plan and her attempt to rely
on an
ex post facto
endorsement thereof is not sufficient. In
developing the action plan, it would have been crucial for the
Minister to consider the
extent to which it may be necessary for her
to exercise the extensive powers vested in her by the Transport Act.
In addition, she
also has powers to step into the shoes of the MEC in
the event of the latter failing to exercise his statutory powers and
functions.
Since she may well be required to hold the MEC
accountable, it was remiss of her to allow the MEC to develop the
plan on his own.
[10]
It is manifest that by directing the MEC and the Minister to present
a plan that will put in place reasonable
measures to ensure the
safety of long distance bus drivers and passengers, the court
required of it to present a scheme that, at
the very least: (a)
demonstrates reasonable appreciation of the nature and exigency of
the circumstances it is intended to address;
(b) sets out
implementable measures and key interventions aimed at curbing the
violence and attacks on buses and passengers; (c)
sets realistic
timelines for the implementation of such measures; (d) states how
those measures will be implemented with specific
reference to the
statutory framework and exercise of the MEC's and the Minister's
powers under the Transport Act; (e) allocates
duties and
responsibilities to identifiable functionaries or governmental
entities; (f) allocates resources to facilitate the implementation
of
the necessary measures; and (g) contains a strategy for engagement
and corporation with other relevant governmental and law
enforcement
agencies.
[11]
The action plan filed by the MEC is manifestly bereft of any such
specificity
and is instead replete with deliberately vague and
ambiguous phrases regarding implementation dates and responsible
functionaries.
Such generalisations and obfuscation will make it
virtually impossible for the court to exercise its oversight function
effectively.
[12]
That the action plan and its implementation have been woefully
inadequate
to ensure the safety and security of long-distance bus
drivers and passengers, is irrefutably demonstrated by the relentless
continuation
of serious and violent attacks on lntercape's buses
after its implementation. Between January and May 2023, lntercape has
lodged
at least 30 criminal complaints relating to violence and
intimidation against its drivers and passengers. These incidents
include
the stoning of buses, prevention of bus drivers from loading
and off-loading passengers, intimidation of drivers and passengers,
buses being shot at, and a passenger struck by a bullet. The
incidents were all marked by brazenness and impunity on the part of
the perpetrators, who were apparently emboldened by the lack of
visible policing. These events also serve to confirm my view that
a
vague action plan, which lacks the specificity mentioned above, will
send the unfortunate message to perpetrators of the unlawful
acts
that the authorities do not intend to use their extensive statutory
powers to quell the violence. Paradoxically, for this
reason it might
be better to have no action plan at all.
[13]
In the reasons for the order, provided on 7 October 2022, I made
serious findings against
the Minister and the current MEC's
predecessor. At paragraph 57, I said the following:
'As mentioned, not only
has the MEC not bothered to file an affidavit explaining the reasons
for her inaction, but she has also
tried to bully the applicant into
agreeing to the unlawful demands of the taxi associations. The
Minister has also not bothered
to file either an answering or
confirmatory affidavit. His failure to do so was clearly also based
on his belief that he did not
owe lntercape any explanation. His
rather curt reply to lntercape's request for intervention to the
effect that the problem is
that of the MEC, evinces a clear and
fundamental misunderstanding of his constitutional and statutory
obligations under the Transport
Act. In my view their conduct is
deserving of a punitive costs order.'
[14]
I sanguinely assumed - perhaps with the benefit of hindsight, rather
naively that those findings would have encouraged the MEC and
the Minister to remedy the serious and unfortunate consequences
resulting from the dereliction of their constitutional duties and to
devise an action plan that would clearly have demonstrated
their
determination to quell the violence. Regrettably, the contrary is
true. Perhaps my message was just not understood, or perhaps,
like
that solitary, frustrated 'Traveller' in Walter de la Mare's
supernatural poem,
The Listeners,
I was also constrained to
deliver my message through a closed door in the optimistic hope that
the 'host of phantom listeners' hiding
inside would take heed. Well,
I am determined to make sure that I am not misunderstood again. The
interim order that I granted
on 14 June 2023, and which I intend to
confirm, is more unequivocal and requires the MEC and the Minister to
specify, in measurable
terms,
inter
alia: the date from which
and the frequency with which the measures will be implemented; the
functionaries, governmental agencies
or departments that will be
responsible for their implementation; the planned key interventions
in respect of 'no-go zones'; the
exercise of statutory powers; and
the appointment of a task team to oversee and monitor the
implementation of the action plan.
Separation
of powers
[15]
Both Mr
Nepgen
and Mr
Rorke
SC, who appeared for the
MEC and the Minister respectively, attempted to convince me that the
terms of the envisaged order will
breach the separation of powers. To
his credit Mr
Rorke
did not endeavour to defend the action
plan. He conceded that the order required the Minister to participate
in its development
and that his failure to do so means that the court
is at liberty to reconsider its viability. He submitted, however,
that paragraphs
3.3 and 3.4 of the interim order go beyond what is
permissible in terms of judicial powers. He argued that the action
plan is polycentric
and policy laden in its formulation and the court
must thus recognise that it has limited capacity to tell the State
how it should
do its job. For this submission he relied on a plethora
of Constitutional Court cases in which that Court emphasised the
importance
of judicial deference in appropriate circumstances.
[16]
Mr
Rorke's
argument regarding the state of the law on this
important issue was delivered in his usual logical and compelling
style. I can find
no fault with his analysis of the applicable legal
principles, but it was his application of those principles to the
facts of this
matter that was demonstrably wrong. Paragraph 3.3 of
the order leaves it to the MEC and Minister to decide on the dates
and frequency
of intervention measures but orders them to specify
those in the action plan. And paragraph 3.4 does no more than to
require them,
inter alia,
to consider the key intervention
strategies mentioned in lntercape's affidavit, explain why they
cannot be implemented and provide
details regarding efforts to secure
the additional resources required for their implementation.
[17]
It is indeed so that courts must tread warily when making these types
of structural orders. They are invariably laden with polycentric
issues and the danger of a court overreaching judicial powers
always
looms large. However, the converse is also true. It is often
overlooked that the separation of powers doctrine cuts both
ways. It
is the courts' constitutional obligations to declare the law, ensure
that constitutional principles are upheld by all
arms of government
and to hold the executive accountable. Courts would be failing in
their constitutional duties if they are paralysed
by timorous
aversion to holding the executive accountable for fear of encroaching
upon the powers of another arm of government.
I am nevertheless
mindful of all those important constitutional imperatives, and I was
cautious to ensure that the order does not
encroach upon the
constitutional powers of the MEC, the Minister or the SAPS, for that
matter.
[18]
Ms
Hofmeyer
SC, who appeared for lntercape, has
correctly submitted that I have, in any event, already ruled on this
issue in my reasons for
the initial order. As envisaged in that
order, my judicial responsibility requires that I exercise my
supervisory functions, part
of which being the evaluation of the
plan's adequacy. But more importantly, the order does no more than to
compel the MEC's and
the Minister's compliance with their
constitutional and statutory obligations. The order has been
carefully framed not to instruct
them either to exercise or refrain
from exercising their statutory duties, but rather to compel them to
consider whether it would
be appropriate for them to do so, given the
prevailing circumstances. And given the fact that the court is
exercising its supervisory
functions in respect of the structural
relief, it is entitled to require them to provide reasons why they
have not deemed it appropriate
to exercise those powers.
[19]
A related issue is the defence proffered by the MEC to justify the
lack
of detail in the action plan, namely that the disclosure of
further details would compromise the safety of those functionaries
that are responsible for the implementation of the plan and render
them 'open to exploitation by criminal elements if it were made
public'. If that is indeed the case, then he must place the
information before the court and ask that it be sealed and not made
public. Orders of that nature are issued by courts on a regular
basis. Supervisory orders require of courts to play an active role
in
ensuring that they are enforced. Thus, nothing but full disclosure of
the relevant facts by organs of State will suffice to
enable courts
to play that role effectively.
(Pheko v Ekurhuleni Metropolitan
Municipality (Socio-Economic Rights Institute of South Africa Amicus
Curiae)
2016 JDR 1357 (CC))
Allocation
of necessary resources
[20]
The aforementioned reasoning also applies to the injunction that the
MEC and the Minister must consider allocating the necessary resources
to facilitate the implementation of the action plan. They
are
required to make a reasonable assessment of their available
resources, given the exigencies of the situation. And the court
is
entitled to demand from them more than a bald assertion regarding
resource constraints. In
Rail Commuters Action Group and Others v
Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at
405A-B, O'Regan J said that the standard of reasonableness 'requires
decision-makers to disclose their reasons for their
conduct, and the
principle of effectiveness on the other, for it does not unduly
hamper the decision-maker's authority to determine
what are
reasonable and appropriate in the overall context of their
activities'. An organ of State is accordingly required to provide
the
court with the necessary information to enable it to determine the
reasonableness of the steps taken.
(Mashongwa v Passenger Rail
Agency of South Africa
2016 (3) SA 528
(CC))
[21]
In
Mwelase and Others v Director-General, Department of Rural
Development and Land Reform and Another
2019 (6) SA 597
(CC) para
48, the Constitutional Court held that 'when egregious infringements
have occurred, the courts have little choice in
their duty to provide
effective relief. That was so in
Black Sash I,
and it is the
case here. In both, the most vulnerable and most marginalised have
suffered from the insufficiency of governmental
delivery'. In my view
the facts of this case cry out for such 'effective relief'.
Allegations
of preferential treatment
[22]
The insinuation that lntercape is seeking preferential treatment
primarily to protect its
commercial interests, has been a constant
refrain in this and the main application. This unfounded assertion is
both wrong and
unfortunate. It has regrettably also been used by the
SAPS as an excuse for not performing their constitutional duties.
But, before
I wash my hands in the proverbial basin of absolution,
like the Roman governor, Pontius Pilate, did centuries ago, I must
explain
why that insinuation is demonstrably wrong and dangerous.
[23]
These proceedings have, from the start, been focussed on the safety
and
security of long-distance bus drivers and passengers in the
Eastern Cape. While the prospect of financial losses must remain a
worrying issue for lntercape, from the court's point of view, it has
always been the real and present danger to passengers and bus
drivers
that informed both the urgency with which the matter was heard and
the form of the orders issued. It is regrettable that
the SAPS have
latched onto this argument to justify its opposition to an action
plan that requires visible police presence at hotspot
areas and the
provision of police escorts along certain routes when requested by
lntercape. It boggles the mind why it is so difficult
for a law
enforcement agency to appreciate that when armed assailants take
potshots at moving buses, deleterious consequences inevitably
ensue,
and sooner than later people will suffer serious injuries and, heaven
forbid, may even lose their lives. There can therefore
be little
doubt that the mandatory interdict sought against the SAPS is,
together with the other measures envisaged in terms of
the revised
action plan, necessary to ensure the safety and security of
long-distance bus drivers and passengers in the Eastern
Cape.
Does
the Implementation Schedule form part of the action plan?
[24]
The MEC and the SAPS contend that the version of the action plan that
must be evaluated by the court is the original one, excluding the
Implementation Schedule. They argue that paragraph 6.2 of the
original order envisages that lntercape may set the matter down for
argument regarding the adequacy of the action plan presented
by the
MEC. The order does, however, not refer to the Implementation
Schedule, or so they argued.
[25]
Apart from the fact that this argument appeared to have been divined
out of thin air, it is also unsustainable because it was manifestly
never envisaged that the plan would be a stagnant document.
This
argument is also undoubtedly advanced because the plan would be
considerably less exacting for the SAPS if the schedule is
excluded.
[26]
The undisputed facts, however, show that at all material times the
parties
were
ad idem
regarding the scope of the action plan,
and in particular insofar as it incorporated the Implementation
Schedule. At a meeting held
during December 2022, only the National
Department's delegation requested time to consider the updated
Implementation Schedule
proposed by lntercape. The SAPS were
represented at the meeting and did not raise any objections to the
updated schedule. The National
Department subsequently, after
proposing revisions to the schedule, accepted that it would form part
of the action plan. There
has thereafter been extensive
correspondence between lntercape's attorneys and the other role
players, which evince the common
understanding that lntercape's
requests for intervention by the SAPS were based on the action plan
as supplemented by the Implementation
Schedule.
[27]
More importantly though, it was by virtue of that schedule that the
SAPS agreed to
assume the obligations to maintain a police presence
at the loading points in 'hotspot' areas and to provide escorts along
certain
routes when requested to do so by lntercape. Thus, the
obligations that the SAPS are required to undertake in terms of the
interim
order in any event already formed part of the action plan.
The temporary interdict therefore did nothing more than to require
the
SAPS to do what the action plan already obliged them to do.
[28]
It is therefore not necessary for me to consider the other arguments
proffered by SAPS relating,
inter alia,
to resource
constraints and jurisdictional and geographical challenges in the
implementation of the schedule. In the event, the
envisaged order
does no more than to confirm the SAPS' constitutional obligations and
wherever those challenges may arise, they
must be overcome by
coordination and collaboration with other law enforcement agencies in
a manner that can be provided for in
the revised action plan.
Costs
[29]
The interim order reserved costs for argument and determination on
the return date. In my view, the applicant has clearly
been
substantially successful and there can thus be no reason why costs
should not follow the result.
Order
[30]
In the result I am of the view that lntercape has made out a
proper case for the relief sought in the notice of motion.
[31]
The following order accordingly issues:
The
rule nisi
is
hereby confirmed with costs, including the costs of two counsel,
where so employed.
JE
SMITH
JUDGE
OF THE HIGH COURT
MAKHANDA
Appearances
Counsel
for the Applicant
:Adv.
K Hofmeyr
SC with Adv.
A Molver
:Adams
& Adams Attorneys
:c/o
Huxtable Attorneys
:26
New Street
:MAKHANDA
Counsel
for First Respondent
:Adv.
JJ Nepgen
:The
State Attorneys
:c/o
Whitesides Attorneys
:53
African Street
:MAKHANDA
Counsel
for·Second Respondent
:Adv.
S Rorke
SC with Adv
GJ Gajjar
:The
State Attorneys
:Whitesides
Attorneys
:53
African Street
:MAKHANDA
Counsel
for Third and
Fourth
Respondents
:Adv
A Rawjee
:The
State Attorneys
:Whitesides
Attorneys
:53
African Street
:MAKHANDA