Court dismisses government’s appeal, orders action plan to protect buses

The High Court in Makhanda has dismissed with costs an application by the Eastern Cape transport MEC, the South African Police Service (SAPS) and the SAPS National Commissioner to appeal a high court ruling ordering them to develop an action plan to protect bus drivers and passengers.

The judgment follows high court rulings and orders obtained by long distance bus operator Intercape.

The Eastern Cape transport MEC, National Police Commissioner, Eastern Cape SAPS Commissioner and the national Department of Transport have been locked in a battle with Intercape since September 2022, when the bus operator successfully obtained a court order against then minister of transport Fikile Mbalula and provincial officials to develop a comprehensive action plan to protect buses and travellers.

ALSO READ: Intercape wins court battle: SAPS and Hawks directed to address bus violence

Intercape CEO Johann Ferreira on Wednesday hailed the latest judgment as a landmark victory for public transport safety in South Africa.

He also expressed the hope that ministers in the government of national unity under new Minister of Transport Barbara Creecy and Police Minister Senzo Mchunu will respect and comply with the court’s orders.

Ferreira said that despite the latest judgment being the fifth judgment in favour of Intercape, none of the other rulings have spurred the government and police into action.

He said the previous government had no respect for the law or for people’s lives and the latest ruling must end the resistance of the authorities to their duty to protect the citizens of South Africa from criminals.

“It is a classic example of the government’s incompetence and lack of interest in protecting the people of South Africa.

“Even a court order that police escort buses was not properly implemented,” he said.

ALSO READ: Intercape takes police commissioners to court for contempt

“The government has fought this tooth and nail, costing the taxpayer millions of rands in legal fees, instead of coming up with a plan – not only to do what is legally right by complying with a court order, but to fulfil its Constitutional mandate by ensuring the safety of its people.”

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Intercape turned to the courts to force the government to do its job after 171 cases ranging from assault, vandalism, intimidation and murder were reported to police, mainly in the Eastern Cape, but not a single arrest was made.

The company said that since 2015, the company’s buses have faced a barrage of attacks by taxi drivers and associations seeking to defend their turf, with several passengers injured and one of Intercape’s drivers shot dead two years ago.

‘Unforgivable sin’

Ferreira said the behaviour of former minister of police Bheki Cele and Mbalula is an “unforgivable sin” and they should be held personally responsible for wasting taxpayers’ money.

“That’s how we can hold ministers accountable,” Ferreira said.

“Intercape’s victory is a significant milestone in the fight against organised crime, for safer public transport and providing more options for South African commuters.

“Criminals were shooting at our drivers and passengers, not at tyres and engines.

“We even wrote to President Cyril Ramaphosa pleading for help. The SAPS Commissioner was held in contempt of court, and even that did not result in sufficient action.”

Legal action

The applicants were seeking leave to appeal against an order granted on 22 August 2023 that also confirmed an interim order issued on 14 June 2023.

In terms of the 14 June 2023 interim order, the action plan prepared by the SAPS respondents in compliance with the initial order granted on 30 September 2022 was declared inadequate because it did not 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.

ALSO READ: Intercape sues Bheki Cele for ‘failure’ to stop bus attacks

The Eastern Cape transport MEC and Minister of Transport were also directed to develop a revised comprehensive action plan.

In a judgment handed down in the High Court in Makhanda this week, Judge John Smith said Intercape, in opposing this application, claimed the Eastern Cape transport MEC had preempted his right to appeal and, in any event, the appeal grounds relied upon by the respondents bear no reasonable prospects of success.

Judge Smith said the right of an unsuccessful litigant to appeal against an adverse judgment or order is preempted if, “by unequivocal conduct inconsistent with an intention to appeal”, they are shown to have acquiesced in the judgment or order.

Intercape contended that a number of facts, including the response to a letter written to the State Attorney by Intercape’s attorneys, established that the MEC’s conduct was inconsistent with an intention to appeal and pointed without doubt to the conclusion that he has acquiesced in the judgment.

Intercape’s letter confirmed that the respondents had 60 days within which to produce a revised action plan and that period expired on 7 September 2023.

The State Attorney’s office indicated in its response that the respondents would not be in a position to file the final plan on that date and requested an extension to file the plan by no later than 20 September 2023.

Judge Smith said there can therefore be little doubt that the MEC sought the forbearance in respect of the revised action plan which he and the minister were required to deliver in terms of the interim order and his attorneys had requested an extension indicating his intention to continue the revision of the action plan in compliance with the interim order.

ALSO READ: Court orders Mbalula to provide security for under fire Intercape buses

“When Intercape refused the indulgence, the MEC, faced with the daunting prospect of being in contempt of a court order, made an about turn and filed an application for leave to appeal on 12 September 2023,” he said.

Judge Smith said the MEC contends in his opposing affidavit that the action plan referred to in the State Attorney’s email was that required in terms of the initial order and not the revised action plan required in terms of the interim order.

“This explanation is unsustainable,” he said.

“The MEC’s assertion that he always intended to appeal the judgment is equally indefensible and cannot avail him.”

Judge Smith said he is of the view that Intercape has discharged the onus of establishing that the MEC has preempted his right of appeal and the MEC’s application for leave to appeal must consequently be refused for that reason.

He also rejected a number of grounds raised by the SAPS respondents on why leave to appeal should be granted.

“Although the respondents rely on a multiplicity of grounds, there are a few common threads that can be distilled from them.

ALSO READ: Mbalula chastised in Intercape taxi violence and intimidation ruling

“I must, however, emphasise that I have considered all the grounds advanced on behalf of the MEC and the SAPS respondents and I am not convinced that any of them bear any reasonable prospects of success,” he said.

“Neither have I been persuaded that there is any other compelling reason why leave to appeal should be granted.”

One of the complaints by the SAPS respondents was that the interim order was oblivious to its resource constraints.

But Judge Smith said this is also without merit.

“I have dealt with this argument comprehensively in my main judgment and provided comprehensive reasons for dismissing it.

“I do not think there are any reasonable prospects of this point being upheld by another court.

“As I have said in my main judgment, the SAPS respondents failed to provide details for their bald assertions regarding their resource constraints.

“And, in any event, the SAPS have agreed to the visible policing in terms of the implementation schedule,” he said.

ALSO READ: Mbalula’s appeal of court order to protect Intercape a refusal to do the job he’s paid for

“The application for leave to appeal filed by the SAPS respondents consequently also falls to be dismissed.”

This article was republished from Moneyweb. Read the original here