Eastern Cape judge loses patience with police and government’s slow response to Intercape bus attacks

23 Aug 2023

In a scathing judgment on Wednesday, Judge John Smith from the Eastern Cape High Court made it clear to Transport Minister Sindisiwe Chakunga, provincial Transport MEC Xolile Nqatha and the police that his patience had run out. As the politicians and bureaucrats dithered, another 30 buses had come under attack. Smith said he was now giving an order that could not be ‘misunderstood’.

The plan government made to stop ongoing attacks on long-distance buses was so vague and its implementation so slow, that it sent a message to the perpetrators that their crimes would be allowed, Judge John Smith said on Wednesday in a scathing judgment in the Eastern Cape High Court, sitting in Makhanda.

The judgment is one in a series of rulings as the Intercape bus company tries to secure police protection against ongoing attacks on its buses.

Smith has made a final order compelling the National Minister of Transport, the Eastern Cape Transport MEC and the SA Police Service to “develop a revised 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”.

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He said pending the development of the revised action plan, the government had to ensure that: “A visible law enforcement presence is maintained at every loading point in hotspot towns and areas at each of the times at which Intercape’s buses are scheduled to stop at those loading points, in order to maintain the safety and security of long-distance bus drivers and passengers.”

He also ordered that Intercape buses must be given a law enforcement escort on hotspot routes “as and when requested by Intercape on account of a legitimate concern over a risk of intimidation or violence”.

The hotspot towns in the province are Cofimvaba, Butterworth, Engcobo, Tsomo and Idutywa.

The latest order follows one handed down in June compelling the government and police to develop a comprehensive plan to provide for the safety and security of Intercape’s drivers and passengers in the Eastern Cape.

At the time, the court said there was a duty on the state to act so that the “lives of [Intercape] drivers and passengers are not left in the balance”.

This time around, Smith said he wanted to make sure that the government and the police were clear on what he said.

“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.”

Between January and May 2023, Intercape filed 30 criminal charges over the ongoing attacks on its buses.

Read more in Daily Maverick: Mbalula and axed EC transport MEC ‘played dead’ and ‘failed grossly’ in protecting Intercape buses – CEO

Smith said this was proof that the “action plan” put forward by the government to deal with the issue and its implementation “has been woefully inadequate to ensure the safety and security of long-distance bus 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 being 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,” said the judge.

“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,” said Smith.

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He said that in a preceding order, made in October 2022, he had made “serious findings” against former transport minister Fikile Mbalula and the predecessor of the current MEC for Transport, Weziwe Tikana-Gxothiwe, for failing to heed the court’s orders.

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“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,” Smith added.

He said he did not doubt that an interdict ordering the government to devise and implement a safety plan was necessary.

“Well, I am determined to make sure that I am not misunderstood again,” said Smith.

“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.” DM

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