Fikile Mbalula’s appeal in Intercape case fails, CEO Ferreira wants Bheki Cele to finally act

Minister of Transport Fikile Mbalula. (Photo: Gallo Images / Beeld / Deaan Vivier)

By Vincent Cruywagen

10 Jan 2023

Intercape CEO Johann Ferreira wins the case and hopes the courts will force Minister of Police Bheki Cele to protect his long-distance buses from violent attacks, particularly on Eastern Cape roads.

The CEO of Intercape, Johann Ferreira, has urged President Cyril Ramaphosa to find a replacement for Transport Minister Fikile Mbalula as soon as possible to restore stability to the sector and improve the safety of dangerous routes for long-distance buses, particularly in the Eastern Cape.

Ferreira’s request comes after Judge John Smith dismissed Mbalula’s appeal against a court order compelling him and Eastern Cape MEC for Transport, Xolile Edmund Nqatha, to develop a comprehensive action plan to stop the attacks on Intercape’s long-distance buses.

In his appeal, Mbalula argued that the court erred in requiring him and Nqatha to act jointly in circumstances where the Transport Act of 2009 does not allow them to do so.

However, the court found that — while Mbalula and Nqatha must each decide whether circumstances exist that require them to exercise powers vested in them — there was nothing in the Transport Act prohibiting them from acting jointly to facilitate the effective implementation of any measures to achieve the act’s objectives; in this case, the preparation and implementation of an action plan.

Mbalula needed to persuade the court that his appeal had a reasonable chance of success, or that there was some other compelling reason why it should be heard.

mbalula intercape Minister of Transport Fikile Mbalula. (Photo: Gallo Images / Beeld / Deaan Vivier)

The application for leave to appeal was heard on 14 December 2022. In delivering judgment on Tuesday, Smith found that the appeal had no reasonable prospects of success.

Mbalula is expected soon to be replaced as transport minister after being elected as ANC secretary-general at the party’s recent 55th national conference. President Ramaphosa is likely to announce a Cabinet reshuffle in the coming weeks.

The court order compelling Mbalula and Nqatha to compile an action plan was issued on 30 September 2022 after Intercape sought urgent relief from the Eastern Cape High Court to allow safe passage for its buses through the province.

Eastern Cape no-go zone

Parts of the Eastern Cape have been a no-go zone for Intercape buses because of the company’s refusal to give in to extortion and threats from certain sectors of the taxi industry.

At the time of the initial hearing, more than 150 shootings, stonings and other acts of violence and intimidation directed at Intercape bus drivers and passengers had been reported to police in Gauteng and in the Eastern and Western Cape between January 2021 and February 2022.

Intercape’s Johann Ferreira resorted to legal action after one of his drivers, Bangikhaya Machana, was shot outside the company’s depot in Cape Town on 25 April last year.

Read more in Daily Maverick: “Murder of long-distance bus driver part of ‘campaign of violence’ against industry, says Intercape boss”

Judge Smith said Mbalula’s “resistance to cooperation with provincial authorities is rather surprising, particularly given that our constitutional dispensation is founded on the principle of cooperative governance”.

The judge also noted that an action plan was already in the works, and that its finalisation and implementation were imminent. This meant that by the time an appeal was heard, the action plan would have been finalised and, most likely, substantially implemented. Smith concluded that the appeal would have no practical effect.

Responding to the judgment, Ferreira criticised Mbalula for “wasting time and valuable state resources, including legal costs now running into millions of rands.

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“All this legal action and associated costs would have been totally unnecessary, if only Minister Mbalula had done his job.”

Ferreira said it was time for Ramaphosa to appoint a competent transport minister; someone capable of bringing order, stability and accountability to the portfolio.

However, Intercape’s battle is far from over. According to Ferreira, the company now plans to take legal action against Police Minister Bheki Cele, to force the police to intervene.

Ferreira says he is perplexed that nearly 150 cases have been opened with the police in the Eastern Cape with no arrests or convictions, despite Intercape providing “mountains of evidence of criminality”, including acts of intimidation and extortion.

“We are going to hold the minister of police to account for this unforgivable failure to uphold law and order, which enabled anarchy to take hold,” he said. DM

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Eastern Cape no-go zone