Another court victory for Intercape

Eastern Cape Provincial Police Commissioner Nomthetheleli Mene and National Police Commissioner General Sehlahle Masemola have avoided being jailed for contempt of court for failing to implement a September 2022 court order aimed at preventing violence and intimidation against long-distance coach passengers.

However, the High Court in Makhanda has issued an order containing a list of requirements with which the South African Police Service (SAPS) and the Directorate for Priority Crime Investigation (DPCI) must comply.

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Read: Government must intervene in Intercape bus attacks [Aug 2023]

Acting Judge Olav Ronaasen also directed that if long-distance bus operator Intercape Ferreira Mainliner, the applicant, believes the SAPS, the provincial commissioners, and/or the DPCI have failed to comply with any of their obligations under his order or to give effect to the order, it shall be entitled to set the matter down for further hearing on supplemented papers to seek such further relief as may be necessary.

Declaration and order

In a judgment handed down last week, Ronaasen declared that in relation to the 165 instances of intimidation and violence perpetrated against Intercape’s buses, drivers and passengers and the cases Intercape has opened in this regard, the:

  • SAPS failed to investigate and prevent the crimes as required in terms of South Africa’s Constitution;
  • The provincial commissioners for the Western Cape, KwaZulu-Natal, Gauteng and North West have failed to report the crimes to the national head of the DPCI as instances of organised crime, which requires national prevention or investigation and/or crime, which requires specialised skills in the prevention and investigation of these crimes as required in terms of the SAPS Act; and
  • The DPCI has failed to investigate and prevent the crimes as instances of national priority offences as required by the SAPS Act.

Judge Ronaasen ordered the SAPS to:

  • Investigate each of the crimes to enable the effective prosecution of each crime individually; and
  • Submit a report to the National Director of Public Prosecutions within 60 days of his order detailing all steps taken and progress made in investigating each of the crimes and the status of each investigation to enable the National Prosecuting Authority (NPA) to coordinate the investigation and prosecution of each of the crimes individually.

The provincial commissioners were ordered to:

  • Report to the national head of the DPCI those cases opened by Intercape in respect of the crimes that reveal the presence of organised crime and require national prevention or investigation and/or specialised skills in their prevention and investigation; and
  • Submit a report to the Investigating Directorate within 30 days of his order, confirming they have reported the relevant cases as directed.

The DPCI was directed to:

  • Investigate the cases reported to it to enable their effective prosecution as instances collectively of national priority offences and specifically as organised crime; and
  • Submit a report to the Investigating Directorate within 60 days of his 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.

The SAPS, provincial commissioners and DPCI were further ordered to submit a confidential copy of their report to the court and Intercape.

The minister of police, the SAPS national commissioner, the provincial commissioners and the national head of the DPCI were also ordered to pay the costs of Intercape’s application.

Violent, orchestrated – and ignored

Intercape had asked the court to imprison Mene and Masemola for 90 days for contempt of court.

This followed Intercape in the past three years opening more than 176 cases with the SAPS, largely in the Eastern Cape.

Since the September 2022 court order, a further 40 cases have been opened in the Eastern Cape, plus a further eight nationally.

Read: Intercape is seeking jail time for SAPS commissioners

Intercape CEO Johann Ferreira told Moneyweb in December that many of these cases involved violent incidents, and a number of the attacks had led to serious injuries to employees and passengers of Intercape.

Intercape bus driver Bangikhaya Machana died in hospital in April 2022, days after being shot outside the company’s depot.

Intercape claimed the acts of violence and intimidation experienced by Intercape and its passengers are not random and are part of an organised scheme by taxi operators.

It said taxi operators 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.

It further claimed 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.

Read/listen:
Mbalula chastised in Intercape taxi violence and intimidation ruling [Oct 2022]
Court reiterates Fikile Mbalula must ‘do his job’ and protect bus operators [Jan 2023]

Intercape said this clearly establishes a pattern of racketeering activity and constitutes organised crime as statutorily contemplated.

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Mene and Masemola opposed the application and denied they failed to implement an action plan to address the problem.

It was claimed that Masemola, as national commissioner, is not involved in the daily policing operations of the SAPS in the Eastern Cape.

It was further claimed there was compliance by the SAPS with the September 2022 order in that an action plan had been filed but would not be implemented by the SAPS on its own but jointly with other law enforcement officials because of the strain it would place on SAPS resources.

Listen/read: Police must escort Intercape buses in Eastern Cape, court rules [Jun 2023]

Intercape’s application followed Judge John Smith in September 2022 declaring that the Eastern Cape transport MEC and minister of transport, who at the time was Fikile Mbalula, were obligated to take positive steps 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 – and that they had failed to fulfil that obligation.

Intercape seeking favourable treatment?

Judge Ronaasen said the police have consistently suggested that Intercape seeks favourable treatment, but this was dispelled in emphatic terms in the first judgment related to these incidents.

He said that on the facts advanced by Intercape and taking into account the contentions of the police respondents, he is satisfied the police “are not meeting their constitutional and statutory obligations, and therefore, Intercape has established a case for declaratory relief”.

Reacting to the judgment, Intercape said it is grateful the court has made conclusive findings on the nature of the criminality it is facing and what the SAPS and DPCI are supposed to do to protect the rights of the travelling public.

“The judgment is a victory for every South African’s right to rely on the SAPS to keep them safe from crime and, in particular, for our passengers who have the right to travel freely and without fear.

“For the SAPS and the DPCI there is now no longer any room for excuses,” it said.

“They must treat these horrific crimes as instances of organised crime and as national priority offences which require specialised skills to be investigated and prevented. And they must act swiftly and decisively.

“Many people have lost faith in the ability of the SAPS to win the war on crime.

“Some have accepted that crime has become an unavoidable part of living and doing business in South Africa and that to survive, one has to give in to the demands of criminals.

“If lawlessness becomes the accepted state, South Africa would have failed,” it added.

“We do not accept this fate. We remain committed to the rule of law.”

Intercape said it is disappointing that it had to come to court to obtain an order directing the SAPS and the DPCI to perform their constitutional obligations, but it remains hopeful that the judgment will be a catalyst for change and that the SAPS and the DPCI will now step up to the plate.

“Intercape, the travelling public, but now also the High Court, will be watching,” it added.

Source: moneyweb.co.za