JOHANN FERREIRA: State officials remain unwilling to act on bus violence court rulings

The last four years have tested long-distance bus operators’ resolve in a way that very few of us ever thought possible. A violent campaign waged by taxi associations against the industry, which carries tens of thousands of passengers each year, has sought to force the coach companies out of operating in the Eastern Cape and other key routes across SA.

The organised criminality includes demands by taxi operators that Intercape and other long-distance bus operators increase their prices, limit the number of buses operating on particular routes, amend their timetables to ensure all buses depart Eastern Cape towns before noon daily, and stop operating completely in certain towns, thus enabling taxi operators to monopolise those areas.

Violence and intimidation experienced by Intercape has resulted in a years-long legal battle, with huge implications across three key cases for the ministers of police and transport, the national commissioner of the SA Police Service (SAPS), various provincial SAPS commissioners and the Hawks. This includes an application brought following the failure of the SAPS and Hawks to investigate the more than 175 criminal cases that Intercape has opened with the police.

Many of these cases record violent incidents, largely in the Eastern Cape. A number of these incidents have led to serious injuries to employees and passengers of Intercape, and in April 2022 Intercape bus driver Bangikhaya Machana died in hospital days after being shot and critically wounded outside the company’s depot. A few months later a driver was shot and critically wounded at the same place. Since the court ruling in September 2022 compelling authorities to act, a further 40 cases have been reported in the Eastern Cape, as well as a further eight nationally.

It is an indictment of our crime-fighting infrastructure that not a single person is under arrest for these crimes and no prosecutions are pending. This failure is even though Intercape provided the police with information and evidence identifying and incriminating some of those allegedly involved in these attacks.

As someone who believes in the rule of law, I’m pleased to say these processes have also had some positive outcomes. Intercape’s three systematic court victories to date are hugely legally significant for our democracy, and our legal system. The Eastern Cape High Court has not only clarified for the defendants the responsibilities they must discharge, it is also playing an active monitoring role in the enforcement of the court orders to ensure accountability by the same defendants who have tried to sidestep responsibility, all while not overstepping the separation of powers.

This type of legal action is so rare because we have seen many businesses shy away from taking this route. Ensuring accountability through the courts can be a slow and expensive process. Far too often the temptation to ensure that the problem goes away through more pragmatic measures is too strong, and businesses have been content to comply with the demands of their extortioners.

These are the unfortunate realities of the current high cost of doing business in SA — lengthy delays in receiving justice, a severe lack of accountability from those the court has instructed to comply with the law, and constant danger from elements of organised crime.

Intercape has taken a different approach. Over the last few years we have made a significant investments in the ongoing fight for accountability, and forcing multiple elements of the state to quite simply do their jobs. We have done so to protect the constitutional rights — specifically, the rights to life, freedom and security of the person — of our drivers, the travelling public who make use of our services, and the public.

As a responsible corporate citizen we have held fast in the determination that our busses will travel, and that our passengers and employees will be safe. And, importantly for our democracy, we have been similarly determined that the authorities will be held accountable to fulfil the roles they are constitutionally obliged to perform.

The contempt of court case will be heard on Thursday, December 14, with judgment expected to be delivered soon thereafter. The court will hear from Eastern Cape police commissioner Nomthetheleli Lillian Mene, national police commissioner Sehlahle Fannie Masemola as to why they should be spared prison time for failing to implement court orders to stop the travelling public in SA being attacked.

It is unfortunate that in the 15 months since the court ruling that instructed ministers and police officials to prevent acts of violence and intimidation against Intercape, they have focused their time on appealing against the multiple judgments handed down by the courts against them, rather than policing the Eastern Cape.

In separate legal action, Intercape has brought an application to have the ongoing acts of violence and intimidation against coach passengers recognised, investigated and prosecuted as acts of organised crime. The application has been brought against the police minister, the national police commissioner, police commissioners for various provinces, the Hawks, the director of the National Prosecuting Authority and the head of the Investigating Directorate. A decision is due soon.

The legal and ethical progress Intercape has made in the fight for accountability, justice and protection for its passengers and employees, and the right to trade as a business in a democracy, should not be underestimated.

The unprecedented nature of the legal victories Intercape has managed to secure represent a landmark in SA legal history. Our hope is that this progress results not only in protection for those travelling with Intercape and our employees, but that it emboldens other SA businesses to fight organised crime, intimidation and murder by securing judgments in the same way.

We believe SA is worth fighting for, and that the rule of law will prevail.

• Ferreira is executive chair of Intercape.