‘[This] is an application borne of desperation,” advocate Kate Hofmeyr SC argued before the Eastern Cape High Court this week.

“It is a final attempt to get the SA Police Service (SAPS) to take Intercape’s complaints seriously so that further acts of criminality against members of the public, who rely on Intercape to travel the roads of South Africa, can be prevented.”

Hofmeyr leads the legal team that has brought an application for a structural interdict that would order the police to investigate a series of serious attacks on Intercape buses and investigate steps they should take in the 165 criminal complaints laid by the long-distance bus company without a single arrest.

“It is simply a matter of time before an Intercape passenger is fatally injured or, worse, an accident occurs with mass fatalities,” she said.

Read more in Daily Maverick: Intercape commuters’ safety in the hands of Bheki Cele and Fikile Mbalula but there’s no action plan yet

The company argues that the minibus taxi industry, which shares the same routes, has been waging a reign of terror against Intercape ticket sales, ticket prices and finally the buses in an effort to stop passengers from using the service.

Various taxi associations, including the Cape Organisation for the Democratic Taxi Association (Codeta), Uncedo Taxi Association, Border Alliance and the Cape Amalgamated Taxi Association, have repeatedly declined Daily Maverick’s requests to comment on the attacks.

Despite several successful applications, attempts and scathing criticism by judges aimed at law enforcement, transport authorities and the transport ministry, there still is no workable safety plan to protect long-distance buses.

On 30 September 2022, Judge John Smith declared that the Eastern Cape MEC for Transport, Xolile Nqatha, and the Minister of Transport (Fikile Mbalula at the time) had failed in their constitutional obligations and ordered that they develop a comprehensive action plan to 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 and to report back to the court on the plan.

Read more in Daily Maverick: Fikile Mbalula’s appeal in Intercape case fails, CEO Ferreira wants Bheki Cele to finally act

On 22 August 2023, Judge Smith granted a further order declaring that the action plan developed in response to his first judgment must be revised and, in the light of continuing violence against Intercape buses, SAPS was ordered to implement the current action plan by maintaining a visible police presence in specified areas and providing police escorts when requested to do so.

In court this week, Hofmeyr said that both these rulings by Smith focused on the role of the transport authorities and the SAPS to ensure, on a day-to-day basis, that the safety and security of bus drivers and passengers were not compromised.

Read more in Daily Maverick: Long-distance bus attacks – what the judge ordered Mbalula to do to end the violence

“The focus of this application is different. This application is concerned with the basic duties of the police services to investigate and prevent crime.”

The police’s counsel, advocate Anusha Rawjee, argued that the police had been investigating and had in fact investigated the reported attacks twice – first by regular detectives and then by organised crime detectives.

“The cases were closed based on a lack of evidence,” she said.

“The investigation is stifled by no witnesses and no video footage,” she said.

Rawjee said the number plates of vehicles on the scene had been followed up but, in the Eastern Cape instance, were found to be fake.

She said the suspects remained unknown and the complainants had also left the employment of Intercape. Among the examples she mentioned was a shooting at a garage. She said the police tried, but could not find video footage of the incident.

“The passenger involved also did not want to pursue a case,” she added.

In papers before court, however, Intercape claims that it has handed the following evidence to the police:

• Copies of WhatsApp communications in which extortionist demands were made of Intercape.
• Bank records reflecting payments made into the bank accounts of taxi operators who had demanded “donations” to cover travel costs.
• Photographs from, and a recording of, a meeting with taxi operators in which they dictated the terms on which buses would be permitted to operate.
• An audio recording of a telephone conversation with a taxi representative in which he told Intercape’s CEO that if he agreed to pay R5-million, the attacks on Intercape’s buses would stop.
• Evidence that once certain taxi operators had made it too dangerous for Intercape to provide transport services in the so-called no-go zones in the Eastern Cape, the taxi operators themselves started to provide bus services in those very same areas.

“Is it not time that the court intervenes?” acting judge Olaf Ronaasen asked. “This situation is not going away.”

The police’s legal team also argued that Intercape furnished them with “inadequate evidence”.

Hofmeyer countered that an absence of evidence is “a reason to investigate, and not a reason not to. More fundamentally, this argument underscores the error in the SAPS’ approach to the crimes.”

“Having viewed them all as isolated and unrelated incidents of crime, they have failed to investigate them – or report them to the DPCI – as an instance of organised crime.”

“For several years, (Intercape) has been subjected to widespread, ongoing and well-documented acts of intimidation and violence at the hands of the taxi industry,” Hofmeyr stated in her heads of argument.

‘Shootings and stonings’

“The acts of violence and intimidation are severe. In 2022 alone, Intercape’s buses were shot at 23 times. On one of those occasions, an Intercape driver was fatally injured. Further shootings have occurred this year, with some of Intercape’s passengers having been shot and hospitalised.

“In some incidents where drivers have been shot, they have lost control over their buses. The same has occurred as a result of stoning incidents, where rocks were thrown through the windscreens of Intercape’s buses.

“The acts of violence and intimidation experienced by Intercape are not random. The criminality is part of an organised scheme by taxi operators who have demanded 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 that all buses depart Eastern Cape towns before noon daily, and stop operating completely in certain towns, including the so-called ‘no-go zones’.

“The aim of these attacks is to drive long-distance bus operators out of certain parts of the country, thus enabling taxi operators to monopolise those areas. This self-evidently forms a pattern of racketeering activity and constitutes organised crime,” Hofmeyr argued.

Read more in Daily Maverick: Intercape bus driver shot — passengers run gauntlet while Transport Minister Mbalula fights safety order

She added that Intercape had lodged 165 criminal complaints with the police in respect of the acts of violence and intimidation perpetrated against its drivers, passengers and buses.

“Despite this, not a single person is under arrest for these crimes and no prosecutions are pending,” she said.

“Faced with the SAPS’ abject failure to investigate these crimes, Intercape was forced, after more than a year of engagement with the authorities, to institute this application,” Hofmeyr said.

The bus company has asked for a far-reaching order to compel the police to take investigative steps to find who is behind the terror campaign being waged against the company’s buses.

It is asking the court to order:

• That the police have failed in their duty to investigate and prevent the crimes; that the provincial commissioners have failed in their statutory duty to report the crimes to the Directorate for Priority Crime Investigation (Hawks) as instances of organised crime, as required in terms of section 16(4)(b) of the South African Police Service Act.

• That the DPCI has failed to investigate and prevent the crimes as instances of national priority offences.
• That the police be ordered to investigate and then report their findings to the National Prosecuting Authority, the court and Intercape.

The court has reserved judgment. DM