This piece was first published by The Daily Friend

The municipal and provincial governments of Cape Town and the Western Cape, and the party that governs them, the Democratic Alliance (DA), are unhappy with how Transnet is operating the Port of Cape Town. There is a lot of complaining, but very little action, to correct this. The City or Province should either take the port or build their own, but standing idly by is not a good look.

By October 2023 Transnet’s incapacity and incompetence cost South Africa some R1 billion per day. The South African government wanted the World Bank to funnel $1 billion (some R18.6 billion) to Transnet – just to upgrade rail infrastructure. Less than a month later, it was reported that Transnet owes their equally incompetent and corrupt colleagues at Eskom R503 million in outstanding electricity fees with no plan to pay it back.  

That same November, Wayne McCurrie of First National Bank speculated that the Transnet crisis is even more catastrophic for South Africa than the collapse of reliable electricity from Eskom.

International shipping companies like Maersk and MSC have since last year already begun charging cargo owners a surcharge per container when shipping to South Africa’s Transnet-operated ports. Transnet says ‘poor weather, equipment breakdowns, and shortages’ are to blame. But South Africans know ‘mismanagement, corruption, and a lack of maintenance’ are closer to the truth.

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The private sector

Of course, the private sector has, over many years, tried to engage Transnet constructively, warning it about impending doom over incompetence and ineptitude. As they should have known, however, these warnings fell on deaf ears. Business naïvety about the nature of government in South Africa will only continue to produce disappointment.

In December 2023, government extended Transnet a R47 billion guarantee facility, which – if I am to recklessly speculate – will yield absolutely no substantive improvement in how this state company is run.

Transnet is dead.  

Despite this, some well-meaning people dream dreams of resurrecting and reforming it into a well-run institution. Banish the thought.

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Take the port

The Port of Durban, arguably South Africa’s most important harbour, is located in a municipality and a province that are firmly, for the time being, governed by the same people who have run Transnet into the ground.  

Further afield, the Port of Cape Town is located in an opposition-controlled municipality and province that, by all accounts, perform significantly better in terms of basic governance and resistance against the temptations of corruption. The port, of course, is nonetheless run by Transnet.

Handwringing about just how bad the port is operated impresses nobody. A strong federalist posture is called for.

The City and Province should roll up their sleeves and do something about the disaster. One or both of these authorities should requisition the port from Transnet and operate it indefinitely, at least until Transnet is reformed (ha ha).

‘But that would be against the law!’ I hear someone cry.

‘The law’ is a very big term to use so casually. For, indeed, it might be against ‘a law’ but allowed by another.

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Necessity

Enter the well-established (but not well-developed for this context) doctrine of necessity, long recognised and applied in South African law. Necessity, basically, is a legal defence against an accusation of unlawful conduct.  

Necessity, for example, is what people use to protect themselves against lawsuits if they had to break open locked car windows to save pets or even children succumbing to heatstroke.  

As one author explains, ‘Necessity is a defence to both the criminal law and the civil law, that is, if an action was “necessary” to prevent a greater harm, that can be used to avoid both criminal and civil liabilities.’

For this defence to be successfully invoked, the defendant must show that the damage they caused was less than the harm that would have resulted if they did not take action; that the defendant reasonably believed that the action was necessary to prevent such harm; that there was no practical alternative to avoid the harm; and that the defendant did not themselves instigate the harm.

It seems that either the City of Cape Town or the Western Cape Province would relatively easily be able to utilise necessity as a defence after taking over management of the Port of Cape Town.

As I see it, it would need to take at least the following steps:

1. Documenting, in fine detail, the harm caused by the current administration of Transnet. No stone must be left unturned.

2. Declare intergovernmental disputes in whatever available channels and allow reasonable (not unlimited) time for those processes to play out. These initiatives will fail.

3. Take over the port as a matter of necessity.

Some kind of legal action (whether constitutional or criminal) will then be taken by the central government, which will inevitably end up in court.  

Here, the City or Province must utilise items (1) and (2) as evidence and (3) as a defence. It is key that the City or Province retain control of the port during the lawsuit, as incumbent possession is a powerful factor in litigation. Taking some notes from the Jacob Zuma school of litigation will also be fruitful, as it will allow a lot of ‘water to flow under the bridge’ before the matter reaches the apex court.  

When it does reach a final hearing in that court – hopefully in many months or even years – it must be clear that the port’s functioning has improved significantly and substantially after the new management stepped in.

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Or build a port – but do not do nothing!

The far better option, and my preference, is for the City and Province to build their own, world-class port, and leave Transnet to continue showing the world the fruits of African National Congress governance.  

It is more expensive to build an entirely new port, but ultimately less messy and risky than seizing the port or – unacceptably – doing nothing. Given that there is considerable international demand for a functional port in South Africa, it should not be particularly difficult to secure funding for such a venture if it is undertaken seriously and not half-heartedly.

Whatever the case, it is time for conscientious opposition governments to move beyond merely asking parliamentary questions and sending polite letters of request to Transnet or the President. That is passivity – the ‘comfort zone’ in which opposition politicians thrive. For South Africa’s sake, a determined, action-orientated federalist movement must take hold instead.

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