Take the harbor or build a new one

Henry

The municipal and provincial governments of Cape Town and the Western Cape, and the party that governs them, the DA, are dissatisfied with how Transnet operates the port of Cape Town. There is a lot of complaining, with very little action to correct it. The city or county should either take the port or build their own, but it doesn’t look good to just do nothing.

By October 2023, Transnet’s incompetence and lack of capacity was costing South Africa around R1 billion per day. The South African government wanted the World Bank to inject $1 billion (about R18.6 billion) into 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 them back.

That same November, FNB’s Wayne McCurrie speculated that the Transnet crisis was even more catastrophic for South Africa than the collapse of reliable electricity from Eskom.

International shipping companies such as Maersk and MSC have since last year already started charging cargo owners a surcharge per container when they are shipped to South Africa’s Transnet-controlled ports. Transnet says “bad weather, equipment breaking down and shortages” are to blame. But South African citizens know “mismanagement, corruption and a lack of maintenance” is closer to the truth.

Private sector

Of course, over many years the private sector has tried to engage Transnet constructively and warn it of the impending punishment for incompetence and incompetence. However, as they should have known, these warnings fell on deaf ears. Business naivety about the nature of government in South Africa will only breed disappointment.

In December 2023, the government extended Transnet a guarantee facility of R47 billion, which – if I want to speculate recklessly – will produce absolutely no material improvement in how this state-owned company is run.

Transnet is dead.

Despite this, some well-intentioned people dream dreams of resurrecting and reforming it into a well-run institution. Let go of that thought.

Take the port

The port in Durban, probably South Africa’s most important port, is located in a municipality and a province which for the time being is firmly controlled by the same people who ran Transnet in the ground.

Further afield, the port of Cape Town is located in an opposition-controlled municipality and province that performs significantly better in all respects in terms of basic governance and resistance to the temptations of corruption. The port is of course still managed by Transnet.

Hand-wringing about how badly the port is run doesn’t impress anyone. A strong federalist attitude is required.

The city and province must roll up their sleeves and do something about the disaster. One or both of these authorities should claim 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 crying

“The law” is a very big term to use so casually – because it can indeed be against “a law”, but allowed by another.

Emergency

Enter the well-established (but not well-developed for this context) emergency doctrine, long recognized and applied in South African law. State of emergency is basically a legal defense against an accusation of illegal conduct.

For example, state of emergency is what people use to protect themselves from lawsuits if they had to break open locked car windows to save pets or even children who were succumbing to heat stroke.

As one author explains: “Emergency is a defense against both criminal law and civil law, that is, if an action was “necessary” to prevent a greater harm, which can be used to avoid both criminal and civil liability” .

For this defense to be successfully invoked, the defendant must demonstrate that the harm they caused was less than the harm that would have resulted had they not acted; that the defendant reasonably believed that the action was necessary to prevent such harm; that there was no practical alternative to avoid the damage; and that the defendant did not himself instigate the harm.

It appears that either the City of Cape Town or the Western Cape will relatively easily be able to use necessity as defense after the management of Cape Town Harbor has been taken over.

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

  1. Document, in minute detail, the damage caused by the current administration of Transnet. No stone should be left unturned.
  2. Declare intergovernmental disputes, in whatever channels are available, 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 emergency.

Some 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 use items (1) and (2) as evidence and (3) as a defence. It is key that the city or province retains control of the port during the lawsuit, as vested ownership is a powerful factor in litigation. Taking a few notes from the Jacob Zuma school of litigation will also be fruitful, as it will cause a lot of water to flow in the sea before the case reaches the High Court.

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

Or build a port – but don’t do anything!

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 ANC governance.

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

Whatever the case, it is time for conscientious opposition governments to go beyond simply asking parliamentary questions and sending polite letters of request to Transnet or the president. This is passivity – the “comfort zone” in which opposition politicians thrive. For the sake of South Africa, a determined, action-oriented federalist movement must instead take hold.