The year 2019 could be described as an annus horribilis for rail in South Africa, especially in the Western Cape — with train delays, vandalism, poor leadership and crippling arson attacks. In 2020, much more action needs to be taken to fix a struggling entity that many poor and working-class people depend on to get around, but first, answers are needed about whether the appointment of an administrator at the end of 2019 — after the interim board was fired — was legal.

Over the 2019 Easter Weekend, a fire ripped through Cape Town train station, causing extensive damage of R33-million, according to the Passenger Rail Agency of South Africa (Prasa). This is on top of a rail system in Cape Town that is notorious for delays, cancellations and exposing commuters to criminal activity.

Then in April 2019, in the heart of the election campaign, then Minister of Transport Blade Nzimande took a train trip and announced at Cape Town station that two new trains, manufactured in Nigel in Johannesburg, would be operational in the city. Described by Prasa as “The People’s Train” and as state-of-the-art, the trains were supposedly on their way to Cape Town, subject to testing. Two weeks before the elections, the announcement was labelled as an election stunt by #UniteBehind. That was April 2019, it’s now January 2020, 10 months after the train ride. So — where are these trains?

Skip forward a few months amid more delays, there was a new plan in place: fix operational issues and get eight new trains on the Cape rail network, announced by new minister Fikile “Mr Fix-It” Mbalula, who was appointed after the 2019 national and provincial elections.

In August, Mbalula announced that 10 new trains would be operational on the Cape Rail network. This meant in addition to the two new trains, an extra eight new trains would be operational. This has not materialised.

At a briefing in November 2019, following a horrific arson attack which caused damage of more than R16-million, Mbalula said it would be irresponsible for Prasa or him to announce when these trains would arrive, because if the trains did not arrive, commuters would be upset.

But commuters have every right to be upset. For the past 78 days and counting, there have been no trains operating on two of the Central Line’s busiest routes — Kapteinsklip (Mitchell’s Plain) and Chris Hani (Khayelitsha). Only the Lavistown (Bellville) line is operational on the Central Line. According to Metrorail Western Cape, the “Chris Hani/Kapteinsklip remains suspended indefinitely due to extensive vandalism”. When asked for comment, ministerial spokesperson Ayanda Allie-Paine referred Daily Maverick to Wednesday’s media briefing and also to Prasa on specific questions.

Read in Daily Maverick: Capetonians must wait at least six months for ‘broken’ Prasa to restore normal train services

While Mbalula and new Prasa administrator Bongisizwe Mpondo say there are plans to re-open the routes on the Central Line within six months, much more needs to be done, especially more co-operation between Mbalula’s department and the Western Cape government.

The province, which works with Prasa on the Rail Enforcement Unit (REU), called for Provincial Police Ombudsman JJ Brandt to investigate what MEC for Community Safety Albert Fritz calls the failure of the South African Police Services to investigate who is responsible for the sustained arson attacks on the rail system.

“SAPS cannot afford to respond ex-post-facto and must take a proactive approach to prevent attacks on our railway infrastructure,” said Fritz in a statement in January 2020.

Despite the DA-led government often stating that there are limitations to its powers as a provincial government, it has plans for legislation to address the rail crisis in the Western Cape. The Draft Western Cape Rail Transport Bill [2019], launched just before the 2019 national and provincial elections by former MEC for Public Works and Transport Donald Grant, went out for public comment in April 2019. At the time, Grant said:

“The draft legislation is in response to the very serious and urgent need to address the issues plaguing rail transportation in this province. The draft bill seeks to improve rail safety and rail service standards in the Western Cape and makes proposals on how this can be achieved.”

Nothing has happened since the draft bill went out for public comment. New MEC Bonginkosi Madikizela’s spokesperson Ntomboxolo Makoba-Somdaka explained the delay to Daily Maverick:

“The Department is considering the comments that were received from stakeholders, as well as legal opinions. Once these inputs have been fully considered, a way forward will be determined.”

Makoba-Somdaka also said, “given that the National Department of Transport and Prasa are primarily responsible for the Metrorail service in Cape Town, there is much that they could and should be doing to address the crisis”.

“National government needs to implement effective measures to turn around Prasa and secure and restore rail”.

“To date, national government’s efforts to address the crisis have been unsuccessful and the situation continues to deteriorate. It has been reported that it will take up to six months for the Central Line to be restored and, therefore, the National Department should be actively working with the department, the City of Cape Town and Prasa to develop and implement a plan to address the implications of this on the City’s transport network and especially for those who relied on these services to access opportunities.”

Could Mpondo’s appointment as administrator be illegal?

Mpondo was appointed administrator by Mbalula in December 2019 after he fired the board and acting group CEO Nkosinathi Sishi. Over the following 12 months, Mpondo’s responsibilities include improving operations at the entity, addressing the Auditor-General’s findings on the poor financial performance by Prasa, ensuring effective consequence management and expediting the implementation of the modernisation programme.

However, before the national Department of Transport can come to the party on rail, Mbalula will need to appear before Parliament’s Standing Committee on Public Accounts (Scopa).

The watchdog’s chair, Mhkuleko Hlengwa, told Daily Maverick the minister and administrator need to appear before the committee to explain the responsibilities of the administrator over the next 12 months. In November 2019, the entity’s finances came under scrutiny before Scopa, with several committee members lambasting the interim board at the time, led by Khanyisile Kweyama, for the regression of Prasa’s finances and negligent record-keeping.

Hlengwa said:

“He (minister Fikile Mbalula) must now come with the administrator to come and explain the road ahead: there must be oversight in the 12 months that he is administrator.”

Read in Daily Maverick: ‘You are in a mess — a total mess,’ Scopa chair tells Prasa board

Referring to questions around the procedure applied to appoint the administrator, Hlengwa told Daily Maverick that although the committee was glad the board was no longer in place, Parliament’s legal advisers were instructing them “accordingly on the minister’s actions”. Daily Maverick’s Sikonathi Mantshantsha has reported that procedurally, Mpondo was not appointed by Parliament.

At the time, the department’s director-general Alec Moemi said the minister’s decision was based on the Public Finance Management Act (PFMA), the Public Service Administration Act and the Companies Act.

Civil society coalition #UniteBehind had, on the day of Mpondo’s appointment, raised the alarm on whether the appointment was legal as it took place without parliamentary approval. In a letter addressed to Mbalula, dated 10 December, #UniteBehind’s Zackie Achmat and Zukie Vuka state:

“We are concerned, however, whether the legal basis upon which you have ‘placed Prasa under administration’ is sound. Our legal advice is that there is no legal basis to appoint an administrator in the place of the board. There are two possible ways in which Prasa might be put under administration. The first is in terms of Section 29 of the Legal Succession to the South African Transport Services Act, which provides that the judicial management of Prasa may only be done on the authority of an Act of Parliament… It is therefore clear that an Act of Parliament is required to place Prasa under administration, which we understand has not been done.”

While there are issues over the legality of Mpondo’s appointment, ultimately it is commuters who wait for a better service, with commuters in Cape Town waiting for the Central Line to be opened. Mpondo and Mbalula have promised this line will be opened within six months, so there is nothing left to do but watch how events unfold. DM