Ports authority has been acting illegally
The National Ports Authority has been running the country’s eight commercial ports unlawfully for 15 years and every contract it has signed since 2006 is open to challenge, the Ports Regulator has found. According to Rapport, the regulator and government actively tried to hide the ruling made in 2016, but were forced to reveal it during a court challenge.
The report notes that the ruling’s implication may not only deprive Transnet, which currently runs the authority as a division of Transnet, of significant income, but it may impact on trade through the ports. The regulator found that the National Ports Act, which came into effect in 2006, explicitly required the authority to be an independent and separate body.
There is a clear conflict of interest for Transnet. According to the regulator, the board was constituted unlawfully, the appointment of the chief executive was unlawful and the government should be aware that a barrage of legal challenges is possible as a result. The regulator's ruling came to light in a case brought by Siyakhuphuka Investment Holdings in the KZN Natal High Court.
Siyakhuphuka says it proposed additions to the Richards Bay port in 2008, but the proposal was rejected, only to be implemented the following the year through Transnet’s own subsidiary building infrastructure at ports. Siyakhuphuka had applied for access to the regulator’s ruling, but the regulator said the ruling was confidential and unrelated to the legal challenge.
The court disagreed and ordered the release of the report.
Siykhuphuka has now amended its court papers for the main case. The regulator’s operational head, Mahesh Fakir, confirmed last week that the government is yet to act on its findings of 2016. Fakir says Public Enterprises Minister Pravin Gordhan gave the regulator an undertaking that the matter would be dealt with.
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