It has been speculated that the Transnet crisis is even more catastrophic for SA 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 SA’s Transnet-operated ports.

With this in mind, the Free Market Foundation’s Martin van Staden says the municipal and provincial governments of Cape Town and the Western Cape should either take control of the existing port or build its own new port in order to avoid a disaster.

Writing on the Daily Friend site, Van Staden points out the ‘well-established’ doctrine of necessity – long recognised and applied in SA law – is a legal defence against an accusation of unlawful conduct. It is explained as a defence in both criminal and civil law, and says if an action was ‘necessary’ to prevent a greater harm, that can be used to avoid both criminal and civil liabilities.

He says 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.’

For this to happen, says Van Staden, the city or province would need to take the following steps:

* Document, in fine detail, the harm caused by the current administration of Transnet.

* Declare intergovernmental disputes in whatever available channels and allow reasonable (not unlimited) time for those processes to play out.

* Take over the port as a matter of necessity.

Van Staden notes national government will take some kind of legal action (whether constitutional or criminal), which will inevitably end up in court. It is essential the city or province retains control of the port during the lawsuit, ‘as incumbent possession is a powerful factor in litigation’.

When it does reach a final hearing in the Constitutional 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.

However, he believes a better option is for the city and province to build its own, world-class port.

‘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 SA, it should not be particularly difficult to secure funding for such a venture if it is undertaken seriously and not half-heartedly.’ 

He adds for SA’s sake, ‘a determined, action-orientated federalist movement must take hold’.

Full opinion piece on the Daily Friend site