SIYAKHUPHUKA INVESTMENTS v PORTS REGULAR OF SOUTH AFRICA TRANSNET SOC & OTHERS (5520/2016)

In a recent judgment handed down on 16 September 2022 in the case of Siyakhuphuka Investment Holdings (Pty) Ltd v Ports Regulator of South Africa Transnet SOC and Others (5520/2016), involving Siyakhuphuka Investment Holdings (Pty) Ltd, as Applicant, and Transnet National Ports Authority, as a division of Transnet (SOC) Ltd as the Second Respondent, the Applicant brought a legal challenge regarding Transnet National Ports Authority as a division of Transnet (SOC) Ltd conducting the business of and operating as the National Ports Authority of South Africa.

The court dismissed the Applicant’s challenge and found that the activities of Transnet are divided into several business units, one of which is the National Ports Authority of South Africa, which is tasked with the administration and regulation of ports in South Africa. Section 3(2) and (3) of the National Ports Act 12 of 2005 (“the Act”) provides that as soon as the Act takes effect the Minister of Public Enterprises must ensure that the necessary steps are taken for the incorporation of the National Ports Authority of South Africa as a company under the name “National Ports Authority (Pty) Ltd”, with Transnet as the sole member and shareholder. Although the Act commenced on 26 November 2006, this has not yet occurred.

The “Authority” is defined in section 1 of the Act as “National Ports Authority Ltd”, contemplated in section 4. In terms of Section 3 the National Ports Authority, from the date the Act comes into effect until the date when National Ports Authority (Pty) Ltd becomes its successor, is for all purposes deemed to be the Authority and must perform the functions of the Authority as if it were the Authority.

The functions of the Authority are set out in Section 11 of the Act, with its main function being to own, manage, control and administer South Africa’s commercial maritime ports, and to ensure their efficient and economic functioning. The Authority also has the power to maintain and improve port infrastructure and to undertake port development in terms of a port development framework plan prepared and updated from time to time by the Authority. The Authority controls land use, with the mandate to lease land, and must ensure that adequate, affordable and efficient port services and facilities are provided.

Despite the court dismissing the Applicant’s legal challenge in respect of Transnet National Ports Authority as a division of Transnet (SOC) Ltd conducting the business of and operating as the National Ports Authority of South Africa, it is uncertain whether the Applicant may apply for and/or obtain leave to appeal against the judgment, in which event the challenge may still be adjudicated upon, and if the Applicant obtains leave to appeal there is a risk that a Court on appeal may find that Transnet National Ports Authority is not the proper and lawful Authority in terms of the National Ports Act, 12 of 2005.