Rail commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others (8232/2005) [2006] ZAWCHC 69; [2007] 1 All SA 279 (C); 2006 (6) SA 68 (C) (25 July 2006)

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[2006] ZAWCHC 69
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Rail commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others (8232/2005) [2006] ZAWCHC 69; [2007] 1 All SA 279 (C); 2006 (6) SA 68 (C) (25 July 2006)

REPORTABLE
IN THE SUPREME COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case Number 8232/2005
In the matter between:
THE RAIL COMMUTERS’ ACTION GROUP First Plaintiff
THE CONGRESS OF SOUTH AFRICAN
TRADE UNIONS Second Plaintiff
FORTY-NINE OTHERS Third to Fifty-first
Plaintiffs
and
TRANSNET LTD t/a METRORAIL First Defendant
THE SOUTH AFRICAN RAIL
COMMUTER CORPORATION LIMITED Second Defendant
THE MINISTER OF TRANSPORT Third Defendant
THE RAIL REGULATOR Fourth Defendant
________________________________________________________
JUDGMENT DELIVERED THIS 25th DAY OF JULY, 2006.
________________________________________________________
THRING, J.
:
This matter, or a matter closely related to it, has already come
before three Courts. In 2001 an application was launched in
this
Court which culminated in an order which was granted on the 6
th
February, 2003; the judgment is reported as
Rail Commuter Action
Group and Others v. Transnet Ltd. t/a Metrorail and Others (No. 1)
,
2003(5) SA 518 (C): I shall refer to the order made on that occasion
as “the order made in this Court.” The matter was then
dealt with
on appeal to it by the Supreme Court of Appeal; its judgments,
delivered on the 29
th
September, 2003, are reported
sub
nomine
Transnet Ltd. t/a Metrorail and Others v. Rail
Commuters Action Group and Others
, at 2003(6) SA 349 (SCA): I
shall refer to the order made by the majority of that Court as “the
order made in the Supreme Court
of Appeal”. Most recently the
matter was dealt with by the Constitutional Court on appeal to it
from the Supreme Court of Appeal.
On the 26
th
November,
2004 the Constitutional Court delivered a unanimous judgment which is
reported at 2005(2) SA 359 (CC): I shall refer
to it as “the
judgment of the Constitutional Court”, and to the order made by it
as “the Constitutional Court’s order”.
The factual and
procedural background of the matter appears in sufficient detail from
these judgments, and it is unnecessary to
repeat it here.
In this Court the then applicants sought, on motion, relief both of
a declaratory and a mandatory or interdictory nature. This
Court
granted much of that relief. Its order, in its relevant parts, reads
as follows (at 591C- 592A):
“1. It is declared that the manner in which the rail commuter
services in the Western Cape are:
provided by the first respondent, and
the provision thereof ensured by the second respondent insofar as
the provision of proper and adequate safety and security
services
and the control of access to and egress from rail facilities used
by rail commuters in the Western Cape are concerned
is not in the
public interest as contemplated in s 15(1) (insofar as first
respondent is concerned) and s 23(1) (insofar as
second respondent
is concerned) of the Legal Succession to the South African
Transport Services Act 9 of 1989 as amended.
It is declared that the first and second respondents have a legal
duty to protect the lives and property of members of the public
who
commute by rail, while they are making use of the rail transport
services provided and ensured by, respectively, the first
and second
respondents.
It is ordered as follows:
The first, second and third respondents are directed forthwith to
take all such steps (including interim steps) as are reasonably

necessary to put in place proper and adequate safety and security
services which shall include, but not be limited to, steps
to
properly control access to and egress from rail commuter facilities
used by rail commuters in the Western Cape, in order
to protect
those rights of rail commuters as are enshrined in the
Constitution, to life, to freedom from all forms of violence
from
private sources, to human dignity, freedom of movement and to
property.
The several respondents are directed to present under oath a report
to this Court as to the implementation of para. 3.1 above
within a
period of four months from the date of this order.
The applicants shall have a period of one month, after presentation
of the aforegoing report, to deliver their commentary thereon
under
oath.
The respondents shall have a further period of two weeks to deliver
their replies under oath to the applicants’ commentary.
4. First respondent is interdicted and restrained from operating rail
commuter services in the Western Cape otherwise than in accordance

with the terms of its general operating instructions.”
(There follow certain further orders in paragraphs 5 and 6 as to
discovery and costs which are not material to the present
proceedings.)
In the Supreme Court of Appeal the then first to third respondents
were successful on appeal (this Court had declined to grant
relief
against the fourth and fifth respondents). The order made in the
Supreme Court of Appeal reads (at 373 D-E):
“1. The appeal of the first to third respondents is upheld and the
applicants’ cross-appeal is dismissed.
The applicants’ appeal is dismissed.
Paragraphs 1 to 4 and 6 of the order of the Court below are set
aside and the following order is substituted therefor:
‘The application is dismissed’.”
In a further appeal to the Constitutional Court the then applicants
were partly successful, and partly unsuccessful. The Constitutional

Court’s order reads (at 411G – 412B (para [111])):
“It is ordered that:
The application for leave to appeal is granted.
The appeal is upheld and the order made by the Supreme Court of
Appeal is set aside, but the order of the High Court is not
reinstated, save for paras 6.3, 6.4 and 6.5 of the High Court order
dealing with costs.
It is declared that the first and second respondents have an
obligation to ensure that reasonable measures are taken to provide

for the security of rail commuters whilst they are making use of
rail transport services provided and ensured by, respectively,
the
first and second respondents.
4. The first and second respondents are, jointly and severally,
ordered to pay the costs of the applicants in these proceedings
in
the High Court, Supreme Court of Appeal and this Court, including the
costs of the ‘informal discovery’ and the postponements
in the
High Court, but excluding the costs of the applications to tender
further evidence in this Court, such costs to include
the costs of
three counsel.”
After the Constitutional Court had delivered its judgment, and on
the 24
th
August, 2005 the 51 plaintiffs in the present
matter issued summons in this Court against the four defendants. I
pause here to
mention that whilst the first plaintiff and eight of
the other plaintiffs were applicants in the proceedings in this Court
in 2001
and were parties to the subsequent appeals in the Supreme
Court of Appeal and the Constitutional Court, to which I have
referred,
the rest were not; nor was the present fourth defendant a
party in those proceedings.
In the present action the relief sought by the plaintiffs in their
particulars of claim falls into two categories, Part A and
Part B. In
Part A they all seek an order in terms whereof:
“1. It is declared that since 27 March 1997, the date on which the
Third Plaintiff – Rajap’s husband was injured, and up
to the
present time, First and Second Defendants have breached their
obligations to take reasonable steps, respectively to provide
for and
ensure the safety and security of rail commuters whilst they are
making use of rail transport services, in that they failed
to take
reasonable steps.....”
(There follows a description of 13 separate steps which the first and
second defendants are alleged to have failed to take.)
“2. It is ordered that:
First and Second Defendants are directed forthwith to take all such
steps, as are reasonable necessary to put in place proper
and
adequate safety and security services whilst commuters are making
use of rail transport services in the Western Cape, provided
and
ensured by, respectively, First Defendant and Second Defendant, in
order to protect the rights of commuters as are enshrined
in the
Constitution, which includes the rights to life, to freedom from
all forms of violence from private sources, to human
dignity,
freedom of movement and to property.
Reasonable steps as referred to under par. 2.1 above shall include,
but not be limited to the steps to address First and Second

Defendants’ failures listed from paras 1.1 to 1.13.”
(There follow prayers for a so-called structural
mandamus
,
prayers against the third and fourth defendants for orders compelling
them to monitor and advise the first and second defendants
in
implementing the terms of paragraph 2, and prayers for costs and for
alternative relief.)
The present action is brought as a class action. The plaintiffs say
in their particulars of claim that they represent the interests,
in
the Western Cape, of certain train commuters.
In Part B each of the plaintiffs who is alleged to have been injured
or otherwise adversely affected seeks damages in various amounts
from
the first and second defendants.
Without pleading over on the merits, the first and second
defendants have delivered a special plea of
res judicata
to
the plaintiffs’ action, as regards the relief claimed by them in
Part A. They aver that:
“The judgment and order of the Constitutional Court were a final
and definitive judgment and order on the merits of the matter,
and
the Constitutional Court was a competent court in respect of the
matter.”
and that:
“The relief claimed by the Applicants in the CPD application, and
the grounds therefor put up in the affidavits filed on behalf
of the
Applicants, are substantially the same as the relief claimed in part
A of the prayers in the Particulars of the Plaintiffs’
Claim in the
present action, and the grounds therefor pleaded by the Plaintiffs in
the action.”
They pray that:
“.....the claims set out in part A of the prayers of the
Particulars of the Plaintiffs’ Claim be dismissed, with costs.”
The first and second defendants also delivered an exception to the
plaintiffs’ particulars of claim, but this has been abandoned.
They have also delivered an application to strike out certain matter
from the plaintiffs’ particulars of claim on the ground
that such
portions of the particulars of claim are vexatious and/or irrelevant,
and that the first and second defendants are prejudiced
thereby. The
first and second defendants also apply for an order that separate
trials be held in respect of each of the claims
of the third to 51
st
plaintiffs inclusive for Part B relief.
Finally, there is a counter-application by 22 of the plaintiffs
(called Group 2 plaintiffs in the papers) who had already instituted

separate actions for damages when the present action was commenced,
for consolidation of each of their respective actions with
the
present action.
What must now be dealt with are the special plea and the
above-mentioned applications and counter-application.
The special plea of res judicata
In
African Farms and Townships Ltd. v. Cape Town Municipality
,
1963(2) SA 555 (AD)
Steyn, C.J.
succinctly stated the rule as
follows at 562 C-D:
“The rule appears to be that where a court has come to a decision
on the merits of a question in issue, that question at any
rate as a
causa petendi
of the same thing between the same parties,
cannot be resuscitated in subsequent proceedings.”
See, also,
Horowitz v. Brock & Others
, 1988(2) SA 160 (AD)
at 178 H-J.
Cardinal to the success of the plea of
res judicata
is the
defendants’ contention that the judgment of the Constitutional
Court was final or definitive of the issues which are now
sought to
be raised by the plaintiffs in seeking Part A relief. As was said by
Hoexter, A.C.J.
in
S. v. Moodie
, 1962(1) SA 587(AD) at
596 E-F:
“....I am of opinion that in our common law the
exceptio rei
judicatae
cannot succeed unless it is based on a final judgment
on the merits.”
See, also,
Custom Credit Corporation (Pty.) Ltd. v. Shembe
,
1972(3) SA 462 (AD) at 472 A-E. Thus a judgment or order which does
not have the effect of settling or disposing of the dispute
between
parties with finality cannot found the
exceptio rei judicatae
.
Such would be, in an action, an order of absolution from the
instance: See
Joubert, LAWSA
, 2
nd
Ed. Vol. 9
paragraph 628. There was much debate during the argument before us as
to whether an order dismissing or refusing a plaintiff’s
or an
applicant’s claim was final and definitive in its effect, or
whether it was equivalent in its effect only to an order of

absolution. However, in the view which I take of this matter it is
not necessary to decide this question.
It is, of course, the judgment and order of the Constitutional
Court which are of central importance in deciding the special
plea.
They must be properly construed so as to determine whether or not
they finally or definitively disposed of the issues now
raised in the
plaintiffs’ particulars of claim. In
Firestone South Africa
(Pty.) Ltd. v. Genticuro AG
., 1977(4) SA 298 (AD)
Trollip,
J.A.
said at 304 D-E:
“First, some general observations about the relevant rules of
interpreting a court’s judgment or order. The basic principles

applicable to construing documents also apply to the construction of
a court’s judgment or order: the court’s intention is
to be
ascertained primarily from the language of the judgment or order as
construed according to the usual, well-known rules.”
Nicholas, A.J.A.
, as he then was, elaborated somewhat on this
principle in
Administrator, Cape and Another v. Ntshwaqela and
Others
, 1990(1) SA 705 (AD), where he said at 715F - 716C:
“In
Firestone South Africa (Pty.) Ltd. v. Genticuro AG
.,
1977(4) SA 298 (A) Trollip JA made some general observations about
the rules for interpreting a Court’s judgment or order.
He said (at
304D-H) that the basic principles applicable to the construction of
documents also apply to the construction of a Court’s
judgment or
order: the Court’s intention is to be ascertained primarily from
the language of the judgment or order as construed
according to the
usual well-known rules. As in the case of any document, the judgment
or order and the Court’s reasons for giving
it must be read as a
whole in order to ascertain its intention. If on such a reading, the
meaning of the judgment or order is clear
and unambiguous, no
extrinsic fact or evidence is admissible to contradict, vary,
qualify, or supplement it. Indeed, in such a
case not even the Court
that gave the judgment or order can be asked to state what its
subjective intention was in giving it. But
if any uncertainty in
meaning does emerge, the extrinsic circumstances surrounding or
leading up to the Court’s granting the
judgment or order may be
investigated and regarded in order to clarify it.
.............................................
......the order with which a judgment concludes has a special
function: it is the executive part of the judgment which defines
what
the Court requires to be done or not done, so that the defendant or
respondent, or in some cases the world, may know it.
It may be said that the order must undoubtedly be read as part of the
entire judgment and not as a separate document, but the Court’s

directions must be found in the order and not elsewhere. If the
meaning of an order is clear and unambiguous, it is decisive, and

cannot be restricted or extended by anything else stated in the
judgment.”
With these principles in mind, I turn to consider the judgment and
order of the Constitutional Court.
Commencing with the order: it records and directs,
inter alia
,
that the appeal against the judgment of the Supreme Court of Appeal
is upheld, and that the order made by that Court is set aside.
The
latter order included a direction that paragraphs 1 to 4 and 6 of the
order made in this Court be set aside, and that an order
be
substituted therefor that “the application is dismissed”. The
effect of the Constitutional Court’s order, when it set
aside the
order made in the Supreme Court of Appeal, is, as a matter of logic,
that the order made in this Court that the application
be dismissed,
as substituted by the Supreme Court of Appeal, was ultimately set
aside by the Constitutional Court. What, if anything,
was ordered by
the Constitutional Court to be substituted for the dismissal order?
The Constitutional Court reinstated certain
portions of the costs
order which had been made in this Court. It then proceeded to grant
relief in paragraphs 3 and 4 of its own
order, which relief was
couched as relief granted by the Constitutional Court itself, in its
own right, so to speak, rather than
as relief which ought to have
formed part of this Court’s initial order. As for the order
originally granted in this Court, other
than, as I have said, to
order that certain portions of the order dealing with costs be
reinstated, the Constitutional Court did
not see fit to direct what
order, if any, should be substituted for it. Instead it merely
ordered that “the order of the High
Court is not reinstated.”
From this, logic leads one to the conclusion, at least
prima
facie
, that the dismissal of the application as ordered by the
Supreme Court of Appeal having been set aside, but the original order
of this Court not having been reinstated (save in respect of certain
portions of the order dealing with costs), nothing of the original

order (save the aforesaid portions dealing with costs) was left
standing by the Constitutional Court, and nothing was substituted
for
what had not been reinstated. A sort of vacuum was thus created. The
net effect of the Constitutional Court’s order would
then be that
(again save for the reinstatement of parts of the costs order) no
order was made in this Court. This effect was, however,
tempered by
the order made by the Constitutional Court in its own right, as it
were, in paragraphs 3 and 4.
Even if paragraph 3 of the Constitutional Court’s order is
construed as being, in effect, a reinstatement, with variations,
of
paragraph 2 of the order made in this Court (although it is couched
in different and wider terms), the effect of the Constitutional

Court’s order remains that no order was made as regards any of the
other relief initially claimed by the then applicants and
granted in
this Court.
That, as I say, seems to me, on analysis, to be the
prima facie
logical meaning and effect of the Constitutional Court’s order. If
this construction is correct, it cannot be said that the order
is
final or definitive of the issues which are now raised by the
plaintiffs in their particulars of claim in seeking Part A relief.

This is because, on this construction of the Constitutional Court’s
order, there has as yet been no final or definitive judgment
on any
of the relief, declaratory, mandatory or otherwise prayed for by the
plaintiffs in Part A of their particulars of claim:
even as regards
the declaratory relief that the first and second respondents have an
obligation to ensure that reasonable measures
are taken to provide
for the security of rail commuters, which was granted by the
Constitutional Court in paragraph 3 of its order,
the plaintiffs do
not now seek a repetition or variation of it; they merely plead it
almost
verbatim
in section E of their particulars of claim,
seek to add content and particularity to it, and allege, in section
G, that the first
and second defendants and/or their employees have
breached their obligations in various respects.
So much for the order itself, as made by the Constitutional Court.
I bear in mind, as I am enjoined to do by the judgment in
Administrator, Cape and Another v. Ntshwaqela and Others
,
supra
,
loc. cit.
that the order of a Court has a
special function: it is the executive part of the judgment; it
defines what the Court requires
to be done or not done; and that,
although it must undoubtedly be read as part of the entire judgment,
and not as a separate document,
if its meaning is clear and
unambiguous it is decisive, and it cannot be restricted or extended
by anything else stated in the
judgment. To my mind, and for the
reasons which I have mentioned, the meaning and effect of the
Constitutional Court’s order
are logically clear and unambiguous,
and the order does not, on the face of it, constitute a final or
definitive decision of any
of the issues now raised by the plaintiffs
in their particulars of claim in seeking Part A relief.
However, Mr.
Newdigate
who, with Mr.
Masuku
, appears
for the first and second defendants, contends that the Constitutional
Court’s order must be construed differently. With
diligent care,
eloquence and cogent persuasive force he has endeavoured to persuade
us to find, in effect, that the Constitutional
Court’s order is
tantamount to an order that, save for the declaratory relief granted
by it in paragraph 3 of its order and the
costs orders granted by it
in paragraph 4 and reinstated in paragraph 2, all the relief which
had been sought by the then applicants
in this Court was, by
implication, refused; that, save as aforesaid, their application was
finally, definitively and dispositively
dismissed by the
Constitutional Court on its merits; and that the Constitutional Court
intended, by its judgment and order, that
the then applicants should
depart and be content with the declaratory and costs orders which had
ultimately been awarded to them;
moreover, that they should be
precluded in perpetuity from seeking from any Court the rest of the
relief now claimed by them. He
invited us to examine the judgment as
well as the order. This I shall now proceed to do, and to consider
whether what was said
in the judgment disturbs my
prima facie
view of the construction to be placed on the order, which I have
attempted to set out above.
Mr.
Newdigate
referred to several passages in the judgment
of the Constitutional Court in this regard. The first of these which
I shall deal
with appears at 393 C-E (para. [55]). It reads:
“There can be no doubt also that the SCA was correct in concluding
that there were genuine disputes of fact raised on the papers
on the
following issues which must accordingly, in the light of the rule in
Plascon-Evans
, be dealt with on the basis of the respondents’
versions:
Whether the first respondent was performing its contractual
obligations owed to the second respondent under the Service
Agreement;
whether improved access and egress control would reduce crime on
trains;
and
(c) whether the first and second respondents were contravening the
general operating instructions by allowing trains to travel
with open
or no doors.”
Mr.
Newdigate
contended that this passage indicates that, on
these issues at least, the Constitutional Court accepted the versions
of the facts
put forward by the respondents and, in effect, decided
those issues finally and definitively in their favour.
However, as regards issue (a) referred to in this passage, it has not
been raised by the plaintiffs again in their particulars
of claim in
the present action: there is consequently no issue in this regard in
the present action to which the plea of
res judicata
can be
raised.
As to issue (b), much the same applies; for a footnote to the
passage (footnote 66) states that:
“It should be noted that the applicants no longer seek relief in
this Court on this score.”
This issue consequently fell away and became irrelevant in the
proceedings before the Constitutional Court:
res judicata
can
therefore not apply to it.
As for issue (c), the passage from the judgment of the
Constitutional Court which I have quoted above must be read with the
following passage which appears later in the same judgment, at 409
E-G (para. [104]):
“The SCA held that the High Court erred in granting an interdict in
circumstances where it had not found that there was a general

practice of operating the trains in conflict with the general
operating instructions. In my view,
one cannot determine on the
record before us
how widespread or severe the practice of
travelling with doors open is. The general allegations made in this
regard are contradicted
by the respondents’ deponents, though their
own video evidence suggests that in at least some cases, trains do
travel with doors
open. There is no explanation from the respondents
to explain the video footage. It may well be that the video footage
does not
represent a general practice,
but we have no way of
determining that
.” (My emphasis.)
From the latter passage it would appear that the Constitutional Court
found itself unable, on the record before it, to determine
“how
widespread or severe the practice of travelling with doors open is”,
as “the general allegations made in this regard
are contradicted by
the respondents’ deponents......” For this reason the
Constitutional Court had “no way of determining”
whether the
respondents’ video footage represented “a general practice”. It
was on this basis that the Constitutional Court
went on to conclude
at 409G (para. [105]) that:
“In the light of the dispute of facts on the record, I am not
persuaded that it is appropriate to grant the applicants the relief

they seek in this regard.”
Whilst it is somewhat difficult to reconcile these passages in the
Constitutional Courts’ judgment with one another when they
are
examined together, I do not consider that it can be said, as Mr.
Newdigate
submitted, that it was the intention of the
Constitutional Court to decide once and for all that on issue (c) the
version of the
facts advanced by the respondents was to be accepted
as true, and that that advanced by the applicants was to be rejected
as false.
Had that been the Court’s intention, one would not have
expected to find the question “how widespread or severe the
practice
of travelling with doors open is” left open: the
Constitutional Court would simply have accepted the respondents’
version;
but it seems that it was not prepared to do that; for
instead, it left the question unanswered.
My understanding of these passages is fortified, in my view, by the
words in which the Constitutional Court couched paragraph
[105] of
its judgment: instead of “refusing” or “dismissing” the
applicants’ application, the Court merely declined to
grant them
relief, finding that it was not persuaded that it was “appropriate”
to do so “(i)n the light of the dispute of
facts on the record”.
Indeed, nowhere in the judgment or the order of the Constitutional
Court is it said in so many words that
any part of the applicants’
application is refused or dismissed; instead there are several
indications that the Court was not
prepared to make findings where
there were disputes of fact, e.g. in the following passage at 394 G-I
(para. [59]):
“There is no real dispute that crime is a problem on the trains.
The precise ambit of that problem, the methodology that should
be
used to measure it, such as the Metrorail Crime Index, and the
question of whether there is more crime on trains than elsewhere
are
all in dispute. But I cannot see that much turns for the
determination of this case on those disputes. The relevant fact for

our purposes is that there is a problem with crime on trains. I can
reach this conclusion without resolving the other disputes
of fact
that I have mentioned and without determining the facts of any of the
particular crime incidents aired on the papers.”
And, again, at 406 G-I (para. [94]):
“There are a range of factual disputes on the papers as to what
steps have been taken by them in relation to annexure 6. It is
also
clear that the situation is not static. Indeed, the term of the
validity of the Service Agreement and annexure 6 was due to
end on 31
March 2003, though it still appears to be regulating the relationship
between Metrorail and the Commuter Corporation.
Much water has flowed
under the bridge since the time the record was completed in mid-2002.
In the circumstances, it does not seem
that much purpose will be
served by a determination of whether the respondents’ conduct in
2002 in meeting their obligations
was reasonable or not.”
And, again, at 410H – 411B (para. [109]):
“The applicants also sought an order in which this Court would put
Metrorail and the Commuter Corporation on terms to take steps
to
implement that order. While such an order is no doubt competent, I am
not persuaded that it is an appropriate order in the circumstances
of
this case. There is nothing to suggest on the papers that Metrorail
and the Commuter Corporation will not take steps to comply
with the
terms of the order.”
In short, the language used by the Constitutional Court in its
judgment and order is redolent, as regards disputed questions of

fact, of absolution from the instance or of an unwillingness on its
part to make an order rather than of any attempt to resolve
such
disputes one way or the other.
Then Mr.
Newdigate
referred to the following passage at 395
C-E (para. [61]) of the judgment of the Constitutional Court:
“I turn now to consider the merits in relation to the relief sought
by the applicants. The first question that arises for consideration

is the following: Are any or all of the respondents under an
obligation to provide for the safety and security of commuters on

Metrorail trains in the Western Cape? Specifically, does such an
obligation arise from either the provisions of the SATS Act or
the
provisions of the Constitution? I shall consider these questions
first. Thereafter I shall consider whether on the facts established

in this case, if any of the respondents are under such an obligation,
it is an appropriate case in which declaratory or mandatory
relief
should be granted. The final question to be considered will be
whether the applicants are entitled to the relief restraining

Metrorail from operating the commuter rail service in breach of its
general operating instructions.”
The “first question that arises for consideration” as set out in
this passage was decided by the Constitutional Court on the

undisputed facts; that decision formed the basis for paragraph 3 of
its order; I have dealt with it above. In the sentence commencing

with the words, “Thereafter I shall consider ....” it is, to my
mind, highly significant that what is stated to be the question
is
not whether or not the applicants’ application should be granted,
refused or dismissed, but rather “whether .... it is an
appropriate
case in which declaratory or mandatory relief should be granted”.
Again, that is the language of absolution, or of
a Court which is not
prepared to make an order. The same applies, it seems to me, to the
last sentence in this passage, commencing
with the words, “The
final question to be considered ....” What is to be considered is,
again, not whether or not the application
should be refused or
dismissed, but rather whether the applicants “are entitled to the
relief.....” In any event the plaintiffs
do not seek this relief
in their particulars of claim. It is consequently irrelevant for the
purpose of the special plea.
Finally, Mr.
Newdigate
relied on the following passage at
405 F-G (para. [90]) of the judgment of the Constitutional Court,
which deals with whether the
first and second respondents complied
with their obligations by concluding a certain service agreement with
one another, and with
the security guards and security companies
employed by the first respondent, and with the activities of such
security guards:
“There are disputes of fact in relation to the detail of these
matters and particularly in relation to the activities of security

guards and the methods adopted for them to report crime. In relation
to these disputes, the version of the respondents needs to
be
accepted.”
However, as I understand it this passage does not form the basis for
a finding that the applicants’ application should be refused
or
dismissed on its merits. On the contrary, it seems to me to be
clear from the subsequent passage at 406 G-I (para. [94]) of
the
judgment, which I have quoted above, and which deals with the same
service agreement, that because “(m)uch water has flowed
under the
bridge since ... mid-2002”, it “ does not seem that much purpose
will be served by a determination of whether the
respondents’
conduct in 2002 in meeting their obligations was reasonable or not.”
Again, that is the language of absolution,
or of a Court declining to
make an order, rather than that of refusal or dismissal of an
application on its merits.
Mr.
Newdigate
also pointed out that in their notice of
application in terms of Constitutional Court Rule 19 for leave to
appeal to that Court
against the decision of the Supreme Court of
Appeal the then applicants sought,
inter alia
, an order which
would, in effect, reinstate the initial order which had been made in
their favour in this Court; and that, in its
order (at 411 H (para.
[111])) the Constitutional Court said:
“..... but the order of the High Court is not reinstated, save for
....”
This, he submitted, was tantamount to a refusal of the relief sought
by the applicants in the Constitutional Court, save as regards
those
aspects in respect of which relief was granted.
There would, I think, have been more merit in this argument had the
Constitutional Court been sitting as a Court of first instance;
but
of course it was not: it was exercising purely appellate
jurisdiction. Primarily, the function of the Constitutional Court
was
therefore to decide whether or not the decision of the Supreme Court
of Appeal was correct and sustainable in law. The Constitutional

Court held that it was not, and it therefore upheld the applicants’
appeal and set aside the order made in the Supreme Court
of Appeal.
That included the order of the Supreme Court of Appeal that “the
application is dismissed”. The next question which,
logically,
arose for consideration was what order the Supreme Court of Appeal
ought, then, to have made. In the absence of any
other order, the
effect of the Constitutional Court’s order would have been
automatically to revive this Court’s order. Alternatively,
the
Constitutional Court could, had it wished, have ordered that, save to
the extent stipulated in its own order, the relevant
portions of the
order made in this Court should be set aside, and an order
substituted therefor to the effect that the application
was refused
or dismissed. Had it done so, the defendants’ present contentions
would have had greater cogency. But it chose not
to make such an
order. Instead, it merely declined to order the reinstatement of this
Court’s order, save in certain stipulated
respects. That, again, is
the language of absolution, or of a Court declining to make an order,
rather than the language of refusal
or dismissal.
In the result, the judgment of the Constitutional Court:
Contains no definition of the precise content, in practical terms,
of the first and second respondents’ “obligation to ensure
that
reasonable measures are taken to provide for the security of rail
commuters ...”;
Contains no finding that the respondents have or have not breached
their obligations in any way in the past;
Contains no finding as to whether or not facts exist such as to
justify the granting or refusal of the mandatory or interdictory

relief sought by the applicants, or of a structural mandamus;
Contains no finding as to whether or not facts exist such as to
justify the granting or refusal of the prohibitory relief sought
by
the applicants (i.e. the order sought by them prohibiting the first
respondent from operating rail commuter services in the
Western Cape
otherwise than in accordance with the terms of its general operating
instructions).
It can be assumed that the Constitutional Court is perfectly familiar
with the Rules and practice of this Court. Of high significance,
to
my mind, is the absence from the Constitutional Court’s judgment
and order of any overt suggestion that, as provided for in
Uniform
Rule 6(5)(g) of this Court, the correct order for this Court to have
made at first instance was to have dismissed the applicants’

application on the ground that it could not properly be decided on
affidavit: see
Tamarillo (Pty.) Ltd. v. B.N. Aitken (Pty.) Ltd
.,
1982(1) SA 398 (AD) at 430 G-H. Yet this is the effect which Mr.
Newdigate
invites us to attach to the judgment and order of
the Constitutional Court. However, when Courts non-suit litigants on
this basis
they can be expected, I think, to have the courage of
their convictions and to say so in clear and unambiguous language, so
that
the parties will know where they stand, and why, rather than
leaving it to them to winkle out the true meaning of the order from

obscurity. All the more is this so in the case of the Constitutional
Court, now the most elevated tribunal in the country. I am
satisfied
that, had the Constitutional Court intended to make an order in such
terms it would have done so with much greater clarity
than emerges
from the words in which its judgment and order are expressed.
I am further fortified in my above conclusion by the costs order made
by the Constitutional Court in paragraph 4 of its order.
Save for
certain of the costs in that Court, the applicants were awarded all
their costs in this Court, in the Supreme Court of
Appeal and in the
Constitutional Court. I find such an order very difficult, if not
impossible, to reconcile with the interpretation
now sought to be
placed on the Constitutional Court’s judgment and order by the
first and second defendants. According to that
interpretation, the
applicants were substantially unsuccessful in obtaining most of the
relief which they had sought, certainly
for practical purposes: in
particular, the mandatory and interdictory relief had all been
refused on its merits, according to the
defendants, and the
declaratory order made in paragraph 3 of the order would have been
but cold and academic comfort to them. Moreover,
according to the
defendants’ interpretation, the applicants were precluded by the
order from ever approaching any Court again
for such mandatory or
interdictory relief, or for a declaratory order defining the precise
content of the first and second respondents’
obligation. In the
face of such massive defeat the costs order would be, to say the
least, surprising.
My
prima facie
view of the meaning and effect of the
Constitutional Court’s order is confirmed rather than disturbed by
the content of its judgment.
There is, in my opinion, a further flaw in the special plea. One of
the requisites of a plea of
res judicata
is that the matter
adjudicated upon must have been between the same parties (
Horowitz
v. Brock and Others
,
supra
,
loc. cit
):
idem
actor, idem reus
. As I have said, of the 51 present plaintiffs
only nine were applicants in the earlier proceedings: the remaining
42 were strangers
to that application; indeed, in the case of
plaintiffs 45 to 51 inclusive, their causes of action (in the sense
of the incidents
which allegedly caused them to sustain damages)
allegedly arose after the Constitutional Court had delivered its
judgment; and
in the case of plaintiffs 32 to 44 inclusive, their
causes of action (in the same sense) arose only after all the facts
which were
placed before this Court, the Supreme Court of Appeal and
the Constitutional Court had already occurred. It was contended on
behalf
of the first and second defendants that this did not matter,
as both the application and the present action were brought as class

actions under section 38 of the Constitution, Act No. 108 of 1996. I
am unable to agree. For the plea of
res judicata
to succeed,
the parties concerned in both sets of proceedings must either be the
same individuals or “persons who are in law
identified with those
who were parties to the proceedings”:
Joubert, LAWSA
, Vol. 9
para. 637. Such persons must be privy to one another; and they must
derive their interest in the later proceedings from
the parties to
the earlier proceedings, such as, e.g. a deceased and his heir, a
principal and his agent, a person under curatorship
and his curator,
etc.:
Swadif (Pty.) Ltd. v. Dyke, N.O.
, 1978(1) SA 928 (AD) at
945 A – D;
Cassim v. The Master and Others
, 1960(2) SA 347
(D) at 355 C-D and
Joubert, LAWSA, loc cit.
I fail to see how
a party to one set of proceedings can be said to derive his interest
in the subject-matter of those proceedings
from another person who
was a party to other, earlier proceedings merely by virtue of the
fact that the first person happens to
belong to the same class of
persons as the second. Even if both sets of proceedings, as here, are
class actions, there seems to
me to be insufficient privity between
the 42 plaintiffs and applicants whose participation is not common to
both sets of proceedings
to found a successful plea of
res
judicata
, at least as far as they are concerned.
For these reasons I conclude that the special plea must be dismissed.
The application to strike out
The first and second defendants’ application to strike out is
aimed at certain passages in section D (historical background
prior
to litigation), the whole of section E (the first and second
defendants’ legal obligations and duties), and portions of
section
G (first and second defendants’ unlawful conduct) of the
plaintiffs’ particulars of claim. Although in the defendants’

notice of application in terms of Rule 23(2) the grounds on which the
application is brought are stated to be that the allegedly
offending
portions of the particulars of claim are vexatious and/or irrelevant,
in argument the attack was confined to irrelevance.
It is to be noted that Rule 23(2) stipulates that:
“.... the court shall not grant the same (i.e. an application to
strike out) unless it is satisfied that the applicant (for a

striking-out order) will be prejudiced in the conduct of his claim or
defence if it be not granted.”
It is also to be noted that a decision whether or not to strike out
is discretionary in nature: see
Stephens v. de Wet
,
1920 AD
279
at 282.
“Irrelevant”, for the purposes of the Rule, means irrelevant to
an issue or issues in the action: see
Stephens v. de Wet
,
supra
,
loc. cit
. and
Meintjes v. Wallachs Ltd.
,
1913 TPD 278
at 285. In the former of the two last-mentioned
decisions
Innes, C.J.
said at 282:
“...(T)he correct test to apply is whether the matter objected to
is relevant to an issue in the action. And no particular section
can
be irrelevant within the meaning of the Rule if it is relevant to the
issue raised by the plea of which it forms a part. That
plea may
eventually be held to be bad, but until it is excepted to and set
aside it embodies an issue by reference to which the
relevancy of the
matter which it contains must be judged.”
The Court will not concern itself with the validity or otherwise of
the claim, or whether it raises a cause of action: that may
be a
matter for exception. All that concerns the Court is whether or not
the passage or passages sought to be struck out is or
are relevant in
order to raise an issue on the pleadings: see
Erasmus, “Superior
Court Practice
”, B1 – 16I. In
Golding v. Torch Printing
and Publishing Co. (Pty.) Ltd. and Others
, 1948(3) SA 1067(C)
Ogilvie Thompson, A.J.
, as he then was, said at 1090:
“A decisive test is whether evidence could at the trial be led on
the allegations now challenged in the plea. If evidence on
certain
facts would be admissible at the trial, those facts cannot be
regarded as irrelevant when pleaded.”
In
Richter v. Town Council of Bloemfontein
,
1920 OPD 161
de
Villiers, J.P.
said at 173 – 174:
“It is further asked in the application that paragraphs 4 and 5 of
the declaration be struck out on the ground that they are
irrelevant
and superfluous. Now I must admit that it is not clear to me that
these paragraphs are relevant, but at the same time
I feel that it is
not impossible that they may become relevant in some way not yet
apparent. If there is that possibility it would
be proper to follow
the practice of the English Courts which is that an application to
strike out irrelevant matter in a pleading
will not be granted if a
doubt exists whether the matter is relevant or not (see
Blake
Odgers
, ‘Pleading and Practice’, Chap. VIII.) Even apart from
that, it is possible to regard both paragraphs 4 and 5 as mere
recitals
of the history of the case, and it therefore seems to me
that the paragraphs should be allowed to stand.”
And in
Ahlers, N.O. v. Snoeck
,
1946 TPD 590
de Villiers, J
.
said at 594:
“For the sake of clarity the history of a case is often permissible
as an introduction to allegations founding the cause of action.”
These principles must be applied to the present application.
Mr.
Newdigate
pointed out that in section D of the
plaintiffs’ particulars of claim (historical background prior to
litigation) extensive reference
is made to facts and circumstances
which existed in previous decades, going back as far as the 1950’s
and 1960’s; to the findings
of two commissions or committees of
enquiry, one of which reported in 1992 and 1993 and the other of
which dealt with certain events
which took place in 1996, and to
certain medical research which was conducted in 1992. These
averments, he submitted, were irrelevant,
as a matter of pleading, to
the relief claimed by the plaintiffs: they added nothing as a matter
of pleading to the issues between
the parties, and served only to add
what he called “clutter” to the particulars of claim. He argued
that they went beyond what
is permissible in the pleading of
irrelevant matter as history. As regards section E of the particulars
of claim ( first and second
defendants’ legal obligations and
duties) he contended that these aspects had been “fully dealt with
in the declaratory order
of the Constitutional Court” (he was
referring, I think, to paragraph 3 of that order). It was
consequently not open to the plaintiffs
to seek to “revisit” this
issue, as he put it. Parts of section G of the particulars of claim
(first and second defendants’
unlawful conduct) were attacked by
Mr.
Newdigate
for much the same reasons as the other parts
were objected to.
In the first place, much of what is pleaded in the allegedly
offending passages, especially those in section D of the particulars

of claim, is clearly history. Even if some of this may be regarded,
strictly speaking, as irrelevant, the pleading of history for
the
sake of clarification is permissible (
Ahlers
’ case,
supra
,
loc. cit
.). Moreover, even if the relevance of some of the
allegedly offending passages may not immediately be apparent, so that
doubt may
exist in this regard, it may be permissible for them to be
allowed to stand in anticipation of their relevance becoming apparent

at a later stage (
Richter’s
case,
supra
,
loc.
cit
.).
In some of the passages under attack, and especially in section D
of their particulars of claim, the plaintiffs have pleaded
a long
history of the conduct and state of knowledge of the first and second
defendants and of their precursors in function at
various times in
the past. In paragraph 2 of the Part A relief claimed by them, the
plaintiffs seek a mandatory interdict, in final
form, directing the
first and second defendants to take certain steps relating to the
provision of proper and adequate safety and
security for rail
commuters, including the steps listed in paragraphs 1.1 to 1.13 of
the Part A relief. In paragraph 1, it will
be recalled, the
plaintiffs seek a declaratory order that from the 27
th
March 1997 up to the present time the first and second defendants
have breached their obligations to take reasonable steps to provide

for and ensure the safety and security of rail commuters in that they
have failed to take the allegedly reasonable steps set out
in
paragraphs 1.1 to 1.13.
In order to succeed in obtaining the interdictory relief sought by
them in paragraph 2, it is trite that the plaintiffs will
have to
establish at the trial, as one of the requisites for such final
relief, an injury actually committed or reasonably apprehended:
see
Setlogelo v. Setlogelo
,
1914 AD 221
at 227. It seems to me to
be open to the plaintiffs, and to be perfectly legitimate, to plead
and attempt to prove at the trial
factual matter from which they
will, in due course, invite the trial Court to draw certain relevant
inferences from the past conduct
of the first and second defendants,
and of their precursors in function. Whether such conduct was lawful
or not is not, to my mind,
of any great moment: if certain evidence
of past conduct goes to show a likelihood of repetition of the same
or similar conduct
in the future, it will probably be relevant and
consequently admissible as showing a course of conduct. And if the
evidence is
relevant and therefore admissible, such facts “cannot
be regarded as irrelevant when pleaded” (
Golding’s
case,
supra
,
loc. cit
.).
The same applies, I think, to evidence which goes to show a
particular state of mind or knowledge on the part of the first and

second defendants or of their precursors in function: in my view it
is open to and legitimate for the plaintiffs to plead and attempt
to
prove at the trial what the state of mind or knowledge of the first
and second defendants (or that of their precursors in function)
was
at the time when they acted or failed to act in particular ways in
particular circumstances in the past; and to invite the
trial Court
to draw appropriate inferences from such evidence, including an
inference that the same or similar conduct will probably
be repeated
in the future, if an interdict is not granted.
Much of the matter objected to by the first and second defendants,
especially that in section D of the plaintiffs’ particulars
of
claim, seems to me to be directed at showing that the attention of
the first and second defendants, or of their precursors in
function,
was repeatedly drawn by various more or less official persons and
bodies to certain shortcomings over a long period,
and that they were
repeatedly warned of the necessity or desirability of taking certain
measures, but that, despite such knowledge
and warnings, the first
and second defendants and their precursors in function persisted in
their erstwhile conduct, much as before.
I do not say for a moment
that the plaintiffs will necessarily or even probably establish these
things: I have no idea whether
or not they will succeed in doing so.
But if that is the case which they wish to put up, I fail to see how
what they have pleaded
can be said to be irrelevant to that case, or
how they can be precluded from advancing their case by making the
relevant allegations.
Indeed, by making the relevant allegations they
are probably laying the foundation for a full and proper formulation
of the precise
issues which will arise for determination at the
trial, something which ought to be welcomed rather than discouraged.
Similarly, as regards the declaratory order sought by the
plaintiffs in paragraph 1 of the Part A relief, in my view it is
legitimate
and permissible for them to attempt to prove at the trial,
and therefore also to plead, that the first and second defendants and

their precursors in function have, over a long period, acted or
failed to act in certain ways, and with a certain state or states
of
mind or knowledge, and to invite the trial Court to draw appropriate
inferences from such conduct relating to the probability
or otherwise
of it having been persisted in since the 27
th
March, 1997.
Again, I express no view as to the plaintiffs’ prospects of success
in establishing such a probability: but I am
unable to agree with Mr.
Newdigate
that the allegations concerned are irrelevant to the
issues, or that the plaintiffs should be precluded by a striking-out
order
from putting forward a case which is based on the above
propositions.
As for the attack on section E of the particulars of claim (the
first and second defendants’ legal obligations and duties):
it is
true that in paragraph 3 of its order the Constitutional Court
declared that the first and second defendants have an obligation
“to
ensure that reasonable measures are taken to provide for the security
of rail commuters whilst they are making use of rail
transport
services provided and ensured by respectively, the first and second
respondents”. In paragraph 1 of section E of the
particulars of
claim the words of this order are pleaded virtually
verbatim
.
There can surely be no valid objection to that. But the order is
couched in extremely wide and non-specific terms. Neither from
the
words of the order itself nor from the content of the judgement of
the Constitutional Court is it possible to give precise
content to
what exactly the obligation resting on the first and second
defendants comprises, in concrete, practical terms. In my
view the
Constitutional Court did not attempt to codify or to set out in any
detail the content of the first and second defendants’
obligations.
It left that to the trial Court, if the then applicants wished to
pursue the matter, as they now do. This, it seems
to me, is what the
plaintiffs have now set out to do in the rest of section E of their
particulars of claim. In paragraph 2 they
plead that the first and
second defendants have certain statutory obligations arising from the
Legal Succession to the South African
Transport Services Act, No. 9
of 1989, and also certain obligations and duties at common law. None
of these allegations are in
conflict with anything that the
Constitutional Court has said either in its order or in its judgment,
nor do they pretend to qualify
or amend anything which that Court has
said; they merely seek to add practical detail and concrete content
to the order. In my
view there is nothing objectionable in that. It
is certainly not irrelevant to the question of what the first and
second defendants’
obligations comprise and entail.
It is correct, as Mr.
Newdigate
has pointed out, that much
of what has been pleaded in the allegedly offending passages is
evidence. However, that is insufficient
reason in itself to justify
its being struck out.
Nor am I able to apprehend any real prejudice to the defendants if
the allegedly objectionable matter is not struck out. Whilst
there is
perhaps a degree of prolixity in the manner in which it has been
formulated and set out in the particulars of claim, it
must be borne
in mind, I think, that the matter is a complex one, it is a class
action involving a wide range of activities, and
the plaintiffs seem
to me to wish to plead and prove a course of conduct and a particular
state or states of mind and knowledge
on the part of the first and
second defendants and of their precursors in function at various
times. The defendants do not contend
that they are unable to plead to
or to deal properly or adequately with the relevant allegations. At
worst for them, I think, it
may possibly be difficult or
inconvenient: but that is not a sound basis for a striking-out order.
I am not persuaded that any of the matter under attack is irrelevant
to the issues in this case; and no other proper basis has
been
advanced for its exclusion from the pleadings. In the exercise of my
discretion, I conclude that the application to strike
out must be
refused.
The application for a separation of the trials
The first and second defendants apply in terms of Rule 10(5) for an
order:
“That separate trials be held in respect of each of the claims of
the Third to Fifty-First Defendants (
sic
: plaintiffs?) set out
in part B of the prayers of the Particulars of the Plaintiffs’
Claim, as based upon the averments contained
in section I of the
Particulars of the Plaintiffs’ Claim.”
In an affidavit in support of the application Mr. S.G. Mokotedi
says:
“It would be wholly inconvenient for each individual damages claim
to be dealt with as part of a composite action forming part
of a
single trial. To do so would involve an extremely lengthy trial,
involving the leading of evidence, as well as argument, in
relation
to issues which are not of general applicability to the Plaintiffs,
but which relate to individual Plaintiffs. Adopting
this course
would, in all probability, result in a massive waste of time, effort
and legal costs. It would be far more convenient,
I aver, for this
Court to order that separate trials be held in respect of the damages
claims of individual Plaintiffs. In the
premises, and in terms of
Rule 10(5) of the Uniform Rules of Court, the First and Second
Defendants pray for an order in terms
of prayer 4 of the accompanying
Notice of Application.”
These contentions were later amplified by him in a replying
affidavit.
The plaintiffs may be divided, for the purposes of the relief
claimed by them in Part B of their particulars of claim, into three

groups, viz:
Group 1: this consists of five plaintiffs whose claims have either
been settled or have become prescribed; they no longer have
any
valid outstanding claims for damages against the defendants, and for
the purposes of this application they may be left out
of account, as
no purpose would be served by separating their trials from the main
trial, or from any other trial.
Group 2: this consists of 22 plaintiffs, each of whom had already
instituted a separate action for damages of his own when the
present
action was instituted; their separate actions are pending; they are
the plaintiffs who seek consolidation of their respective
actions
with the present action;
Group 3: this consists of 23 plaintiffs who seek damages for the
first time in the present action.
The question to be decided is accordingly whether or not the
respective trials of each one of the 43 plaintiffs who comprise
Groups
2 and 3 should be heard separately, as regards the Part B
relief claim by them, or whether they should all be heard together as

part of a single composite trial.
The Court has a discretion to permit the joinder of parties or causes
of action under Rule 10, or the consolidation of actions
in terms of
Rule 11, on grounds of convenience, especially in order to save costs
or to avoid a multiplicity of actions: see
Anderson v. Gordick
Organisation
, 1962(2) SA 68(D) at 72H,
Khumalo v. Wilkens and
Another
, 1972(4) SA 470(N) at 475 F-H, and
Erasmus
,
op.
cit.
, B1 – 100.
The overriding consideration, I think, at least for the purposes of
this case, is that of convenience: of the parties, of witnesses,
and,
last but not least, of the Court.
Before dealing with the question of convenience, however, there is
another aspect which, it seems to me, constitutes a serious
practical
obstacle to separation. It is this. The relief sought by all the
plaintiffs in Part A, if granted, whilst of course not
dispositive of
their claims for relief in Part B, may well, and probably will, be
highly relevant thereto: if, for example, it
were to be found by a
trial Court that, during a period and at a place germane to one of
the plaintiffs’ individual claims for
damages the first and second
defendants, or either of them, had breached their obligations in one
or more of the respects alleged
in paragraph 1 of the Part A relief,
the plaintiff concerned may well wish to rely on such a finding, or
on the evidence on which
it is based, for the purposes of his claim
for damages under Part B. If this is so I have some difficulty in
comprehending, if
there were to be a separation of trials as sought
by the first and second defendants, precisely how evidence given in
or a finding
made by a trial Court in one trial, in dealing with Part
A relief, could be relied on by the parties, or by one or some of
them,
in a second trial, presumably presided over by a different
Judge, in dealing with Part B relief. It must borne in mind that what

is sought here is not a separation of
issues
in terms of Rule
33(4), but a separation of
trials
: if granted, each separate
trial would proceed
ab initio
as an entirely separate,
distinct and self-contained entity. If a party to such a trial were
to seek to rely on evidence given
in or findings made by another
Court in other proceedings, difficult problems relating, e.g., to
admissibility and to issue estoppel
might well arise. Perhaps such
problems could be alleviated by prior agreement between the parties
to the effect that the evidence
led before the first Court and its
findings thereon, or, perhaps, its findings on certain stated issues,
would be admissible and
binding on the parties in the separate trial
before the second Court: however, there is no suggestion on the
papers before us that
any such agreement has been concluded or even
considered, or that it is likely to be.
Turning now to the matter of convenience: on behalf of the first and
second defendants it is contended that considerable inconvenience

would result from a refusal to separate the trials, especially to
them. They point out, correctly, that without a separation the
single
trial would, in all probability, be a long one, with many parties,
especially on the side of the plaintiffs. However, if
there were a
separation, there would, instead, be up to 43 separate, albeit
shorter, trials. I am unpersuaded that the aggregate
of the time,
money and effort required to dispose of this multiplicity of separate
short trials would be less than that required
for a single long
trial. Indeed, the converse appears to me to be more likely, inasmuch
as some witnesses, especially experts,
can be expected to give
evidence which is common and relevant to the claims of more than one
plaintiff. Without a separation, such
witnesses would need to testify
only once; if the trials were to be separated, however, they may well
be required to repeat the
same evidence several times in different
trials before different Judges. The spectre of conflicting findings
of fact and credibility
being made in different Courts raises its
head.
Then it is contended by the first and second defendants that it would
be more difficult for them to prepare for a single long trial
than
for a multiplicity of short ones, and that the possibility of
arriving at settlements of some of the plaintiffs’ claims
would be
reduced if there were to be no separation. Why this should be so has
not been satisfactorily explained to us. Otherwise
than is the case
with the plaintiffs, the defendants are armed with the limitless
resources, both as to funds and as to manpower,
of the state.
Moreover, whether there is a single long trial or 43 short ones, much
the same aggregate amount of preparatory work
will have to be done on
both sides, including, possibly, settlement negotiations. I fail to
see how this work could or would be
reduced by a separation of
trials.
It has been pointed out that a single long trial would also entail
inconvenience for the plaintiffs: they would probably have to
wait
longer for their claims for relief under Part B to be decided than if
there were to be a separation of trials. That is no
doubt so.
However, the short answer to this submission is that the plaintiffs
are content to wait: and it can safely be assumed
that they know what
is best for them. On the other hand, delay can hardly prejudice the
defendants to any material extent: at worst,
it seems to me, they
might have to wait a little longer before being able to execute any
order as to costs which they might be
awarded against the plaintiffs,
or against some of them. That, to my mind, is not severe prejudice or
serious inconvenience, especially
not for para-statal bodies such as
the first and second defendants.
It was also contended by the first and second defendants that a
separation of trials would result in greater convenience for the

Court than a single trial. I disagree. The prospect of up to 43
different Judges each hearing a separate trial which has a background

at least to some extent common to 42 other cases seems to me to be
far from convenient. I have already mentioned the danger of
different
Courts arriving at conflicting conclusions on the facts, or on the
credibility of witnesses. Whilst it is true that a
single long trial
would no doubt be burdensome for one Judge to have to deal with, that
inconvenience, to my mind, pales into insignificance
when compared
with the others which I have mentioned.
The conveniences which would follow if there were no separation of
trials must also be considered. First, as I have said, each
witness
would have to give evidence only once, as opposed to possibly several
or even many times. The undesirability of different
Courts making
conflicting findings of fact or credibility would be excluded. The
defendants would not have to be in several different
courts at the
same time, opposing the claims of various plaintiffs: all of their
resources and manpower could be concentrated in
one place, viz. the
court in which the single trial was being conducted.
Finally, it is of importance, I think, that the plaintiffs have
chosen to approach this Court by way of a class action, and they

desire to continue to do so. One of the advantages of this approach
appears to be the assistance as regards funding which they
have
hitherto enjoyed from the Legal Aid Board. Mr. L.D. van Minnen has
deposed to an affidavit in this regard, in which he says:
“56. The Legal Aid Board (“LAB”) after having received
recommendations from its impact Services Committee responsible for

the assessment and funding of multi-party cases, which in its view
are deserving of support and which may impact positively on
the
public interest, approved funding for the payment of qualifying
expert costs and disbursements in this action. The approval
does not
include funding for experts in separate individual actions for
damages.
Plaintiffs whose trials are separated from this action will thus
forfeit both the benefit of such expert evidence and the opportunity

to fund experts. Neither they, nor their attorneys of record (all of
whom are acting on a contingency basis), can financially
afford the
services of the required experts.”
Many of the plaintiffs appear to be indigent, unsophisticated people
who can ill afford to litigate in this Court individually,
using
their own resources. In
Permanent Secretary, Department of
Welfare, Eastern Cape and Another v. Ngxuza and Others
, 2001(4)
SA 1184 (SCA)
Cameron, J.A.
said at 1194B-C (para. [6]):
“It is precisely because so many in our country are in a ‘poor
position to seek legal redress’ and because the technicalities
of
legal procedure, including joinder, may unduly complicate the
attainment of justice that both the interim Constitution and the

Constitution created the express entitlement that ‘anyone’
asserting a right in the Bill of Rights could litigate ‘as a member

of, or in the interest of, a group or class of persons.”
At 1195H – 1196B (para. [12]) the learned Judge of Appeal went on
to say:
“It is the needs of such persons, who are most lacking in
protective and assertive armour, that the Constitutional Court has

repeatedly emphasised must animate our understanding of the
Constitution’s provisions. And it is against the background of
their
constitutional entitlements that we must interpret the class
action provision in the Bill of Rights. Though expressly creating

that action the Constitution does not state how it is to be developed
and implemented. This it leaves to Courts, which s 39(2)
enjoins to
promote the spirit, purport and object of the Bill of Rights when
developing the common law, and upon which s 173 confers
inherent
power ’to develop the common law, taking into account the interests
of justice’.”
It seems to me that, put at its lowest, there is at least a real risk
that, should these 43 plaintiffs in effect be deprived of
their
status as “class” litigants and be compelled to pursue their
actions for Part B relief separately as individuals, they
or some of
them may, for practical purposes, be precluded from having their
claims properly adjudicated upon by this Court. That
would be a most
unfortunate result, and it ought to be avoided if reasonably
possible. It can be avoided, I think, if the class
action is
permitted to proceed as a single trial.
I conclude that the first and second defendants have failed to make
out an adequately convincing case for a separation of trials;
on the
other hand, the Group 2 plaintiffs have, for the reasons which I have
mentioned, satisfied me that their existing actions
ought to be
consolidated with the present action. Their application for
consolidation would have had to be made by them sooner
or later, and
its costs, on an unopposed basis, should accordingly be costs in the
cause. However, they are entitled to the additional
costs occasioned
by the first and second defendants’ opposition to their
application.
In the result, I make the following order:
The first and second defendants’ special plea is dismissed, with
costs.
The first and second defendants’ application to strike out is
refused, with costs.
The first and second defendants’ application for a separation of
trials is refused, with costs.
The plaintiffs’ application for a consolidation of trials is
granted; save as provided for in paragraph 6 below, the costs
of
that application, on an unopposed basis, shall be costs in the
cause.
The first and second defendants are ordered to bear the costs
occasioned by their exception up to the time of its abandonment.
The first and second defendants are ordered to bear the costs
occasioned by their opposition to the plaintiffs’ application
for
a consolidation of trials.
All the costs referred to in this order, save those referred to in
paragraph 4 thereof, shall include the costs occasioned by
the
employment of two counsel.
_____________________
THRING, J.
I agree.
______________________
ALLIE, J.