Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (10968/2001) [2003] ZAWCHC 3 (6 February 2003)

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[2003] ZAWCHC 3
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Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (10968/2001) [2003] ZAWCHC 3; 2003 (5) SA 518 (C); 2003 (3) BCLR 288 (C) (6 February 2003)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. 10968/2001
In the matter between:
THE RAIL COMMUTER ACTION GROUP
First Applicant
LESLIE DAVID VAN MINNEN
Second Applicant
JANE LINDSAY STYER
Third Applicant
JUDIN RUDLUFF BEUDINE COULSEN
Fourth Applicant
RAYMOND JOHN LOVE
Fifth Applicant
HESTER FOUCHÉ
Sixth Applicant
MIRIAM MURIEL ADOLF
Seventh Applicant
BERENDINA SUSANNA FULLER
Eighth Applicant
ZOLANI CHRISTIAN MATYENI
Ninth Applicant
and
TRANSNET LTD t/a METRORAIL
First Respondent
THE
SOUTH AFRICAN RAIL COMMUTER
CORPORATION LTD
Second Respondent
THE MINISTER OF TRANSPORT
Third Respondent
THE MINISTER OF SAFETY & SECURITY
Fourth Respondent
THE
MINISTER OF SAFETY & SECURITY
FOR THE WESTERN CAPE
Fifth Respondent
________________________________________________________________
JUDGMENT : 6 FEBRUARY 2003
________________________________________________________________
DAVIS
et VAN HEERDEN JJ:
Introduction
On Friday, 8 June 2001 at approximately 19h00, Juan van Minnen
(‘
Juan
’), then a final year electronic engineering student
at the Cape Technicon, was a passenger in a first-class carriage of a
suburban
commuter train on the Cape Town-Simon’s Town line,
travelling from Rondebosch to Fish Hoek, where he resided. Somewhere
between
Kenilworth and Wynberg stations, Juan was repeatedly stabbed
by an unknown person. As a direct consequence of the injuries
sustained
by him, he died the following day. It is common cause that
this incident occurred during the so-called ‘
evening off-peak
period
’, after 18h00 when numbers of security staff on commuter
trains in the Western Cape are significantly reduced and ticket sales
and checks not generally carried out.
On 28 June 2001, a public meeting was held at the Fish Hoek Civic
Centre to address what was referred to as ‘
Metrorail crime
’.
Mr Martin Frylinck, who deposed to the main founding and
supplementary founding affidavits on behalf of the applicants,
attended
this meeting, the objective of which was ‘
to impress
upon first respondent that the public has had enough of crime on
trains and wanted immediate action
’. At this meeting, the
first applicant (the Rail Commuter Action Group, hereinafter referred
to as ‘
RCAG
’), described by Frylinck as a ‘
voluntary
association
’, was formed, and a committee consisting of nine
‘
volunteers
’ was established. This committee was
instructed by those present at the meeting to ‘
take first
respondent and other responsible parties to task
’ and a
report-back meeting was convened for 31 July 2001.
On 11 July 2001, RCAG and the second applicant (the latter being the
father of Juan van Minnen) appointed lawyers ‘
to investigate
legal action and relief on behalf of the commuting public
’.
On 31 July 2001, a second public meeting was held to give RCAG the
opportunity to report on progress made. This meeting was attended
by
Mr André Harrison (‘
Harrison
’), the Regional Manager of
the Western Cape Region of the first respondent’s Metrorail
business, who deposed to the main answering
affidavit on behalf of
the first respondent. According to the transcript of ‘
written
notes
’ taken at this meeting, it appears that the mandate of
the RCAG committee was ‘
to take Metrorail to task
’. The
minutes record further that ‘
there are ten volunteers on the
committee
’. Frylinck informed the meeting that the RCAG
committee had ‘
instructed a legal team to investigate the
possibility of legal action against Transnet/Metrorail by the group
or individual victims
’ and, by a show of hands, the persons
present at the meeting indicated overwhelming support for the
proposed institution of such
legal proceedings.
The applicants have now approached this court for both declaratory
and mandatory relief against the respondents, based on alleged
duties
of care owed by the respondents to rail commuters in the Western Cape
to protect the lives and property of such commuters
against the
criminal activities of third parties on commuter trains and train
stations. The respondents have allegedly breached
these alleged
duties in a variety of different ways. In summary, the applicants
contend that the relief sought by them rests on
‘
three primary
pillars
’: firstly, a statutory pillar arising from the
application of certain provisions of the Legal Succession to the
South African
Transport Services Act 9 of 1989, as amended (‘
the
SATS Succession Act
’); secondly, a delictual pillar, based
upon the principles of Aquilian liability, as underpinned and
expanded by the Constitution
of the Republic of South Africa Act 108
of 1996 (‘
the Constitution
’); and thirdly, a contractual
pillar sourced in the contract of carriage concluded between the
first respondent as the provider
of commuter rail services in the
Western Cape and all fare-paying passengers.
The first respondent is Transnet Ltd (‘
Transnet
’), a
public company established by the Minister of Economic Co-ordination
and Public Enterprises pursuant to the provisions of
sections 2 of
the SATS Succession Act. Upon its incorporation, the State became
its only member and shareholder (section 2(2)).
Metrorail is one of
several business divisions of Transnet. It operates and maintains
the commuter railway network in five urban
regions, the Western Cape
being one of such regions.
The second respondent, the South African Rail Commuter Corporation
Ltd (‘
the SARCC
’) is a corporation created in terms of
section 22 of the SATS Succession Act and registered in terms of the
Companies Act 51 of
1973. Under section 25(3) of the SATS Succession
Act, all the issued shares of the SARCC are also held by the State.
The affairs
of the SARCC are managed by its Board, all the members of
which are ‘
appointed and dismissed
’ by the third
respondent, the Minister of Transport (section 24(1)). The latter is
also vested with the right, under section 23(6),
to issue ‘
directives
clarifying, elaborating upon or giving specific content to the
objectives of the SARCC
’. The establishment of, and
relationship between, Transnet and the SARCC will be discussed in
greater detail below.
The fourth respondent is the Minister of Safety and Security, cited
in his capacity as the member of Cabinet charged with the
responsibility
for policing, in terms of section 206(1) of the
Constitution. This section also provides that the fourth respondent
must determine
national policing policy after consulting the
provincial governments and taking into account the policing needs and
priorities of
the provinces, as determined by the provincial
executives.
The correct title of the fifth respondent (cited in the papers as the
Minister of Safety and Security for the Western Cape) is the
Member
of the Executive Council for Community Safety: Western Cape
Province. In terms of section 206(4), the fifth respondent is
the
provincial executive responsible for policing functions in the
Western Cape Province, as assigned to him in terms of national
legislation and allocated to him in the national policing policy. It
would appear that commuter trains and train stations are policed
by
the members of the South African Police Service (‘
SAPS
’),
acting in the course and scope of their employment in terms of the
South African Police Service Act 68 of 1995 (‘
the SAPS Act
’),
and the regulations made under section 24 of that Act under the
responsibility of the fourth respondent. These policing functions
are monitored in the Western Cape Province by the fifth respondent,
acting in terms of section 206(3) and 206(4) of the Constitution.

The policing functions rendered by members of the SAPS in respect of
commuter trains and train stations, as well as the powers and
duties
of the fourth and fifth respondents in this regard, will also be set
out in greater detail below.
The institution of the present
proceedings
On 6 August 2001, prior to the institution of the present
proceedings, the applicants’ legal representatives served ‘
letters
of demand
’ on all the respondents, requesting access to
wide-ranging information and documents described under fourteen
different categories.
After an exchange of correspondence between
the applicants and the various respondents relating to the furnishing
of documents,
the first and second respondents furnished to the
applicants ‘
the first tranche of documents
’ on 4 September
2001, later waiving payment of their initial demand for R11 754.00 in
respect of costs incurred in providing such
documents.
On 27 December 2001, the original notice of motion, founding papers
and annexures were served on all five respondents. As appears
from
the original notice of motion, the relief initially sought was of
both an interim and final nature. An order compelling early
discovery pursuant to Uniform Rule of Court 35(1), read together with
Rule 35(13), was also sought. This early discovery related
to ‘
all
documents and tape recordings relating to any matter in question in
this application (whether such matter is one arising between
the
Respondents and Applicants or not) which are or have at any time been
in the possession or control of respondents, including
but not
limited to all such matters and items specified in Annexure A
’
to the notice of motion. To a large extent, the information and
documentation listed in the said Annexure A was the same as that
sought by the applicants in the abovementioned correspondence.
The parties subsequently reached an agreement which was made an order
of court by Hlophe JP on 12 February 2002. This order makes
provision,
inter alia
, for postponement of the hearing of the
application and for what the parties called ‘
informal
discovery
’. That part of the order providing for ‘
informal
discovery
’ reads as follows:
‘
2. Respondents make informal discovery by not later than 12h00
on 28 February 2002 of all documents and tape recordings relating to
any matter in question in this application (whether such matter is
one arising between the Respondents and Applicants or not) which
are
or have at any time been in the possession or control of Respondents;
including but not limited to all such matters and items
specified in
annexure “A” to the Notice of Motion.
Respondents make available for inspection to Applicants’
attorneys, one indexed set, itemized descriptively in chronological
order,
of all documents and tape recordings so discovered by not
later than 12h00 on 28 February 2002.
’
The order also provided for the further conduct of the proceedings,
including the delivery by the applicants of supplementary founding
affidavits, following compliance by the respondents with the
provisions relating to ‘
informal discovery
’.
Respondents duly complied with the above-cited paragraphs of the
court order. Although documents in respect of which legal privilege
was claimed were not furnished to the applicants, the ‘
informal
discovery record
’ made available to the applicants amounted to
a total of some 55 000 pages. In the letters under cover of which
such documentation
was made available to the applicants, the
attorneys acting for the first and second respondent, and for the
third respondents, respectively,
recorded that ‘
our clients do
not accept that your clients are legally entitled to these documents,
or all of them, nor do our clients accept that
your clients would be
entitled to any costs in connection with the obtaining or perusal of
such documents, or all of them.
’
Only the first, second and third applicants were cited when the
application was initially instituted, the third applicant (‘
Styer
’)
having been the victim of a criminal attack perpetrated against her
on 30 June 2000 at approximately 18h00 whilst she was commuting
from
Cape Town to Retreat. As a result of the said attack, Styer
sustained various injuries (including head injuries), as a
consequence
of which she has allegedly lost 30% hearing in one ear
and now has to use a hearing aid. When, pursuant to the court order
made
by agreement between the parties on 12 February 2002, the
applicants filed supplementary founding papers on 28 March 2002, the
applicants
purported to join six further applicants in these
proceedings. Of these six further applicants, the seventh applicant
(‘
Adolf
’) and the eighth applicant (‘
Fuller
’)
are the widows of persons who were killed during a criminal incident
that occurred on a commuter train on the evening of Monday
18 June
2001 on the Bellville-Unibell line. The remaining applicants (the
fifth applicant (‘
Love
’), the sixth applicant (‘
Fouché
’)
and the ninth applicant (‘
Matyeni
’)) are, like Styer,
allegedly the victims of violent crimes perpetrated while they
themselves were commuting on various different
lines.
The first and second respondents contest the propriety of the
procedure adopted to bring the fourth to the ninth applicants before
this Court. They also dispute many of the factual allegations made by
the applicants in regard to the precise circumstances under
which
Juan van Minnen and Messrs Adolf and Fuller were killed, and Styer,
Love, Fouché and Matyeni were injured, as a result of
incidents
occurring on commuter trains. According to the applicants, however,
the voluminous papers before this Court make it abundantly
clear that
citizens of and visitors to the Western Cape are falling victim to
violent and serious crime at an alarming rate and on
an ongoing basis
on rail commuter facilities in the Province. The applicants contend
that, in the light of the relief sought by
them, there are no
material disputes of fact incapable of resolution on the papers and
that, save where factual disputes raised by
the respondents are
demonstrably without any foundation, the applicants have approached
these proceedings on the basis of the respondents’
factual
versions, together with such facts as are common cause on the papers.
The relief sought by the applicants has undergone several
permutations since the institution of these proceedings. Prior to
engaging
with the merits of the application, we were called upon at
the outset of the hearing to consider an application made by the
applicants
to effect certain further amendments to their notice of
motion, as already amended. This application was opposed by the
first, second
and third respondents. Moreover, first, second and
third respondents submitted that, should the amendments be allowed,
the hearing
of the merits of the application should be postponed in
order to afford these applicants the opportunity to file
supplementary affidavits.
With the exception of one ‘
new
’
prayer, which was abandoned by the applicants, the application to
amend was granted and the Court refused to postpone the hearing.

Before setting out our reasons in this regard, it is necessary
briefly to consider the historical background to the provision and
policing of commuter rail services, with particular reference to the
Western Cape.
Historical
framework
Prior to October 1986, the entire function of monitoring law and
order on stations was performed by the South African Railways Police
Force (‘
the Railway Police
’), a dedicated armed force
established under section 43 of the South African Transport Services
Act 65 of 1981, which force was
regulated and controlled by the South
African Transport Services (‘
SATS
’) itself.
During October 1986, it was resolved that the Railway Police should
cease to exist and operate as an independent self-regulated force.

Pursuant to this resolution, the Railway Police Force was dissolved
and the members of this force were transferred to the South
African
Police Service, in terms of the transfer of the South African
Railways Police Force to the South African Police Act 83 of
1986
(‘
the Transfer Act
’). The incorporation of the Railway
Police into the South African Police Service resulted in an increase
of the latter by approximately
6 500 members. However, SATS lost
control of police functions on its premises and henceforth had to
rely on the South African Police,
a separate department, to maintain
law and order. In this manner, the specialised services of the
Railway Police, and their expertise,
were lost to SATS - this appears
to have created certain security problems, resulting in an increase
in general lawlessness (this
was one of the findings of the Committee
of Enquiry into Train Violence, appointed by the Goldstone Commission
of Enquiry regarding
the Prevention of Public Violence and
Intimidation established in terms of Act 139 of 1991, to be dealt
with more fully below).
During the period 1985 to 1991, carrier services were provided by
SATS as a common carrier, including but not limited to rail commuter
services. Following the recommendations of the De Villiers Report on
the South African Transport Services, published in July 1986,
government policy on transport services changed, requiring (
inter
alia)
the transport market to be deregulated as far as possible,
and the SATS to be converted into a undertaking pursuing profit and
liable
to taxation. The Legal Succession to the South African
Transport Services Act 9 of 1989 implemented (with some
modifications),
the recommendations of the De Villiers Report, as
accepted by government, creating a mechanism to privatise SATS and to
separate
the uneconomic rail commuter services from the more
profitable carrier services.
The SATS Succession Act provided for the establishment of a public
company (which on 1 April 1990 became known as Transnet Ltd) and
of
the SARCC as successors to the legal interests of the SATS. The
entire commercial enterprise formerly conducted by the SATS was
transferred to Transnet as a ‘
going concern
’ including,
with one important exception, all the assets previously owned and
controlled by the SATS. The exception related to
those assets
referred to in section 25 of the SATS Succession Act, comprising all
assets presently used to render commuter services,
as well as
substantial portions of stations and railway track. The SARCC became
the owner of those assets. The enterprise transferred
consisted of
various divisions or business units, including Portnet, South African
Airways and others. It also included Spoornet,
a division through
which the SATS provided a commuter service to the public at that
time.
The SARCC was established with ‘
the main object and the main
business
’ of ensuring that rail commuter services ‘
are
provided within, to and from the Republic in the public interest
’
(see section 23(1) of the SATS Succession Act). Under section 15(1),
Transnet is obliged to provide, at the request of the SARCC,
a rail
commuter service ‘
that is in the public interest
’. It is
clear from section 15(3) and following of the Act that Transnet and
the SRCC are enjoined to conclude a contract setting
out the terms
under which the said rail commuter service is to be provided by the
former. The SARCC duly ‘
requested
’ Transnet to render
‘
the service
’ and the first contract concluded between the
parties in this regard was signed on 13 September 1990. Pursuant to
this agreement
(called a ‘
Bedryfsooreenkoms
’), Transnet
accepted the responsibility to provide rail commuter services in the
Republic with effect from 1 April 1990. While
the agreement made
provision for an agreed remuneration for the services to be rendered
thereunder, it did not make provision for
non-operational commuter
safety and security.
During 1992, Transnet and the SARCC, acting under and pursuant to the
1990 agreement, concluded a second agreement (called a
‘
business
agreement
’). Payment of remuneration (the subsidy) under this
agreement was ‘
input
’ based, in that the SARCC was
obliged to reimburse Metrorail for all expenses incurred by the
latter upon production of proof
of payment and upon the SARCC being
satisfied that it was an expense which was necessarily or reasonably
incurred in the rendition
of the service. As this, in effect,
introduced an ‘
open- ended
’ liability, it apparently made
financial planning and provision of funding a difficult task. With
reference to a resolution made
by the State Security Council on 15
October 1990, this agreement distinguished between the ‘
public
’
and the ‘
non-public
’ components of the business of the
SARCC. The policing of the ‘
public component
’ was
recorded as being the responsibility of the South African Police and
included the maintenance of law and order, and the prevention
of
crime, on stations and trains. As regards the '
non-public
component
’, the 1992 business agreement recorded that Transnet
was responsible for the security of the '
non-public component
’
of the business of the SARCC, such services to be rendered for an
agreed fee. Security with regard to the ‘
non-public component
’
entailed mainly the protection of property and cash, and ensuring the
safety of staff, but also included, as ‘
secondary
’ tasks,
the protection of commuters and the combating of crime on trains,
stations and station platforms, the enforcement of the
prohibition of
weapons on trains, as well as ticket verification at access points
and on trains.
This distinction between the public and non-public components of the
SARCC’s business was also highlighted by the Committee appointed
in
1991 by the Goldstone Commission to investigate violence committed on
trains in the Southern Transvaal. While the Committee’s
investigations into train violence were focused on a specific area
and were conducted in the context of political violence on trains,
the following extracts from the recommendations made by the Committee
in its interim report (endorsed by the Commission on 8 July
1992)
warrant mention:
’
14.2 …The Committee feels that the function of guarding
access control
points at stations on a full-time basis is not a SAP function.
This function could more practically be performed by the SARCC.
Accordingly,
we support the suggestion by Major-General Bester that
consideration be given to the creation of a guards corps, recruited
from the
community and employed by the SARCC. These recruits should
receive proper police training. Their duty should be to secure
access
to the stations. (They should not be ticket controllers.)
They should be in a distinctive uniform and be under the control of
the
manager of Spoornet Security Services…
Because the SARCC is unable to generate sufficient funds to
provide the necessary safety measures, the Committee’s
recommendations
will be rendered ineffective unless sufficient
funds are made available. The Committee accordingly recommends
that the Government
give urgent assistance in this regard…
The Committee recommends that the main objective and aim of the
SARCC … namely,
“to provide rail commuter services”
should be extended to include the provision of reliable, safe
and cost-effective commuter services which meet the reasonable
needs
and standards of the community. This would place greater
emphasis on the duty to ensure the safety of commuters.
’
The Committee’s final report became available on 6 May 1993. It
correctly recorded, at the outset, that the SARCC accepted its
interim recommendations. The main project mentioned by the Committee
in its final report related to the creation of a dedicated
Metro
Security Guard or Force. It was envisaged that this Force would
ultimately (by 31 May 1995) consist of some 4 500 members.
However,
despite the alleged tireless efforts of both the first and second
respondents from June 1992 to the present date, a dedicated
Rail
Guard has not yet been created. It appears from the papers before
this Court that the reintroduction of a police force of some
kind to
guard railway property and commuters has been discussed by the
present Cabinet since 12 June 2001. From affidavits deposed
to by
the Minister of Transport and by the Minister of Safety and Security,
respectively, and filed shortly before the hearing of
this matter, it
would seem that Cabinet has in principle decided to establish a
security division, probably to be established within
the SAPS, which
will focus upon,
inter alia
, the rendering of protection
services in the railways sector. It is evident that there are a
number of political hurdles still to
be crossed before any final
decision by Cabinet on this matter can be made and that the creation
of the contemplated division is
nowhere near as ‘
imminent
’
as the affidavits filed on behalf of the SARCC would seem to suggest.
The
Service Agreement
During or about 1997, the first and second respondents jointly
created a task force to ‘
thrash out
’ a new agreement to
replace the existing 1992 Business Agreement referred to above.
Although this agreement (‘
the Service Agreement
’) was only
signed during August 2000, its effective date was 1 April 1999 and
the terms thereof were implemented from the latter
date. The
provisions thereof covered the period 1 April 1999 to 31 March 2003,
during which period Metrorail has the exclusive right
to operate
commuter rail services. The agreement provides that, in
consideration for the performance of ‘
the agreed services
’,
the SARCC shall pay to Metrorail ‘
contract payments for each
year of the Basic Term
’. The
quantum
of the (annual)
contract payments appear from Annexure 13 to the Service Agreement.
The SARCC receives the subsidy referred to in
Annexure 13 directly
from the National Department of Transport (‘
NDOT
’), which
subsidy is paid over on a monthly basis. At the present time, each
monthly instalment amounts to approximately R93 million.
Under clause 10.10 of the Service Agreement, Metrorail ‘
shall be
responsible for providing security services to the extent of their
responsibility in terms of the operations of the Agreed
Services and
the SARCC’s Service Property inside the Operational Area, subject
to the provisions of any applicable law and negotiations
with
Government, SARCC and the South African Police Services (SAPS) in
defining security responsibilities between business entities
and
authorities, as more fully described in Annexure 6.
’
It is important to note that, as stated in the Preamble to the
Service Agreement, the agreement is ‘
based on concessioning
principles
’ and one of the express objectives of the Agreement
is to ‘
provide acceptable security for passengers and railway
employees
’.
The provisions of Annexure 6 to the Service Agreement deal with
security. As with the 1992 Business Agreement, the security plan
is
structurally divided between obligations related to a public and an
non-public component. The former relates to security obligations
in
relation to commuters, whereas the latter appears to relate
predominantly to assets (income and personnel). Under the heading
‘
Non-public Component
’, paragraph 5.2.1 of Annexure 6
provides that ‘
Metrorail would be responsible for securing the
non-public component of the services with specific emphasis on
’,
inter alia
, ‘
the performance of access control in
accordance with applicable legislation and based on the
needs/requirements of each region
’, and ‘
containing crime
within the crime index parameters agreed on
’.
As regards the ‘
public component
’, paragraph 5.3.1 of
Annexure 6 records that –
‘
The responsibility for securing the public component of the
SARCC’s business rests with the SA Police Services in terms of
section
5 of the SA Police Act, 1985 or revisions. Metrorail will be
required to play a supportive and/or complementary role in support
of
the SAPS to maintain law and order on stations and on trains as
defined in clause 3.1 and the Legal Succession Act, Act No 9 of
1989.
’
It is specifically recorded in paragraph 5.3.2 that Metrorial ‘
is
mandated and will be funded to deploy own resources as well as
contracted Security guards to protect the public component of the
business (crime prevention and crime control) … Should proposals
for a specialised rail police structure succeed, this section
of the
agreement will be renegotiated and adjusted to reflect the cost
savings.
’
The SARCC is obliged to perform a supervisory or ‘
watchdog
’
function in respect of security services. In so doing, it utilises,
inter alia
, the device of a ‘
Metrorail National Crime
Index
’ – calculated in relation to the incidence of ‘
an
agreed selection of the more serious crimes
’. In terms of
paragraph 7 of Annexure 6, Metrorail’s performance in providing
security services ‘
will be determined by the trends in the
index, as well as the index in relation to the South African Police
Services Index for the
same agreed selection of the more serious
crimes for the surrounding areas. Should the indices indicate that
there are negative
trends, the SARCC may audit the resources applied
by Metrorail to provide a secure environment and compare these
resources against
those resources on which the contract amount was
based. Should there have been a reduction of resources or the cost
thereof the
SARCC may impose penalties.
’
The second respondent’s case is that it has ‘
ensured
’
(and continues to ensure) the provision of commuter services ‘
in
the public
interest
’, as required by the SATS Succession
Act. It contends that it has achieved this through the conclusion of
the Service Agreement
and further continues to ‘
ensure
’
the provision of commuter services ‘
in the public interest
’
by executing its watchdog
functions under such agreement
.
The first respondent’s case is that it has responded to the
‘
request
’ to provide commuter services ‘
in the public
interest
’, firstly by concluding the Service Agreement and,
having done so, secondly by continuing to perform in accordance with
the terms
thereof. Both the first and the second respondents deny
that they are not complying, alternatively substantially complying,
with
their respective obligations under the Service Agreement.
The applicants’
application to amend the notice of motion
The relief finally sought by the
applicants is as follows (the passages in respect of the amendments
sought at the outset of the hearing
are emphasised):
‘
1. It is declared that the manner in which the rail commuter
services in the Western Cape are:
operated by the First Respondent;
controlled and funded 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 section
15(1) (insofar as First Respondent is concerned) and section 23(1)
(insofar
as Second Respondent is concerned), of the Legal Succession
to the South African Transport Services Act, No. 9 of 1989, as
amended
(
“the SATS Succession Act”).
It is declared that the manner in which the rail commuter
services in the Western Cape are:
operated by the First Respondent;
controlled and funded by the Second Respondent;
policed by the South African Police Service;
monitored by the Fifth 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
wrongful, unlawful and in violation of the
constitutional rights of rail commuters to life, to freedom from all
forms of violence
from private sources,
to human dignity,
freedom of movement and to property
.
It is declared that the First Respondent
has a
contractual obligation to convey fare-paying passengers safely and
securely on commuter rail services in the Western Cape.
’
[Prior to the amendment
sought, Prayer 3 read as follows:
‘
3. It is declared that the First Respondent is in
breach of its contractual obligations towards:
Juan van Minnen, the minor deceased son of the
Second Applicant; and
the Third and further Applicants (or their
breadwinners where applicable);
by reason of its failure to convey Juan van Minnen
and the Third and further Applicants (or their breadwinners where
applicable) safely
to their destinations on the said rail commuter
service
in terms of its contractual
obligations to do so, which obligations include the provision of
proper and adequate safety services,
and by reason of its failure to
control access to and egress from the rail commuter facilities used
by rail commuters in the Western
Cape.
’]
‘
4. 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, whilst they are making use of the rail transport
services
provided by the First and Second Respondents;
the First and Second Respondents are in breach of the said
duties, in that they have negligently failed to provide and/or fund

proper and adequate safety
and security
services and and/or by their failure to control access to and
egress from rail commuter facilities used by rail commuters in
the
Western Cape.
’
[The unamended Notice of
Motion also contained a prayer numbered 4.3, which read as follows:
‘
4. It is declared that:
…..
…..
A causal connection exists between such negligent
breach of the said duty and any damages suffered by the Second and
further Applicants
which they are able to prove in any action
timeously instituted against First and Second Respondents.
’
This prayer 4.3 was abandoned in terms of the amendment
sought.]
‘
5. The 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 First to Third Respondents are directed to ensure that
between
them and the institutions for which they are responsible, jointly
and
severally, the one paying the others to be absolved,
an
adequate
amount is allocated towards the provision of proper and
adequate
safety and security services, including but not
limited
to services to ensure control of access to and egress
from commuter services in the Western Cape.
’
[Prior to the amendment
sought, Prayer 6 read as follows:
‘
6. First to Third Respondents are directed to
ensure that between them and the institutions for which they are
responsible, jointly
and severally, the one paying the others to be
absolved, an amount of not less than R15,2 m per annum is allocated
towards the provision
of proper and adequate safety services,
included but not limited to services to ensure control of access to
and egress from rail
commuter services in the Western Cape, subject
to such amount
being adjusted
annually in the light of the security situation prevailing from time
to time.
’]
‘
7.
In
the alternative to paragraphs 1, 2, 4, 5 and 6 above and only in the
event that the relief claimed in such paragraph is not granted:
The First and Second Respondents are directed,
within
such time as the Honourable Court may order,
to comply
strictly with and give effect to all such terms and conditions
contained in the current and future operational, business
and/or
other agreements between first and second respondents dealing with
the provision, monitoring and funding of safety and security
services
for its staff, the public and commuters making use of rail facilities
within the Western Cape, provided always that the
terms and
conditions contained are and remain in the interest of the public as
contemplated in the SATS Succession Act.
The First and Second Respondents are interdicted and
restrained from permitting commuter rail passengers to travel on the
commuter
rail network in the Western Cape in any carriage which has
doors which do not function
.
’
[Prior to the amendment
sought, Prayer 8 read as follows:
‘
8. Until such time as the Respondents have
complied with the order contained in paragraph 5 above:
the First Respondent is interdicted and restrained
from operating any train on the Western Cape rail commuter service
which is
not staffed with at least three guards and one conductor;
the First Respondent is interdicted and restrained
during all hours from permitting any train on the Western Cape rail
commuter service to stop at any station or
platform which is not manned with personnel responsible for and
capable of providing
proper and adequate safety services and
providing control of
access to
and egress from rail commuter facilities used by the public and
rail commuters.
’]
‘
9.
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.
[Formerly Prayer 9]
It is confirmed that the
applicants were entitled to early discovery in terms of Rule 35(1).
Granting
leave to Applicants to approach the Honourable Court on the same
papers, amplified insofar as is necessary, within such
period as the
Honourable Court may think fit, for such further orders as may be
necessary if Respondents fail to have due regard
to and implement
the terms of Prayer 5, alternatively the terms of Prayer 7, and in
any event if Respondents fail to have due regard
to and implement
the terms of Prayers 8 and 9.
[Formerly Prayer 10]
Directing the
Respondents, jointly and severally, the one paying the others to be
absolved, to pay the Applicants’ costs of suit,
such costs to
include the costs attendant upon the engagement of the services of
three counsel.
’
In their written objection to the proposed amendments to the Notice
of Motion, filed in terms of Rule 28(3), the first and second
respondents objected to all the amendments sought by the applicants,
with the exception of the proposed deletion of the previous
prayer
numbered 4.3 and the proposed insertion of the words ‘
and
security
’ after the word ‘
safety
’, wherever such
latter word appeared in the prayers. However, in argument before
this Court, the first and second respondents
focused their objections
on those proposed amendments which, in their view, would have the
effect of ‘
introducing
’ the issue as to whether the terms
of the Service Agreement (in contradistinction to ‘
the manner
’
in which services are provided thereunder) constitute compliance with
the statutory obligations imposed upon the first and second
respondents by the SATS Succession Act. Furthermore, the first and
second respondents also persisted with their objection to the
application for the introduction of additional prayers in relation to
operational safety, with specific reference to the relief claimed
in
relation to ‘
open train doors
’ and the alleged failure by
the first and second respondents to comply with ‘
general
operating instructions
’.
The objection made on behalf of the third respondent to the proposed
amendments was directed solely at the proposed ‘
new
’
prayer 8. Mr
Albertus SC
,
who appeared together with
Mr
Paschke
on behalf of third respondent, submitted (in our
view, correctly) that, in view of the fact that the applicants’
case, as formulated
in their founding and supplementary founding
affidavits, was based upon crime-related conduct and threats by third
parties to the
security of the persons of rail commuters - rather
than upon operational safety issues - the third respondent was not
afforded the
opportunity to place factual material before this Court
detailing the difficulty in preventing and combating vandalism
(especially
as regards train doors) on the rail commuter service and
the measures that have been taken by the State in this regard. Mr
Albertus
pointed out that, without full details being placed
before the Court as to the practical ramifications of the interdict
sought (eg
the number of commuter trains which would be immediately
affected by the interdict; the possible necessity of removing many
(if
not all) commuter trains in the Western Cape from operation for
an indefinite period of time; and the constant negative impact upon
commuters), the Court was not in a position properly to consider the
potential prejudice which may be suffered by the third respondent,
should this aspect of the applicant’s application for an amendment
be granted.
In reply, Mr
Viljoen SC,
who appeared together with Mr
Hoffman
SC
and Mr
Dippenaar
on behalf of the applicants, informed
the Court that, in view of the possible negative consequences for
rail commuters should a large
number of commuter trains have to be
withdrawn from operation were the ‘
new
’ prayer 8 to be
granted, the applicants were abandoning the said prayer. Whether or
not the applicants should be ordered to pay
any costs incurred by the
third respondent in objecting to this aspect of the proposed
amendment of the Notice of Motion, as was
submitted by Mr
Albertus
,
will be considered at a later stage.
Mr
Du Plessis SC,
who together with Mr
Jamie SC and
Ms
Cowen
appeared on behalf of first and second respondents,
argued that the main purpose of the proposed amendments, including
the attempted
relegation of the relief claimed in prayer 7 (in
respect of compliance with the provisions of,
inter alia,
the
Service Agreement in unamended form) to an alternative prayer, was to
create a basis for the applicants ‘
to assail
’ the security
provisions of the Service Agreement. According to Mr
Du Plessis
,
the applicants made no clear and unambiguous attempt in their
founding papers to challenge the provisions of the Service Agreement
and these founding papers contain no criticism in regard to the
propriety or reasonableness of the security regime contained in the
Service Agreement. This being so, the first and second respondents
were allegedly not called upon to, nor did they purport to, meet
a
case which would require them to justify or substantiate the existing
security regime created under the Service Agreement, or to
sustain
submissions as to why the Service Agreement in its present format
constitutes due compliance with their statutory obligations.
With reference to cases such as
Administrator, Transvaal &
Others v Theletsane & Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at
195J-196E,
Government of the Republic of KwaZulu-Natal &
Another v Ngwane
[1996] ZASCA 88
;
1996 (4) SA 943
(A) at 948J-949D,
Le Roux v
Direkteur-Generaal van Handel en Nywerheid
1997 (8) BCLR 1048
(T)
at 1057G-1058C,
Oostelike Gauteng Diensteraad v Transvaal
Munisipale Pensioenfonds & 'n Ander
1997 (8) BCLR 1066
(T) at
1076B-D, and
South Peninsula Municipality v Evans & Others
2001 (1) SA 271
(C) at 280I-282H, Mr
Du Plessis
contended
that the issue of the adequacy of the contents of the Service
Agreement in its present format – in particular the security
regime
created in Annexure 6 thereto – had not been properly raised by the
applicants in their founding affidavits. Instead, the
applicants
impermissibly sought to raise this issue in their replying
affidavits, predominantly by reference to the affidavit deposed
to by
Professor Dunne, a chartered statistician (‘
Dunne
’). In
the applications to strike out matter filed on behalf of the first
and second respondents, and the fourth and fifth respondents,
respectively (to be dealt with below), these respondents requested
the Court to strike out the whole of Dunne’s affidavit, as also
the
vast majority of the paragraphs in the applicants’ replying
affidavits referring to, or relying upon, Dunne’s affidavit.
This
part of the respondents’ applications to strike was based on the
ground that this material constituted inadmissible new matter
in
reply which, if admitted, would occasion these respondents
irreparable prejudice, unless they were afforded the opportunity to
deal therewith by way of further affidavits. The arguments advanced
on behalf of the first and second respondents in support of
this part
of their striking-out application were substantially the same as
those advanced in regard to the applicants’ application
to amend.
In essence, the complaint of the first and second respondents is that
the allegations made by the applicants in their founding and
supplementary founding affidavits were not such as to ‘
alert
’
the respondents to the attack now being made upon the propriety and
reasonableness of the security regime contained in Annexure
6 of the
Service Agreement. According to the respondents, had they been made
aware of the attack on the security plan contained
in the Service
Agreement by appropriate allegations in the founding affidavits, they
would have been in a position to answer this
attack – ‘
by
placing comprehensive factual material before this Honourable Court
in regard to the
modus operandi
of the task
force (including the considerations (budgetary and otherwise) which
prompted them to draft the Service Agreement (and
more particularly
Annexure 6 thereto) in its present form’,
and would also have
been able to ‘
demonstate to this Honourable Court the
reasonableness of their decision at the time to cast the security
provisions in a particular
mould
’.
The first and second respondents argued further that, had they been
made aware of the attack on the
content
of the Service
Agreement (in particular the security plan contained in Annexure 6
thereto) by allegations appropriately made in the
founding
affidavits, they would have been in a position to ‘
buttress
their case
’ by producing expert evidence in justification of
the terms of the security regime decided upon by the task force.
Thus, should
the proposed amendments in this regard be allowed, and
their application to strike out the relevant paragraphs from the
applicants’
replying affidavits not succeed, the first and second
respondents would suffer irreversible prejudice in that the Court
would determine
the merits of the application without hearing the
first and second respondents in regard to the facts and circumstances
to which
the task force applied ‘
its collective mind
’ in
‘
moulding
’ the present security regime.
It is trite that it is in the nature of motion proceedings that the
affidavits constitute not only the pleadings, but also provide
all
the evidence upon which the application must be decided. The general
rule is, therefore, that ‘
an applicant must stand or fall by his
founding affidavit and the facts alleged in it, and that although
sometimes it is permissible
to supplement the allegations contained
in that affidavit, still the main foundation of the application is
the allegation of the
facts stated there, because those are the facts
that the respondent is called upon either to affirm or to deny
’
(see Van Winsen, Cilliers & Loots
Herbstein & Van Winsen :
The Civil Practice of the Supreme Court of South Africa
4
th
ed (1997) at 364-366 and the authorities there cited). However, as
convincingly argued by applicants’ counsel, the flaw in the
reliance by the first and second respondents upon this ‘
general
rule
’ is the suggestion (repeated in several different guises
in the answering affidavits filed on behalf of the first and second
respondents)
that the applicants’ founding and supplementary
founding affidavits do
not
include any challenge to the
legality/propriety of the Service Agreement concluded between the
first and second respondents (and,
in particular, to the
reasonableness of the safety and security provisions contained
therein).
A careful perusal of the applicants’ founding and supplementary
founding affidavits reveals that, from the outset, the applicants’
main complaint was directed against the manner in which the first and
second respondents had carried out, and continue to carry out,
the
statutory obligations imposed upon them in terms of the SATS
Succession Act. As indicated above, this Act requires the first
respondent to provide, and the second respondent to ensure the
provision of, rail commuter services ‘
in the public interest
’.
So, while the applicants’ complaints are based on broader grounds
than simply an analysis and criticism of the security provisions
contained in the Service Agreement concluded between the first and
second respondents (including the statistical basis for the
monitoring
by the second respondent of the first respondent’s
performance in this regard), the founding affidavits certainly raise
- and are
obviously understood by the first and second respondents to
raise – the issue of the legality and reasonableness of the
contractual
provisions relating to safety and security. Thus, for
example, in the initial founding affidavit deposed to by Frylinck on
behalf
of the applicants, under the heading ‘
Unlawful Conduct
’,
the applicants complain in specific terms that the first and second
respondents:
‘
In concluding the operational contract referred to above,
failed to make any or proper and adequate provision for the
allocation and
funding of security services including but not limited
to control of access to and egress from rail commuter services. In
contracting
as aforesaid first and second respondents created dangers
which have become apparent over the years, which notwithstanding
security
amendments and security additions to agreements have not
been effected or enforced by either first, second or third
respondents.
’
Mr
Du Plessis
argued that the above-cited reference in the
founding affidavit to ‘
the operational contract referred to
above
’, read in its proper context, was a reference to the
1990 operational agreement between the first and second respondents,
and
not
a reference to the existing Service Agreement. This
contention is not, however, born out by the answering affidavits
deposed to
by Harrison and by Mr Jacobus van Niekerk (the consultant
Executive Manager: Finance of the SARCC, hereinafter referred to as
‘
Van Niekerk
’) on behalf of the first and second
respondents, respectively. In this regard, Harrison’s response to
the above-cited allegations
in the founding affidavit reads as
follows:
‘
It is denied that first and second respondents,
in
concluding the Service
Agreement
,
failed to make any or proper and adequate, alternatively reasonable,
provision for the allocation and funding of security services
’
(our emphasis).
In similar vein, Van Niekerk, in his response to the criticism
directed by the applicants against the security provisions contained
in the contracts concluded between the first and second respondents,
also denies all shortcomings in the contracts complained of,
and
specifically denies that ‘
the provisions of Annexure 6
[to
the Service Agreement]
and the execution thereof are
unreasonable
’. Van Niekerk states further that:
‘
The allegations relating to generalised shortcomings in regard
to the terms of contracts concluded between first and second
respondents
are denied. The second respondent disputes in particular
that the
Service Agreement presently in force
suffers from any of the shortcomings listed therein
’ (our
emphasis again).
The applicants’ founding and supplementary founding affidavits
further contain various pertinent allegations concerning the failure
by the first and second respondents to keep proper data, their lack
of proper statistics or an infrastructure to compile such statistics,
and the absence of ‘
a solid base of empirical knowledge
’
upon which crime patterns and trends should be based. In response to
these allegations, Harrison’s answering affidavit contains
a fairly
lengthy exposition of the manner in which statistics are compiled in
terms of the security plan contained in the Service
Agreement, and
the detection of trends and possible deviations using the Metrorail
National Crime Index. Van Niekerk’s answering
affidavit also
contains an analysis of the manner in which statistics are obtained,
checked and verified by and on behalf of the
second respondent, and
the so-called ‘
continuous monitoring
[by the first and
second respondents]
of crime incidents to ensure speedy detection
of
“negative trends”
as postulated,
inter alia
,
under clause 7 of the security provisions in Annexure 6
’.
Both the first and second respondents rely heavily on the report of a
number of experts, which reports are annexed to the main answering
affidavit deposed to (on behalf of the second respondent) by Van
Niekerk. These include reports compiled by a Professor Pienaar
(‘
Pienaar
’), a transport economist; a Mr Page (‘
Page
’),
a senior researcher employed at the CSIR–Transportek, a South
African Government parastatal institution engaged in transport
research and development, and allegedly an expert in the field of
crime and crime prevention on public transport; and by a Mr Oeschger
(‘
Oeschger
’), a management consultant specialising in
security management and security assessment. In the affidavit
deposed to by him, Pienaar
states specifically that his ‘
instruction
herein
’ was,
inter alia
, to furnish his ‘
views on
whether the concessioning agreement presently in force between the
second respondent … and the first respondent (and more
particularly
its business unit engaged in the rendition of commuter services under
the style
“Metrorail”)
… upon a proper consideration
thereof creates a framework within which a reasonable commuter
service can be delivered and in particular
whether the security needs
of passengers have been addressed thereunder on a reasonable and
effective basis
’.
Page states that the objectives of his ‘
expert witness
assessment
’ are,
inter alia:
‘
To consider the methods utilised to compile criminal incident
statistics, and more particularly the passenger security provisions
in Annexure 6 and Annexure 8 of the Agreement between the parties;
To furnish an opinion in regard to the reasonableness of the
Security Plan referred to in section 3.5 of this report and the
execution
thereof by Metrorail and the SARCC …
’.
A very large part
of Page’s expert report is devoted to a close analysis of the
methodology used by Metrorail and the second respondent
under the
Service Agreement (and more particularly Annexures 6 and 8 thereof)
to collect data, and to monitor trends with a view
to detecting
deviations which may occur from the bench mark set in Annexure 6.
Oeschger also purports to analyse and evaluate the provisions of
Annexure 6 of the Service Agreement between Metrorail and the SARCC,
concluding that ‘
the security plan contained therein provides a
reasonable basis of operation for the provision of security
services.
’
On an analysis of the applicant’s founding affidavits and the
answering affidavits deposed to on behalf of the first and second
respondents, we are of the view that, despite their protestations to
the contrary, the first and second respondents were indeed
sufficiently
alerted to the fact that part of the case they were
called upon to meet related to the
reasonableness
of the
security provisions contained in Annexure 6 to the current Service
Agreement, including the question of whether the Service
Agreement
makes provision for ‘
a statistically sound system of
data-monitoring, data-analysis and consequent timeous procedures of
decision-making, which can satisfy
reasonable expectations to ensure
public commuter safety and security in the sense of protection from
crime, in the rail commuter
environment
’.
It is this latter question which forms the basis for Dunne’s
affidavit, as annexed to the applicant’s replying affidavits. As
indicated above, the main basis for the objections raised by the
first and second respondents to the applicant’s application to
amend in this regard was that the applicants had
not
properly
raised criticisms in regard to the reasonableness/propriety of the
security plan in the Service Agreement in their founding
affidavits,
but had rather sought to do so in reply, predominantly through the
affidavit deposed to by Dunne. It was also on this
basis that Mr
Du Plessis
argued that, should the application for the amendment
of the Notice of Motion be allowed, the hearing of the matter should
be postponed
in order to afford the respondents the opportunity to
file supplementary affidavits.
As pointed out by Mr
Viljoen
, the applicants were not in law
required to anticipate that the terms of the Service Agreement (and
in particular, the security plan
contained in Annexure 6 thereof),
the fact of its conclusion and the contention that the first and
second respondents are not in
breach of their obligations thereunder,
would (in essence) be the respondents’ whole answer to the
applicant’s attack on the
manner in which rail commuter services in
the Western Cape are operated by the first respondent and ‘
controlled
and funded
’ by the second respondent.
The respondents argue that the case made out by the applicants in
their founding affidavits and the relief claimed by them in terms
of
prayer 7 (in its original form) are to the effect that the first and
second respondents must be compelled forthwith to comply
with the
strict terms of,
inter alia
, the Service Agreement. This
argument fails, however, to take into consideration the express terms
of the proviso to prayer 7, which
proviso makes it clear that, from
the outset, the applicants were relying on ‘
the interests of the
public
’ as the standard against which the ‘
terms and
conditions contained in the current and future operational, business
and/or other agreements between first and second respondents
dealing
with the provision, monitoring and funding of safety and security
services for its staff, the public and commuters making
use of rail
facilities within the Western Cape
’ should be measured by this
Court.
In their answering affidavits, the first and second respondents
effectively raise - as an entire defence to the applicant’s
complaints
- the provisions of the security dispensation contained in
the Service Agreement concluded between them, and their alleged
compliance
(or substantial compliance) with the obligations imposed
upon them under such dispensation. Moreover, several of the experts
relied
upon by the respondents deal in considerable detail with the
alleged reasonableness of the security system contained in the
Service
Agreement. In the light hereof, we are of the view that the
applicants
were
entitled, in their replying affidavits, to
comment and enlarge upon such facts and to take issue with the stance
adopted by the respondents
in this regard.
As regards the objection raised by the first and second respondents
in relation to the proposed ‘
new
’ prayer 9, the
respondents contended that the applicants did not make out any case
in their founding affidavits that the first
and second respondents
had failed to comply, in any material respect, with their obligations
under the Service Agreement in relation
to operational safety.
Once again, a proper analysis of the applicant’s founding
affidavits reveals clearly that the applicants
did
indeed from
the outset challenge certain failures by the respondents to comply
with standard operating instructions in relation to
rail commuter
services. Thus, in his supplementary founding affidavit, Frylinck
pointed out that –
‘
Commonly prescribed practice of the past by conductors of First
Respondent entailed that they would control the departure of trains
from platforms. The responsible conductor would physically check
that all passengers have safely boarded the train and then blow
a
whistle as an indication to the driver that he may electronically
from his seat close all doors before departure. In terms of
the
regulations of the said Act these doors and electrical installations
should be maintained at all times. As indicated before
the said
practice by conductors is no longer being implemented.
’
In his answering affidavit, Harrison expressly denied, on behalf of
the first respondent, that ‘
the practice outlined in this
paragraph by guards is no longer being implemented
’, and
referred specifically to the first respondent’s standard operating
instructions to the effect that ‘
a train may not be set into
motion until the driver has been given the signal by the conductor or
guard that it is safe for him to
do so.
’ Similarly, in the
affidavit deposed to by Mr Carver (‘
Carver
’), a mechanical
engineer employed by the second respondent from 1991 to 1994 as
senior engineer (rolling stock), by the first respondent
from 1994 to
1999 as executive manager (business operations), and now an
independent consulting engineer to the railway industry
– which
affidavit is annexed to the answering affidavit deposed to by Van
Niekerk on behalf of the second respondent – there
is considerable
reference to Metrorail’s general operating instructions in relation
to the procedures to be followed by staff when
defective doors are
observed. It is clear from the papers before this Court that, for
various reasons, the general operating instructions,
particularly in
relation to defective doors, are frequently not complied with. There
does not, however, appear to be any dispute
between the parties that,
in order to ensure the safety of commuters, the general operating
instructions
are
applicable and
should
be complied
with. In the circumstances, it is difficult to see what prejudice
will be suffered by the respondents should the proposed
amendments to
the Notice of Motion in this regard be allowed.
In the light of the considerations set out above, we were of the view
that the objections raised by the first and second respondents
to the
applicants’ proposed amendments to the Notice of Motion were not
well-founded and that the application for amendment should
succeed.
We also concluded that the arguments advanced on behalf of the first
and second respondents in support of their request
for a postponement
of the matter so as to enable them to file supplementary affidavits,
more particularly to deal with the content
of Dunne’s affidavit,
could not be accepted. Accordingly, we granted the applicants’
application to amend, with the exception
of the proposed ‘
new
’
prayer 8 which, as indicated above, was abandoned by Mr
Viljoen
in reply.
Respondents’
application to strike out matter
Very shortly prior to the hearing of this application (indeed, in
respect of the third respondent and of the fourth and fifth
respondents,
on the day before the commencement of the hearing),
applications to strike out a large number of the passages contained
in the applicants’
founding, supplementary founding and replying
affidavits were filed on behalf of the first and second respondents,
the third respondent,
and the fourth and fifth respondents,
respectively. The various respondents also sought to strike out
certain of the annexures to
the applicants’ affidavits, including
certain of the affidavits accompanying those deposed to by Frylinck
on behalf of the applicants.
The motivation advanced by the
different respondents for the striking-out applications may
conveniently be dealt with in the following
four categories: (i)
inadmissible hearsay evidence; (ii) irrelevant and opinion evidence;
(iii) allegations referring to discovered
documents not annexed to
the applicants’ affidavits, and (iv) ‘
new
’ matter
allegedly raised by the applicants only in their replying affidavits.
(i) Inadmissible hearsay evidence
The applicants attached to their founding affidavits a large number
of press reports published in various newspapers, allegedly revealing
the severity of crime-related incidents on rail commuter trains and
the lack of proper action in response thereto by the various
respondents over the last decade. Frylinck submitted that a perusal
of these reports indicated that:
‘
49.1 Crime is rife on suburban commuter rail facilities in the
Western Cape;
Access control to such facilities and security services for such
facilities are conspicuous by their absence;
Promises for more and better security made over several years
have not materialised;
Respondents have neither the will nor the capacity to prevent
crime on rail facilities if the present organisational structures
and budgeting for safety is allowed to continue;
The stark reality is that without this Honourable Court’s
intervention, applicants verily believe that respondents will do
nothing
effective to ameliorate the parlous position of suburban
rail commuters.
’
All the respondents applied to strike out these numerous press
reports, as also the references made to such reports by the
applicants
in their founding and supplementary founding affidavits,
on the grounds that this material constituted inadmissible hearsay
evidence
which had not been confirmed on oath and which prejudiced
the respondents.
Applicants’ counsel argued that the hearsay evidence tendered by
the applicants in the form of such press reports and the references
thereto, was not put forward in order for the Court to accept that
each report was correct in all its details, but simply to support
the
applicants’ contention that the frequency and type of crime
committed on trains in the Western Cape in recent years was
‘
extraordinary and a cause of anxiety to every commuter
’.
However, as was argued on behalf of the respondents, it is clear from
the passages in the founding affidavits referring to and dealing
with
the press reports that the applicants
do
attempt to rely upon
the press reports to make a number of factual inferences and
conclusions in support of their case. Moreover,
despite the
reference made by applicants’ counsel to the court’s discretion
to admit hearsay evidence, in terms of the provisions
of
section
3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
, no attempt
was made by applicants’ counsel to deal specifically with any of
the factors referred to in
section 3(1)(c)
to demonstrate that it
would be in the interests of justice for such hearsay evidence to be
admitted in the present proceedings.
This section provides that:
‘
3.(1) Subject to the provisions of any other law, hearsay
evidence shall not be admitted as evidence at criminal or civil
proceedings,
unless –
…
…
The court, having regard to –
the nature of the proceedings;
the nature of the evidence;
the purpose for which the evidence is tended;
the probative value of the evidence;
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
any prejudice to a party which the admission of such evidence
might entail; and
any other factor which should in the opinion of the court be
taken into account;
is of the opinion that such evidence should be admitted in the
interests of justice.
’
(See, in this regard, Schwikkard et al
Principles of Evidence
(1997) 157-161; Schmidt & Rademeyer
Schmidt : Bewysreg
4 ed (2000) at 476-481, and the various authorities cited by these
writers.)
As was pointed out by Mr
Du Plessis
, the press reports relied
upon by the applicants cover a lengthy period, stretching from March
1996 to November 2001. Not all of
the reports deal with criminal
attacks on rail commuters, nor do they all deal with incidents in the
Western Cape. No attempt is
made by the applicants to indicate to
the Court how the reports were assembled, how complete such reports
are, and (in particular)
whether any specific area, type of crime or
period was focused upon in compiling such reports. Furthermore, no
attempt is made by
the applicants to put these press reports,
purportedly dealing with the incidents of crime on trains and train
stations in the Western
Cape, in the context of crime elsewhere in
the Western Cape during the same period. Thus, for example, no
indication is given of
the total number of incidents of crime
(including non-commuter train-related crime) that were reported by
the newspapers in question
over the same period of time as that
covered by the reports upon which the applicants seek to rely.
In the absence of any proper attempt made by the applicants to
‘
contextualise
’ the press reports relied upon and the
inferences sought to be drawn by them from such press reports, we are
of the view that the
applicants have not made out a proper case for
the admissibility of such hearsay evidence. Accordingly, as far as
the press reports
and the various passages referring to such press
reports are concerned, we conclude that the applications to strike
out should succeed
and that the relevant portions of the applicant’s
papers should be disregarded.
(ii) Irrelevant and opinion evidence
In the applicant’s founding and supplementary founding affidavits,
fairly lengthy references are made to the findings and
recommendations
of the Committee appointed by the Goldstone
Commission of Enquiry regarding the Prevention of Public Violence and
Intimidation established
in terms of Act 139 of 1991, to enquire into
train violence in the Southern Transvaal (‘
the Goldstone
Committee
’). Furthermore, in the applicants’ supplementary
founding affidavits, relatively detailed references are made to the
findings
and recommendations of the Moseneke Joint Committee of
Enquiry appointed (during 1996) to enquire into the death of 16
commuters
and the injury of 80 commuters caused by a passenger
stampede which occurred at Thembisa station in the early morning
hours on 31
July 1996.
The first and second respondents, as also the third respondent,
applied for the striking out of all references to the findings and
recommendations of both committees, on the grounds that such findings
and recommendations constituted irrelevant and opinion evidence.
In
this regard, the respondents argued that the findings and
recommendations of the Goldstone Committee were irrelevant to the
present
proceedings, as the events in question had occurred more than
a decade ago, in the context of a high level of political violence
committed on trains and train stations, more particularly in the
Southern Transvaal.
Similarly, the respondents submitted that the findings and
recommendations of the Moseneke Joint Committee were irrelevant to
these
proceedings, as the incident in question was not related to
criminality on rail commuter trains, and the contents of the report
produced
by the Committee dealt with fare evasion and access control
only insofar as this was relevant to the deaths and injuries caused
during
the passenger stampede in question. The respondents pointed
out that, in formulating its report, the Committee focussed on the
causes
of this
specific
incident and the related fare evasion
practices, and formulated recommendations in regard to appropriate
responses to such practices.
Fare evasion and access control was not
considered by the Committee in the context of
general
criminality on rail commuter trains and train stations.
In the answering affidavits filed on behalf of the first and second
respondents, extensive reference is made to the background to,
and
the findings of, both the Goldstone Committee and the Moseneke Joint
Committee of Enquiry. The respondents deal comprehensively
with the
context in which both such committees were appointed, the subject
matter of their investigations and the recommendations
made by the
committees. In this way, the respondents ‘
contextualise
’
the references made by the applicants to the work of both committees,
and, to the extent necessary, rectify perceptions which
may have been
created by the manner in which the applicants dealt with the findings
of both committees in their founding affidavits.
This being so,
whilst it is obviously so that the evidentiary weight to be given to
the references made by the applicants to the
work and recommendations
of these two committees will necessarily be limited by the context in
which the committees were appointed
and in which they formulated
their recommendations, we are nevertheless of the view that these
passages are not entirely irrelevant
to the present proceedings and
that the respondent’s application to strike out such passages
should not succeed.
References to discovered documents not annexed to the applicants’
affidavits
In their supplementary founding affidavit, the applicants referred
fairly extensively to documents forming part of the so-called
‘
informal discovery record
’ made available by the
respondents to the applicants, in compliance with the court order
made by agreement between the parties
on 12 February 2002. The
applicants indicated that they had paginated the discovered
documents in colour-coded files, numbering
each file in accordance
with the indexes provided by the respondents. They stated further
that, in instances where they referred
in the supplementary founding
affidavit to sources and/or documents not annexed to such affidavit,
they would for purposes of identification
simply refer ‘
to the
relevant file, item and the page number of the discovery record
’.
In this regard, the respondents submitted that all the allegations
made by the applicants referring to discovered documents which
were
not attached to the applicants’ affidavits should be struck out,
contending that the proper approach in motion proceedings
is to annex
documentation relied upon in affidavits to such affidavits and, if
the originals are not annexed to such affidavits,
to have the
originals available for inspection by the Court. The respondents
referred in this regard,
inter alia
, to
Commercial Union
Assurance Company of South Africa Ltd v Van Zyl & Another
1971
(1) SA 100
(E) at 105A-E, and
Goudini Chrome (Pty) Ltd v MCC
Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(A) at 83C-D.
However, as was convincingly argued by applicant’s counsel, all the
documents here in issue were discovered by the respondents
themselves
and, if any citation from any such documents required clarification
or was misrepresented by the applicants, the respondents
simply had
to refer to the document in issue, annex it (or the relevant extract
therefrom) to the answering affidavits and record
their criticism of
the applicants’ use of the document in question. It is clear from
the papers before this Court that the respondents
had no difficulty
whatsoever in identifying and dealing adequately with all of the
documents in the ‘
informal discovery record
’ utilised by
the applicants in the manner complained of. For this reason, we are
of the view that the respondent’s application
to strike out a
number of passages from the applicants’ supplementary founding
affidavits on this basis should not succeed.
New matter raised in reply
The passages in, and supporting documentation annexed to, the
applicants’ replying affidavits which the respondents sought to
have
struck out on the basis that this constituted ‘
new matter
’
introduced by the applicants for the first time in reply –
resulting in potential prejudice to the respondents which could not
be cured unless they were afforded the opportunity to deal therewith
by way of further affidavits – fall into five main ‘
categories
’
and will be dealt with under such categories.
The first category encompassed the submissions made by Page (one of
the experts relied upon by the first and second respondents)
at the
public hearings (held in February 2002) by the Parliamentary
Portfolio Committee on Transport under the chairmanship of Mr
Jeremy
Cronin MP, which Committee was mandated to consider the draft
National Railway Safety Regulator Bill prepared by the National
Department of Transport. The unedited transcript of the submissions
made by Page to such Committee was furnished to the applicants’
attorneys by the liaison officer of the said Portfolio Committee and
was annexed to the applicants’ replying affidavits. One of
the
applicants’ attorneys (Mr Theron) and other representatives of the
applicants attended the public hearings and the first applicant
also
made fairly substantial submissions to the members of the Portfolio
Committee. A copy of the written submissions made by the
first
applicant was annexed to the applicants’ supplementary founding
affidavit. Mr Theron deposed to an affidavit (annexed to
one of the
replying affidavits deposed to by Frylinck), in which he confirmed
the correctness of the allegation (made by Frylinck)
that the
unedited transcript of Page’s submissions accurately reflected what
Page had in fact stated to the Portfolio Committee.
In his replying affidavit, Frylinck pointed out that certain of the
submissions made by Page before the Committee appeared to be
at
variance with the contents of the ‘
expert report
’ prepared
by Page on behalf of the first and second respondents, and annexed
(in the form of an affidavit) to Van Niekerk’s answering
affidavit.
Thus, Page had submitted to the Committee that problems exist with
the form of data recorded by the SAPS concerning incidents
of crime
on rail commuter trains, and the manner in which Metrorail
subsequently attempts to correlate such data. So, while the
SAPS
data base requires an exact crime location, this is not possible in
respect of crime committed on moving trains. Furthermore,
Page had
submitted that, while the commuter rail provider and the SAPS should
keep comparable statistics, this is in fact not the
case. Page also
referred, in his submissions to the Portfolio Committee, to the
problems created by the non-existence of an independent
body
responsible for the assimilation of the Metrorail statistical data,
stating that statistics ‘
… must be collected independently;
because you may well find out we are only given numbers that
organisations want us to see.
’ In his view, as expressed to
the Portfolio Committee, it was necessary
‘… to validate all
the information that is submitted by network operators
’.
These concerns with the collation, use and reliability of criminal
incident statistics used by Metrorail and the SARCC were, by and
large, not addressed in Page’s expert report, despite the fact that
his mandate in preparing such report was ‘
to provide expert
witness services with respect to,
inter alia
,
the use of criminal incident statistics compiled by Metrorail
’.
The conclusion reached by Page in his expert report was that ‘
the
system used
[by Metrorail and the second respondent under the
Service Agreement]
to monitor trains with a view to detecting
deviations which may occur from the benchmark in Annexure 6 and the
formulation and carrying
out of
ad hoc
action
plans on regional level appear to operate reasonably. The security
plan in relation to methodology applied to collate data,
to detect
deviations and to address same may be open to criticism, but cannot
be rejected as unreasonable, incoherent or inflexible.
’
Applicants’ counsel contended that, confronted with Page’s expert
testimony on behalf of the first and second respondents, the
applicants were clearly entitled to have regard to the statements
made by him before the Portfolio Committee which appeared to deviate
from, or to be at variance with, his analysis and conclusions in his
expert report. Reference to Page’s submissions to the Portfolio
Committee had been made by the applicants in their founding
affidavits and the respondents were adequately alerted to the
applicants’
reliance upon various statements made by Page before
the Portfolio Committee. As argued by applicants’ counsel, the
applicants
could not reasonably have been expected to know, when
their founding affidavits were prepared, that they would in due
course be confronted
with an expert report by Page containing certain
conclusions apparently inconsistent with his submissions before the
Portfolio Committee.
As these apparent contradictions impact upon the ‘
veracity
’
and reliability of Page’s views, we agree with applicants’
counsel that it is appropriate for the applicants to place before
the
Court, albeit in their replying affidavits, the transcript of Page’s
evidence before the Portfolio Committee and to point out,
in their
replying affidavits, the alleged contradictions between such evidence
and the stance adopted by Page in his expert report.
For this
reason, we are not prepared to accede to the respondents’ request
that this material be struck out.
As indicated above, the second major ‘
category
’ of
material affected by the respondents’ striking out applications was
the whole of Dunne’s affidavit, as also the vast majority
of the
paragraphs in the applicants’ replying affidavits referring to, or
relying upon, Dunne’s affidavit. Here too, the argument
advanced
on behalf of the respondents in support of this part of their
applications to strike out was that this material constituted
inadmissible new matter in reply which, if admitted, would occasion
the respondents irreparable prejudice, unless they were afforded
the
opportunity to deal therewith by way of further affidavits.
We have already dealt with these arguments in the context of the
objections raised by the respondents to major parts of the
applicants’
application to amend. We thus need do no more than
refer to our reasoning set out above in support of our conclusion
that, correctly
construed, Dunne’s affidavit and the references
thereto in the applicants’ replying affidavits cannot properly be
characterised
as ‘
new matter
’ impermissibly raised in
reply. This being so, we are of the view that the respondents’
applications to strike out this category
of material should not
succeed.
It should, perhaps, also be pointed out that the replying affidavit
deposed to by Frylinck, to which Dunne’s affidavit was annexed,
was
served upon the respondents on 24 July 2002, more than a month prior
to the commencement of the hearing of the application.
As pointed
out above, many of the aspects dealt with in Dunne’s report – in
particular, the statistical methodology followed
by the first and
second respondents under Annexure 6 to the Service Agreement; the
reliability of the statistics forming the basis
of such methodology;
the methods of collection of data and analysis thereof by the first
and second respondents – had been dealt
with in considerable detail
by Harrison and by Van Niekerk in their answering affidavits, as also
by the various experts relied upon
by the first and second
respondents.
The respondents failed to make any real effort to ‘
plead over
’
by responding to the substance of the contents of Dunne’s report
and the references to such report in the applicants’ replying
affidavits. Instead, the first and second respondents served upon
the applicants, very shortly prior to the commencement of the
hearing, an exceptionally voluminous application to strike out matter
and, at the same time, filed and served a further affidavit
by
Harrison, stating,
inter alia
, that the respondents were
unable to respond to the issues raised by Dunne’s affidavit in the
time available and would suffer irreparable
prejudice should this
material be permitted. In this affidavit, Harrison indicated that
Page had in the interim taken up a position
in the United States and
was, accordingly, no longer available to the first and second
respondents and that, in order to comment
adequately on Dunne’s
report, the first and second respondents would have to instruct a new
expert witness.
We do not find this response very convincing. As discussed above,
counsel for the respondents argued that they required a postponement
to deal with the issues raised by Dunne’s affidavit, as they needed
(
inter alia
) to place ‘
comprehensive factual material
before this Honourable Court in regard to the
modus
operandi
of the task force (including the considerations
– budgetary and otherwise – which prompted them to draft the
Service Agreement
(and more particularly Annexure 6 thereto) in its
present form
’. In view of the fact that both Harrison and Van
Niekerk served on the task force, and that both deal extensively in
their answering
affidavits with the context in which the work of the
task force was carried out, there does not seem to be any good reason
why the
respondents were
not
able to make the aforementioned
‘
comprehensive factual material
’ available to the Court
prior to the hearing of the application. (See in this regard, Van
Winsen et al
op cit
372-373, and the authorities cited by
these writers.)
Next, the first and second respondents, as also the third respondent,
seek to have struck out from the applicants’ replying affidavits
a
number of passages in which the applicants allege that the first
respondent is obliged to, in effect, apply a policy of
‘
cross-subsidisation
’ amongst its various business
divisions by, for example, utilising the profit which it makes from
other business divisions to improve
rail commuter security services
in its Metrorail division. In view of our conclusions regarding the
relief sought by the applicants
in terms of prayer 6 (‘
the
funding relief
’), it is not really necessary for us to deal in
any detail with this aspect of the respondents’ application to
strike out. Suffice
it to say that an analysis of the papers before
this Court supports the conclusion that these passages are indeed new
matter impermissibly
raised by the applicants in reply and that the
striking out applications relating to these passages should, in our
view, succeed.
In the answering affidavit deposed to by Van Niekerk on behalf of the
second respondent, Van Niekerk disputed the
locus standi
of
the first applicant to obtain any of the relief sought by it in the
present proceedings. This challenge to the first applicant’s
locus
standi
was echoed by Harrison in the answering affidavit deposed
to by him on behalf of the first respondent.
In the applicants’ replying affidavit, Frylinck disputed this
challenge to the first applicants’
locus standi
and alleged
that the Congress of South African Trade Unions (‘
COSATU
’)
supported the present application and had embarked on strike action
because of its dissatisfaction with the security situation
on rail
commuter trains. In support of this allegation, an unsigned
affidavit deposed to by a Mr A J Ehrenreich (‘
Ehrenreich
’),
allegedly the Regional Secretary for the Western Cape Region of
COSATU, was annexed to this replying affidavit of the applicants.
In
Ehrenreich’s affidavit, he makes the statement that COSATU has more
than 260 000 affiliated members in the Western Cape and
that, if
spouses and dependants are taken into account, the number of people
whose broad interests COSATU represents is at least
four to five
times that number. According to Ehrenreich, COSATU supports the
‘
efforts of the above Applicants to achieve improvement in the
rail commuter services in the Western Cape
’. COSATU does not,
however, formally join these proceedings, as it ‘
prefers to
bring pressure to bear on the authorities to improve the situation in
a different way
’.
The first and second respondents
applied for the striking out of the references in the applicants’
replying affidavits to this ‘
support by COSATU
’, as also
for the striking out of Ehrenreich’s affidavit, contending that
this was new matter tendered in reply, the admission
whereof would
occasion prejudice to the first and second respondents unless they
were afforded the opportunity of dealing therewith
by way of further
affidavits.
With reference to cases such as
Nahrungsmittel GmbH v Otto
1991 (4) SA 414
(C) at 418D,
Merlin Gerin (Pty) Ltd v All Current and Drive Centre (Pty) Ltd
1994 (1) SA 569
(C)
,
and
Moosa & Cassim NO v Community
Development Board
1990 (3) SA 175
(A), applicants’ counsel
argued that it is the practice in this Division to allow an applicant
whose
locus standi
is assailed by a respondent in answering
affidavits to remedy any possible deficiency in such
locus standi
in reply. While these cases provide some support for the applicants’
submissions in this regard, we are of the view that, particularly
in
the light of the fact that the affidavit deposed to by Ehrenreich was
unsigned (and was, moreover, expressed in relatively broad
and
general terms), the respondents’ objections to these passages are
well-founded and that the application to strike out this
matter
should succeed.
Finally, the respondents sought to
have struck out from the applicants’ replying affidavits certain
passages referring to the training
levels and competency of
contracted security guards (falling into various grades ranging from
Grade A to Grade E). This part of
the respondents’ application to
strike out was also directed at two further affidavits annexed to the
applicants’ replying affidavits,
one of which was deposed to by a
Mr Van der Merwe (‘
Van der Merwe
’), one of the attorneys
acting for the applicants, and the other deposed to by a Mr Mponoana
(‘
Mponoana
’), the National Training Manager of the Private
Security Industry Regulatory Authority (‘
SIRA
’), the
statutory body regulating all private security guards.
It appears from these affidavits that
only ten days training is required to be accredited as a Grade D
guard and that no minimum scholastic
requirements are set. It also
appears that it is not permissible to issue firearms to Grade D
guards, and that only a guard trained
to and accredited as Grade C or
a higher grade, as specified by SIRA, may be allowed to carry a
firearm. According to Mponoana,
Grade D guards are only basic
security guards capable of performing unsophisticated guarding
functions such as access control and
patrolling. Applicants also
annexed to their replying affidavits various posting sheets relating
to private security guards contracted
by Metrorail, from which it
appears that, in a number of instances, firearms
were
issued
to Grade D guards contracted to provide security on rail commuter
trains and stations. The respondents contended that these
passages,
as also the affidavits by Van der Merwe and Mponoana, were new matter
impermissibly raised in reply and had to be struck
out.
We disagree with this submission. A
perusal of the answering affidavit deposed to by Harrison makes it
clear that the firearm competency
of security guards was raised by
Harrison himself and that the impugned passages in the applicants’
replying affidavits sought
to deal with the allegations made by
Harrison in this regard. Moreover, in a further affidavit deposed to
by Harrison, he purports
to deal with the applicants’ allegations
on this aspect, annexing to his affidavit a copy of a letter obtained
from one Mr K Matroos
(‘
Matroos
’), allegedly the manager
of the Law Enforcement Division of SIRA, in which Matroos reports to
confirm that ‘
a registered security officer Grade D is permitted
to handle a firearm in the performance of his duties provided that
such a security
officer is in lawful possession of the firearm
’.
As the firearm competency and general training of contracted private
security guards was thus an issue raised by Harrison on
behalf of the
first respondent, and as the applicants’ allegations in this regard
have purportedly been dealt with by Harrison
in a further affidavit,
we are of the view that allowing this material in the applicants’
replying affidavits to stand will occasion
no prejudice to the
respondents. The respondents’ application to strike out in this
regard is accordingly not granted.
Standing
of the applicants
Mr
Du Plessis
submitted that first applicant had no
locus
standi
to seek the relief sought in that it had failed to
establish that it is a
universitas personarum
; that is a body
possessed with the characteristics of a
universitas
and,
more particularly, an entity capable of possessing rights and which
has perpetual succession. Further, first applicant had
failed to
establish that it had a membership or that it had a constitution.
(See, in this regard,
Interim Ward S 19 v Premier, Western Cape
Province
1998 (3) SA 1056
(C) at 1060F.)
In
African National Congress and Another v Lombo
[1997] ZASCA 1
;
1997 (3) SA 187
(A) at 195-196, Corbett CJ
held that in
order to determine whether a voluntary association is a
universitas
,
it is necessary to look in the first instance at its constitution
and, if it is not possible to determine by reference to the
constitution,
either from its express terms or by way of implication,
that the association was a
universitas
, regard must be had to
the nature of and the objects of the association.
On the basis of this test, Mr
Du Plessis
submitted that the
first applicant had failed to establish that it was a
universitas
and that, accordingly, it had not shown that it had the requisite
locus standi
.
Mr Du Plessis also attacked the standing of the
second applicant. He submitted that the second applicant did not seek
any relief
in a representative capacity, ie relief on behalf of
another person, entity, group or class. Second applicant did not
allege that
he was a commuter or that he intended to become a
commuter and that he thus entertained an apprehension of personal
harm when travelling
on commuter trains.
Mr
Viljoen
conceded that the common law which antedated the
Constitution had a restricted approach to
locus standi
.
However, he contended that section 38 of the Constitution ‘
had
‘radically extended the common law rule of standing
’.
Counsel referred in this regard to (
inter alia
)
McCarthy v
Constantia Property Owners Association
1999 (4) SA 847
(C)
at 854H and
Ngxuza and Others v Permanent Secretary, Department of
Welfare,
Eastern Cape, and Another
2001 (2)
SA 609
(E) at 618E-619F.
In
Ngxuza’s
case (
supra
), Froneman J
concluded that the starting place to determine the question of
standing was the Constitution and, in particular, section 38 thereof,
which section ‘
introduces far-reaching changes to our common law
of
standing
’ (at 618J). Froneman J
went on to
say:
‘
Particularly in relation to so-called public law litigation
there can be no proper justification of a restrictive approach. The
principle
of legality implies that public bodies must be kept within
their powers. There should, in general, be no reason why individual
harm
should be required in addition to the public interest of the
general community. Public law litigation may also differ from
traditional
litigation between individuals in
a
number of
respects. A wide range of persons may be affected by the
case.
The emphasis will often not only be backward-looking, in the sense of
redressing past wrongs, but also forward-looking, to ensure
that the
future exercise of public power is in accordance with the principle
of
legality
’ (at 619B-D).
Even before the introduction of section 38 of the Constitution, our
courts had shown a willingness to take a less restrictive approach
to
standing in so-called public interest litigation. Thus in
BEF
(Pty) Ltd v Cape Town Municipality and
Others
1983
(2) SA 387
(C) at 400F-401G, Grosskopf J
(as he then was) held
that, where a township scheme introduced in terms of the Township
Ordinance 33 of 1934 (C) was intended not
necessarily ‘
to
operate… in the general public interest, but in the interest of the
inhabitants of the area covered by the scheme, or at any
rate those
inhabitants who would be affected by a particular provision’,
the
latter would have
locus standi
(at 401B-H).
Mr
Viljoen
argued that, in the present dispute, although first
applicant is not a
universitas personarum
, it is a voluntary
association. It was constituted at a public meeting called to give
public expression to grave concern about
the death of the son of
second applicant who was killed on a train travelling between
Kenilworth and Wynberg on the Cape Town/Simonstown
railway line.
First applicant was formed by members of the public who, as Mr
Frylinck described in his founding affidavit, had ‘
had enough of
crime on trains and wanted immediate action
.’
Second applicant is the father of the late Juan van Minnen who was
killed on a train. Third, sixth and ninth applicants were victims
of
crimes committed on the railways which are run by first respondent,
having been subjected to robbery, assault and theft while
passengers
on commuter trains. Fourth applicant lost his right arm at the
shoulder joint and his right leg to the knee as a result
of a violent
attack while he was a passenger on the train. Fifth applicant lost
both his legs after being flung from the open door
of the train on
which he was a passenger. Acts of violence were committed against the
spouses of seventh and eighth applicants while
the former were
passengers on a train, such acts resulting in their deaths. Ninth
applicant was robbed while a passenger on a train,
thereafter was
stabbed twice in the face and thrown forcibly from a train window.
First and second respondents contend that second to ninth applicants’
cases should be dismissed with costs in view of the plainly
foreseeable factual disputes that have arisen in the papers,
particularly with regard to the cause of the injuries sustained by
third,
fourth, fifth and ninth applicant. Further, first and second
respondents contend that fourth to ninth applicants have failed to
establish an interest in declaratory relief which is more than merely
academic and hence of practical consequence.
In our view, the first part of this attack is predicated on the
erroneous premise that the relief sought by applicants was based
on a
delictual claim that must be brought properly by way of an action
grounded in delict. As will become apparent from the analysis
of the
relief sought, a number of prayers can appropriately be determined by
this court on a proper application of the principles
dealing with
motion proceedings.
Furthermore, the relief which applicants seek is to ensure the
provision of a safe rail commuter service in which violent attacks
on
passengers are prevented. On the case made out by applicants
concerning the lack of safety on the trains, the relief is most
certainly designed to have a practical effect. Third to sixth and
ninth applicants have been directly affected by violence on the
train. Second applicant was indirectly affected by virtue of the
death of his son, while seventh and eighth applicants have lost
their
husbands and, moreover, have to travel to work daily on the trains
along the same line as that on which their husbands were
killed.
First applicant was formed in order to ensure that action would be
taken to prevent further loss of life and injury to the
rail commuter
population. Indeed, first applicant has received recognition from a
senior member of first respondent. It was common
cause that first
respondent’s regional manager, Harrison, attended a meeting with
members of first applicant where he sought to
communicate the first
respondent’s attitude to violence on trains operated by the first
respondent (acting on the ‘
request
’ of the second
respondent).
The relief which the applicants seek from this court is in part
dependent upon the provisions of the Constitution. Where applicants
rely on the common law, they seek to employ the Constitution in order
to expand the range of common law rights enjoyed by them.
Furthermore, as Mr
Viljoen
submitted, applicants seek to hold
respondents accountable to the class of persons who use commuter
trains in the Western Cape.
Viewed within this context, a restrictive approach to the standing of
a voluntary association as might previously have been adopted,
is
incompatible with the spirit, purport and objects of section 38 of
the Constitution. An association of concerned citizens, formed
to
express concern about the conditions of public facilities such as the
rail commuter service in the Western Cape, approaches the
court for
relief on behalf of an affected constituency, being passengers. In
our view, a strict adherence to the requirements of
a
universitas
personarum
is incompatible with the spirit of the
Constitution, which seeks to ensure that persons ‘
who are most
lacking in protective and assertive armour
’ be afforded the
opportunity of obtaining relief from our courts (see
Permanent
Secretary
,
Department of Welfare, Eastern Cape, and
Another v Ngxuza and Others
2001 (4) SA 1184
(SCA) at para
12).
A voluntary association formed to protect the rights of a vulnerable
constituency and with the object of holding a public body accountable
to the public should, it seems, not be subjected to unnecessary
restrictions before being heard by our courts. As Kruger AJ
observed in
Highveldridge Residents Concerned Party
v
Highveldridge TLC
and Others
2002 (6) SA 66
(T)
at para 24, to restrict voluntary associations in the way they are
restricted by way of common-law requirements ‘
would equally be
contrary to the ideal of a vibrant and thriving civil society which
actively participates in the involvement and
development of a rights
culture pursuant to the rights enshrined in the Bill of Rights
’
.
Schwartz
et al
express a similar view:
‘
If a
plaintiff with a good case is turned away merely because he is not
sufficiently affected personally, that means that some government
agency is left free to violate the law, and that is contrary to the
public interest. Litigants are unlikely to spend their time
and
money unless they have some real interest at stake. In the rare
cases where they wish to sue merely out of public spirit, why
should
they be discouraged?’
(Schwartz, Wade & Prosser
Cases and Material on Torts
(10
ed, 2000) at 570.)
For these reasons, we are of the view that applicants in general and
first applicant in particular have standing to approach the
court for
the relief as set out in the notice of motion.
We now turn to consider the relief sought by applicants as set out in
the various prayers to their notice of motion.
Prayer
1: The provision of a rail commuter service
‘
in
the public interest
’
In terms of prayer 1
of the notice of motion, the applicants seek a declaration that the
manner in which the rail commuter service
in the Western Cape is
operated by first respondent and controlled and funded by second
respondent is not in the public interest,
as contemplated in section
15(1) and section 23(1) of the SATC Succession Act, 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.
Section 23(1) of the SATS Succession Act provides that:
‘
The main object and the main business of the Corporation
[second
respondent]
are to ensure that, at the request
of the Department of Transport or any local government body
designated under section 1 as a transport
authority, rail commuter
services are provided within, to and from the Republic
in
the
public interest
’
(our
emphasis)
.
Section 15(1) of the SATS Succession Act in turn stipulates that the
first
respondent
‘shall
provide, at the request of
the Corporation
[second respondent]
or a transport authority,
a service that is
in the
public
interest
’ (again our emphasis).
The term ‘
public interest
’ is thus required to do much of
the work in giving meaning to first and second respondents’
statutory obligations. In giving
content to the term ‘
public
interest
’, Mr
Viljoen
referred to Black’s
Law
Dictionary
where this term is defined as ‘
the general
welfare of the public that warrants recognition and protection.
Something in which the public as a whole has a stake,
especially an
interest that justifies governmental regulation
’.
In
Ex Parte North Central and South Central Metropolitan
Sub-Structure
Councils of the Durban Metropolitan Area
and Another
1998 (1) SA 78
(LCC) at 83E, Moloto J
referred with approval to the definition of ‘
public interest
’
in
The New Shorter
Oxford English Dictionary
Volume 2 (1993),
where ‘
public interest
’ is defined
to include ‘
the common welfare
’.
By contrast Mr
Albertus
submitted that the requirement to
conduct a commuter rail service ‘
in the public interest
’
meant nothing more than that a train service must be provided for the
benefit of the general public, in the sense that such service
allowed
members of the public access to an affordable and reliable mode of
public transport.
In our view, this narrow definition of ‘
public interest
’
is inappropriate within the context of the present dispute. While the
term ‘
public interest
’ may not be capable of precise
definition, the use of the phrase is to our mind designed to ensure
that first and second respondents
adopt a policy which promotes the
general welfare of the public which uses the public facility in
question, in this case the railway
service. (See in general R
Flathman
The Public Interest
(1966) at 82.)
In
Mohammad Raihan v Uttar Pradesh
AIR 1956 A ll 594 at
595, an Indian Court held that the words ‘
public interest
’
as employed in the Motor Vehicles Act of 1939, meant the interest of
the public which uses the relevant mode of transport and
not the
public in general. In the present case, the public who are in need of
public transport are entitled to demand that their
needs be met by a
service which adequately protects their security and safety.
Manifestly, it is in the public interest that public
transport be
provided which adheres to reasonable standards of safety, security
and reliability.
Given this interpretation of public interest, it is possible to
analyse the relief which applicants seek from this court in terms
of
prayer 1 of the notice of motion. In particular, applicants demand
that respondents provide proper and adequate safety and security
on
trains, including control of access to and egress from rail
facilities used by rail commuters in the Western Cape. It is
applicants’
case that the failure to so provide by respondents
means that the rail service is
not
operating or being operated
in the public interest, as is required by the relevant provisions of
the SATS Succession Act. The applicants
rely on a number of
different aspects of the rail commuter service to support this
contention.
(i) Access and egress control
In his founding affidavit, Frylinck cogently describes the absence of
access and egress controls on a number of railway stations
in the
Western Cape. Harrison concedes that ‘
stations were largely
unmanned for access control purposes
’ in what he described as
‘
off-peak periods
’.
In essence, first and second respondent’s case is that access and
egress control will not curb crimes and that such control at
all
Western Cape stations is neither economically nor practically viable.
Mr
Du Plessis
submitted that applicants laboured under an
erroneous perception that crime could be minimised effectively by
means of the exercise
of adequate access and egress control. In this
connection, he referred to the affidavit deposed to by Van Niekerk on
behalf of second
respondent. Van Niekerk averred that second
respondent was ‘
satisfied that the measure of access control is
sufficient for its predominant purpose, ie to increase fare revenue’
.
Van Niekerk further emphasised that
‘it is erroneous to assume
that the eradication of fare evasion will prevent or minimise crime.
All the available evidence and
experience point the other way
’
.
The argument that access and egress control is designed to eradicate
fare evasion rather than the control of crime was supported
by a
number of experts who deposed to affidavits in support of first and
second respondents. Thus, Oeschger stated that:
‘
If the purpose of access and egress control is
to
eliminate the carrying of dangerous weapons, it will be totally
ineffectual. The only logical and effective way to ensure the
absence of dangerous weapons on stations and trains is to close the
system entirely and to conduct bodily searches of all commuters,
a
process which in itself is impractical and inherently dangerous.
This means that all stations must be securely fenced as well
as the
entire track, covering hundreds of kilometres.
To maintain a closed security system, access at all stations in
South Africa must be similarly controlled, resulting in a massive
and
costly security operation
’
.
In addition Oeschger claimed that such a system would be impractical
and dangerous. According to him:
‘
Bodily searches of 175 000 commuters twice per day, or even the
use of turnstiles at all access control points, will result in
massive
delays in the transportation schedule. It can be expected
that long queues will be formed by rail commuters who generally have
to
travel long distances and are therefore in
a hurry to reach
their destinations. Given the current impatience of commuters with
any delays it can be expected that violence and
the destruction of
property will follow.
’
Carver, in turn stated that:
‘
The issue of closing off the existing system is one that
commuter railways all over the world have faced or are currently
facing.
Efforts at closing the system are almost without exception
for the reduction of fare evasion. I am not aware of a single system
anywhere in the world that has been closed off primarily to eradicate
crime. The costs of system closure increase exponentially
with
the reduction of fare evasion and often a level of fare evasion of
say 5% is chosen as a target to aim for as a tolerable level
taking
the costs of closure and benefit from extra ticket sales into
account. This implies that most railways tolerate a certain
level of
fare evasion. An expectation of complete closure and zero fare
evasion is unobtainable in most cases in commuter railways
…
’.
By contrast, Mr Johann Nortjé (‘
Nortjé
’), a director in
the Legal Department of the South African Police Service, who deposed
to the main answering affidavit on behalf
of the fourth and fifth
respondents, conceded that access and egress control
did
have
a role to play in the curbing of crime. As he said, ‘
whilst
proper access and egress controls would ameliorate the situation,
such controls would not necessarily prevent criminals from
gaining
access to trains and stations and committing crime’.
In dealing with the problem of crime on the rail network in the
Western Cape, Nortjé stated that:
‘
I am informed by Captain van Breda of the commuter unit that
many of these railway stations have no or inadequate access control.

There is also a severe problem with overcrowding on trains,
particularly during peak hours.
Captain van Breda further informs me that the doorways between
carriages are permanently sealed off. The aforementioned conditions
make it extremely dangerous for an armed policeman to be in the
carriage without police back-up.
’
In response to Frylinck’s contention that, instead of applying
proper access control, the first respondent employs the practice
of
police and defence force ‘
blitzes
’ on the trains, Nortjé
said the following:
‘
Blitzes have occurred, often at the request of the first
respondent. The efficacy thereof is, however, questionable in view
of the
fact that a search may be conducted between two railway
stations and at the very next railway station criminal elements might
find
their way onto the train.
In
the
absence of proper and adequate access and egress control
,
these blitzes have assisted with the policing of trains’
(our
emphasis).
Nortjé also states that, while ‘
access and exit control at
railway stations and acting as security guards do not form part of
policing duties
’, ‘
the police are fully aware that access
control on railway stations has an impact on crime
.’
It is important to note that the applicants’ case was not based on
a claim that proper control of access to and egress from stations
and
trains would eradicate
all
crime on the trains. Yet, to a very
large extent, that is the defence which has been offered by
respondents. By contrast, applicants
contend that there is a need
for access and egress control to
reduce
crime on the trains.
This contention enjoys support from the affidavit deposed to by
Nortjé who indicates that the absence of access
and egress control
significantly increases the problem of policing of trains.
It is of some relevance that most stations in the Western Cape
already have facilities to control access and egress, although these
facilities are unmanned. Thus, Van Niekerk stated that ‘
most
stations in the Western Cape are enclosed and furnished with barriers
and turnstyles. The reason why electronic access control
has not
been implemented similarly appears from the Carver Report.
’
In his affidavit Carver states the following in this regard
:
‘
Access control systems have also been developed through a
number of prototypes up to production level and the proven design has
been
incorporated into all new and upgraded stations where high
volumes of commuters are handled. The latest development occurring
currently
is the imminent tender issue for an electronic ticketing
system that will be used in conjunction with an automatic reading
system
at the access controlled turnstyles. Introduction of this
system is expected to further control the ingress and egress of
persons into and out of the system and should reduce fare evasion
and
ticket fraud even further.
’
Although Carver goes on to deny that access control can effectively
be used ‘
as a stratagem to curb or minimise crime on stations
and trains
’, his affidavit supports applicants’ contention
that the basic infrastructure for the implementation of access and
egress control
already exists, as does the technology to ensure an
efficient system.
(ii) Safety
In his supplementary
founding affidavit, Frylinck refers to the overcrowding of trains. In
support of this allegation, he attached
to the affidavit two
photographs which revealed a number of passengers being transported
on moving trains while holding on precariously
to the outside of the
carriages. These trains were clearly proceeding at some speed
without all the doors having been closed.
Harrison replies to Frylinck’s allegations in this regard as
follows:
‘
I deny that trains operated by
First Respondent travel
“without any doors whatsoever”.
In the Western Cape and
in other parts of the country some commuters (generally during peak
times) practice the unacceptable habit
of keeping, or forcing, doors
open after trains are
set into motion. The precise manner in
which Metro Rail train doors operate appears fully from the Carver
report…..
.’.
The relevant passage from Carver’s affidavit thus referred to by
Harrison reads as follows:
‘
The air pressure in the door operating cylinders has to be
regulated to avoid causing injury to persons caught in the doorway
while
closing and to allow the doors to be forced open to free a
trapped person. This feature designed with the safety of the
commuter
on the one hand
[sic]
is often abused by unruly
elements in the coach who hold the door open with a foot placed at
the base of the door in the open position
or even force the door open
from the inside while travelling.
Doors of this
original type are also susceptible to theft and vandalism and at
times doors are vandalised, removed and thrown off
en route
necessitating the train to be cancelled at its terminal station if
doors are missing’.
In reply to these contentions by Harrison, the applicants referred to
the testimony given by Page, on 20 February 2002, to the
abovementioned
Parliamentary Sub-Committee on Transport dealing with
the National Railway Regulator Bill, an unedited transcript of which
was (as
indicated above) appended to Frylinck’s replying affidavit.
As already stated, Page was an expert who deposed to an affidavit
on
behalf of first and second respondents in the present dispute. His
testimony to Parliament, however, supports the allegations
made by
Frylinck in his supplementary founding affidavit and in the
supporting photographs referred to above.
Page told the Portfolio Committee that:
‘
Some of the criminal elements on the railways are due to the
breakdown of some safety aspects such as holes in fences or fences
removed.
Train doors, which are forever open and windows that cannot
close. Now windows that are broken within these elements in safety
[sic]
have sometimes given opportunities to criminals to
undertake or to commit criminal activities on railways, so there is a
need to have
a holistic approach to rail safety by including
railway security
.’
The importance of trains running with closed doors was also
emphasised by Page in his testimony before the Portfolio Committee:
‘
In most cities where they have commuter trains the trains
cannot move without then one of the doors is open
[sic]
. So
all the doors must be closed before the train moves because it is
comprising safety, but it is completely reverse in South Africa
[sic]
. Trains are moving with all the doors open. I have
been told, yes passengers deliberately
force the doors open,
but the mere fact that the train is moving with all the doors open,
it is a compromise on the passengers’
safety
[sic].’
(iii) Security
In his founding affidavit, Frylinck noted that
the incidence of crime on rail commuter services in the Western Cape
was extremely
high and ‘
takes the form
of murder,
culpable homicide, robbery, rape, assault, theft, malicious damage to
property intimidation, possibly a variety of statutory
offences …’.
He also referred to first and second respondents having recorded
statistics of 457 serious crime incidents for the period 1 April
1998
to 31 March 1999. Furthermore, ‘
assuming Harrison’s
admissions to be correct, the position has now deteriorated
considerably
’.
In reply, Van Niekerk denied that crime on
commuter rail facilities in the Western Cape was disproportionately
high, particularly
when viewed within the context of national crime
statistics as well as in relation to crime patterns in other regions
named. According
to Van Niekerk, the Western Cape was one of the
regions with the lowest crime rate. Further, ‘
the negative
pattern which manifested itself in the Western Cape during the second
term of last year was noticed, addressed and duly
rectified within a
matter of months when the
deviation which had manifested
itself again returned to normal…
’.
In support of these allegations, Van Niekerk referred to a table
contained in Oeschger’s affidavit comparing criminal activity
on a
national level to rail transit criminal incidents for the period
January to September 2001. This table reads as follows:
Criminal
activity on a national level compared to rail transit for the
period
January to September 2001
Category of Crime
National
Incidents
2000
Rail Transit
Incidents
Percentage of
National
Incidents
Murder
15457
71
0,4%
Theft
404256
837
0,2%
Robbery (aggravated &
other)
141029
635
0,4%
Malicious Damage to
Property
100681
335
0,3%
Assault (gbh)
192750
207
0,1%
Rape
37556
18
0,04%
The figures apart, a critical element of the first and second
respondents’ response to applicants’ complaints regarding crime
on trains was to refer to the so-called ‘
Crime Index
’
which they employ. The nature of this Index and its role in the
curtailment of crime on commuter railways is of key importance
to the
arguments about safety and hence it requires particular examination.
According to Van Niekerk, first and second respondent jointly created
a task force during 1977 to develop a ‘
fresh
’ agreement in
terms of which first respondent would provide a commuter service ‘
in
the public interest
’, as required by the SATS Succession Act.
Van Niekerk described the process thus:
‘
Members of the task force were experienced, well qualified and
seasoned business- and railway men who knew the nature of the
business
and had the benefit of the continued exposure thereto…The
work of the task force was carried out over a period of more than two
years. The intention of the participants was to thrash out,
inter
alia,
the best operational and security plan possible in
the circumstances. Every word, phrase and provision was carefully
weighed and
considered. The lode star which was followed by the
task force was to create a dispensation which would serve the
interests of
the commuting public and also comply fully with the
strictures imposed by the
Succession Act.’
The provisions of Annexure 6 to the Service Agreement deal
specifically with security. This part of the agreement contains a
number
of obligations, some of which are imposed upon first
respondent as operator of the commuter rail service, and others which
rest upon
second respondent as ‘
supervisor
’. In terms of
clause 7 of the Annexure, first respondent binds itself to perform in
accordance with a security index ‘
based on an agreed selection
of the more serious crimes as reflected in the present Metrorail
National Crime
Index
’. Clause 6.1 provides that crime
is to be measured and benchmarked against a specific operating
environment. All incidents would
be measured in frequency per 100
000 commuters conveyed per month. In terms of Addendum 2 to Annexure
6, the Metrorail National
Crime Index referred to was determined
according to the following formula:
‘
Divide the total number of incidents by the total number of
actual
[
paid
– see further below]
journeys and
multiply by 100 000 to bring it in line with the national SAPS format
based on 97/98 statistics used to determine the
National Crime
Index
.’
In his affidavit Van Niekerk set out the operation of the ‘
New
Crime Index
’ (referred to in the said Addendum 2) as follows:
‘
[T]he
formula dealt with above is further explained. It reveals also that
the parties have set a
“target”
to reduce crime at a rate of 5% during the subsistence of the
agreement i.e. by starting with an index of .682 the aim is as
follows:
99/2000 - .648; 2000/2001 - .615 and 2002/2003 - .555
’,
etc.
In essence, therefore, the Index is the barometer by which
respondents are supposedly able to assess whether the measures
adopted
to deal with security and safety of passengers are successful
or are in need of change.
Based upon this Index, first and second respondents deny that their
obligation to reduce crime as contained in Annexure 6 to the
Service
Agreement has been breached. The experts who deposed to affidavits
on behalf of the respondents supported the coherence
of the plan as
contained in Annexure 6. Thus, Page suggested that the index is ‘
not
flawless or perfect. In my view however it is a reasonable, logical
,
coherent and flexible plan
’, and concluded that ‘
the
methodology used by Metrorail and the second respondent under the
Service Agreement …is one that is not entirely
free from
criticism and leaves scope for improvement. It is nonetheless a
reasonable methodology
’.
Oeschger expressed a similar view of the plan which incorporated the
security provisions of Annexure 6, stating that it made ‘
provision
for the rendition of a reasonably safe service’
.
Serious questions were, however, raised about the efficacy of
Annexure 6 and the Metrorail National Crime Index by Professor Dunne
who (as discussed above) deposed to an affidavit on behalf of
applicants. Dunne makes three critical points. Firstly, he refers
to
the Crime Index having a ‘
declared explicit base line April 1998
to March 1999…. and a target of 5% reduction per year is adopted’.
The baseline indicated a rate of 682 serious crimes per 100 000
paid commuter trips. Dunne describes this as a baseline ‘
or an
initial level from which there is an expectation or promise of
consequential improvement. The adoption of a particular value
of the
Index as baseline does not imply that the base represents an
acceptable or balanced state of affairs
’.
Dunne contends that the initial adoption of a figure of 682 serious
crimes per
100 000 paid commuter trips as a base line was an arbitrary figure
which in itself constituted an unacceptably high level of serious
crime on the commuter train service. This point of departure ‘
allows
Metrorail to focus only on the limited achievement or circumstances
of not falling to deeper levels of unpalatability
’.
Dunne also comments upon the target of a 5% reduction of crime per
year. He remarks that this reduction would be achieved ‘
if the
number of current non-commuters switching to Metrorail increases the
denominator by 5.26% (i.e. journeys increase by a factor
100/95),
even if the number of crimes on Metrorail remains exactly the same in
all categories
’
.
Thirdly, Dunne criticizes the comparison drawn between crime levels
on trains and crime levels in the broader community. In order
to
illustrate his argument, he assumes that commuters spend two hours on
average per return journey, as compared with twelve to fourteen
hours
in other locations in the community. Thus, ‘
we might assume a
multiplicative factor of say six or seven to adjust for commuter
active time contrasts within the two environments
(Metrorail and
other) and a further conservative factor between 100 and 200 for the
contrasts in relevant extent of spatial areas
of Metrorail and SAPS
data collection
’. Dunne qualifies these assumptions by saying
that ‘
the choice of these factors is conceded to be arbitrary,
but I claim not extravagant
’
.
Dunne then seeks to illustrate the problem with the Index by the use
of the following assumptions:
‘
The import of only making time and space adjustments to fairly
compare risks of Metrorail area with SAPS area counts might involve
a
composite multiplicative factor between 600 = (6 x 100) and 1200 = (6
x 200). This factor has not yet taken into account the SAPS
focus on
the entire commuting population, of which the Metrorail commuters are
only a fraction Assume a conservative but arbitrary
factor of say 7.
This number 7 would be consistent with one eighth of the citizenry
using Metrorail and seven-eighths using other
modes or none at all.
A further factor (up to 1.4) might apply to adjust for weekends of
commuters who travel only on weekdays.
Suppose we admit 1.2
conservatively.
’
The consequence of all these assumptions is then illustrated by Dunne
as follows:
‘
Thus a notion of the consequentiality of Western Cape reported
commuter victim Metrorail crime frequencies at their current and
acquiesced
levels, derived from adjustments for time, space and
population usage, may be associated with a large factor for
comparability with
SAPS frequencies, and possibly even a factor as
high as 5 000, derived from (6 x 100 x 7 x 1.2). I am not intending
that this number
be interpreted literally as a conversion factor, but
to illustrate that even 9 murders of commuters in 10 months… over a
small
fraction of the surface area that is only fleetingly occupied
in a given day by a minority
proportion of the Western Cape
population, does serve to indicate a substantive safety and security
problem’.
On these assumptions,
nine murders
in ten months on Western
Cape trains translates into
45 000 murders
in the general
population of the Western Cape over the same period. According to
Mr
Viljoen
, Dunne’s analysis illustrates the unreliability
of the model of the Metrorail National Crime Index, as well as of the
statistics
upon which respondents have sought to rely to show that
their current policy has maintained crime on commuter trains and
stations
within acceptably defined levels.
(iv) Policing
According to Mr Viljoen, first and second
respondents have known for years of the withdrawal (in October 1986)
of dedicated police
support from,
inter alia
, commuter trains,
but have not adequately responded to it. In his affidavit Page says
the following:
‘
In October 1986, the SARHP was amalgamated with the South
African Police (SAP). The SARHP was a dedicated formal police service
specifically
focussed on safeguarding South African railway
operations (freight, mainline and commuter) from criminal activity.
According to
a memorandum compiled by the Metrorail/SAPS Working
Committee in 1999, the merger created a void in security provision
and saw an
increase in theft, vandalism, intimidation, robberies,
attacks on commuters and unsafe conditions on trains and stations in
general.
Discussions with number of persons have indicated that the
SARHP was an effective force in curtailing security infringements on
railway operations in South Africa.
’
The new SAPS (after the SAP and SARHP merger) embarked on certain
restructuring policies which, in reality, meant a process of gradual
withdrawal of dedicated police protection from commuter trains.
First and second respondents realized, even prior to the conclusion
of the Service Agreement, that the developments within the SAPS would
have a negative impact on their ability to provide services.
Thus,
in the Service Agreement itself, it is stated that: ‘
As a result
of the devolution of policing powers to Provincial Commissioners, the
SAPS commenced with a gradual withdrawal from the
rail commuter
system in order to address other higher police priorities
.’
In 2001 a further
reduction in support from the SAPS occurred. The dedicated Commuter
Patrol Unit of the SAPS in the Western Cape
was decreased from
approximately 200 members, its complement during the first half of
2001, to the present level of 38 members, stationed
at Cape Town
railway station. Their replacement by way of security guards was not
without problems. Thus, for example, Harrison
points out that, apart
from the powers conferred by the Control of Public Access to
Buildings and Vehicles Act 53 of 1985, first
respondent’s security
guards have limited powers of arrest and search, namely the powers of
ordinary citizens.
It is also important to point out that Annexure 6
to the Service Agreement expressly contemplated a responsibility to
be borne by
first respondent in ensuring the safety of rail commuters
and that such obligation would have a clear financial implication.
Thus,
as indicated above, clauses 5.3.1 and 5.3.2 of Annexure 6
provide as follows:
‘
5.3.1 The
responsibility for securing the public component of the SARCC’s
business rests with the SA Police Services in terms of
Section 5 of
the SA Police Act, 1985 or revisions. Metrorail will be required to
play a supportive and/or complementary role in support
of the SAPS to
maintain law and order on stations and on trains as defined in clause
3.1 and Legal Succession Act, Act No. 9 of 1989.
5.3.2 Metrorail is mandated and will be funded
to deploy own resources as well as contracted Security guards to
protect the public
component of the business (crime prevention and
crime control). The cost thereof is shown separately in the Contract
Amount. Should
proposals for a specialised rail police structure
succeed, this section of the agreement will be renegotiated and
adjusted to reflect
the cost savings’
(our emphasis).
According to Mr
Viljoen
, the training of contracted security
guards is poor, the great majority being only Grade D level guards,
as reflected in the many
guard posting sheets annexed to the
affidavit deposed to by Harrison on behalf of the first respondent.
In counsel’s submission,
these guards are inadequately trained to
render an effective service in the public interest. Mr
Viljoen
submitted that the inferiority of the training of contracted security
guards was demonstrated by the following:
Shooting incidents have occurred, where members of the public were
seriously injured by contracted security guards.
Disputes with ‘
rented security guards arise on a daily basis
and have to be attended to on a day-to-day basis
’
.
The position is exacerbated by firearms being impermissibly issued
to and used by Grade D security guards.
No minimum scholastic requirements are set for contracted security
guards.
The training syllabi of guards do not include any training to
exercise the duties associated with conductors or the safety
procedures
as described by Carver.
According to an affidavit deposed to by Mr Jeremia Makokoane
(‘
Makakoane
’), the Deputy Director-General in the NDOT, on
behalf of the third respondent, a Cabinet decision was taken in 2002
(reported in
the Cape Argus of 24/4/2002) ‘
to establish a
security force to improve transport security
’; in other words,
to reconstitute some form of railway police. According to Makokoane,
this decision was taken (
inter alia
) because of ‘
Government
concern……as
regards the security of the transport sector
’.
Similar statements are contained in the draft National Rail Transport
Policy of May 2002: ‘
While railway operators have to develop
strategies to minimise and prevent crime, government will through a
new division of the South
African Police Services … provide
reasonable security for railway passengers ..
’.
It would appear that, in themselves, these are acknowledgements of
the deficiency of the present system of security and the need
to
introduce an improved security force.
Conclusion
Given the definition
of public interest which we have adopted, the evidence appears to
favour applicants’ argument. Such evidence
includes the absence of
effective access and egress control; the fact that trains run with
open doors; and a very high level of crime
which is only regarded as
acceptable because respondents employ a questionable statistical
index. In short, the service which is
presently operated by first
respondent in the Western Cape and supervised by second respondent
does not in our view meet the standards
of a service run in the
public interest.
Prayer 2: Whether respondents are in breach of the
constitutional rights of rail commuters
For reasons set out below, this prayer stands to be properly analysed
together with prayer 4.
Prayer 3 : Whether first respondent has a contractual
obligation to convey fare-paying commuters safely and securely on
commuter rail
services in the Western Cape
It appears to be common cause that the only express terms governing
the ‘
contract of carriage
’ between the first respondent
and every fare-paying rail commuter are contained in the Metrorail
Services Book, a copy of which
is annexed to the answering affidavit
deposed to by Harrison on behalf of the first respondent. This
Metrorail Services Book is
a relatively lengthy document containing
information on a wide variety of issues, including general
information regarding the legal
relationship between Metrorail and
the SARCC, and the manner in which commuter rail services are
operated in the various metropolitan
areas of the Republic;
different ‘
classes
’ of rail commuter travel; booking
fees; withdrawal or confiscation of tickets; different types of
tickets; how tickets are
issued and where they are to be purchased;
the tendering and checking of tickets; the consequences of
travelling on Metro trains
without a valid ticket; fares; animals
and pets; the prohibition of smoking in certain passenger carriages;
the access to and
exit from platforms; the curtailment of and
alterations to train services; various goods and items the
transportation of which
is prohibited on rail commuter trains; and
the SATS Succession Act and its legal implications (including the
offences created under
item 12 of Appendix 1 to the Act).
Under the section headed ‘
Conditions of Transportation
’
(clause 17), it is provided that ‘
Metrorail undertakes to
transport commuters against payment of the applicable fare, in terms
of the provisions of the Act
[ie the SATS Succession Act]
and/or
regulations and subject to such conditions or requirements which may
be prescribed from time to time in this Services Book
or any annexure
hereto
’. Clause 16 of the Metrorail Services Book, to which
reference is made on the reverse side of every ticket issued to a
fare-paying
commuter, states (under the hearing ‘
Transportation
of Passengers : Liability of Metrorail
’) that ‘
Metrorail
is only liable for the death or injury of a commuter which is caused
by the negligent or deliberate actions of Metrorail
and/or its
employees
’.
The only allegations made in the applicants’ founding affidavits in
support of the ‘
contractual duty
’ which now forms the
subject of prayer 3 are as follows:
‘
63. It is an express term of the contract of carriage which
First Respondent concludes with commuters (such as Juan and Third
Applicant),
that First Respondent will not be liable for any death,
injury or loss, unless the same was caused by the negligence of its
employees.
It follows both as a matter of law and as a proper construction
of the express terms that First Respondent is under a contractual
duty to conduct the carriage of rail commuters in a manner which is
not negligent.
Having contracted on that basis, First Respondent has exposed
itself to claims of a delictual nature in cases in which its
negligence
or that of its servants acting within the course and
scope of their employment are wrongfully the cause of harm to third
parties
such as Juan and the individual Applicants. First
Respondent has not, on any approach to the terms of its standard
contract of
carriage contracted out of liability for the delicts of
it and its servants acting within the course and scope of their
employment.
’
In argument before us, Mr
Viljoen
contended that the first respondent’s alleged contractual
obligation must be imported into the contract of carriage between the
first respondent and each fare-paying commuter by way of a tacit
term. Counsel accepted the correctness of the argument advanced
by
Mr
Albertus
(on behalf of the third respondent) that the
question as to whether or not such a tacit term could be said to be
part of the contract
of carriage had to be answered by the
application of the so-called ‘
officious bystander
’ test.
A tacit term or term implied from the
facts was described by Corbett AJA (as he then was) in
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 531H-532C as follows:
‘…
An
unexpressed provision of the contract which derives from the common
intention of the parties, as inferred by the Court from the
express
terms of the contract and the surrounding circumstances. In
supplying such an implied term the Court, in truth, declares
the
whole contract entered into by the parties. In this connection the
concept, common intention of the parties, comprehends, it
would seem,
not only the actual intention but also an imputed intention. In
other words, the Court implies not only terms which
the parties must
actually have had in mind but did not trouble to express but also
terms which the parties, whether or not they actually
had them in
mind, would have expressed if the question, or the situation
requiring the term, had be drawn to their attention
’.
(See also
Strydom v Duvenhage NO &
'n Ander
1998 (4) SA 1037
(SCA) at 1044B-E; as well as Kerr
The
Principles of the Law of Contract
6 ed (2002) 354-370, Van der
Merwe et al
Contract : General Principles
(1993) 196-200, and
the other authorities cited by these writers.)
South African courts are, in general,
slow to import a tacit term into a contract. As indicated, the
standard test for considering
the existence of a tacit term is ‘
that
of the hypothetical bystander, sometimes described as officious or
inquisitive and at other times, with more tolerance, as imaginative
’
(see Kerr
op cit
356). This test was expressed as follows in
the judgment of Scrutton LJ in
Reigate v Union Manufacturing Co
(Ramsbottom)
118 LG 479 at 483 (in a passage which has frequently
been approved and adopted by the courts in this country):
‘
You must
only imply a term if it is necessary in the business sense to give
efficacy to the contract; that is, if it is such a term
that it can
confidently be said that if at the time the contract was being
negotiated some one had said to the parties:
“What will happen
in such a case?”
they would both have replied:
“Of course,
so and so. We did not trouble to say that; it is too clear”.’
Citing this passage from the
Reigate
case, Corbett AJA described the approach as follows in the
Alfred
McAlpine
case (
supra
) at 532H-533B:
‘
The Court
does not readily import a tacit term. It cannot make contracts for
people; nor can it supplement the agreement of the
parties merely
because it might be reasonable to do so. Before it can imply a tacit
term the Court must be satisfied, upon a consideration
in a
reasonable and businesslike manner of the terms of the contract and
the admissible evidence of surrounding circumstances, that
an
implication necessarily arises that the parties intended to contract
on the basis of the suggested term.
’
However, as indicated by Corbett AJA,
while the alleged unexpressed term must be compatible with the
articulated intention of the
parties (as appears from the express
terms of the contract between them), it is not necessary for the
importation of a tacit term
to prove that the parties
actually
directed their minds to the particular term when they were
negotiating the contract. In the words of Nienaber JA in
Wilkins
NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A) at 136I:
‘
A tacit
term, one so self-evident as to go without saying, can be actual or
imputed. It is actual if both parties thought about a
matter which
is pertinent but did not bother to declare their assent. It is
imputed if they would have assented about such a matter
if only they
had thought about it – which they did not do because they
overlooked a present fact or failed to anticipate a future
one.
’
(See further in this regard
Techni-Pak Sales (Pty) Ltd v Hall
1968 (3) SA 231
(W) at
236H-237A; as also Christie
The Law of Contract
4 ed (2001)
195-197, and the other authorities referred to by this writer.)
It is also important to note that any
tacit term sought to be imported must be capable of clear and exact
formulation and, in applying
the ‘
officious bystander
’
test, the parties to the contract must be assumed to be acting
honestly and reasonably (see, for example,
Greenfield Engineering
Works (Pty) Ltd v NKR Construction (Pty) Ltd
1978 (4) SA 901
(N)
at 909E; Christie
op cit
196-197).
The court obviously cannot ‘
make
a contract
’ for the parties and has no power to supplement or
add to the contract between the parties by importing a term which
they would
have been wise to agree upon, but did not – ‘
the
fact that the suggested term would have been a reasonable one for
them to adopt or that its incorporation would avoid an inequity
or a
hardship to one of the parties, is not enough. The suggested term
must, in the first place, be one which was necessary as opposed
to
merely desirable, to give business efficacy to the contract; and,
what is more, the Court must be satisfied that it is a term
which the
parties themselves intended to operate if the occasion for such
operation arose, although they did not express it
’ (per Colman
J in
Techni-Pak Sales (Pty) Ltd v Hall (supra)
at 236E-G).
Applying these fairly stringent
principles to the fact of the present case, we are of the view that
the applicants have
not
succeeded in showing that the
contractual obligation contended for in terms of prayer 3 should
legitimately be imported as a tacit
term into the contract of
carriage between the first respondent and its fare-paying
‘
customers
’. As pointed out above, the contract of
carriage is regulated by the provisions of the SATS Succession Act
and by the express
terms set out in the Metrorail Services Book.
While it might well be so, as contended by applicants’ counsel,
that both the SATS
Succession Act and the terms set out in the
Metrorail Services Book must be interpreted against the background of
the common law
of carriage in South Africa, it is nevertheless
important to remember that one of the express terms governing the
contract of carriage
is that the first respondent
only
incurs
contractual liability for the death or injury of a commuter
if
this was caused by the negligent or deliberate actions of
Metrorail and/or its employees. The first respondent is, therefore,
contractually
obliged to conduct the carriage of rail commuters in a
manner in which neither it nor its employees, acting within the
course and
scope of their employment, are negligent. This is
certainly
not
the same as ‘
a contractual obligation to
convey fare-paying customers safely and securely on commuter rail
services
’ – it is abundantly clear on the papers before us
that, with the best will in the world, the first respondent is not
able, particularly
in the South African context, to ensure a totally
crime-free rail commuter service, nor can it reasonably be expected
to do so.
In our view, it cannot be said that the tacit term
contended for by the applicants (as postulated in prayer 3), is a
provision to
which the first respondent, as one of the parties to the
contract of carriage, would have given a prompt and positive assent,
had
the hypothetical bystander posed the relevant question in this
regard. It follows that, to our mind, the applicants have not shown
that they are entitled to the relief claimed under prayer 3.
Prayer
4: Whether first and second respondents have a legal duty to protect
the lives and property of members of the public who commute
by rail
As regards prayer 4.1, Mr
Viljoen
submitted that a legal duty
allegedly imposed upon first and second respondents to protect the
lives and property of commuters was
sourced primarily in a statutory
duty to operate a service in the public interest. It was also to be
found in a constitutional duty
which required respondent to protect
the rights to life and property of commuters. A further source of the
duty was located in the
contract of carriage concluded by first
respondent with all fare-paying passengers and in particular the
tacit term that commuters
be carried in safety and security. Finally,
Mr
Viljoen
referred to a delictual duty imposed upon first and
second respondent, which duty was expanded by the Constitution.
As regards prayer 4.2, Mr
Viljoen
contended that the ‘
breach
of the said duties
’ (ie the duties referred to in prayer 4.1)
by the first and second respondents consisted of two vital omissions
of a systemic nature
on the part of such respondents: firstly, their
collective failure to do no more than the bare minimum required of
them by the Service
Agreement in the face of an ‘
ever-rising
tide of crime on their trains
’; and secondly, the fact that
the content of the security provisions of the Service Agreement fall
so woefully short of what is
reasonably needed in any proper safety
and security system, which has to function in a society in which
police services are under-resourced
and under-manned and ‘
a
culture of violent criminal activity is the order of the day
’.
According to the applicants, these two systemic omissions form the
source of the negligence of which they complain insofar as prayer
4.2
is based on delict. Mr
Viljoen
argued that, as prayer 4.2
(like prayer 4.1) also stands on ‘
three other legs
’,
however, none of which posits negligence as a requirement for the
alleged breach of the alleged statutory, contractual or
constitutional
duty in question, the applicants are entitled to the
relief claimed in prayer 4.2
without
the word ‘
negligently
’
if the Court were not to be satisfied that the first and second
respondents could be held to be delictually liable based on the
abovementioned two omissions.
From counsel’s submissions in this regard, it is seemingly evident
that the basis for the relief sought in prayer 4.2 is similar
to that
asked for in terms of prayer 2.
Prayer 2 is framed in extremely wide terms, effectively seeking an
order that the respondents have directly ‘
violated
’
(breached) a range of rail commuters’ constitutional rights. In
our view, the findings by this Court which would be required
to
justify the relief sought in prayer 2 (read together with prayer 4.2,
which is discussed below) would run perilously close to
constituting
(
inter alia
) a finding that the respondents were delictually
liable vis à vis
‘
rail commuters in the Western Cape
’,
notwithstanding that this dispute had been brought to court by way of
motion proceedings. A piecemeal approach to delictual
liability
whereby this Court decides, on motion, that respondents are (in the
abstract, as it were) delictually liable to applicants
and another
court, after the conclusion of a trial, determines the nature and
extent of such damages, should not be encouraged.
In our view, the
only relief which can be sourced in (
inter alia
) the
Constitution and which is properly sought in these kind of
proceedings is that contained in prayer 4.l.
The basis of the defence offered by first and second respondents
turned on the conclusion and the contents of the abovementioned
Service Agreement signed in August 2000. According to Mr
Du
Plessis
, the Service Agreement was negotiated by a team of
experts. During this process, the provisions of adequate passenger
security ‘
ranked extremely
high
’ on the priority
list of the experts who drafted the Agreement. Mr
Du Plessis
submitted that the applicants had not alleged in their founding
papers that Annexure 6 to the Service Agreement (ie the (the security
provisions agreed upon between first and second respondents) were
either inadequate or unreasonable.
To the extent that the relief sought by applicants is predicated upon
the Service Agreement, Mr
Viljoen
submitted that the
implementation of the agreement gave rise to a rail service which
unreasonably jeopardised both the life and property
of commuters.
For the reasons already advanced, the absence of any access or egress
control, the evidence that trains routinely
transport commuters while
the doors of the train are open and the unacceptably high level of
crime on trains justified a conclusion
that, whatever the merits of
the Service Agreement
in principle
, the manner in which the
service had been operated
in practice
was not in the public
interest.
For this reason, the question arises as to what positive obligations
are to be born by first and second respondents; that is, the
nature
of the obligations that are not necessarily to be found in the
express terms of the Service Agreement.
Section 39(2) of the Constitution mandates courts to have regard to
the spirit, purport and object of the Bill of Rights (Chapter
2 of
the Constitution) when interpreting any legislation and when
developing the common law. Recently the Supreme Court of Appeal
has
developed our law of delict in accordance with this provision. In
Olitzki Property Holdings v State Tender Board and Another
2001 (3) SA 1247
SCA at para 31, Cameron JA held that: ‘
The
principle of public accountability is central to our new
constitutional culture, and there can be no doubt that the accord of
civil remedies securing its observance will often play a central role
in realising our constitutional vision of open, uncorrupt
and
responsive government
’
.
Following on this
dictum
, Nugent JA in
Minister of Safety
and Security v Van
Duivenboden
[2002] 3 All
SA 741
(SCA) at para 20 stated the following:
‘
But while the utility of
allowing public authorities the
freedom to conduct their affairs without the threat
of actions
for negligence in the interest of enhancing effective government,
ought
not to be overlooked, it must also be kept in mind that
in the constitutional
dispensation of this country the state
(acting through its appointed officials) is not
always free to
remain passive. The State is obliged by the terms of section 7 of
the 1996 Constitution not only to respect but also to
“protect,
promote and fulfil the rights in the Bill of Rights”,
and
section 2 demands that the obligations
imposed by the
Constitution must be fulfilled
.’
(See also
Carmichele v Minister
of Safety and
Security and Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC).)
More recently, in
Van Eeden v Minister of Safety and Security
[2002] 4 All SA 346
(SCA), the Supreme Court of Appeal dealt with
an action brought by an appellant who was assaulted and raped by a
dangerous serial
rapist who had escaped from police custody.
Following an attack upon her by this person, appellant instituted a
delictual action
for damages against the State on the basis that the
police owed her a legal duty to have taken all reasonable steps to
have prevented
the assailant from escaping from lawful custody and
causing her harm.
Vivier ADP
referred to the
South African Police Service Act 68
of 1995
, where the functions of the police are set out to include the
maintenance of law and order and the prevention of crime. Thus, ‘
the
police service is thus one of the primary
agencies of the
State responsible for the discharge of its constitutional duty to
protect the public in general and women in particular
against the
invasion of their fundamental rights by perpetrators of violent
crime’
(at para 16). In finding the conduct of respondent’s
employees to have been wrongful and, hence, that the respondent was
liable
for damages, Vivier ADP
commented as follows:
‘
An important consideration in favour of recognising delictual
liability for damages on the part of the State in circumstances such
as the present is that there is no other practical and effective
remedy available to the victim of violent crime. Conventional
remedies
such as review and mandamus or interdict do not afford the
victim of crime any relief at
all. The only effective remedy
is a private law delictual action for damages
’ (at para 19).
In arriving at this finding, the Supreme Court of Appeal emphasized
that it had followed the Constitutional Court’s decision in
Carmichele
(
supra)
,
namely that ‘
a public
interest immunity absolving the respondents
[agencies of the
State]
from liabilities that they might otherwise have in the
circumstances of that case, would be inconsistent with our
Constitution and
its values
’
(at para 20).
Of particular significance to the present dispute was the finding of
Vivier ADP
that the requirement of a special relationship
between a plaintiff and defendant as an absolute prerequisite for
imposing legal duties
in delict ‘
can, in the light of the
State’s constitutional imperatives… no longer be supported. To
do so would mean that the common law
does not adequately reflect the
spirit, purport and objects of the Bill of Rights
’ (at para
23).
In the present case, second respondent, in terms of section 23(1) of
the SATS Succession Act, must ensure that rail commuter services
are
provided within, to and from this country. It is further enjoined to
do so ‘
in the public interest
’. First respondent is
similarly enjoined, in terms of section 15(1) of the SATS Succession
Act, upon request of (
inter alia
) second respondent to
‘
provide a commuter service that is in the public interest
’.
The Service Agreement between the first and second respondents was
concluded under Chapter IV of the SATS Succession Act. The
provisions
thereof will remain operative until 31 March 2003. Hence, for the
purposes of this dispute, the underlying obligations
of first and
second respondent are to be located in the SATS Succession Act.
These obligations imposed upon first and second
respondent in terms of the SATS Succession Act are similar to those
imposed upon
respondent in the
Van Eeden
case (
supra
)
in terms of the
South African Police Service Act of 1995
. In
Van
Eeden
(
supra
),
it was held that the police owed a
legal duty to appellant to act positively in order to prevent the
escape of a dangerous criminal
who was likely to commit further
sexual offences against women in the event of his escape. In the
context of the present dispute,
commuters enjoy a constitutional
right to life (section 11 of the Constitution), as well as a
constitutional right to freedom and
security of the person, which
includes the right to be free from all forms of violence from either
public or private sources (section
12 (1)(c) of the Constitution).
As discussed above, it was held in the
Van
Eeden
case (
supra
) that the appellant had no practical and
effective remedy available other than a claim in delict. In the
circumstances of this case,
commuters who are subjected to violent
crime which jeopardises their right to life and their right to
freedom and security of their
person, are effectively also remediless
unless it can be said that a legal duty exists whereby first and
second respondent must act
to minimise the extent of violent crime
and lack of safety on the commuter rail service. Thus, in our view,
applicants have made
out a case for the relief sought by them in
terms of prayer 4.1.
For the reasons set
out above in respect of prayer 2, however, we are not inclined to
grant the relief sought in prayer 4.2. Applicants
have brought these
proceedings on motion, yet they ask this Court to find (in the
abstract, as it were) that the respondents’ conduct
was and is
negligent. A prayer of this kind must be sought by way of a
delictual action, rather than by the back door of a prayer
for a
declarator. Furthermore, abstract relief of this kind should not
generally be granted - a finding of negligent conduct should
only
follow upon a careful examination (during the course of a trial) of
the evidence provided by the parties.
The purpose of the
relief sought in prayer 4.2 can only be to determine (in advance) the
principles that would be necessary for a
later decision about
damages. Frylinck acknowledges as much in his supplementary founding
affidavit:
‘
122.1 What
is sought is acceptance that First Respondent can
be
held
liable for damages due to crime by third
parties on trains in terms of prayer 4.1. That principle was not
accepted by First and Second
Respondents before, but appears now to
have been, by the contents of the affidavit of Van Niekerk. (I have
dealt with the topic
in the affidavit already filed in reply to his
affidavit).
122.2 It is true that the relief sought in the
Notice of Motion went further and sought in prayers 3, 4.2 and 4.3 a
ruling that the
Applicants who had suffered harm by criminal assaults
on trains did so as a result of First and Second Respondents’
breach of their
legal duty to them. In the light of such
Respondents’ denial of, in effect, the very fact that the death and
injuries in question
were caused by criminals, it is accepted that
applicants cannot insist on an order in terms of these prayers, on
the papers
’ (emphasis added).
In our view, to grant
the kind of relief sought in prayer 4.2 would, at this stage, neither
be justified, nor appropriate.
Prayer
5: Whether the respondents are to be directed to take all such steps
as are reasonably necessary to put in place proper and
adequate
safety and security services
Mr Du Plessis submitted that, even assuming that
sections 15 and 23 of the SATS Succession Act imposed an obligation
on first and
second respondents to take steps to secure the physical
and bodily integrity of commuters, it did not impose obligations as
‘
to the manner
’ in which this security was to be provided,
nor did it set a bench mark against which ‘
the manner
’ in
which security was in fact provided could be objectively tested. The
Service Agreement had been concluded by seasoned ‘
railway men
’
and was expressly designed to ensure the provision of a safe and
efficient commuter service. A court should be reluctant to intervene
in the determination of whether the measures adopted by the first and
second respondents to comply with such duties were reasonable,
as a
wide range of measures could reasonably be adopted by such
respondents. When seeking to analyse whether respondents had
complied
with these obligations, a court should not seek to prefer
one set of possible (reasonable) measures above another.
In support of this submission Mr Du Plessis cited
the following
dictum
of the Constitutional Court in
Minister
of
Health
and Others v Treatment Action Campaign and
Others
(1)
2002 (10) BCLR 1033
(CC) at para 38:
‘
Courts are
ill-suited to adjudicate upon issues where court orders could have
multiple social and economic consequences for the community.
The
Constitution contemplates rather a restrained and focused role
for the courts, namely to require the State to take measures to
meet its constitutional obligations and to subject the reasonableness
of these measures to an evaluation. Such determinations of
reasonableness may in fact have budgetary implications but are not in
themselves directed at rearranging budgets. In this way the judicial,
legislative and executive functions achieve appropriate
constitutional
balance
’
.
Mr Du Plessis also referred to the affidavit
deposed to by Harrison who averred that the remuneration payable (by
second respondent)
to first respondent for services rendered was
determined by the Service Agreement. Thus, first respondent had to
operate within
a fixed and limited budget. Regional Budgets were
evaluated by first respondent’s head office on an ongoing basis
and, within
the limited flexibility contained in the budget, security
allocations had increased over the duration of the contract period in
the
Western Cape.
The
cost of security was budgeted at slightly less than 10% of the total
budget. In his affidavit, Harrison set out the amounts spent
on
security over the first three years of the agreement (that is, since
1998) as follows:
Year
1 R 94,402,618.00 or 5.4% of turnover;
Year
2 R170,122,423.00 or 6,01% of turnover;
Year
3 R145,872,313,00 or 7.32% of turnover.
Harrison also stated that the Western Cape’s
security budget for the year 2002/2003 was R41 million excluding the
cost of its own
security personnel. As the ‘
fixed cost
elements
’ of the first respondent’s business (including
infrastructure, rolling stock, regional office and elements of the
operations
budget) for 2002/2003 total R434 million (of a total
budget of R489 million), this meant that almost 80% of the variable
cost of
the business would be expended in 2002/2003 on security.
In summary, the
defence raised by first and second respondent against the relief
sought by applicants (on the assumption that the
latter had
discharged the onus of showing that there was a legal duty imposed
upon respondents) turned on the reasonableness of the
Service
Agreement. Significant amounts of money had been employed for
security purposes and a court should be reluctant to impose
its
conception of safety upon first and second respondents and grant
relief which could have hidden financial consequences.
In an argument directed to a similar conclusion,
Mr Albertus referred to the well known concept of judicial
polycentricity initially
articulated by Professor Lon Fuller in
‘Forms and Limits of Adjudication’
(1978) 192
Harvard Law
Review
353.
To illustrate his argument, Mr Albertus cited a
passage from a commentary on Fuller’s article by John Allison:
‘
From the
perspective of the adjudicator, Fuller’s analysis requires judicial
restraint. To avoid exceeding the limits of its own
competence, a
court confronted with a significantly polycentric dispute must
refrain from two kinds of activism. First, the court
must not change
the law where an appreciation of repercussions is required for
sensible legal development. Secondly, insofar as
the court has a
choice under existing law, it must avoid choosing a legal solution
that necessitates an appreciation of
complex repercussions
’.
(See Allison ‘The procedural reason for judicial restraint’
1994
Public Law
452
at 455.)
The problems of
polycentricity must clearly act as important constraints upon the
adjudication process, particularly when the dispute
has
distributional consequences. But polycentricity cannot be elevated to
a jurisprudential mantra, the articulation of which serves,
without
further analysis, to render courts impotent to enforce legal duties
which have unpredictable consequences. We will return
to this aspect
below, with particular reference to the first and second respondents.
As regards the third respondent, Mr Albertus
contended that, inasmuch as the third respondent is not implicated in
the ‘
declarators
’ sought by the applicants under prayers 1
to 4, all of which (according to counsel) deal with the alleged duty
to take care, it
is doubtful whether a positive finding against any
of the other respondents in respect of any of these prayers will
provide a basis
for the ‘
interdictory relief
’ sought
against (
inter alia
) the third respondent in terms of prayers
5 and 6. Mr Albertus submitted that the applicants had not made out
a case against the
relevant respondents, in respect of any of the
declarators sought by them, on any of the grounds alleged by them.
Counsel argued
further that, even if the Court were to find that the
applicants had made out a case against the relevant respondents as
regards
any of the said declarators, however, applicants had not made
out a case against the third respondent for either of the interdicts
sought in respect of the said respondent.
We will deal below with the relief sought in
terms of prayer 6. As regards prayer 5, the problem that we have
with the submissions
of Mr Albertus resides in the inter-relationship
between the first, second and third respondents, both in terms of the
National Land
Transport Transition Act 22 of 2000 (‘
NLTTA
’)
and the draft
National Rail Transport Policy (‘
the draft
policy
’) released by the NDOT during May 2002 and apparently
still in the process of finalisation, as also in terms of the SATS
Succession
Act. As pointed out by Makakoane in the affidavit deposed
to by him on behalf of the third respondent:
‘
Whilst the NLTTA
and the draft policy contemplate the devolution of commuter rail
functions to provinces and/or local authorities,
with local
integrated transport plans determining the future of urban commuter
rail services, commuter rail is, however, still managed
nationally
with national approval required for the aspects of local transport
plans that affect commuter rail services. Accordingly,
the
challenge, until commuter rail services are devolved upon provinces
and/or local authorities, is to allow and reconcile local
commuter
rail priorities with national level decision-making.
’
Insofar as commuter rail services are ‘
managed
nationally
’, the Minister is responsible for such ‘
national
management
’. This is apparently also the situation in terms of
the existing White Paper on National Transport Policy dated September
1996
(a copy of which is annexed to Makokoane’s affidavit), which
policy will apparently be substantially reviewed once the ‘
new
’
draft policy is finalised.
As indicated above,
the first respondent, a public company, was established pursuant to
the provisions of section 2 of the SATS Succession
Act and, upon its
incorporation, the State became its only member and shareholder
(section 2(2)). In terms of section 2(3) of the
said Act, the
Minister of Public Enterprises exercises the rights of the State as
shareholder of the first respondent. Metrorail
is one of the several
business divisions of the first respondent, operating and maintaining
the commuter railway network throughout
the country.
The second respondent is a corporation created in
terms of section 22 of the SATS Succession Act and registered in
terms of the Companies
Act 51 of 1973. In terms of section 25(3) of
the SATS Succession Act, the sole shareholder of the second
respondent is the State
and the rights to such shareholding are
exercised by the third respondent. Moreover, while the affairs of
the second respondent
are managed by a Board of Control, all the
members of such board are ‘
appointed and dismissed
’ by the
third respondent (section 24(1)). The third respondent also has the
right (under section 23(6)) to ‘
issue directives
’, in
respect of a specific financial year of the second respondent,
‘
clarifying, elaborating upon or giving specific content to the
objectives of the Corporation
[the second respondent]’.
Section 24(7) provides that the second respondent’s Board of
Control ‘
shall ensure that any directive issued under section
23(6) is taken into consideration in the management of the affairs of
the corporation
during the financial year concerned
’.
Section 30 of the SATS
Succession Act provides as follows:
‘
The Minister
[the third respondent]
may, by Notice in the Gazette, promulgate
regulations that are not in conflict with this Act, in connection
with –
the activities, powers, functions and
duties of the Corporation
[the second respondent]
, the Board
of Control or a member of the Board of Control;
…
…
the
limitation or prohibition of the exercise of the capacity or powers
of the Corporation;
the conditions
or restrictions subject to and the manner in which the Board of
Control shall manage the affairs of the Corporation;
…
any
matter considered desirable for the purpose of the realisation of
the objects of the Corporation.
’
Also as discussed above, the second respondent’s
main object and business under the SATS Succession Act is essentially
to ensure
the provision of rail commuter services within, to and from
South Africa in the public interest, at the request of (
inter
alia
) the Department of Transport (section 23(1) of the SATS
Succession Act). Upon an proper interpretation of the provisions of
section
15(1) of the said Act, the second respondent is obliged to
discharge this obligation by,
inter alia
, concluding an
agreement with the first respondent setting out the terms under which
the said rail commuter services are to be provided
by the first
respondent in the public interest. The current Service Agreement,
signed during August 2000 but effective as from 1
April 1999, was
concluded under Chapter IV of the SATS Succession Act and the
provisions thereof will remain operative until 31 March
2003. While
the Service Agreement provides that, after this initial period of 4
years, commuter rail concessions will be open to
competitive tender,
it appears from the expert reports annexed to the second respondent’s
answering affidavit (in particular, Page’s
report) that several
recent events have tarnished the policy of
privatisation/concessioning of public assets as being in the public
interest. It would appear from the papers before this Court that the
‘
vision
’ of commuter rail concessions (other than the
‘
concession
’ existing with Metrorail in terms of the
Service Agreement) has been ‘
put on hold
’ for the time
being.
It is also clear from the papers that, until the
finalisation of the draft National Rail Transport Policy (dated May
2002) - which
policy envisages (
inter alia
) a consolidation of
the operations of the first and second respondents into a single
institution that operates, manages and owns
assets; the devolution
of commuter rail operations and infrastructure functions to local
government; the creation of a new regulatory
regime with enhanced
economic and management functions, which regulatory regime will be
independent of operators/service providers
in the railway sector and
will be directly accountable to the Minister of Transport; as also
the establishment of a separate and
independent (operational) Railway
Safety Regulator (as set out in the abovementioned Railway Safety
Regulator Bill) - the future
legal framework within which commuter
rail services will be provided is in a state of some uncertainty.
In the light of the
interrelationship between the first and second respondents, and the
second and third respondents, as set out above,
it is clear that the
implementation of any order given in terms of prayer 5 against the
first and second respondents would, of necessity,
require the direct
involvement of the third respondent and of the NDOT. This being so,
we are of the view that, should we be disposed
to grant relief of the
nature sought in terms of prayer 5 in respect of the first and second
respondents, such relief must also encompass
the third respondent.
The further question
arises as to whether relief of the nature sought in terms of prayer 5
should be granted in respect of the fourth
and fifth respondents.
In our view, the answer must be in the negative.
The essential basis upon which we have found in favour of applicants
against first,
second and third respondents is to be found in the
duties imposed upon first and second respondents pursuant to sections
15 and 23
of the SATS Succession Act, as interpreted in accordance
with the spirit, purport and objectives of the Constitution. No such
direct
statutory duty is imposed upon fourth and fifth respondents.
To hold fourth and fifth respondents liable, this Court would in
effect
be imposing a duty upon these respondents which would be
sourced only in the broad principles of the Constitution, as opposed
to
a direct statutory duty designed to protect a specific
constituency such as applicants. It was on this latter basis that
the judgments
of the Supreme Court of Appeal in
Van Duivenboden
(
supra
) and
Van Eeden
(
supra
) must be read.
Furthermore, as is
abundantly clear from the affidavit deposed to by Nortjé on behalf
of the fourth and fifth respondents, such an
order could have a wide
range of unforeseen consequences for the administration of policing
in the country; in short, extending
the relief to embrace fourth and
fifth respondents would represent a very clear example of a decision
with polycentric implications.
As pointed out by Nortjé, the SAPS in the
Western Cape (as in the other provinces) has a fixed establishment.
The allocation of
more police to trains and railway stations will, of
necessity, result in a loss of manpower elsewhere. There is a
manpower shortage
in the SAPS generally and a 33.45% shortage at
police station level in the Western Cape, although it is at police
station level where
the main function of crime prevention occurs. In
line with the provincial strategy (Strategic Plan : Operational
Focus, 1 April
2001 to 31 March 2002) adopted by the SAPS in the
Western Cape (extracts of which are annexed to Nortjé’s
affidavit), a conscious
policy decision has been taken to,
inter
alia
, reprioritise police services and address under-resourced
areas and priority crimes. There is an enormous need for policing
services
in many localities apart from commuter trains and stations
and the national and provincial policing policy has been determined
accordingly.
In so determining the national policy, the fourth
respondent has had to have reference to all the inhabitants of the
Republic, as
well as the policing needs and priorities of the
provinces. The applicants have not made out a case that the policy
decisions taken
in this regard, nor the implementation thereof, are
not rational, taken lawfully and directed to proper purposes. In our
view, it
is clear from the papers before us that these are the kind
of ‘
quintessential policy decisions involving calculations of
social and economic preference
’, which are much more suited to
decision by elected representatives than by the Judiciary (see Woolf
et al
De Smith, Woolf & Jowell’s Principles of Judicial
Review
(1999) 494; see also
Kolbatschenko v King NO and
Another
2001 (4) SA 336
(C) at 356C-357B and the other
authorities there cited).
Mr Hodes, who appeared together with Ms Williams
on behalf of fourth and fifth respondents, referred to the affidavit
of Nortjé
deposed to on behalf of these respondents. In his
affidavit Nortjé claimed that access and egress control at railway
stations does
not form part of the responsibility of the SAPS; that
the fourth respondent was not a party to the agreements concluded
between
first and second respondents; that the police could not
perform guarding duties; that crimes on railway stations and trains
are
minimal when compared to other areas within the police stations
precincts, and that no evidence had been produced to show that fourth
and fifth respondents had the requisite funds to improve the level of
policing on commuter trains and stations, or that such lack
of funds
was attributable to ‘
serious mismanagement
’. None of
these claims was contested by applicants.
In the light thereof,
there is neither a statutory nor an evidential basis for finding that
fourth and fifth respondents have the
kind of obligation vis à vis
the applicants which would support an order against such respondents
along the lines envisaged in terms
of prayer 5.
A legal duty imposed upon first and second
respondents should be adjudicated thus: In the light of all the
circumstances of the particular
case, have these respondents
infringed the interest of the applicants in an unreasonable manner?
Reasonableness therefore becomes
the critical concept. This being
so, the test for reasonableness employed, albeit in a different
context, by Yacoob J in
Government of the Republic of South Africa
and Others v
Grootboom and Others
2001 (1) SA 46
(CC) at
para 44 is of particular relevance to the present dispute:
‘
Reasonableness
must also be understood in the context of the Bill of Rights as a
whole. The right of access to adequate housing is
entrenched because
we value human beings and want to ensure that they are afforded their
basic human needs. A society must seek
to ensure that the basic
necessities of life are provided to all if it is to be a society
based on human dignity, freedom and equality.
To be reasonable,
measures cannot leave out of account the degree and extent of the
denial of the right they endeavour to realise
…..Furthermore,
the Constitution requires that everyone must be treated with care and
concern. If the measures, though statistically
successful, fail to
respond to the needs of those most desperate, they may not pass the
test’
(our
emphasis).
This Court is not
required to prefer a particular plan over another. It is enjoined to
test whether the manner in which first and
second respondents have
conducted the operation of the commuter rail service in the Western
Cape is reasonable when viewed within
the context of the evidence
which has been placed before it. In this process of adjudication, the
Court applies a concept of reasonableness.
If the conduct of the
respondents fails the test of reasonableness, a remedy must be
fashioned. In undertaking this task, the Court
works with concepts
with which, and operates in a framework within which, it
traditionally functions.
The further question arises as to the financial
implications of any duty imposed upon respondents. Respondents
contend that courts
should not seek to ‘
rewrite
’ the
budgets of organs of State. Much of the evidence provided by
applicants concerning the nature of the national budget is of
little
assistance. Courts deal with reasonableness and justification, not
with the rearrangement of budgeting items. But there
is some
evidence which does provide a guideline to the financial implications
of imposing a remedy. In a supplementary affidavit,
Frylinck makes
reference to an article which appeared in the Cape Times of 8 August
2002 in which Harrison was quoted as saying that
‘
In a perfect
world Metrorail
would need to spend R150 m. per year on
security which would see a four-person security team on each train, a
minimum of four security
guards at stations and the manning of all
station gateways.
’
Respondents were
afforded an opportunity by applicants’ attorney to comment on this
public statement. The following passages from
the reply of first
respondent’s attorney dated 14 August 2002 are particularly
relevant:
‘
Mr Harrison
advises that the comments attributed to him, while accurate, have
been taken out of context. The context in which the
comments were
made, and in particular the comments pertaining to expenditure of
R150 million in respect of security, was vandalism
and more
particularly damage to, and theft of, carriage windows, which is
referred to at some length in the Cape Times article of
Friday 8
August 2002.
Mr
Harrison’s remarks were also reported in the Cape Times on the same
day and it is notable that there is no reference in this
report to
expenditure of R150 million or to increased security measures as a
result thereof. In summary, Mr Harrison was not asked
about the
provisions of a closed security system and the cost thereof. His
answer, appearances notwithstanding, was not intended
to convey the
cost of such a system. Furthermore the amount of R150 million was an
estimate and was not intended to be an accurate
calculation of the
costs involved in combating vandalism as aforesaid.’
Even on the basis of this reply, however, it
would appear that the R150 million represented ‘
an estimate
’
by the Regional Manager of the Western Cape region of First
Respondent’s metrorail business of the cost of providing for ‘
a
four-person security team on each train, a minimum of four security
guards at stations and the manning of all station gateways
’..
Furthermore, as Mr Hoffman pointed out, there
does appear to be considerable agreement on the sum required for the
provision of access
and egress control consisting only of adequate
staffing of commuter trains and stations in the Western Cape. Thus,
at the abovementioned
second public meeting held on 31 July 2001,
Harrison presented a business plan dealing with,
inter alia
,
the cost of increased numbers of security personnel on the so-called
‘
Southern Line
’, ie the line between Cape Town and
Simonstown. It appears from this plan that the estimated annual cost
of increased security
on this line was in the region of R3,269
million. At the same meeting, in response to a question posed by a
member of the audience
relating to the cost of providing the same
level of security for ‘
the entire Cape Metrorail system as had
been envisaged for the Simonstown line
’, Harrison allegedly
performed a ‘
rough mental calculation
’ and arrived at a
figure of in the order of R15,2 million. According to Harrison’s
affidavit, this figure –
‘ …
related
solely to the provision of additional security personnel to patrol
trains, platforms and stations. It did not include provision
for
operational or capital expenditure in respect of increased access and
egress control … It also did not envisage a security
presence at
each and every access and egress point at each and every station.
Must importantly, it did not take into account the
non-capital
expenditure, ie the cost to employ sufficient numbers of additional
staff which would be required by an intensification
of access
control.
’
While all this may be so, Mr Hoffman nevertheless
contended that Harrison’s figure of R15,2 million per annum for the
Simonstown
line equates to about R150 million per annum for the whole
Western Cape. Furthermore, Oeschger estimates the costs in this
regard
as follows:
‘
To ensure that
the system is closed and all access points are controlled the
following calculation will provide a fair reflection
of cost.
If there were an average of three access points
per station and one exit point, it entails the deployment of
approximately 20 security
officials per station per 24-hour period.
With 117 stations in the Western Cape region alone, the uniformed
security compliment
controlling access will result in the deployment
of 2 340 security officials at a monthly cost of approximately R11.9
million (SOB
Grade C at R5 076.00 per month) or R140 million per
annum.
’
As Mr Hoffman pointed out, Oeschger’s estimate
equates fairly closely to Harrison’s ‘
estimate
’ as
reflected in the Cape Times article dated 8 August 2002 (thereafter
described by Harrison in a supplementary affidavit dealing
with this
article as a ‘
wild guess
’ and a ‘
thumb suck
’)
of R150 million per annum, ‘
which would see a four-person
security team on each train, a minimum of four security guards at
stations and the manning of all station
gateways.
’
Addressing the funding implications of the relief
sought in terms of prayer 5, Mr Viljoen emphasised that as first
respondent had
made a profit in the year ending 31 March 2002 of
R3,34 billion, it could more than adequately cover the additional
amount of R150
million to provide a security system within the
context of ‘
a perfect world’
. As was argued by the first
and second respondents, comparisons between a consolidated profit
figure for the group and Harrison’s
‘
estimate
’ may not
be an accurate manner in which to assess affordability of a remedy.
Harrison’s estimate of R150 million does however
provide some
guidance to the Court as to the financial consequences of a remedy
being provided to applicants. Further, any relief
granted must of
course be tailored to minimise an unreasonable drain on the
respondents’ purse.
Another financial aspect that should not be left
out of consideration is the potential increase in the first
respondent’s fare
revenue as a result of more effective access and
egress control. According to Harrison, the Western Cape region
presently has the
highest ‘
cost coverage ratio
’ of all the
Metrorail regions. With reference to an analysis of the first
respondent’s census figures over a period of three
years, performed
during July 2000 by an ‘
independent consultancy
’ (Mercer),
Harrison alleged that the fare evasion rate in the Western Cape as a
whole was in the order of 18%, while that of the
Southern line was
13%. However, as pointed out by Frylinck in his replying affidavit,
the so-called ‘
Mercer analysis
’, a copy of which is
annexed to Harrison’s affidavit, is not supported by any further
details and it is difficult, if not impossible,
to deduce from such
analysis how the conclusions reached by the Mercer consultancy were
reached. Moreover, as Dunne cogently contends
in his affidavit, the
so-called ‘
Mercer analysis
’:
‘ …
cannot
claim to be a professional piece of work as its frame of reference
and applicability, and consequent analysis, are unspecified.
The
frequency of such
“census“
activity is not recorded. While the logistics of monitoring 100
stations on a given day
[as was apparently done by the Mercer
consultancy]
is a substantial challenge, there is a need for
sufficient additional information to allow independent verification
by Metrorial
of the efficacy of the commuter counting exercise, and
of the subsequent inferences.
Mercer appears as a substantial beneficiary of
Metrorail business, running between some ten and twenty million Rands
annually. On
the basis of the information supplied …, the issue of
added value from the exercise remains a truly open question …
’.
As already discussed above, Dunne illustrates
that the ratio construction of the Metrorail Crime Index as frequency
per 100 000 (paid)
journeys has the effect of allowing the crime
frequency to grow as the number of fare-paying passengers increases,
while the Index
remains constant. Thus, if the Western Cape fare
evasion is at 18% as claimed by Harrison using the ‘
Mercer
analysis
’ (July 2000), eliminating this level of fare evasion
will cause the regional Crime Index to fall by 22%, with no absolute
change
in crime counts or frequencies. Moreover, as pointed out by
Dunne, Harrison in his affidavit accepts a historical 1995/1996 fall
in fare evasion from 41% to 21% in the Western Cape. This change in
itself alters the fare-paying group of commuters from 59% to
79%, for
the purposes of the denominator used in the Metrorail Crime Index.
For such a denominator change, the Metrorail Crime Index
would give
the appearance of having been reduced by almost 34%, again with no
absolute change in crime counts or frequencies.
In the affidavit deposed to by Greyling in reply
to Van Niekerk’s answering affidavit, Greyling illustrates, using
actual figures
disclosed in the relevant Metrorail corporate report
(for the year ending 31 March 2001), as subjected to self-evident
calculations,
that there was a shortfall of some 79.72 cents per
passenger trip, evidencing a total loss of some R390 million for the
2001 financial
year end. This fare shortfall would arise as a
combination of fare-invasion, fraud and error, but in total amounts
to some 52% of
the actual fare revenue generated and accounted for by
Metrorail for the year ended 31 March 2001. In the result, it would
appear
that there is a shortfall of over half of the actual Metrorail
fare revenue accounted for in a single year.
Both Van Niekerk and
Harrison dispute that intensified access control will be viable and
sustainable or that it will indeed increase
fare income, bearing in
mind that a large proportion of the public is allegedly unable to pay
any fare whatsoever and that the SARCC
and, more particularly,
Metrorail are continually subjected to pressure to provide commuter
services entirely free of charge. At
the same time, however, Van
Niekerk concedes that it is evidently in the financial interest of
Metrorail to increase ticket sales,
since its enterprise is entitled
to retain the full
thereof –
‘
In the result
access control is an important mechanism to curb fare evasion and
hence to increase income generated from ticket sales.
The Succession
Act enjoins Metrorail to conclude an agreement under which a
“reasonable profit”
and a
“reasonable cash”
flow
can be attained and maintained. It is thus clear that control of
access presents itself as a useful tool to achieve the aforesaid
goals.
’
Moreover, as is
convincingly argued by Dunne in his affidavit:
` ‘
It appears to be eminently reasonable to argue that effective
access and egress control and elimination of fare evasion will be
associated
directly and indirectly with two likely phenomena,
increased public confidence in the Metrorail services and increased
Metrorail
income …
The effect of elimination of fare evasion on fare income is
substantial, and can be surprisingly large in percentage terms.
Assume
for simplicity either a common fare, or a common frequency of
fare evasion in all fare classes. The table below details the
effect,
as a percentage of current fare income, of moving from the
stated percentage of current commuters not paying, to zero evasion:
Reduced Evasion %
5.0
10.0
20.0
30.0
50.0
Income Increase %
5.2
11.1
25.0
42.8
100.0
Increased
Metrorail income may well result in further available funds allocated
to the effective crime control strategies and to
interventions that
ongoing crime necessitates.
’
While it is obviously
not possible to say what additional income would be generated for
Metrorail if more effective access control
is properly applied and a
greater number of commuters obliged to pay to travel by commuter
train, it is, in our view, sufficiently
evident from the papers
before us that enhanced and more effective access control will indeed
result in increased fare-revenue and
in the generation of further
funds for the purposes of the Metrorail business as a whole. Some of
these funds can then potentially
in turn be used to cover the cost of
more effective crime control strategies.
In summary, despite
the respondents’ contentions to the contrary, the financial
evidence placed before this Court provides, in our
view, no support
for the argument that affordability alone is an obstacle to the
granting of prayer 5 in respect of the first, second
and third
respondents.
Prayer
6: Allocation by first to third respondents of adequate funding
towards provision of proper and adequate safety and security
services
In support of this
prayer, applicants referred to affidavits deposed to by Mr Allan
Greyling, a chartered accountant, and by Mr David
Roodt, an
economist. They sought to show, by way of economic and accounting
analyses of the financial statements of first and second
respondent
and the national budget, that adequate financial resources were
available to fund the provision of improved security
for commuters.
We have already observed that this approach to
relief is, in our view, somewhat misconceived in that, in effect, it
purports to reverse
the approach which should be adopted by the
Courts. As the Constitutional Court said in
Minister of Health
and Others
v Treatment Action Campaign & Others
(1)
2002 (10) BCLR 1033
(CC) at para 99:
‘
The
primary duty of courts is to the Constitution and the law,
“which they must apply impartially and without fear, favour or
prejudice”.
The Constitution requires the State to
“respect,
protect, promote, and fulfil the
rights in the Bill of
Rights”
. Where State policy is challenged as inconsistent with
the Constitution, courts have to consider whether in formulating and
implementing
such policy the State has given effect to its
constitutional obligations. If it should hold in any given case that
the State
has failed to do so, it is obliged by the
Constitution to say so. In so far as that constitutes an intrusion
into the domain of the
executive, that is an intrusion mandated by
the Constitution itself. There is also no merit in the argument
advanced on behalf of
government that a distinction should be drawn
between declaratory and mandatory orders against government. Even
simple declaratory
orders against government or organs of State can
affect their policy and may well have budgetary implications.
Government
is constitutionally bound to give effect to such
orders whether or not they affect its policy and has to find the
resources to do
so.’
This Court is required to determine whether there
is a legal duty upon respondents in this case to provide improved
security and
safety for rail commuters. In the event that a duty is
found to exist, respondents must find the resources to fulfil their
legal
duty. If this Court goes further, as indeed applicants seek,
and makes a specific order as to the allocation of funding required
to fulfil respondents’ legal obligations by way of (
inter
alia)
a ‘
judicial analysis
’ of first and second respondents’
financial statements and the national budget, it may very well have
crossed the line mandated
by the doctrine of separation of powers.
Courts cannot act as a surrogate Ministry of Finance and seek to
rewrite national budgets.
Admittedly, courts grant orders that have
financial implications, but they must then give the relevant public
body a margin of appreciation
as to how to fulfil its legal duties.
To once again cite the words of the Constitutional Court in the
Treatment Action Campaign & Others (1)
case (
supra
)
at para 38:
‘
Courts are
ill-suited to adjudicate upon issues where court orders could have
multiple social and economic consequences for the community.
The
Constitution contemplates rather a restrained and focused role for
the courts, namely to require the State to take measures
to meet its
constitutional obligations and to subject the reasonableness of these
measures to evaluation. Such determinations of
reasonableness may in
fact have budgetary implications, but are not in themselves directed
at rearranging budgets. In this way the
judicial, legislative and
executive functions achieve constitutional balance.
’ (Our
emphasis)
The relief which we
propose to grant takes careful account of this approach.
Prayer
8 (previously prayer 9, prior to the abandonment of the prayer
numbered 8, as set out in the amended Notice of Motion, and
the
consequent renumbering of the prayers previously numbered 9 to 12) :
Whether first respondent should be ‘interdicted and restrained
from
operating rail commuter services in the Western Cape otherwise than
in accordance with the terms of its general operating instructions
’
As indicated above in the context of
the applicants’ application to amend, it appears to be common cause
between the parties that,
in order to ensure the safety of commuters,
the Metrorail General Operating Instructions
are
applicable
and
should
be complied with by the first respondent. Indeed,
the expert affidavit deposed to by Carver on behalf of the first and
second respondents
deals with certain aspects of such General
Operating Instructions, without giving any indication that such
instructions are not in
fact being complied with. Furthermore,
Harrison specifically refers, in the answering affidavit deposed to
by him, to certain of
the first respondent’s standard operating
instructions in a manner which makes it clear that, as far as
Harrison is concerned,
such operating instructions
are
being
implemented by the first respondent.
In light of the above, it is not
surprising that, once the applicants’ application to amend was
granted in respect of this proposed
‘
new
’ prayer 8
(previously the proposed ‘
new
’ prayer 9), none of the
respondents raised any serious objection to the granting of this
prayer. In our view, the applicants have
adequately demonstrated
that compliance with the basic tenets of the Metrorail General
Operating Instructions has the definite potential
to diminish the
very real dangers to which rail commuters are exposed (as appears
from the papers before us), and, accordingly, this
prayer should be
granted.
Prayer
9 (previously prayer 10, prior to the abandonment by the applicants
of the proposed ‘new
’
prayer
8 and the consequent renumbering of the prayers previously numbered
9-12) : Whether the applicants were entitled to early discovery
in
terms of Rule 35(1)?
The applicants sought, in their
original Notice of Motion, leave to compel discovery by the
respondents before the close of pleadings,
and their Notice of Motion
incorporated by reference a Notice to Discover in terms of Rule
35(1). The applicants now seek (in terms
of Prayer 9) an order
confirming that they were entitled to early discovery in terms of
rule 35(1) of the Uniform Rules of Court.
As pointed out above, subsequent to
the launch of the present proceedings, the parties reached an
agreement which was made an order
of court by Hlophe JP on 12
February 2002. This order provided,
inter alia
, for what the
parties called ‘
informal discovery
’. To recap, the
relevant part of the order reads as follows:
‘
Respondents make informal
discovery by not later than 12h00 on
28 February
2002 of all documents and tape recordings relating to any matter in
question in this application (whether such matter
is one arising
between the Respondents and Applicants or not) which are or have at
any time been in the possession or control of
Respondents, including
but not limited to all such matters and items specified in Annexure
“A”
to the Notice of Motion.
’
The manner in which this order came to
be made is dealt with in an affidavit deposed to by the first and
second respondents’ attorney
(Mr Du Preez), annexed to the
answering affidavit deposed to by Van Niekerk on behalf of the second
respondent. Du Preez points
out that, on 6 August 2001, the
applicants’ attorneys requested in writing certain information and
documents from each of the respondents.
On 8 August, Harrison,
acting on behalf of the first respondent, indicated in writing that,
while the first respondent was prepared
to co-operate with the
applicants and their legal team, he had forwarded this request to
‘
our legal department
’ for further attention. On 17
August 2001 the attorneys acting for the first and second respondents
indicated to the applicants’
attorneys in writing that their
clients were ‘
doing their utmost to collate the documents as
soon as possible
’, and undertook that the applicants’
attorneys would be kept informed of progress in respect of the
collation and availability
of the documents. Respondents’
attorneys subsequently suggested that the applicants initially be
furnished with copies of the
documents requested in respect of the
Western Cape only, and the costs of collating the documents were set
out in this communication.
At the same time the applicants were
informed that the first and second respondents requested a meeting to
discuss the documents
and/or information requested by the applicants.
Subsequently, the first and second
respondents furnished to the applicants the so-called ‘
first
tranche of documents
’ on 4 September 2001, later waiving their
initial demand for payment of the sum of R11 754.00 in respect of the
costs incurred
in providing such documents.
According to the respondents, neither
the applicants nor their legal representatives accepted the
invitation (made by the respondents’
attorneys on behalf of the
first and second respondents) to meet to discuss the documents
requested by the applicants, despite the
fact that first and second
respondents were at all times quite willing to co-operate fully in
furnishing such further documentation
as may be required.
Mr
Du Plessis
pointed out that,
in requesting information and documents from the respondents, the
applicants did not follow the procedure stipulated
in terms of
section 11 of the Promotion of Access to Information Act 2 of 2000
(‘
the Information Act
’) (which Act came into operation on
9 March 2001). The applicants also did not, at any time, seek to
invoke the provisions of
sections 78 to 82 of this Act in respect of
non-disclosure, or inadequate disclosure, of documents, and therefore
did not exhaust
their internal appeal procedures, as provided for in
sections 74 to 78 of the Act.
In essence, the respondents contended
that the applicants were not entitled to approach this Court in the
manner adopted by them for
relief in relation to discovery, as they
had not exhausted their remedies in terms of the Information Act.
The respondents argued
that all of the documents ultimately furnished
to the applicants (some 55 000 pages) would in any event have been
made available
to the applicants, even in the absence of the
institution of the present proceedings, albeit at the applicants’
expense. There
was accordingly no need whatsoever for the applicants
to formally approach the Court in this regard and, for this reason,
the respondents
had made it quite clear that they only agreed to the
‘
informal discovery
’ part of the order made (by agreement)
on 12 February 2002 on the basis that such agreement was without
prejudice to their entitlement
to contend that it was unnecessary for
the applicants to approach the Court for a discovery order, and
indeed, that this
modus operandi
was precluded by the
provisions of the Information Act.
With reference to cases such as
Moulded Components & Rotomoulding South Africa (Pty) Ltd v
Coucourakis & Another
1979 (2) SA 457
(W) at 470D,
respondents’ counsel submitted that discovery in motion proceedings
is extremely unusual and is ordered only in exceptional
circumstances. Thus, for example, situations where a Court may
direct such discovery are where there are reasonable grounds to doubt
the correctness of allegations in an affidavit or where the facts are
peculiarly within the knowledge of the party being required
to make
discovery.
The applicants were obliged to set out
their case properly in their founding papers and were not, according
to the respondents, entitled
to seek early discovery in order to
assist them to do so. Applicants’ constitutional right of access
to information held by the
State (public bodies) should have been
exercised by making use of the procedure set out in the Information
Act, albeit that, in terms
of section 22 of this Act, the applicants
would then have been obliged to pay the costs incurred by the
respondents in making the
documents available to them.
The problem which we have with these
submissions made by the respondents is a relatively simple one.
Firstly, this would appear to
be the kind of case where the
applicants could
not
reasonably or realistically have been
expected to make out a proper case in their founding affidavits
without access to voluminous
background information and knowledge
pertaining to the internal affairs and structures of the respondents
(especially the first and
second respondents). This background
information, as is clear from the papers before this Court, is
certainly such as was peculiarly
within the knowledge of the
respondents. Not only are the procedures set out in the Information
Act regulating access to information
and/or documents held by public
bodies cumbersome and time-consuming, but it has also never been
suggested by any of the respondents
that
they
were in an
position to make available to the applicants the manuals containing
(
inter alia
) ‘
a description of the subjects on which the
body holds records and the categories of records held on each
subject
’, as prescribed by section 14 of the Act. Without such
manuals, it is difficult to envisage how the applicants would have
had
sufficient details at their disposal to facilitate a request for
access to the records of the respondents, in the manner prescribed
by
section 11 of the Act. Furthermore, section 7 of the Act makes it
clear that it does not apply to records requested for civil
proceedings after the commencement of such proceedings. In this
regard, the relevant parts of section 7 read as follows:
‘
7. (i) This Act does not apply to a record of a public body or
a private body if –
that record is requested for
the purpose of criminal or civil proceedings;
so requested after the
commencement of such criminal or civil proceedings, as the case may
be;
the production of or access to
that record for the purpose referred to in paragraph (a) is provided
for in any other law.
’
As submitted by applicants’ counsel,
the purpose of section 7 is seemingly to prevent the Information Act
from having any impact
on the law relating to discovery or compulsion
of evidence in civil and criminal proceedings (see, in this regard,
Currie & Klaaren
The Promotion of Access to Information Act
Commentary
(2002) 52-54). It would appear that an order for
discovery before the close of pleadings may legitimately be made by a
Court in a
situation where there are exceptional circumstances which
require such discovery in order to ensure the proper prosecution of
the
proceedings (see, in this regard, Erasmus et al
Superior Court
Practice
(1993, with looseleaf updates) B1-251. A perusal of the
papers before this Court reveals that the early discovery made by the
respondents,
in terms of (
inter alia
) the relevant part of the
order made by Hlophe JP on 12 February 2002, was appropriate and
contributed a great deal to facilitating
the proper prosecution of
these proceedings. We are according of the view that,
in the
light of the nature of, and in the circumstances of, this particular
case
, the applicants were entitled to request early discovery and
that Prayer 9 should be granted.
Prayer
10 (previously prayer 11, prior to the abandonment by the applicants
of the proposed
‘
new
’
prayer 8 and the consequent renumbering of the prayers previously
numbered 9-12): Whether the applicants should be granted leave
to
approach the Court on the same papers, amplified in so far as is
necessary, within such period as the Court may think fit, for
such
further orders as may be necessary if respondents fail to have due
regard to and implement the terms of prayer 5, alternatively
the
terms of prayer 7, and in any event if respondents fail to have due
regard to and implement the terms of prayer 9?
In view of the
nature of the relief which we intend to grant to the applicants under
Prayer 5, the procedural relief sought
in terms of Prayer 10 is rendered superfluous. We therefore do not
intend to make an order
in terms of Prayer 10.
Costs
As regards the costs of the
applicants’ application to amend the Notice of Motion, which
application was opposed by the first, second
and third respondents,
the applicants clearly succeeded in this application in respect of
both the first and second respondents.
The applicants are therefore
entitled to an order that the first and second respondents pay their
costs of the application to amend.
As far as the third respondent is
concerned, however, the objection made on behalf of the third
respondent to the proposed amendments
was directed
solely
at
the proposed ‘
new
’ Prayer 8 (ie the interdict to prevent
commuter rail passengers from travelling on the commuter rail network
in the Western Cape
in any carriage which has doors which do not
function). As discussed above, the third respondent objected to the
proposed ‘
new
’ Prayer 8 on the grounds that, in view of
the fact that the applicants’ case, as formulated in their founding
and supplementary
founding affidavits, was based upon crime-related
conduct and threats by third parties to the security of the persons
of rail commuters,
rather than upon complaints relating to
operational safety, the third respondent was not afforded the
opportunity to place factual
material before this court detailing the
difficulty in preventing and combating vandalism (especially as
regards train doors) on
the rail commuter service and the measures
that have been taken by the State to address the issue of the
operational safety of rail
commuters. Mr
Albertus
argued (in our view,
correctly) that, without full details being placed before the Court
as to the practical ramifications of the
interdict sought, the Court
was not in a position properly to consider the potential prejudice
which may be suffered by the first
respondent, should this aspect of
the applicants’ application for an amendment be granted.
In reply, Mr
Viljoen
then
withdrew the applicants’ application to amend insofar as it related
to the introduction of the ‘
new
’ Prayer 8. Counsel did
not concede that the applicants were not entitled to the relief
sought in terms of such prayer. However,
because it was stated in
open Court on behalf of the third respondent that the commuter rail
services in question could potentially
not be maintained if the
prayer were to be granted, Mr
Viljoen
withdrew the said prayer
on the grounds that it was clearly not in the interests of the body
of commuters for whom relief is sought
in these proceedings to be
deprived of large parts, if not all, of the rail commuter services in
question. Whatever the applicants’
motivation for the ultimate
withdrawal of the application to amend in respect of the proposed
‘
new
’ Prayer 8, the fact remains that the third
respondent’s opposition to this aspect of the applicants’
application to amend was
successful and, in our view, the applicants
should be ordered to pay any costs incurred by the third respondent
in objecting to this
aspect of the proposed amendment of the Notice
of Motion, as was submitted by Mr
Albertus
.
As regards the applications to strike
out matter filed, very shortly prior to the hearing of the
application, on behalf of the first
and second respondents, the third
respondent, and the fourth and fifth respondents, respectively, it
should be clear from what we
have said above that these applications
were substantially unsuccessful. The applicants are therefore
clearly entitled to an order
that all five respondents, jointly and
severally, pay the costs incurred by the applicants in respect of the
applications to strike
out matter. Furthermore, as was cogently
argued by Mr
Viljoen
, we are of the view that, considering the
manner in which such applications were brought (ie on the eve of the
hearing of the application,
in a very voluminous form, and with
little, if any, attempt properly to motivate the various aspects of
the applications to strike
out), such costs should be on the scale as
between attorney and client.
In respect of the substantive relief
sought by the applicants in these proceedings, it should be clear
from what we have said above
that the applicants have been
substantially successful as regards the first, second and third
respondents. They are therefore entitled
to an order that these
three respondents be held liable, jointly and severally, for the
applicants’ costs in this regard, such
costs to include the costs
of the ‘
informal discovery
’ and the earlier postponements
of this matter.
The situation is, however, different
as regards the fourth and sixth respondents. As discussed above, the
applicants have not satisfied
this Court that they are entitled to
any of the substantive relief sought in respect of the fourth and
fifth respondents. It is
true that the issues raised in these
proceedings are of considerable importance, not only to the litigants
involved, but also to
the public in general. In
Motsepe v
Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC), Ackermann
J, speaking for the Constitutional Court, stated that:
‘…
one
should be cautious in awarding costs against litigants who seek to
enforce their consitutional right against the State, particularly
where the constitutionality of the statutory provisions is attacked,
lest such orders have an unduly inhibiting or
“chilling”
effect on other potential litigants in this category. This
cautious approach cannot, however, be allowed to develop into an
inflexible
rule so that litigants are induced into believing that
they are free to challenge the constitutionality of statutory
provisions in
this Court, no matter how spurious the grounds for
doing so may be …
’
(at para 30).
(See further in this regard De Waal et
al
The Bill of Rights Handbook
(4 ed, 2001) 120-122, and the
other authorities cited by these writers.)
By agreement between the parties, the
hearing in this matter took place over five full court days, divided
so that two days were allocated
to applicants and the remaining three
days allocated to the respondents. During the course of the argument
presented by Mr
Hodes
on behalf of the fourth and fifth
respondents, on the fourth day of the hearing, Mr
Hodes
made a
tender in open court to the applicants, to the effect that, should
the applicants withdraw the application
insofer as it related to the fourth
and fifth respondents, the latter respondents would not seek any
order as to costs against the
applicants. This tender was rejected
by Mr
Viljoen
on behalf of the applicants, necessitating the
continued participation of the fourth and fifth respondents (and of
their legal representatives)
in the hearing. In view of these facts,
and despite the public interest nature of this litigation, we are of
the view that, subject
to what we have said above about the costs of
the striking out application made by the fourth and fifth
respondents, such respondents
are entitled to an order that the
applicants be held jointly and severally liable for such respondents’
costs of this application,
the one paying the other to be absolved,
and that such costs should include the costs of the ‘
informal
discovery
’, and of the earlier postponements of this matter.
Relief
In the light of the findings in favour
of applicants regarding prayers 1, 4.1 and 5, what remains to be
considered is the nature of
the relief to be granted to applicants,
particularly in the light of the analysis of the relief sought in
prayer 5. In
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) at para 96 and
Minister of
Health and Others v
Treatment Action Campaign and Others (I)
2002 (10) BCLR
1033
(CC) at para 129, the Constitutional Court recognised the
existence of a structural interdict requiring respondents to revise
its
existing policy and to submit a revised policy to a court to
enable such court to satisfy itself that the policy was consistent
with
the duties imposed upon respondents. As the court said in the
Treatment Action Campaign
case (
supra
) at para 129:
‘
In appropriate
cases they should exercise such a power if it is necessary to secure
compliance with a court order. That may be because
of a failure to
heed declaratory orders or other relief granted by a court in a
particular case. We do not consider, however, that
orders should be
made in those terms unless this is necessary
.’
In the context of this
dispute, an appropriate order must direct first and second
respondents to bring about reform of the commuter
rail service so as
to fulfil their legal duties to provide a rail commuter service which
is in the public interest. Given the need
to enforce that legal duty
in terms of the principle of reasonableness, considerable latitude
must be given to respondents to effect
changes to the running of the
service in order to bring it within the objective of promoting the
public interest.
For these reasons, the
order we make should not be at all prescriptive about the solutions
which respondents are called upon to implement
in order to discharge
their obligations. We would say provisionally, however, that the
papers before the Court support the conclusion
that some measure of
access and egress control, some steps to minimise the incidence of
trains running between stations while the
door of such trains remain
open, some steps to repair broken windows in the trains, and an
improved system of security would constitute
the bare minimum if
first and second respondents are to fulfil their legal obligations.
Order
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 section 15(1) (insofar
as first
respondent is concerned) and section 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, whilst 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 paragraph 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
.
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.
It is confirmed that the applicants were
entitled to early discovery in terms of Rule 35(1) of the Uniform
Rules of Court.
6. It is ordered that:
6.1 The
first and second respondents shall, jointly and severally, pay the
applicants’ costs in respect of the applicants’ application
to
amend the Notice of Motion, including the costs of three counsel.
6.2 The applicants shall, jointly and
severally, pay the costs incurred by the third respondent in
objecting to the applicants’
application to amend the Notice of
Motion, including the costs of two counsel.
6.3 The first and second respondents shall,
jointly and severally, pay the costs incurred by the applicants in
respect of the application
to strike out made by the first and second
respondents, such costs to include the costs of three counsel and to
be taxed on an attorney
and client scale.
6.4 The third respondent shall pay the costs
incurred by the applicants in respect of the application to strike
out made by the third
respondent, such costs to include the costs of
three counsel and to be taxed on an attorney and client scale.
6.5 The fourth and fifth respondents shall,
jointly and severally, pay the costs incurred by the applicants in
respect of the application
to strike out made by the fourth and fifth
respondents, such costs to include the costs of three counsel and to
be taxed on an attorney
and client scale
6.6 Subject
to paragraphs 6.1 to 6.5 above, the first, second and third
respondents shall, jointly and severally, pay the costs incurred
by
the applicants in these proceedings, including the costs of the
‘
informal discovery
’
and of the earlier
postponements of this matter, and including the costs of three
counsel.
Subject to paragraphs 6.1 to 6.6 above,
the applicants shall, jointly and severally, pay the costs incurred
by the fourth and
fifth respondents in these proceedings, including
the costs of the
‘
informal discovery
’
and of the
earlier postponements of this matter, and including the costs of
two counsel.
……………………………
..
D M DAVIS
……………………………..
B
J VAN HEERDEN