Transnet Ltd t/a Metrorail and Others v Rail Commuters Action Group and Others (148/2003) [2003] ZASCA 108; [2003] 4 All SA 228 (SCA) (29 September 2003)

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[2003] ZASCA 108
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Transnet Ltd t/a Metrorail and Others v Rail Commuters Action Group and Others (148/2003) [2003] ZASCA 108; [2003] 4 All SA 228 (SCA); 2003 (6) SA 349 (SCA); 2003 (12) BCLR 1363 (SCA) (29 September 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case number : 148/2003
Reportable
In
the matter between :
TRANSNET
LTD t/a METRORAIL
First Appellant
THE
SOUTH AFRICAN RAIL COMMUTER
CORPORATION
LIMITED
Second Appellant
THE
MINISTER OF TRANSPORT
Third Appellant
(First to Third Respondents in the court
a
quo
)
and
THE RAIL COMMUTERS
ACTION GROUP
First Respondent
LESLIE DAVID VAN
MINNEN
Second Respondent
JANE LINDSAY
STYER
Third Respondent
JUDIN RUDLUFF BEUDINE
COULSEN
Fourth Respondent
RAYMOND JOHN
LOVE
Fifth Respondent
HESTER FOUCHÉ
Sixth Respondent
MIRIAM MURIEL
ADOLF
Seventh Respondent
BERENDINA SUSANNA
FULLER
Eighth Respondent
ZOLANI CHRISTIAN
MATYENI
Ninth Respondent
(First
to Ninth Applicants in the court
a quo
and cross-appellants)
And in the matter
between:
THE RAIL COMMUTERS
ACTION GROUP
First Appellant
LESLIE
DAVID VAN MINNEN
Second Appellant
JANE LINDSAY
STYER
Third Appellant
JUDIN RUDLUFF BEUDINE
COULSEN
Fourth Appellant
RAYMOND JOHN
LOVE
Fifth Appellant
HESTER FOUCHÉ
Sixth Appellant
MIRIAM MURIEL
ADOLF
Seventh Appellant
BERENDINA SUSANNA
FULLER
Eighth Appellant
ZOLANI CHRISTIAN
MATYENI
Ninth Appellant
(First to Ninth Applicants in the court
a quo
)
and
THE MINISTER OF SAFETY
AND SECURITY
First Respondent
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR COMMUNITY SAFETY
IN THE
WESTERN PROVINCE
Second Respondent
(Fourth and Fifth Respondents in the court
a quo
)
CORAM : HOWIE P,
STREICHER, FARLAM, NAVSA, CLOETE JJA
HEARD : 9 & 10
SEPTEMBER 2003
DELIVERED : 29 SEPTEMBER
2003
Summary:
The meaning of the phrase ‘in the public interest’ in ss
15(1) and 23(1) of the Legal Succession to the South African
Transport
Services Act 9 of 1989 discussed.
_________________________________________________________
JUDGMENT
HOWIE P
et
CLOETE JA
/
HOWIE
P
et
CLOETE
JA
:
INTRODUCTION
[1] These proceedings
represent the culmination of a desperate attempt by a group of
concerned members of the public to do something
about what they
perceive to be the unacceptably high, and escalating, level of
violence and lawlessness on commuter trains in
the Western Cape.
They took their case to the Cape High Court which granted them
wide-ranging relief. The first to third respondents
against whom
such relief was granted, have appealed; and the applicants
cross-appealed to the extent that further relief against
the first
to third respondents was denied them. The applicants also appealed
against the refusal of relief against the fourth
and fifth
respondents. Both appeals and the cross-appeal are to this court
with the leave of the court
a quo
.
PARTIES
[2] The judgment of the
court
a quo
(Davis and Van Heerden JJ) has been reported as
Rail Commuter Action Group & Others v Transnet Ltd t/a
Metrorail & Others
2003 (3) BCLR 288
(C). To avoid
confusion, it is convenient to refer to the parties as they were in
the court
a quo
not only in the reasons which follow but also
in the order we make.
[3] The first applicant
is a voluntary association of persons who have styled themselves the
Rail Commuter Action Group. The association
was formed to advance
the cause of safe urban commuting by train in the Western Cape. It
has no legal personality. The second
applicant is the father of the
late Juan van Minnen, whose tragic death on 8 June 2001, whilst he
was travelling on a suburban
commuter train from Rondebosch to Fish
Hoek, was the catalyst for the formation of the first applicant. The
third to sixth and
ninth applicants were alleged victims of criminal
attacks, and the seventh and eight applicants are the widows of
persons killed
in consequence of alleged criminal attacks, all of
which the applicants say were perpetrated on commuter trains in the
Western
Cape. The
locus standi
of the applicants to bring
these proceedings was not in issue on appeal (although the detail of
each alleged attack was).
[4] The first respondent
is Transnet Ltd, a public company established by the Minister of
Economic Co-ordination and Public Enterprises
pursuant to the
provisions of s 2 of the Legal Succession to the South African
Transport Services Act 9 of 1989 (‘the Act’).
The State is the
only member and shareholder of the first respondent. The whole of
the commercial enterprise of the State as
contemplated in s 3(1) of
the South African Transport Services Act 65 of 1981 (‘the 1981
Act’) including all assets, liabilities,
rights and obligations,
with the exception of those relating to rail commuter assets, have
been transferred to the first respondent
and the first respondent
has acquired that enterprise as a going concern – all as
contemplated in s 3(2) of the Act.
[5] The second
respondent, the South African Rail Commuter Corporation Ltd, was
established in terms of s 22(1) of the Act. The
affairs of the
second respondent are, in terms of section 24 of the Act, managed by
a board of control appointed by the third
respondent, the Minister
of Transport. The right of ownership in the rail commuter assets of
the South African Transport Services
(‘SATS’) was transferred to
the second respondent as contemplated in s 25(1) of the Act.
[6] The first respondent
has a number of operational divisions, one of which is Metrorail.
Metrorail operates a railway commuter
service in five urban regions,
one of which is the Western Cape. It does so pursuant to a ‘request’
made by the second respondent
as contemplated in s 15(1) of the Act
and in terms of a service agreement concluded with the second
respondent, also as contemplated
in s 15 of the Act.
[7] It is necessary to
quote the relevant provisions of s 15 and the terms of 23(1) of the
Act in full:
‘
15(1) Subject to the
provisions of this section, the Company shall provide, at the
request of the Corporation or a transport authority,
a service that
is in the public interest.
…
15(11) For the purposes
of the application of this section, a service shall include
─
(a) making
available a harbour works, railway line , pipeline, building,
structure or moveable property for the use of the
Corporation or
the transport authority;
(b) the
construction, maintenance or operation of a harbour works, railway
line, pipeline, building or structure;
(c) the
acquisition of moveable or immoveable assets; and
(d) the
provisions of any other service that forms part of the principal
business of the Company or is related thereto.
…
23(1) The main object
and the main business of the Corporation 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.’
The proper construction
of the phrase ‘in the public interest’ is critical to the
determination of the appeal of the first,
second and third
respondents.
[8] 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 s 206(1) of the Constitution. The fifth
respondent is the Member of the Executive
Council for community
safety, Western Cape Province.
THE RELIEF SOUGHT
[9] The notice of motion
was amended several times. The last amendments were sought at the
outset of the hearing before the court
a
quo
.
Some were opposed but all were granted. The terms of the notice of
motion before and after the last amendments appear from the
judgment
of the court
a
quo
at
298J-301D. There is no appeal against the order granting the
amendments but there is an appeal by the first and second
respondents
against the costs order made against them. In addition
all of the respondents brought applications to strike out matter in
the
applicants’ affidavits. Those applications were partially
successful
1
but the respondents were ordered to pay the costs of the
applications on the attorney and client scale. The respondents seek

the reversal of those costs orders.
[10] The applicants’
case has been characterised throughout by a singular lack of
direction. That directly contributed to the
volume of the record
which comprises 5797 pages, the majority of which were not necessary
for the application or the appeal.
There are allegations made in the
founding affidavit, and the supplementary founding affidavit
delivered after informal discovery
was ordered by consent, which
indicate that the relief sought against the first and second
respondents was
inter
alia
founded in delict and in contract. Those bases were expressly
abandoned in the heads of argument delivered on behalf of the
applicants before the appeal. Yet paragraph 2 of the order made by
the court
a
quo
,
which the applicants sought to defend on appeal, is clearly based in
delict. It was the first of a series of prayers comprising
paragraph
4 of the notice of motion
2
in which the applicants sought declaratory orders that the first and
second respondents owed a legal duty to members of the public,
that
those
respondents had breached
such duty and that a causal connection existed between the breach
and any damages suffered by the second
to ninth applicants. No
attempt was made to resurrect the contractual claim in argument
─
and rightly so, as the applicants’ case in this regard required
them to establish a tacit term which would have been in
conflict
with an express term of the contract of carriage between the first
respondent and fare-paying commuters.
3
In argument, leading counsel for the applicants nailed their colours
to the mast and indicated ─ repeatedly ─ that all the
relief
sought against the first to third respondents was predicated on the
interpretation placed upon s 15(1) and 23(1) of the
Act by the court
a quo
.
But by the time that other senior counsel representing the
applicants had concluded his argument, the applicants’ case had

again lost focus and was said to depend on the interpretation of
those sections or the Constitution or both and, in the case
of the
fourth paragraph of the order granted by the court
a
quo
,
delict as well.
[11] The issues were
nevertheless limited to some extent as the applicants only sought to
defend the orders granted by the court
a
quo
,
with the inclusion of the fourth respondent in paragraphs 2 and 3.
They asked for no further relief against the first to third

respondents. The relief
claimed against the
fifth respondent was abandoned altogether (and we shall have
something to say about that later on in this
judgment).
[12] It is now
convenient to set out the terms of the order granted by the court
a
quo
:
‘
1. It is declared
that the manner in which the rail commuter services in the Western
Cape are:
1.1 provided by the
first respondent, and
1.2 the provisions
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.
2. 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.
3. It is ordered as
follows:
3.1 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 aggress from rail commuters 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.
3.2 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.
3.3 The
applicants shall have a period of one month, after presentation of
the aforegoing report, to deliver their commentary
thereon under
oath.
3.4 The respondents
shall have a further period of two weeks to deliver their replies
under oath to the applicant’s commentary.
4. First respondent is
interdicted and restrained from operating rail commuter services in
the Western Cape otherwise than in
accordance with the terms of its
general operating instructions.
5. 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.
6.7 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.’
[13] We shall first deal
with the appeal by the first to third respondents; thereafter, with
the appeal by the applicants to
include the fourth respondent in
paragraphs 2 and 3; and finally, with the orders in respect of
costs.
FIRST TO THIRD
RESPONDENTS
[14] The reasoning of
the court
a
quo
may be summed up as follows: It is in the public interest that
railway commuter services be safe; ss 15(1) and 23(1) of the Act

require the first and second respondents respectively to provide
services ‘in the public interest’ and to ensure that this
is
done; therefore the first and second respondents have an obligation
to ensure that the services are safe not only operationally
but also
in regard to crime.
[15] The approach of the
court
a
quo
loses sight of the purpose behind the Act. The ordinary meaning of
‘public interest’ considered by the court
a
quo
4
offers no real assistance. According to the Oxford English
Dictionary it means ‘public welfare’. But in what sense? The
phrase by itself is not capable of clear and comprehensive
definition. The answer must lie in an analysis of the context
provided
by the Act and its predecessor, the 1981 Act. (It was, in
our view correctly, not suggested during argument that the phrase
bears
different meanings in each of the subsections in question.)
[16] Before the Act came
into operation, s 3(1) of the 1981 Act had provided that SATS was a
commercial enterprise of the State.
Section 2(3), read with s 1 of
that same Act, provided that SATS was to be administered under the
control and authority of the
State President, which control and
authority would be exercised through the Minister of Transport
Affairs. The purpose of the
Act, which repealed the
1981 Act
5
,
was to deregulate
inter
alia
the railways. To that end all the assets of the SATS’ commercial
enterprise were
transferred to the first and second respondents, as we have said. In
addition s 32(1) of the Act provides that
the first respondent shall
be entitled for the purposes of
inter
alia
privatization:
‘
(a) to form companies
in terms of the Companies Act, 1973;
(b) to divide its
activities at its discretion into business units and to transfer to
such companies all or some of such units,
or parts thereof,
including assets, liabilities, rights and obligations; and
(c) to acquire fully
paid-up shares in those companies as consideration therefor.’
[17] The ‘public’
contemplated was, in our view, the public at large. The ‘interest’
contemplated was the benefit which
would be conferred on the public
by the provision of public transport services and the services
referred to in s 15(11). Section
7(1) of the 1981 Act provided
inter
alia
that SATS should be administered ‘with due regard to … the total
transport needs of the Republic’. The phrase ‘in the
public
interest’ in ss 15(1) and 23(1) imposes no greater obligation than
to serve those needs. Firstly, therefore, it means
for the purpose
of public transport. Secondly, the phrase has the purpose of making
it clear, particularly because of the possibility
of privatization
of the first respondent in future, that it was the public which had
to be served in the utilization of the assets
transferred to the
first and second respondents . The maintenance of law and order and
the prevention of crime were functions
which had previously been
entrusted to the South African Railway Police Force established in
terms of s 43 of the 1981 Act.
6
The Railway Police Force was dissolved and its functions and members
were transferred to the South African Police in terms of
s 1 of the
Transfer of the South African Railway Police Force to the South
African Police Act 83 of 1986 ─ some three years
before the Act
was passed. The Act and in particular s 15(11) makes no provision
for safety and security services to be provided
by the first
respondent to commuters, or for that matter to anyone else who might
use the services to be provided by the first
respondent in terms of
the Act. Parliament was obviously content to leave those persons to
their ordinary contractual and delictual
remedies at common law and
their personal safety from crime to the competence of the police.
[18] The applicants
nevertheless submitted that in terms of s 7(2) of the Constitution
the State must respect, protect, promote
and fulfil the rights in
the Bill of Rights and that any construction of the phrase ‘in the
public interest’ in ss 15(1)
and 23(1) of the Act which ignores or
negates this provision ‘cannot stand up to proper scrutiny’. The
rights relied upon
were human dignity; the right to life; freedom
and security of the person; freedom of movement; and property. The
answer to these
submissions is
that, for reasons
already advanced, ss 15(1) and 23(1) of the Act do not have to be
interpreted, and cannot properly be interpreted,
as conferring an
obligation on either the first or second respondent to protect the
rights mentioned by providing safety and
security services. That is
the function of the South African Police Services (‘SAPS’) which
arises from the express provisions
of s 205(3) of the Constitution,
which reads:
‘
The objects of the
police service are to prevent, combat and investigate crime, to
maintain public order, to protect and secure
the inhabitants of the
Republic and their property, and to uphold and enforce the law.’
There is therefore no
basis for a finding that the subsections ignore or negate
constitutional rights, Protection of the respective
rights to life,
person and property are catered for by the provisions just quoted.
Whether the applicants have shown that the
police are not performing
that function, and whether a court of law is competent to give
directions in that regard to the fourth
respondent, are questions
dealt with later in this judgment.
[19] We would add that
were the first respondent’s conduct in operating commuter rail
services to infringe commuters’ constitutional
rights, their cause
of action would arise from that conduct and not from the first
respondent’s obligation to provide public
transport. It must be
remembered that s 15(1) refers to all the types of service formerly
provided by SATS. Urban rail commuters
have no greater rights under
the section than travellers on mainline trains, the airways or
railway buses or than users of the
harbours or visitors to
SATS-owned buildings. Moreover, as a public carrier the first
respondent has contractual and delictual
obligations, as we have
said, and if these require development in satisfying constitutional
rights it is in that context that
s 39(2) of the Constitution will
play a role, not in stretching the language of the section beyond
limits its wording can accommodate.
Finally, it is hard to conclude,
say in the case of a s 23(1) rail service to a neighbouring country
(which must also be ‘in
the public interest’), that the
legislature intended that travellers would have the benefit of the
sort of safety and security
services which the applicants demand
from the first respondent, even in South Africa much less in the
foreign country.
[20] The service
agreement between the first and second respondents did make
provision for operational safety as well as for the
security of
commuters. A spirited attack was mounted in the court
a quo
aimed at showing that these provisions fell short of what was
required of the respondents in terms of ss 15(1) and 23(1) of the

Act. But as the attack was founded on the first and second
respondents’ obligation said to flow from the phrase ‘in the
public interest’ in those two sections, it was misplaced for the
reasons just given. Furthermore, even assuming that the applicants

had
locus standi
to challenge the validity of the service
agreement, such challenge could only have been directed at declaring
the agreement
ultra vires
. It is not competent for the
applicants to seek to prescribe, amend or supplement the terms of
the agreement, which have in terms
of s15 of the Act to be settled
between the first and second respondents, or by arbitration within
the parameters referred to
in the section
─
and this is particularly so where more onerous obligations in regard
to operational safety and security of commuters would clearly
have
cost consequences for the contracting parties. And even if it be
accepted that a member of the public could seek proper
performance
by the first respondent of its contractual duties to the second
respondent ─ the case initially advanced in the
applicants’
papers ─ the applicants cannot succeed because there were
fundamental disputes of fact on the papers which altogether

precluded the court
a quo
from granting the relief which it
did in paragraphs 1 to 3 of its order.
[21] One of the cardinal
allegations made by the applicants was that improved access and
egress control at stations would have
a meaningful impact on crime
on commuter trains. The principal deponent to the affidavits
delivered on behalf of the applicants
was Mr M Frylink, who claimed
no particular expertise which would qualify him as an expert on this
question. In the first and
second respondents’ answering
affidavits it was denied that access and egress control would make
any meaningful difference
to crime levels, and the reasons for this
denial were set out in detail in a number of affidavits deposed to
by experts. Some
of the rival allegations are summarised in the
judgment of the court
a
quo
at
320F-321E. There were, in addition, disputes relating to safety and
security on commuter trains, the incidence of crime on
such trains
when compared to the crime rate generally and the adequacy and
reasonableness of steps taken by the first respondent
to deal with
these problems. The evidence on these disputes is summarised in the
judgment of the court
a
quo
at
322F-326F.
[22] Faced with these
extensive disputes of fact, the court
a
quo
concluded
7
that ‘the evidence appears to favour applicants’ argument’.
That approach conflicted with the trite principles delineated
by
this court in
Plascon-Evans
Paint Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. The disputes between the applicant
and the first and second respondents were simply not capable of
resolution
on the papers. The fact that a senior officer in the SAPS
deposed to an affidavit on behalf of the fourth respondent in which
he supported the applicants on the question of the efficacy of
access and egress control as a means to reduce crime ─ a fact
much
emphasized in the judgment of the court
a
quo
8
─
may lend some credence to the applicants’ case but it in no way
enables the issue to be determined on affidavit. The dispute
of fact
between the applicants and two of the respondents did not cease to
exist because another respondent made common cause
on this issue
with the applicants. We may add that the applicants did not contend
that the case should have
been
referred to oral evidence or sent to trial so as to resolve the
evidential disputes. In the result the applicants did not
make out a
case that the first and second respondents in fact acted in a manner
actionable in law.
[23] The
third paragraph of the order, which contained a so-called
‘structural’
mandamus
,
was particularly inappropriate in view of the disputes of fact. The
court reasoned
9
:
‘
[T]he
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 should 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 doors 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.’
The
facts deposed on behalf of the first and second respondents were an
insuperable obstacle to the conclusions, provisional or
otherwise,
reached by the court
a
quo
.
On the evidence which had to be accepted for the purposes of the
application, there was nothing better which the first to third

respondents could effectively do. The order accordingly required the
first to third respondents to embark on an exercise in futility
on
pain of being held in contempt of court.
[24] The
relief granted in paragraphs 1 to 3 of the order against the first
and second respondents should accordingly not have
been granted.
There are additional and substantial reasons why those orders should
not have included the third respondent but
it is not necessary to
canvass them as it is clear that if the applicants cannot succeed
against the first and second respondents
they cannot succeed against
the third respondent either.
[25] Paragraph 4 of the
order should also not have been granted. The applicants mounted an
attack in the supplementary founding
affidavit to the effect that
‘the [first respondent’s] practice of travelling with no or open
doors … is in clear contravention
of the
Occupational Health and
Safety Act 85 of 1993
in that the First Respondent are [
sic
]
fully aware of the hazards and risks that follows [
sic
] from
train operations whilst doors are open’. The main deponent to the
first respondent’s answering affidavit, Mr A B Harrison,

specifically denied that it is the first respondent’s practice to
travel with no or open doors and he referred to an affidavit
by Mr B
A Carver. Carver explained that doors on commuter coaches are kept
closed with compressed air whilst the train is travelling;
and that
the air pressure has to be regulated to avoid causing injury to
persons caught in the doorway whilst the doors are closing
as well
as to allow doors to be forced open to free a trapped person. The
system, said Carver, was designed with the safety of
the commuter in
mind but, as he went on to explain, it is often abused by unruly
elements in the coach who hold the door open.
Carver said that doors
of the type described are also susceptible to theft and at times
such doors are removed and thrown off
en route necessitating the
cancellation of the train at its terminal station. Carver then went
on to quote, or paraphrase, the
first respondent’s General
Operating Instructions 12001.2.3, 12001.4.1, 12001.4.2 and 12001.4.3
which deal with the steps which
must be taken by Metrorail employees
if doors are not operating properly.
[26] Harrison
also attached a video recording to the answering affidavit for the
purpose of showing the problems faced by the
first respondent in
regard to access and egress control at peak times. That video, which
this court viewed, shows trains travelling
with some open doors and
no person apparently in the immediate vicinity of those doors ─
which could lead to the inference
that the doors were not being held
open and were accordingly defective. The court
a
quo
apparently had no regard to the video but leading counsel
representing the applicants set much store by it in arguing the
appeal.
[27] Shortly
before the hearing in the court
a
quo
the applicants gave notice of intention to amend the notice of
motion to include a prayer in the terms granted as paragraph 4
of
the order. The application was opposed ─ unsuccessfully, as we
have said. Counsel representing the first to third respondents
then
asked for a postponement to supplement the answering affidavits, but
the application was refused by the court
a
quo
.
In these circumstances the applicants cannot complain if they are
held to the allegations made in their founding papers.
[28] It
will be apparent from the aforegoing analysis that compliance with
the first respondent’s general operating instructions,
insofar as
they relate to open and defective doors, was not raised in the
founding papers and formed no part of the relief originally
sought
by the applicants. The fact that other general operating
instructions were alleged not to have been complied with ─
a fact
relied upon by the court
a
quo
10
to allow the amendment ─ is, on the case presented, irrelevant.
Despite that, the court
a
quo
gave an order in terms wide enough to cover all the general
operating instructions of the first respondent even though they were

not before it.
[29] The
reasoning of the court
a
quo
was that it was common cause that the first respondent’s general
operating instructions were applicable and should be complied
with,
and because
11
‘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’ the relief embodied in paragraph
4
should be granted. But the court
a
quo
did not find that the first respondent was not complying with its
general operating
instructions.
In the absence of such a finding, which the court was not able to
make on the disputed evidence, the relief granted
was not competent.
It is not open to a court to reason that a final interdict should
be granted because it will do no harm,
when the conduct sought to be
prohibited is not established.
[30]
For
these reasons the orders against the first, second and third
respondents should not have been granted and their appeal against

such orders must succeed. In electing only to defend those orders
and in not asking for further relief against the first, second
and
third respondents, the applicants abandoned their cross-appeal which
must accordingly be dismissed.
FOURTH RESPONDENT
[31] It was (in our view
correctly) conceded in argument by the applicants’ counsel that
unless paragraph 3 of the order was
amended to include the fourth
respondent, no point would be served in including the fourth
respondent in paragraph 2 of the order.
[32] Comprehensive
affidavits were filed on behalf of the fourth respondent. In the
applicants’ reply, those allegations went
largely unchallenged. To
the extent that they were challenged, it was not (nor could it have
been) suggested that the fourth
respondent had not raised a genuine
dispute of fact, or that the averments made on behalf of the fourth
respondent were so far-fetched
or clearly untenable that this court
was justified in rejecting them on the papers. The applicants’
appeal must accordingly
be decided on the version of the fourth
respondent. That version was in essence the following:
(a) it was rational,
reasonable and justifiable to restructure the commuter unit of the
SAPS and according to SAPS’ statistics,
policing of trains and
railway stations has been more effective since the restructuring of
the commuter unit;
(b) the SAPS has many
priorities country wide which cannot be addressed simultaneously;
(c) the allocation of
more police to trains and railway stations will, of necessity,
result in loss of manpower elsewhere, and
the Western
Cape
is one of the regions with the lowest crime rate;
(d) a policy decision
has been made to reprioritise police services and address
under-resourced areas and priority crimes; and
(e) a calculation of
staff requirements to place police on trains shows that very
considerable cost would have to be incurred
with budgetary
implications for the Government’s priorities and spending plans.
On this version the
relief sought by the applicants could not be granted. In
Minister
of Health & Others v Treatment Action Campaign & Others (No
2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) para [38] the court
held:
‘
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 focussed 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.’
In
Government
of the RSA v Grootboom
2001 (1) SA 46
(CC)
para [41] the Constitutional Court held:
‘
The precise contours
and content of the measures to be adopted are primarily a matter for
the Legislature and the Executive…
A court considering
reasonableness will not inquire whether other more desirable or
favourable measures could have been adopted,
or whether public money
could have been better spent. The question would be whether the
measures that have been adopted are reasonable.
It is necessary to
recognise that a wide range of possible measures could be adopted by
the State to meet its obligations. Many
of these would meet the
requirement of reasonableness. Once it is shown that the measures do
so, this requirement is met.’
[33] On the fourth
respondent’s version it cannot be argued that the measures taken
were unreasonable; and the applicants are
accordingly not entitled
to the relief sought against the fourth respondent in terms of
paragraph 3 of the order made by the
court
a quo
. In view of
the concession made by the applicants’ counsel to which we have
already referred, the relief sought against the
fourth respondent in
terms of para 2 of that order falls away.
FIFTH RESPONDENT
[34] There was simply no
case made out against the fifth respondent as was pointed out
expressly and in terms in the answering
affidavit delivered on his
behalf (which was met with a bald denial in the applicants’
replying affidavit) and in the heads
of argument delivered by his
counsel well before the appeal was heard in this court. It was only
in response to a question put
by this court on the second day of the
appeal that counsel for the applicants conceded that there was no
justification for seeking
any relief against the fifth respondent.
The reason for his joinder in these proceedings was, we were told
from the bar, political.
In these circumstances the propriety of his
joinder in the court
a quo
and especially in the appeal is
seriously open to question. It could well be said that such joinder
was vexatious. Only because
of the attitude of all the respondents
to the matter of costs, is it unnecessary to decide whether it was.
CONCLUSION
[35] Rail commuters are
justified in being concerned about crime on trains. It would be
irresponsibly dismissive for courts not
to share that concern. The
vast majority are compelled to use trains because they cannot afford
other transport. However, courts
are not at large to go further and
grant relief when no proper case for it has been made out.
Unfortunately for the applicants
and their cause, their case was
seriously flawed in the fundamental respects discussed above.
COSTS
[36] Counsel
representing first to third respondents and counsel representing
fourth and fifth respondents waived the costs orders
made by the
court
a quo
in favour of the third, fourth and fifth
respondents in paragraphs 6.2 and 6.7 of the order and indicated
that none of their
clients sought the costs of appeal. The
applicants submitted (but the respondents did not concede the point)
that this was their
entitlement as they were engaged in public
interest litigation. It is unnecessary to decide the point. All
respondents nevertheless
sought the reversal of the costs orders
made against them by the court
a quo
. Those latter costs fall
under two headings: the application to amend and the application to
strike out.
[37] The two
interlocutory applications were dealt with in the same hearing as
the main case, beginning with argument on the amendment.
The
amendment was allowed before argument proceeded on the main case.
The respective decisions on costs of the amendment application,
as
well as the result and costs of the striking-out application, were
all deferred for disposal in the overall final judgment.
[38] If, in a
hypothetical case, an amendment (or striking-out) application were
disposed of in separate proceedings in advance
of the main case, the
court could, of course, order costs to follow the result of such
application. It would more advisedly,
however, consider the
possibility that the result of the main case might demonstrate that
the application will have been irrelevant
to that latter result.
With that prospect in view the interlocutory court might reserve
such costs or order them to be costs
in the cause.
[39] The essential
difference in the present matter is that the relevance of the
interlocutory proceedings was clearly determinable,
not merely as a
matter of foresight or contingency, but beyond doubt by the time the
judgment on the merits was given. In the
event the court
a quo
decided the merits in favour of the applicants. Had it decided the
merits in favour of the respondents, as we consider ought
to have
been the case, it would undoubtedly have perceived the irrelevance
of the interlocutory proceedings to the eventual outcome
and have
realised the inescapable illogicality in not making the costs of
those proceedings follow the result of the main case.
The incorrect
view of the merits led to an incorrect view of the interlocutory
costs. It follows that all the costs orders in
favour of the
applicants in respect of the amendment and striking-out applications
can and must be set aside.
[40] It is apparent from
paras 6.6 and 6.7 of the orders made by the court
a quo
that
the court considered that the costs of the ‘informal discovery’
procedure and the costs of earlier postponements of
the hearing of
the application should be costs in the cause. A different approach
was not suggested on appeal. As the orders
in favour of the
applicants on the merits will be set aside by this court it follows
that the costs orders against the first
to third respondents on
these aspects must also be set aside. It only remains to add that
there was no appeal against paragraph
5 of the order, but its
continued existence is of no relevance or importance.
ORDER
1. The appeal of the
first to third respondents is upheld and the applicants’
cross-appeal is dismissed.
2. The applicants’
appeal is dismissed.
3. Paragraphs 1 to 4 and
6 of the order of the court below are set aside and the following
order is substituted therefor: ‘The
application is dismissed’.
___________________
C T HOWIE
PRESIDENT
SUPREME
COURT OF APPEAL
___________________
T D CLOETE
JUDGE
SUPREME
COURT OF APPEAL
STREICHER JA:
[1] I agree with the order proposed by Howie P and
Cloete JA. I shall, as was done in their judgment, refer to the
first respondent,
the second respondent, the third respondent and
the applicants in the court
a quo
as they were in that court.
[2] In my view, for the reasons set out hereunder, the
phrase ‘a service that is in the public interest’ in ss 15 and
23 of
the Legal Succession to the South African Transport Services
Act 9 of 1989 (‘the Act’) means no more than that the service

should be a service benefiting the public in the sense that the
public would be better off by having the service than by being

without it.
12
Whether the public would be better off would of course depend on all
the relevant circumstances including the values and fundamental

rights enshrined in the Constitution.
[3] There is no statutory obligation on the Department
of Transport to provide a rail commuter service. It may, however,
request
the second respondent to ensure that such a service is
provided in the public interest (s 23(1)). The second
respondent
is thereupon obliged to ensure that such a service is
provided. It may do so by requesting the first respondent to provide
the
service in the public interest, whereupon the first respondent
is obliged to do so (s 15(1)).
[4] The terms upon which the service is to be rendered
are to be agreed between the first and the second respondent or if
they
fail to agree they are to be determined by way of arbitration
by an arbitration tribunal consisting of three arbitrators, one of

whom shall be appointed by the second respondent, one by the first
respondent and one by the third respondent (s 15(3)).
In terms
of s 15(6) the terms stipulated by the arbitration tribunal â€“
(a) shall include such terms as would normally be
included in a contract for the provision of the relevant service
including terms
which oblige the first respondent to provide the
service required;
(b) present the first respondent with an opportunity to
earn a reasonable profit;
(c) provide for the granting by the first respondent or
the transport authority of adequate security for payment for the
service;
(d) provide for a reasonable cash flow to the first
respondent in respect of the provision of the service; and
(e) stipulate the period during which the service shall
be provided.
[5] The terms stipulated by the arbitration tribunal
are for all purposes deemed to constitute a contract concluded by
the parties
and may be enforced, amended or cancelled in the same
manner as the terms of any other contract (s 15(5)).
[6] The Act does not confer any jurisdiction on a court
to make a contract for the parties i.e. the contract between the
parties
or the terms stipulated by the arbitration tribunal cannot
be amended or supplemented by a court.
[7] The standard of the service would of necessity
depend on financial considerations. Rail commuter services in the
various regions
in South Africa, including the Western Cape, are
being subsidised by the Department of Transport. In 2002 the subsidy
amounted
to approximately R93 million per month. Not being
obliged to render a rail commuter service a court has no
jurisdiction
to order the Department of Transport to increase that
subsidy. It follows that the terms of the contract or the terms
stipulated
by an arbitration tribunal and, therefore, the standard
of the service rendered or to be rendered would depend on the
subsidy
the Department of Transport is prepared to pay.
[8] In the light of the aforegoing the phrase ‘a
service that is in the public interest’ could not have been
intended to mean
more than a service from which the public would
benefit in the sense that the public would be better off with the
service than
without it. To interpret the phrase so as to require a
service of a higher standard may result in the public being deprived
of
a service from which they would benefit in the aforementioned
sense and which the Department of Transport may be prepared to

subsidise and make available to the public through the second and
the third respondents. Such an interpretation would in fact be

against the public interest. It is in the public interest that the
public should have a service which would put them in a better

position than the position in which they would be in if they have to
go without the service.
[9] It follows that by providing that the service
should be in the public interest the intention was not to prescribe
the quality
of the service to any greater extent than that the
service should be a service benefiting the public in the sense
aforementioned.
[10] The applicants did not make out a case that the
public are no better off with the service provided in terms of the
agreement
between the first and the second respondents than they
would have been without the service. Initially one of the
applicants’
prayers was that the first respondent be interdicted
from (a) operating any train on the Western Cape rail commuter
service which
was not staffed with at least three guards and one
conductor; and (b) 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’. However, when the first respondent indicated that
it would then not be able to operate the service at all
the
respondents abandoned that prayer, thereby, by implication,
conceding that the public is better off with the service than
they
would be without the service.
[11] The court
a quo
found that the manner in which the rail commuter services in the
Western Cape are provided by the first respondent and ensured
by the
second respondent is not in the public interest insofar as (a) the
provision of proper and adequate safety and security
services; and
(b) the control of access to and egress from rail facilities used by
rail commuters in the Western Cape, are concerned.
In para 1 of its
order it made an order to that effect.
13
It arrived at this conclusion on the basis that it is in the public
interest that public transport be provided which adheres
to
reasonable standards of safety, security and reliability.
14
It then proceeded (a) to deal with the factual dispute as to whether
improved access and egress control would reduce crime;
15
(b) to refer to evidence to the effect that trains at times
travelled with open doors;
16
(c) to deal with the dispute of fact as to whether crime on commuter
rail facilities in the Western Cape was disproportionately
high
17
;
and (d) to find that there are certain deficiencies in the present
system of security and that there was a need for improvement
18
.
It held that the evidence appeared to favour the applicants’
argument
19
and concluded that the service does not meet the standards of a
service run in the public interest.
[12] Apart from the fact that the court
a
quo
ignored the well known
Plascon-Evans
rule
20
in regard to disputes of fact and evidence contained in replying
affidavits, it erred in finding that because of some deficiencies
in
certain aspects of the service provided by the first respondent, the
service was not in the public interest. The Act does
not prescribe
that access and egress control or safety or security should be of a
specified standard. It left it to the first
and second respondents
to negotiate or to the arbitrators to determine to what extent the
available funds should be allocated
to specific aspects of the
service and what the standard of the various aspects of the service
should be. The Act requires the
service as a whole to be in the
public interest. To determine whether that is the case all the
features of the service, positive
and negative, have to be taken
into consideration and given such weight as is considered proper in
the circumstances.
21
[13] For these reasons the appeal against para 1 of the
order by the court
a quo
(‘the court order’) should be allowed.
[14] In terms of para 2 of the court order the
court
a quo
declared
that the first and second respondents had a legal duty to protect
the lives and property of members of the public who
commuted by
rail, whilst they were making use of rail transport services
provided and ensured by, respectively, the first and
second
respondents.
[15] The court
a quo
held:
That the underlying obligations of first and second
respondents were to be located in the Act.
22
That those obligations were similar to those imposed
upon the respondent in
Van Eeden v Minister
of Safety and Security (Women’s Legal Centre Trust, as Amicus
Curiae)
23
in terms of the
South African Police Service Act 68 of 1995
.
24
That commuters enjoyed a constitutional right to life
as well as a constitutional right to freedom and security of the
person,
which included the right to be free from all forms of
violence from either public or private sources.
25
That commuters who were subjected to violent crime
which jeopardised their right to life and their right to freedom
and security
of their person were effectively remediless unless it
could be said that a legal duty existed whereby first and second
respondents
had to act to minimise the extent of violent crime and
lack of safety on the commuter rail service.
26
[16] It does not follow from the fact that commuters
enjoy the constitutional rights referred to that the first and
second respondents
have a legal duty to protect their lives and
property whilst they are making use of rail transport services
provided and ensured
by respectively the first and second
appellants. The court
a quo
apparently found that such a duty
should be recognised in the light of the fact that, according to it,
the underlying obligations
of the first and the second respondents
in terms of the Act were similar to those imposed on the South
African Police in terms
of the South African Police Service Act.
However, the obligations of the first and second respondents in
terms of the Act, cannot
be equated with those of the South African
Police.
[17] Section 205(3) of the Constitution reads:
‘The objects of the police service are to prevent, combat and
investigate crime, to maintain public order, to protect and secure

the inhabitants of the Republic and their property, and to uphold
and enforce the law.’
Referring to that section and to the fact that under
the
South African Police Service Act the
functions of the police
included the maintenance of law and order and the prevention of
crime Vivier ADP stated in
Van Eeden
:
27
‘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.’
[18] The first and second respondents are not agencies
of the State responsible for the discharge of its constitutional
duty to
protect the public against invasion of their aforesaid
fundamental rights. In terms of the Act the second respondent’s
duty
is to ensure a service in the public interest by way of a
contract or arbitration. The first respondent’s obligations in
terms
of the Act are to be found in the contract it concluded with
the second respondent. Whether those obligations give rise to a duty

to protect the life and property of a member of the public depends
on the terms of the contract and the circumstances of the
particular
case.
[19] For these reasons the appeal against para 2 of the
court order should be allowed.
[20] In terms of paragraph 3 of the court order the
first, second and third respondents were ordered to forthwith take
all such
steps as were reasonably necessary to put in place proper
and adequate safety and security services which had to include steps

to properly control access to and egress from rail commuter
facilities used by rail commuters in the Western Cape.
[21] The order was based on the court
a
quo
’s, in my view, erroneous,
interpretation of the phrase ‘a service in the public interest’.
28
It has financial implications. The court
a
quo
was alive to that fact but, once again
disregarding the Plascon-Evans rule in regard to disputes of fact
and evidence contained
in replying affidavits, it concluded that the
evidence placed before it provided no support for the argument that
affordability
alone was an obstacle to the granting of the order. It
stated, furthermore:
29
‘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.’
[22] As stated above it was for the first and the
second respondents to determine how to allocate the available
resources and
if they could not do so for the matter to be
determined by way of arbitration. By granting the order the court
a
quo
was imposing a term on the contract between the first and
the second respondents. It had no jurisdiction to do so.
[23] For these reasons I agree that the appeal against
para 3 of the court order should be dismissed.
[24] I agree with the judgment of Howie P and Cloete JA
in all other respects and, therefore, agree with the order.
_________________
STREICHER JA
FARLAM
and NAVSA JJA:
[1] We
have had the benefit of reading the judgment of Howie P and Cloete
JA. We agree with the order proposed by them but find
ourselves
unable to agree with their approach to the interpretation of the
phrase ‘in the public interest’ in ss 15 and 23
of the Legal
Succession to the South African Transport Services Act 9 of 1989
(‘the Act’).
[2] In
our view the error made by our learned colleagues in paragraph [17]
of their judgment is that they hold the phrase ‘in
the public
interest’ in ss 15 and 23 of the Act imposes no greater obligation
than what was described in s 7(1) of the South
African Transport
Services Act 65 of 1981 as ‘the total transport needs of the
Republic’. In our view this is too narrow
an approach and one that
ignores a significant change of wording and the deliberate choice by
the legislature of the wider expression
‘in the public interest’.
[3] Writing
in (2003) 120
The
South African Law Journal
(pp
322-329) on the approach of the Supreme Court of Canada to the
interpretation of words in statutes when dealing with administrative

law problems the distinguished administrative law scholar and judge
of the Federal Court of Canada, Appeal Division, John M Evans,
inter
alia
states the following at 326:
‘
(a) While
dictionaries provide the range of meanings that words can bear in
“ordinary speech”, the particular shade of meaning
to be
attributed to a given word or phrase is derived from the context in
which it is used. In the case of statutory language,
the
interpretative context includes: the overall purposes of the
statute; the legislative history of the scheme and the Act;
the
function in the statutory scheme of the particular provision in
dispute; and the impact of the legislation on fundamental
individual
rights and constitutional values, including, in particular, those
protected by constitutional and quasi-constitutional
instruments,
and by international legal norms.’
This
approach is consonant with the approach of our courts.
[4] In
Carmichele v Minister of Safety and Security
2001(4) SA 938
(CC) at para [54] the following was said:
‘Our
Constitution is not merely a formal document regulating public
power. It also embodies, like the German Constitution, an
objective,
normative value system. As was stated by the German Federal
Constitutional Court:
“
This
jurisprudence of the Federal Constitutional Court is consistently to
the effect that the basic right norms contain not only
defensive
subjective rights for the individual but embody at the same time an
objective value system which, as a fundamental
constitutional value
for all areas of the law, acts as a guiding principle and stimulus
for the Legislature, Executive and Judiciary.”
The
same is true of our Constitution. The influence of the fundamental
constitutional values on the common law is mandated by
s 39(2) of
the Constitution. It is within the matrix of this objective
normative value system that the common law must be developed.’
[5] In
Pharmaceutical Manufacturers Association of South Africa and
Another
:
In
re Ex parte President of the Republic of
South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para
[33]
at
692E-G Chaskalson P said the following:
‘The
control of public power by the Courts through judicial review is and
always has been a constitutional matter. Prior to
the adoption of
the interim Constitution this control was exercised by the courts
through the application of common-law constitutional
principles. . .
The common-law principles that previously provided the grounds for
judicial review of public power have been
subsumed under the
Constitution and, insofar as they might continue to be relevant to
judicial review, they gain their force
from the Constitution. In the
judicial review of public power, the two are intertwined and do not
constitute separate concepts.’
In
para [50] of the same judgment at 698D-F the following appears:
‘What
would have been
ultra vires
under the common law by reason of a functionary exceeding a
statutory power is invalid under the Constitution according to the

doctrine of legality. In this respect, at least, constitutional law
and common law are intertwined and there can be no difference

between them. The same is true of constitutional law and common law
in respect of the validity of administrative decisions within
the
purview of s 24 of the interim Constitution. What is “lawful
administrative action”, “procedurally fair administrative

action” and administrative action “justifiable in relation to
the reasons given for it” cannot mean one thing under the

Constitution and another thing under the common law.’
[6] The
proper approach to a case in which a court is asked to interpret a
provision of a statute so as to incorporate constitutional
norms is
to consider
inter alia
its context, the overall purpose of
the statute, the legislative history and to hold the provision
concerned up to constitutional
scrutiny.
[7] The
privatisation of transport services is clearly one of the objects of
the Act. However, it is clear that privatisation
of the rail
commuter service is still in a transitional phase. It is clear as
set out in paras [4] and [5] of the judgment of
our learned
colleagues that the State, through the scheme of the Act, is still
in effect the controller and provider of this
service. Put
differently, even though the provision of the rail commuter service
in the present case is regulated by a written
agreement it is
nevertheless pursuant to the statutory scheme and is ultimately the
exercise of public power. It is common cause
that the rail commuter
service is unlikely ever to be profitable and presently serves
mainly the needs of the indigent. It is
surely unarguable that the
provider of such a (state subsidised) service through a statutory
scheme in a constitutional state
such as ours is obliged to render
such services in a manner contemplated in the empowering statute and
not in conflict with constitutional
norms. For example a
discriminatory commuter service based on racial lines would clearly
be unlawful and challengeable at the
instance of a member of the
public. A rail commuter service using coaches built with materials
hazardous to public health could,
in appropriate circumstances,
conceivably be challenged by an interested member of the public. In
the first example not only
would there be a breach of s 9 of the
Constitution (the equality clause) but it would also be a service
not in the public interest.
In the last mentioned example it is
arguable that the service would offend against a commuter’s right
to an environment that
is not harmful to his or her health or
well-being as protected by s 24 of the Constitution. The service
rendered would also not
be in the public interest.
[8] The
problem for the applicants in the present case is that they failed
to provide any basis for judicial intervention. First
they attempted
to cast upon the providers of the commuter rail service the overall
responsibility for maintaining law and order
on trains. Second they
failed to show factually in circumstances in which arguably the
providers of the service have some security
responsibilities that
such responsibilities were not being discharged. Third they sought
an order the effect of which would be
to involve the court in
venturing into areas outside its jurisdiction, namely, of policy and
budgetary allocation. These are
matters, which in a constitutional
state based on the doctrine of the separation of powers are not
appropriate for judicial intervention.
On these aspects we are in
full agreement with our colleagues.
[9] A
distinction should be made between non-sustainable cases and cases
in which members of the public could conceivably mount
a challenge
to the manner in which rail commuter services are rendered. To limit
commuters to their contractual and delictual
remedies is to take too
narrow a view.
[10] We
have also had the advantage of reading the judgment of Streicher JA.
We note that in his approach to the interpretation
of the phrase in
question he considers it appropriate to take constitutional values
into account. We disagree with him that the
phrase means no more
than that the rail commuter service should be a service benefiting
the public in the sense that the public
would be better off by
having the service than being without it. We adopt the approach set
out above.
_______________
IG FARLAM
Judge of Appeal
_______________
MS NAVSA
Judge of Appeal
1
See
judgment of the court
a
quo
at 309I
.
2
See judgment of the court
a quo
at
299H-300B.
3
Robin v Guarantee Life Assurance Co Ltd
[1984] ZASCA 72
;
1984 (4) SA 558
(A) at 567A-F and cases there quoted, to which may
be added
P J Hawkes & Co Ltd v
Nagel
1957 (3) SA 126
(W) at 132B-C
and
Cash Converters Southern Africa
(Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd
2002 (5) SA 494
(SCA) at 511C.
4
At 319G-J.
5
Section 36 read with Part 7 of Schedule 2.
6
Section
44(1) of the 1981 Act provided that the functions of the SA Railway
Police force ‘shall be,
inter
alia
─
(a)
…
(b)
the maintenance of law and order;
(c)
…
(d)
the prevention of crime’,
inter
alia
within the area of the SATS’ jurisdiction.
7
At 328E.
8
At 321E-322B.
9
At 351H-I
10
At 307A-F.
11
At 346C.
12
Argus Printing and Publishing Co Ltd v Darby’s Artware (Pty)
Ltd and Others
1952 (2) SA 1
(C) at 8-10; and
Leicester
Properties (Pty) Ltd v Farran
1976 (1) SA 492
(D &CLD) at
494 in fine to 495A.
13
Rail Commuter Action Group and Others v Transnet Ltd t/a
Metrorail and Others
2003 (3) BCLR 288
(C) at 328E-F and 352A-C.
14
At 320C.
15
At 320F-322F.
16
At 322G-F.
17
At 323F-326G.
18
At 326G-328D.
19
At 328E-F.
20
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C.
21
See
Clinical Centre (Pty) Ltd v Holdgates Motor Co (Pty) Ltd
1948 (4) SA 480
(W) at 489.
22
At 334G.
23
2003 (1) SA 389 (SCA).
24
At 334G-H.
25
At 334I.
26
At 334J-335A.
27
At 398D.
28
A339F-G.
29
At 345D.