Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004)

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Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 56/03
RAIL COMMUTERS ACTION
GROUP

First Applicant
LESLIE DAVID VAN
MINNEN

Second Applicant
SEVEN
OTHERS

Third to Ninth Applicants
versus
TRANSNET LTD t/a
METRORAIL

First Respondent
S A RAIL COMMUTERS
CORPORATION

Second Respondent
MINISTER OF
TRANSPORT

Third Respondent
MINISTER OF SAFETY AND
SECURITY

Fourth Respondent
Heard on
:           17-18
August 2004
Decided on    :
26 November 2004
JUDGMENT
O’REGAN J:
[1] This
application for leave to appeal raises the question of who bears
responsibility for ensuring the safety of passengers travelling
on
commuter trains.  The applicants assert that all the respondents
bear obligations to ensure the safety of passengers, and
also that
all the respondents have failed to meet those obligations.  The
first three respondents argue that the South African
Police Service
(“SAPS”) bears the primary responsibility to ensure the
safety of passengers, not the institutions that
operate the trains
nor the Minister of Transport.
[2] The first applicant, the Rail
Commuters Action Group (“the commuter association”), is a
voluntary association representing
the interests of rail commuters in
the Western Cape.  The second applicant is Leslie van Minnen (Mr
van Minnen), a retired
personnel manager.  The remaining
applicants are Jane Styer (the third applicant), Judin Coulsen (the
fourth applicant), Raymond
Love (the fifth applicant), Hester Fouché
(the sixth applicant), Miriam Adolf (the seventh applicant),
Berendina Fuller
(the eighth applicant) and Zolani Matyeni (the ninth
applicant).  According to the applicants, the third to sixth
applicants
and ninth applicant all suffered assaults or injuries
while travelling on Metrorail trains, while the seventh and eighth
applicants
are widows of men who were murdered while travelling on
Metrorail trains, and the second applicant is the father of a
twenty-year
old boy who died as a result of being attacked and
stabbed while travelling on a Metrorail train.  The second to
ninth applicants
are all individuals who have a direct interest in
the relief sought.  The first applicant is a loose association
of people
formed at a meeting.  The respondents do not dispute
the capacity of the first applicant to institute legal proceedings.

Given the fact that the other applicants clearly have standing and
capacity to sue and that no relief is sought in the interest
of the
first applicant alone, there is no need to consider whether the first
applicant has the capacity to sue.
[3] The first respondent is Transnet
Ltd, a public company with share capital, but in which the state is
the only shareholder.
It was formed in terms of section 32 of
the Legal Succession to the South African Transport Services Act, 9
of 1989 as amended
(“the SATS Act”).  Metrorail is
one of the five business units of Transnet Ltd, but it does not have
separate
legal personality.  I shall ordinarily refer to the
first respondent as Metrorail, but at times where I am speaking
specifically
of Transnet as a legal entity, I shall refer to
“Transnet”.  The second respondent is the South
African Rail Commuter
Corporation Ltd (“the Commuter
Corporation”), a legal person established in terms of section
22 of the SATS Act and
registered in terms of the Companies Act, 61
of 1973.  The third respondent is the Minister of Transport, and
the fourth respondent
is the Minister of Safety and Security.
In the Cape High Court (“the High Court”) and the Supreme
Court of Appeal
(“the SCA”), the Member of the Executive
Council (MEC) for Safety and Security in the Western Cape was cited
as fifth
respondent.  No relief was granted against the fifth
respondent by the High Court.  Upon appeal to this Court, the
applicants
do not seek relief against the fifth respondent, who is
therefore not before us.
Facts
[4] Juan van Minnen, the son of the
second applicant and a final-year engineering student, was travelling
home on the Metrorail
train service at about 19h00 on a Friday
evening in June 2001 when he was stabbed by unknown assailants.
He died the next
day in hospital.  A few weeks later, on 28 June
2001, a public meeting was held in Fish Hoek in the Western Cape to
protest
the level of violence on commuter trains in the Western Cape.
At that meeting, the commuter association was formed and a
committee of nine volunteer members was appointed by those present.
A report-back meeting was held on 31 July 2001 which was
attended by
Mr André Harrison, the regional manager of Metrorail in the
Western Cape.  At the end of this second meeting
the committee
was mandated by a show of hands to institute legal proceedings.
[5] On 6 August 2001 the applicants’
legal representatives wrote to all the respondents requesting access
to information and
documents.  After an exchange of letters, a
wide range of documents was provided by the respondents.  On 27
December
2001 proceedings were instituted by the first three
applicants in the High Court.  These applicants also sought
early discovery
of further documents in terms of Uniform Rule of
Court 35(1) read with Rule 35(13).  On 12 February 2002, an
agreement between
the parties in relation to early discovery was made
an order of court by the High Court and the respondents discovered
some 55
000 pages of information.  The parties referred to this
process as “informal discovery” and it is referred to as

such in the High Court order.  After receiving the discovered
documents, the applicants filed a supplementary founding affidavit
at
the end of March 2002, in which the remaining applicants were joined.
[6] The relief sought by the applicants
in the High Court changed several times.  The amended notice of
motion which formed
part of the record before this Court sought
relief in the following terms:
“1.
It is declared that the manner in which the rail commuter services in
the Western
Cape are:
1.1.
operated by the First Respondent;
1.2.
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 Act’).
2.
It is declared that the manner in which the rail commuter services in
the Western
Cape are;
2.1
operated by the First Respondent;
2.2.
controlled and funded by the Second Respondent;
2.3.
policed by the South African Police Service;
2.4.
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.
3.
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.
4.
It is declared that:
4.1
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 Respondent;
4.2.
the First and Second Respondents are in breach of the said duty, in
that they have negligently failed
to provide and/or fund proper and
adequate safety and security services and/or by their failure to
control access to and egress
from rail commuter facilities used by
rail commuters in the Western Cape;
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.
6.
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.
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.
8.
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.
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.
10.
It is confirmed that the Applicants were entitled to early discovery
in terms of Rule 35(1).
11.
Granting leave to Applicants to approach the Honourable Court on the
same papers, amplified insofar
as 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.
12.
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.”
[7] It will be noted that this relief
relates to different causes of action.  Some relief relates to
breach of statutory duty,
and in particular an alleged breach of
sections 15(1) and 23(1) of the SATS Act.
[1]
Section 15(1) provides as follows:
“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.”
In this subsection “the Company”
refers to Transnet Ltd, the first respondent, and the “Corporation”
refers
to the second respondent.  Section 23(1) provides that:
“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.”
Other relief is formulated in terms of
delict and, in particular, the question of whether the conduct of the
respondents was wrongful.
[2]
Paragraph 3 of the relief sought goes to contract, and some of
the relief is founded on the Constitution.
[3]
History of commuter rail services
[8] The relief sought by the applicants
needs to be understood within the historical context of the manner in
which rail commuter
services have been provided in South Africa.
It is important to start by recording the effect apartheid spatial
planning
has had on the customer base of commuter rail services.
Apartheid spatial planning ensured that the townships in which black

people were required to live were established far from urban centres
where most jobs are found.  Accordingly the need for
public
commuter transport services to ensure that workers can commute from
their homes to their places of work is essential.
As a result
of this racist town planning, the journeys undertaken by black
working class South Africans are often extremely long.
The
demographic pattern of commuter rail use in South Africa reflects
this apartheid history.  So, according to the 1999/2000

Metrorail Corporate Report, approximately 83% of commuters were
African people, 16% were Coloured people, and only 1% and less
than
1% were White and Indian people respectively.  In all areas,
more men than women used commuter rail services.  The
average
monthly income of rail commuters per province is also very low.
In the year 2000 it varied from the lowest of R1
868 for the Free
State province to the highest of R3 265 for the Western Cape.
The Western Cape has the highest per capita
income probably because
of the fact that it has one of the few commuter rail routes that
services a suburban area.  Commuter
rail services thus, by and
large, provide poor communities with essential public transport.
[9] Until the enactment of the SATS Act,
rail commuter services were provided by the South African Transport
Services (“SATS”)
established by the South African
Transport Services Act, 65 of 1981.  Until 1986 law and order on
rail commuter services (and
at airports) were provided by special
railway police, the South African Railways Police Force, which fell
under the control of
SATS.  In 1986 this police force was
disestablished and its members transferred to the South African
Police Force.
[4]
The effect was that the control of law and order on the railways was
transferred from SATS to the South African Police.
[10] From 1985 to 1991 SATS continued to
operate commuter rail services, amongst other things.  During
1989, following upon
the recommendation of the De Villiers Commission
Report on SATS, published in July 1986, government decided to
deregulate public
transport services and it was decided that SATS
would become a public company capable of trading for profit.
The government
also accepted the suggestion in the Report that the
uneconomic but socially necessary commuter services should be
separated from
other more profitable transport services.
[5]
These political decisions led to the enactment of the SATS Act which
established the first respondent as a public company
and transferred
to it as a going concern the enterprise formerly operated by SATS,
with the exception of the assets owned by SATS.
The assets used
to render commuter services, including all rolling stock, and
significant portions of stations and track were transferred
to the
Commuter Corporation, the second respondent.  The business of
the first respondent was divided into a series of divisions
or
business units, including the South African Airways, port services
and freight rail services.  The commuter rail service,
under the
name “Metrorail”, was one of these divisions.
[11] The main object of the Commuter
Corporation is, according to section 23 of the SATS Act, to ensure
that rail commuter services
are provided “in the public
interest”.  The Act requires the Commuter Corporation and
Transnet to enter into a
contract setting out the terms upon which
the commuter services will be provided by Transnet at the request of
the Commuter Corporation.
[6]
The first contract between them was signed on 13 September 1990 and a
second agreement was signed during 1992.  The
current Service
Agreement was signed during August 2000, although it regulates the
period from 1 April 1999 to 31 March 2003.
During this period
Metrorail was afforded the exclusive right to operate commuter rail
services. The Commuter Corporation pays
the stipulated contract
payments to Metrorail on an annual basis.  Those contract
payments are, in turn, received monthly
by the Commuter Corporation
from the national Department of Transport.  The present monthly
payment is approximately R93 million.
Metrorail is entitled to
supplement these payments with fares received from commuters.
[12] The arrangements for the provision
of security in relation to the commuter rail services are governed by
clause 10.10 of the
Service Agreement and annexure 6 to it.  Clause
10.10 provides that Metrorail shall be responsible for providing
security
services “subject to the provisions of any applicable
law and negotiations with Government, the SARCC and the SAPS in
defining
security responsibilities between business entities and
authorities, as more fully described in annexure 6”.
Annexure
6 divides security responsibilities into a public and
non-public component.  Paragraph 5.2 of annexure 6 regulates the
non-public
component of security responsibilities as follows:
“5.2.1
Metrorail will be responsible for securing the non-public component
of the service with specific emphasis on:
·
The performance of access control in accordance with
applicable legislation and based on the needs/requirements of each
region.
·
Cash in transit.
·
Protection of the SARCC Service Property including, inter
alia, cable theft and vandalism.  Metrorail will strive to keep
incidents
as low as reasonably possible.  When the crime index
trends exceed the present acceptable levels Metrorail will provide
the
SARCC with reasons as well as the intended action plans to
improve the situation.
·
Protection of staff working in high risk areas or conditions.
·
The provision of security in the Staging yards.
·
Containing crime within the crime index parameters agreed on.
The SARCC will be advised of reasons and action plans when the
crime
index trend exceeds the agreed level.
·
Primary fire fighting functions.  Include specifically
inspections and/or preventative measures to detect basic causes or
conditions
that may result in fire on rolling stock e.g. inspection
of trains after each run to ascertain that no cause for eruption of
fire
exist.”
Paragraph 5.3
regulates what is termed the “public component” as
follows:
“5.3.1 The
responsibility for securing the public component of the SARCC’s
business rests with the SA Police Service
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,
No 9 of 1989.
5.3.2 Metrorail is
mandated and will be funded to deploy its 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.”
[13] The Commuter Corporation is
required to perform a supervisory function in respect of security
services.  It employs what
is called the “Metrorail
National Crime Index” which is produced by dividing the total
number of incidents by the total
number of actual journeys and
multiplying it by 100 000.  The crime index adopted in the
agreement of 0,682 was based on the
1997/8 statistics.  The
target identified was to reduce this index by 5% per annum.
The High Court
[14] Before considering the merits of
the case, the High Court had to determine an application to strike
out launched by the respondents
and opposed by the applicants.  It
granted that application in part and refused it in part.  The
High Court then considered
each of the prayers sought by the
applicants.  In respect of prayer 1, which related to the nature
of the statutory duties
established in sections 15(1) and 23(1) of
the SATS Act, Davis and Van Heerden JJ held that:
“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.”
[7]
After considering the evidence
concerning access and egress control on the trains,  safety,
security and policing, the judges
concluded as follows:
“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.”
[8]
[15] In relation to the contractual
relief sought in prayer 3, the court concluded that the applicants
had not succeeded in showing
that a tacit term should be imported
into the contract of carriage and that relief was accordingly
refused.
[9]
In prayers 2 and 4 the applicants sought an order that the
respondents bore a “legal duty” to provide adequate

safety and security services on the commuter rail network in the
Western Cape.  Relying on section 39(2) of the Constitution,
[10]
and decisions of this Court and the SCA,
[11]
the court held that the first and second respondents were under a
legal duty to “act to minimise the extent of violent crime
and
lack of safety on the commuter rail service.”  This duty
should be adjudicated on the basis of reasonableness:
“[I]n the
light of all the circumstances of the particular case, have these
respondents infringed the interest of the applicants
in an
unreasonable manner?”
[12]
[16] In relation to prayer 4.2 which had
required the court to declare that the respondents had acted
negligently in failing to
carry out this duty, the court held that it
was not appropriate to determine delictual liability on a piecemeal
basis
[13]
and that a finding of negligence should only be made after a careful
examination during a trial of the evidence led by the parties.

The court thus refused to grant an order finding that the first and
second respondents had negligently failed to perform this duty.
[14]
[17] The High Court did not find that
the third respondent bore a legal duty in terms of the SATS Act or
the Constitution to take
steps to protect the safety and security of
rail commuters.  That finding was made only in respect of
Metrorail and the Commuter
Corporation.  Accordingly, it did not
grant declaratory relief against the third respondent.  However,
it granted mandatory
relief against the third respondent.  Its
reasoning for doing so flowed from its consideration of the
relationship between
Transnet and the Commuter Corporation and the
third respondent.  It noted that the state is the only member of
and shareholder
in both Transnet and the Commuter Corporation, and
that the third respondent exercises the rights in respect of the
shareholding
in the Commuter Corporation.  The equivalent rights
in relation to Transnet are exercised by the Minister of Public
Enterprises,
who is not a party to these proceedings.  The
members of the Board of Control of the Commuter Corporation are all
appointed
and dismissed by the third respondent.  In the light
of these considerations, the High Court considered it appropriate to
order mandatory relief against the third respondent reasoning that:
“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 [National
Department of Transport].
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.”
[15]
[18] The High Court concluded that the
applicants had not established that relief should be granted against
the fourth and fifth
respondents.  In relation to the fourth
respondent, the court reasoned as follows:
“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”.
[16]
It concluded similarly that there was no
basis in law or on the facts of the case for any relief to be granted
against the fifth
respondent.
[19] The court also held that the
applicants were entitled to an order interdicting the first
respondent from operating the commuter
rail service in a manner
otherwise than in accordance with its own operating instructions.
The High Court made costs orders
against the first and second
respondents in respect of their applications to oppose the amendment
of the notice of motion and special
costs orders, on an attorney and
client scale, against the same respondents in relation to the
unsuccessful parts of their striking
out applications.  The
court ordered that the applicants’ costs (including the costs
of informal discovery) be paid
by the first, second and third
respondents, but ordered the applicants to pay the costs of the
fourth and fifth respondents, against
whom the applicants had been
unsuccessful, including the costs of informal discovery.
[20] The court accordingly granted
relief in the following terms:
“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 provision thereof ensured by the second respondent insofar as
the provision of proper
and adequate safety and security services and
the control of access to and egress from rail facilities used by rail
commuters in
the Western Cape are concerned, is not in the public
interest as contemplated in s 15(1) (insofar as first respondent is
concerned)
and s 23(1) (insofar as second respondent is concerned) of
the Legal Succession to the South African Transport Services Act 9 of

1989 as amended.
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, while 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 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.
3.2
The several respondents are directed to present under oath a report
to this Court as to
the implementation of para 3.1 above within a
period of four months from the date of this order.
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 applicants’ commentary.
4.
First respondent is interdicted and restrained from operating rail
commuter services
in the Western Cape otherwise than in accordance
with the terms of its general operating instructions.
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 paras 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 paras 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.”
[17]
Supreme Court of Appeal
[21] The respondents sought and were
granted leave to appeal by the High Court to the SCA.  The
applicants lodged a cross-appeal
in respect of the refusal of relief
against the fourth and fifth respondents, and in relation to the
successful applications to
strike out and costs.  This
application too was granted by the High Court.
[22] There were three judgments
delivered by the SCA.  The main judgment was written by Howie P
and Cloete JA.  Two minority
concurring judgments, one by
Streicher JA and the other by Farlam and Navsa JJA, were written.  As
to the meaning of “in
the public interest” in subsections
15(1) and 23(1) of the SATS Act, Howie P and Cloete JA reasoned as
follows:
“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 privatisation of the first respondent in future,
that it was the public which
had to be served in the utilisation 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 . .
. . 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]
(my emphasis and footnotes omitted)
The applicants’ attack on the
Service Agreement between the first and second respondents on the
basis that it is not “in
the public interest” was also
rejected by the two judges.
[23] Howie P and Cloete JA held further
that there were extensive disputes of fact, which could not be
resolved on the papers, specifically
in respect of:
(i)
whether the first respondent was properly
performing its contractual
obligations owed to the second respondent under the Service
Agreement;
[19]
(ii)
whether improved access and egress control at
stations would reduce
crime on trains;
[20]
(iii)
the safety and security on commuter trains;
[21]
(iv)
the incidence of crime on such trains when compared to the
crime rate
generally;
[22]
(v)
the reasonableness of steps taken by the first
respondent to deal
with these problems;
[23]
and
(vi)
whether the first and second respondents were contravening
the
general operating instructions by allowing trains to travel with open
or no doors.
[24]
Howie P and Cloete JA held that the High
Court had misapplied the principles laid down in
Plascon-Evans.
[25]
They held that the disputes of fact listed above could not be
resolved on the papers and that accordingly the facts placed
before
them by the first, second and third respondents had to be accepted.
Those facts, they held, constituted an insuperable
obstacle to the
conclusions reached by the High Court.  In this respect, their
judgment was concurred in by all the other
judges.  On the
respondents’ evidence, the SCA held, there was nothing better
which first to third respondents could
do.  Accordingly, relief
should not have been granted against the first, second and third
respondents.
[24] With regard to paragraph 4 of the
order of the High Court, which related to compliance with the first
respondent’s general
operating instructions, Howie P and Cloete
JA held that it was not an issue that had been raised in the founding
papers by the
applicants and moreover, the High Court had not made
the factual finding necessary to justify such an order.
[26]
[25] As indicated above, the applicants
cross-appealed to the SCA against the High Court findings in respect
of the Minister of
Safety and Security, the fourth respondent, and
the MEC for Safety and Security in the Western Cape, the fifth
respondent.  The
High Court had granted no relief against either
respondent.
[27]
In considering this appeal, the main judgment of the SCA found that
the allegations in the fourth respondents’ answering
affidavits
went largely unchallenged in the applicants’ reply.
[28]
On the fourth respondent’s version, the main judgment
held that it could not be found that the measures taken by the
fourth
respondent were unreasonable.
[29]
The applicants’ cross-appeal in relation to the fourth
respondent was therefore refused.  In relation to the fifth

respondent, the main judgment of the SCA held that there was no basis
for seeking relief against the fifth respondent and that
this was
conceded in argument by counsel for the applicants before the
SCA.
[30]
This cross-appeal was therefore also dismissed.
[26] The SCA did not determine the
applicants’ appeal against those parts of its affidavits which
had been struck out by the
High Court.  As to costs, the SCA
overturned the High Court’s adverse interlocutory costs orders
against the respondents
on the basis that the “incorrect view
of the merits led to an incorrect view of the interlocutory
costs”.
[31]
The remaining costs orders made by the High Court were set
aside.
[27] Writing separately, Streicher JA
concurred in the order of the majority, and interpreted “a
service that is in the public
interest” to mean only “that
the public would be better off by having the service than by being
without it.”
[32]
In so finding, he did take into account the values and fundamental
rights enshrined in the Constitution.  He held further
that it
is the fourth respondent, and not the first to third respondents, who
is responsible for the safety and security of commuters.
[33]
[28] In their judgment concurring in the
order, Farlam and Navsa JJA disagreed with the interpretations of “in
the public
interest” adopted by Howie P and Cloete JA, and
Streicher JA.  Instead, they held that the provision of rail
commuter
services constitutes the exercise of public power which must
conform not only to its empowering statute but also to the
Constitution.
They reasoned as follows:
“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.”
[34]
[29] They held accordingly that the
provision of such services could, in appropriate cases, be challenged
as directly infringing
constitutional rights or as being not “in
the public interest”, properly construed in the light of the
Constitution.
However, they held that the applicants in the
present case had failed to provide any basis for judicial
intervention because:
(a)
they attempted to cast upon the providers of rail commuter services
the overall responsibility for maintaining law
and order on trains;
(b)  they
failed to show factually that the respondents were not discharging
their alleged responsibilities; and
(c)
they sought an order that would infringe the separation of powers by
engaging policy and budgetary allocation.
[35]
[30] The SCA therefore upheld the appeal
of the first to third respondents and dismissed the cross-appeal.
As no costs were
sought on appeal, no costs order was made.
Application for leave to appeal to
this Court
[31] The applicants lodged an
application for special leave to appeal to this Court against the
judgment and order of the SCA.
In this Court, they seek the
following relief:
“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 provision thereof ensured by the second respondent insofar as the
provision of proper and
adequate safety and security services on rail
facilities used by rail commuters in the Western Cape are concerned,
is not in the
public interest as contemplated in s.15(1) (insofar as
the first respondent is concerned) and s. 23(1) (insofar as the
second respondent
is concerned) of the Legal Succession to the South
African Transport Services Act No. 9 of 1989, as amended.
2.
It is declared that the first to third respondents and the South
African Police Service
have a legal duty to protect the lives and
property of rail commuters in the Western Cape, whilst they are
making use of rail transport
services provided and ensured by,
respectively, the first and second respondents and which are policed
by the South African Police
Service.
3.
It is ordered as follows:
3.1
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 on 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 and to human dignity.
3.2
The several respondents are directed to present under oath a report
to the Cape Provincial Division
of the High 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 appellants 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 appellants’ commentary.
4.
The first respondent is interdicted and restrained from operating
rail commuter services
otherwise than in accordance with the terms of
its general operating instructions as regards the prescribed
procedures that must
be followed by its employees when defective
doors are observed, as stipulated in terms of the following clauses
of its operating
instructions:
a.
Clause
12001.2.3
While performing
their duties, metro guards must observe whether or not sliding doors
are closing property.  If any sliding
doors are not operating
correctly the instructions in sub-clause 12001.4 must be complied
with.  They must also warn commuters
against the undesirable
practice of keeping sliding doors open when the train is about to
depart or en route.
b.
Clause
12001.4.1
In the event of a
sliding door not responding to the door-operating mechanism, or
should any difficulty be experienced in operating
it manually, the
metro guard must lock the defective sliding door and for the
information of the public, gummed stickers, inscribed
‘LOCKED –
GESLUIT’ must be affixed on the inside and outside of all
sliding doors that are locked.  Should
a hissing sound of
compressed air escaping at the door mechanism be heard, the sliding
door concerned must also be isolated.  A
supply of these
stickers must be kept by the metro guard.
c.
Clause
12001.4.2
When a sliding door
is isolated the metro guard must, before the ‘right away’
signal is given, ensure that all commuters
requiring to do so have
alighted from, or boarded the train.
d.
Clause
12001.4.3
The metro guard must
report all defects detected by himself or reported to him, to the
train driver.  The train driver must,
before signing off duty,
report the defects in accordance with appropriate instructions,
according to the procedure applicable
at the signing-off depot.  This
does not exempt the metro guard from his duty to record these details
in the book regarding
damaged/defective rolling stock at his home
depot, in accordance with existing instructions.
5.
The respondents shall, jointly and severally, pay the costs incurred
by the appellants
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, as well as the
qualifying expenses of the experts, Messrs Greyling and Roodt and
Professor
Dunne, whose affidavits were filed of record by the
appellants, the costs of the appeals to the Supreme Court of Appeal
and the
appeal to this Court.”
All the respondents oppose the
application for leave to appeal.
[32] It will be noted that this relief
is not identical to the relief claimed in the amended notice of
motion, or to the relief
granted by the High Court, although it is in
similar terms.  In particular, the relief relating to the
control of access to
and egress from trains contained in the amended
notice of motion and granted by the High Court is no longer sought in
these prayers.
Moreover, the relief sought in the prayers
relating to the general operating instructions which was granted in
paragraph 4 of the
High Court order has been spelt out in greater
detail.  The legal basis for prayer 1 flows from the
interpretation of the
SATS Act, prayer 2 may flow either from delict
or directly from the Constitution, prayer 3 is a structural interdict
flowing from
the declarators in prayers 1 and 2, and prayer 4 is a
mandamus relating to the general operating instructions.
[33] The SCA remarked that “the
applicants’ case has been characterised throughout by a
singular lack of direction.”
[36]
It is true that the precise terms of the relief they seek have been
varied on several occasions during the proceedings.  In
their
initial application, the applicants sought to hold the respondents
liable in contract, delict, under a statutory duty and
the
Constitution.  The vacillation in the precise terms of the
relief sought, however, should not blind us to the fact that
the
thrust of the applicants’ case throughout has remained
unchanged.  They seek to establish that the respondents bear
a
legal obligation (based on statute, delict and/or the Constitution)
to take steps to ensure the safety and security of rail commuters
who
travel on Metrorail trains.
Additional affidavits lodged with the
Court on appeal
[34] Some time after they lodged their
application for special leave to appeal, the applicants lodged a
further set of affidavits.
They argued that these affidavits
constituted further information as contemplated within rule 19(3)(c)
read with rule 31.
Thereafter a flurry of further affidavits
were lodged:
(a) an answering
affidavit on behalf of Metrorail by Mr Harrison;
(b) certain further
confirmatory affidavits by members of the press on behalf of the
applicants;
(c) a further
affidavit on behalf of the applicants by Mr Theron lodging a joint
expert report by Prof Dunne and Mr Page –
this the applicants
sought to lodge in terms of rule 19 read with rule 31 or
alternatively section 22 of the Supreme Court Act,
59 of 1959;
(d) a further
affidavit on behalf of the applicants by Mr Theron containing certain
press reports lodged on 2 August 2004;
(e) further
answering affidavits on behalf of first and second respondents by Mr
Du Preez lodged on 10 August 2004;
(f) a further
affidavit on behalf of the applicants deposed to by Mr Theron lodged
on 13 August 2004; and
(g) a further
affidavit on behalf of the fourth respondent in response to the new
matter lodged on 13 August 2004.
The first, second and fourth respondents
oppose the admission of these further affidavits but the third
respondent does not oppose
their admission.
[35] The fact that three of the
respondents oppose the admission of the further affidavits need not
preclude their admission.
Whether the affidavits will be
admitted depends on whether the applicants can establish that they
should be admitted.  The
applicants seek the admission of the
initial supplementary affidavits, containing further press reports
concerning the establishment
of a rail guard, and affidavits on the
changing practice in relation to security and access control on the
southern sector of railways
in the Western Cape on the basis of rule
19(3)(c) read with rule 31.
[37]
Whereas in relation to the subsequent affidavits, and in particular,
in relation to the further report by Prof Dunne and
Mr Page, and the
affidavit by Mr Theron containing press reports on the rail guard
issue, they rely not only on rule 19(3)(c) read
with rule 31, but
also on section 22 of the Supreme Court Act, which is incorporated by
rule 30.
[38]
[36] The first, second and fourth
respondents argued, and the applicants correctly conceded, that Rule
19 was not a permissible
vehicle for the admission of new evidence on
appeal.
[39]
This position is reflected in
S v Lawrence; S v Negal; S v
Solberg
,
[40]
where Chaskalson P explained:
“I shall
assume in favour of the appellants that their version of the
agreement should be accepted.  But even if this
is so, the
evidence would not be admissible in terms of Rule 19.  Rule 19
deals with the preparation of the appeal record,
which according to
the practice of our Courts has always been understood to mean a
record of the proceedings in the court against
whose decision the
appeal has been noted.  Rule 19(1)(b) is directed to the
exclusion from the record of evidence that may
not be relevant to an
appeal on constitutional issues only.  It prescribes a procedure
for circumscribing the record and not
a means for introducing new
evidence on appeal.  That is apparent not only from the context,
but also from the reference in
Rule 19(1)(b)(ii) to 'evidence and
exhibits', which can only be understood as referring to evidence and
exhibits already on record.”
[41]
[37] Despite the changes effected in the
2003 Rules, nothing affects this conclusion.  The applicants
also rely on rule 31(1)
which provides that:
“Any party to
any proceedings before the Court and an amicus curiae properly
admitted by the Court in any proceedings shall
be entitled, in
documents lodged with the Registrar in terms of these rules, to
canvass factual material that is relevant to the
determination of the
issues before the Court and that does not specifically appear on the
record.  Provided that such facts-
(a)
are common cause or otherwise incontrovertible; or
(b)
are of an official, scientific, technical or statistical nature
capable of easy verification.”
The precursor of this rule in the 1995
Rules was rule 34 (and in the 1998 Rules was rule 30).  In
Lawrence
,
[42]
this Court, per Chaskalson P, held as follows:
“Rule
34(1)(a) requires the facts relied upon to be ‘common cause’
or ‘incontrovertible’.  The
Rule has no application
to disputed facts.  Rule 34(1)(b) requires the facts to be of
the character contemplated by the Rule
and to be capable of ‘easy
verification’.  Factual material in the affidavits which
falls within these parameters
is admissible under Rule 34; but
disputed facts which are not capable of easy verification are not.”
[38] This approach was confirmed in
Prince v President, Cape Law Society, and Others
,
[43]
where in discussing rule 30, Ngcobo J held:
“The Rule has
no application where the facts sought to be canvassed are disputed.
A dispute as to facts may, and if
genuine usually will, demonstrate
that the facts are not ‘incontrovertible’ or ‘capable
of easy verification’.
If that be the case, the dispute
will in effect render the material inadmissible.  Ultimately,
the admissibility depends on
the nature and substance of the
dispute.”
[44]
(footnotes omitted)
None of the evidence tendered late, in
my view, falls within rule 31.  It is all put in issue by the
respondents.  The
affidavits lodged at the time of the
application for leave to appeal therefore fall to be excluded on that
basis alone.
[39] The applicants also rely, in the
alternative, on section 22 of the Supreme Court Act in relation to
the new affidavits they
sought to tender after the application for
leave to appeal.  New evidence is admissible in this Court on
appeal, including
in motion proceedings, in terms of that
section,
[45]
which reads:
“22
Powers of court on hearing of appeals.─
The appellate
division or a provincial division, or a local division having appeal
jurisdiction, shall have power─
(a)
on the hearing of an appeal to receive further evidence, either
orally or by deposition
before a person appointed by such division,
or to remit the case to the court of first instance, or the court
whose judgment is
the subject of the appeal, for further hearing,
with such instructions as regards the taking of further evidence or
otherwise as
to the division concerned seems necessary; and
(b)
to confirm, amend or set aside the judgment or order which is the
subject of the appeal
and to give any judgment or make any order
which the circumstances may require.”
[40] In
Lawrence
, Chaskalson P
referred to this provision and held that it is only in exceptional
circumstances that evidence may be admitted on
appeal:
[46]
“Section 173
of the 1996 Constitution confers on this Court, the Supreme Court of
Appeal and the High Courts an ‘inherent
power to protect and
regulate their own process, and to develop the common law, taking
into account the interests of justice’.
Counsel for the
appellants contended that if the expert evidence on which they rely
is not admissible under Rule 19 or Rule
34, this Court should
exercise its powers under s 173 of the Constitution to admit it.  The
appellants do not, however, have
to rely on s 173, which in any event
seems not to be applicable to this case.  This Court has power
under its Rules to admit
new evidence on appeal.
[47]
The question is whether that power should be exercised in the
circumstances of the present case.  For the reasons already

given this Court should not, save in exceptional circumstances,
permit disputes of fact or expert opinion to be raised for the
first
time on appeal.  Such circumstances have not been established in
the present case.” (footnotes omitted)
[41] The SCA has similarly held that new
evidence should be admitted on appeal under this section only in
exceptional circumstances.
[48]
This is because on appeal, a court is ordinarily determining
the correctness or otherwise of an order made by another court,
and
the record from the lower court should determine the answer to that
question.  It is accepted however that exceptional
circumstances
may warrant the variation of the rule.  Important criteria
relevant to determining whether evidence on appeal
should be admitted
were identified in
Colman v Dunbar
.
[49]
Relevant criteria include the need for finality, the undesirability
of permitting a litigant who has been remiss in bringing
forth
evidence to produce it late in the day, and the need to avoid
prejudice.  One of the most important criteria was the

following:
“The evidence
tendered must be weighty and material and presumably to be believed,
and must be such that if adduced it would
be practically conclusive,
for if not, it would still leave the issue in doubt and the matter
would still lack finality.”
[50]
In
S v Louw
, the Appellate
Division held also that for new evidence to be admitted on appeal,
some reasonably sufficient explanation must be
offered to account for
the failure to tender the evidence earlier in the proceedings.
[51]
[42] In
Van Eeden v Van Eeden
,
[52]
the Cape High Court held that it was well established that the
court’s powers as derived from section 22(a) of the Supreme

Court Act should be exercised sparingly.
[53]
The court held, further, that in that case the additional
evidence related to facts and circumstances which had arisen after

the judgment of the court a quo.  This raised the question
whether it was competent for the court, in the exercise of its
power
under section 22(a), to receive such evidence or to authorise its
reception.
[54]
Comrie J held that the section did not include any express
limitation which would exclude the reception of the evidence then

sought to be tendered and that the court exercising appellate
jurisdiction had a discretion whether or not to allow the evidence
to
be admitted, which discretion should be exercised sparingly and only
in special circumstances.  From time to time, he held,
cases did
arise which cried out for the reception of post-judgment facts.
[55]
[43] In my view, this approach is
correct.  The Court should exercise the powers conferred by
section 22 “sparingly”
and further evidence on appeal
(which does not fall within the terms of rule 31) should only be
admitted in exceptional circumstances.
Such evidence must be
weighty, material and to be believed.  In addition, whether
there is a reasonable explanation for its
late filing is an important
factor.  The existence of a substantial dispute of fact in
relation to it will militate against
its being admitted.
[44] The two further affidavits that the
applicants wish to have admitted under section 22 are first, an
affidavit of Mr Theron
attaching the joint report of two expert
witnesses, Professor Dunne and Mr Page and secondly, an affidavit of
Mr Theron attaching
press cuttings relating to recent political
decisions to establish a rail guard.  Professor Dunne, the head
of the Department
of Statistical Sciences at the University of Cape
Town, filed a written report which was attached to the applicant’s
replying
affidavit, dealing in particular with the evaluation of the
Metrorail Crime Index and comparing it to the national crime data.

Mr Page, who was an expert witness on behalf of Metrorail is
currently a Graduate Research Assistant at the Centre for Urban
Transportation
Research at the University of South Florida in the
United States of America.  The joint report takes the view that
the Metrorail
Crime Index is flawed and expresses views on the
evaluation and compilation of crime statistics and asserts that
safety and security
on the trains are inextricably entwined.
There can be no doubt that it is often of great assistance to a court
where experts
representing different parties compile a joint report.
However, that should ordinarily be done in good time.  The
question
is whether in this case it is appropriate to admit the joint
report.
[45] Assuming for the moment that the
explanation tendered by Mr Theron for the late filing of the report
is adequate, the question
that arises is whether the evidence sought
to be lodged is sufficiently material and weighty to meet the
standard required for
the admission of evidence at this late stage.
As will be seen below, it is my view that the intensive debate
on the evaluation
of crime statistics on the record, which is
furthered in the tendered report, is of little value to the
determination of this case.
The reliability or otherwise of the
Metrorail Crime Index is also disputed, and in my view cannot be
determined on the papers as
they stand, even were they to be
supplemented by the tendered report.  In any event, the
reliability or otherwise of that
index is not determinative of the
issues before us.  Accordingly, and after a careful
consideration of the tendered report
in the light of the record, I
have concluded that it is not sufficiently material and weighty to
render it appropriate for admission
at this late stage of the
proceedings.
[46] To his second further affidavit, Mr
Theron attached press cuttings and correspondence relating to
developments in railway policing.
Again, this evidence, the
admission of which is opposed by the respondents, is not sufficiently
weighty and material to warrant
admission under section 22(a).
Accordingly, the further affidavits filed by the respondents opposing
the admission of the
affidavits tendered by the applicants and the
responses thereto by the applicants will all not be admitted.
[47] It is appropriate to note that it
has become a regrettable practice in this Court that affidavits are
tendered on appeal often
only days before an appeal hearing, if not
on the day of the appeal itself.  This is an unacceptable
practice which must be
discouraged.  The late filing of
affidavits in circumstances which do not meet the stringent test for
admission set out in
this judgment will not be permitted by this
Court.  Attorneys should take care to consider the test for the
admission of late
affidavits and satisfy themselves before filing the
affidavits that they do qualify for admission in terms of the rules
of this
Court and the principles elucidated in this judgment.
Issues to be decided
[48] The relief that the applicants seek
in this matter is of three kinds: declaratory, mandatory and
prohibitory.  As to declaratory
relief, the applicants seek an
order declaring first that the manner in which commuter rail services
are operated in the Western
Cape is not “in the public
interest” as contemplated in sections 15(1) and 23(1) of the
SATS Act; and secondly that
the first to third respondents and the
SAPS “have a legal duty to protect the lives and property of
rail commuters in the
Western Cape, whilst they are making use of
rail transport services”.  The mandatory relief sought
would require the
respondents forthwith “to take all such steps
(including interim steps) as are reasonably necessary to put in place
proper
and adequate safety and security services on 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 and to human dignity.”  It would place
respondents on terms to report on oath within four months of the date

of the order to the High Court as to what steps have been taken to
comply with the mandatory order.  The prohibitory relief
would
restrain Metrorail from operating rail commuter services otherwise
than in accordance with the terms of its general operating

instructions.
[49] The applicants also persisted in
their heads of argument with an application for leave to appeal
against, in effect, the order
of the High Court striking out certain
material from their affidavits.  In light of the conclusions I
have reached in this
matter, I do not consider it necessary or
appropriate to consider the arguments concerning the application for
leave to appeal
in respect of that order.  Were the High Court
order to have been incorrect, it would not affect the order to be
made by this
Court and it need not be considered further.
This Court’s jurisdiction to
determine facts connected to decisions on constitutional matters
[50] The respondents argue that none of
the relief sought by the applicants should be granted because the
applicants have not on
the papers established sufficient facts to
entitle them to relief.  The respondents argue that the SCA was
correct in holding
that the applicants had not established the
necessary facts to lead to relief and further, that this Court has no
jurisdiction
to determine the facts differently from the manner in
which they were determined by the SCA.
[51] The respondents seek to rely on
this Court’s judgment in
S v Boesak
[56]
to sustain their argument that this Court does not have jurisdiction
to determine factual disputes as they do not constitute either

“constitutional matters, [or] issues connected with decisions
on constitutional matters”.
[57]
There can be no doubt that this Court has jurisdiction only in
matters which raise “constitutional matters and issues

connected with decisions on constitutional matters”.  In
the
Boesak
case, the Court was concerned with an appeal in a
criminal matter.  The appellant in this Court sought to
challenge certain
factual findings made by the SCA on the ground that
incorrect factual findings by the SCA led to his conviction and
therefore resulted
in a breach of his constitutional rights.  The
question that arose was whether incorrect factual findings on appeal
which
lead to the conviction of an accused of themselves constitute a
breach of the appellant’s constitutional rights.  This

Court held that they did not.  In identifying the broad
principles governing this Court’s jurisdiction in criminal
matters, the Court reasoned as follows:
“(a)
A challenge to a decision of the SCA on the basis only that it is
wrong on the facts is
not a constitutional matter
In the context of s
167(3) of the Constitution, the question whether evidence is
sufficient to justify a finding of guilt beyond
reasonable doubt
cannot in itself be a constitutional matter.  Otherwise, all
criminal cases would be constitutional matters,
and the distinction
drawn in the Constitution between the jurisdiction of this Court and
that of the SCA would be illusory.
There is a need for finality
in criminal matters.  The structure of the Constitution suggests
clearly that finality should
be achieved by the SCA unless a
constitutional matter arises.  Disagreement with the SCA’s
assessment of the facts is
not sufficient to constitute a breach of
the right to a fair trial.  An applicant for leave to appeal
against the decision
of the SCA must necessarily have had an appeal
or review as contemplated by s 35(3)(o) of the Constitution.
Unless there
is some separate constitutional issue raised, therefore,
no constitutional right is engaged when an appellant merely disputes
the
findings of fact made by the Supreme Court of Appeal.”
[58]
(footnotes omitted)
[52] This reasoning does not imply that
disputes of fact may not be resolved by this Court.  It states
merely that where the
only issue in a criminal appeal is
dissatisfaction with the factual findings made by the SCA, and no
other constitutional issue
is raised, no constitutional right is
engaged by such a challenge.  Where, however, a separate
constitutional issue is raised
in respect of which there are disputes
of fact, those disputes of fact will constitute “issues
connected with decisions on
constitutional matters” as
contemplated by section 167(3)(b) of the Constitution.  On many
occasions, therefore, this
Court has had to determine on appeal the
facts of a matter in order to determine the constitutional claim
before it.
[59]
Were it to be otherwise, this Court’s ability to fulfil
its constitutional task of determining constitutional matters
would
be frustrated.
[53] In assessing a dispute of fact on
motion proceedings, the rules developed by our courts to address such
disputes will be applied
by this Court in constitutional matters.
Ordinarily, the Court will consider those facts alleged by the
applicant and admitted
by the respondent together with the facts as
stated by the respondent to consider whether relief should be
granted.  Where
however a denial by a respondent is not real,
genuine or in good faith, the respondent has not sought that the
dispute be referred
to evidence, and the Court is persuaded of the
inherent credibility of the facts asserted by an applicant, the Court
may adjudicate
the matter on the basis of the facts asserted by the
applicant.  Given that it is the applicant who institutes
proceedings,
and who can therefore choose whether to proceed on
motion or by way of summons, this rule restated and refined as it was
in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[60]
is a fair and equitable one.  Where an applicant seeks
constitutional relief, and there is a dispute of fact on the papers

before the Court, the identification of the facts upon which the
constitutional matter should be adjudicated constitutes an issue

connected with a decision on a constitutional matter which falls
within this Court’s jurisdiction.  In such circumstances,

this Court is not bound by the facts as determined by the SCA in its
application of the rule as stated in
Plascon-Evans.
[61]
The respondent’s argument to this effect must therefore
be rejected.
Consideration of facts established on
the record
[54] There is a welter of factual
disputes on the papers.  The record runs to nearly 7000 pages
(if I include the additional
affidavits sought to be admitted on
appeal) and there is a wide range of factual issues traversed,
including the incidents in which
the individual applicants or their
kin were injured on Metrorail.  I cannot decide the delictual
liability of the respondents
in relation to these incidents on this
record.  Indeed, as the High Court noted, it is generally
undesirable for courts to
make final determinations of the legal
elements of delictual liability in motion proceedings.
[62]
This Court held similarly in
Carmichele v Minister of Safety and
Security and Another (Centre for Applied Legal Studies
Intervening)
:
[63]
“It is not
desirable that a case as complex as this should be dealt with on the
basis of what the facts might be rather than
what they are.”
[64]
[55] There can be no doubt also that the
SCA was correct in concluding that there were genuine disputes of
fact raised on the papers
on the following issues which must
accordingly, in the light of the rule in
Plascon-Evans
,
[65]
be dealt with on the basis of the respondents’ versions:
(a) whether the
first respondent was performing its contractual obligations owed to
the second respondent under the Service Agreement;
(b) whether
improved access and egress control would reduce crime on trains;
[66]
and
(c) whether the
first and second respondents were contravening the general operating
instructions by allowing trains to travel with
open or no doors.
[56] However, at least one fact is not
in dispute upon the papers and indeed counsel for all the respondents
conceded this when
it was put to them in argument.  It seems not
to be disputed that there is a problem with crime on Metrorail trains
in the
Western Cape.  The dispute, as characterised in the
heads, was whether crime was “rife” or not, or in excess
of
other crime rates.  It is not clear to me that this dispute
needs to be resolved.  There are several places on the record

where the respondents admit the problem of crime on the trains.
It is perhaps most tellingly conceded in the National Metrorail/SAPS

Working Committee report entitled “Submission with regard to a
safe and secure rail commuter environment in South Africa”

dated 25 March 1999 in which the compilers of the report note that:
“It is
evident from this submission that, although there are different
role-players involved in the rail commuter environment
and with
specific reference to the safety and security of the rail commuters,
the current situation can no longer be tolerated,
politically or
socio-economically.  The devastating impact of crime on the rail
commuter business has been taken into account.”
This report was annexed to the founding
affidavit of Mr Frylinck, the deponent on behalf of the applicants,
but was admitted by
the first respondent and not placed in dispute by
others.
[57] Another telling admission on the
record is that made by Mr Nortje, a director in the legal department
of the SA Police Services,
who deposed to an affidavit on behalf of
the fourth respondent, averring that:
“Captain van
Breda 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.”
It is difficult to conclude other than
that there is a serious problem with crime on Metrorail trains.
Indeed, it is clear
from the respondents’ own expert, Mr Page,
in his report which was annexed to the answering affidavit of Mr van
Niekerk on
behalf of Metrorail, that crime has increased, rather than
dropped, in the two years following the adoption of the Service
Agreement.
It increased by 19% in the first year and 28% in the
second.  The target set in the Service Agreement was to reduce
the 1997/1998
crime levels by 5% per annum.  This clearly has
not been achieved.
[58] A further question that arises is
how to deal with the competing interpretations of the crime
statistics, and indeed whether
it is necessary to do so.  The
respondents have furnished the details of the number of crimes
occurring on Metrorail trains
in different regions for different
periods.  There are disputes about the reliability of the
methods for the recording of
incidents, but for the purposes of this
judgment, the statistics furnished by the respondents must be
accepted.  Similarly,
the fourth respondent has furnished crime
statistics for the broader community.  The question that was
debated on the record
and in argument is how to evaluate the number
of crimes on trains in the context of the overall crime rate.
[59] It is also clear on the papers that
crime on the trains in the Western Cape is not as severe as crime on
trains operated in
other parts of South Africa.  There seems to
be no reason, however, why the determination of the legal and
constitutional
responsibilities of the respondents should ever turn
on the question of where crime is most severe or indeed on the
question of
whether crime is more prevalent on trains than
elsewhere.  There is no real dispute that crime is a problem on
the trains.
The precise ambit of that problem, the methodology
that should be used to measure it, such as the Metrorail Crime Index,
and the
question of whether there is more crime on trains than
elsewhere are all in dispute.  But I cannot see that much turns
for
the determination of this case on those disputes.  The
relevant fact for our purposes is that there is a problem with crime

on trains.  I can reach this conclusion without resolving the
other disputes of fact that I have mentioned and without determining

the facts of any of the particular crime incidents aired on the
papers.
[60] At least one dispute was
characterised as a dispute of fact both by the SCA and the
respondents’ counsel, which in fact
concerns questions of law,
not fact.  This is the question of the reasonableness of the
first, second and third respondents’
conduct.  Quite
clearly the conduct itself constitutes a question of fact, and where
there are genuine disputes as to what
that conduct was, the
respondents’ version must be accepted.  The question of
whether that conduct once established
was reasonable in the
circumstances, is not a question of fact, but one of the application
of legal principles to a set of established
facts
[67]
which this Court must determine.  Unlike the question of whether
a particular issue has been established beyond a reasonable
doubt,
which turns only on an evaluation of evidence and its cogency, the
question of whether conduct is reasonable in the context
of a legal
duty, requires the application of legal principles to a set of
established facts.
The merits of the application
[61] I turn now to consider the merits
in relation to the relief sought by the applicants.  The first
question that arises
for consideration is the following: are any or
all of the respondents under an obligation to provide for the safety
and security
of commuters on Metrorail trains in the Western Cape?
Specifically, does such an obligation arise from either the
provisions
of the SATS Act or the provisions of the Constitution?  I
shall consider these questions first.  Thereafter I shall
consider
whether on the facts established in this case, if any of the
respondents are under such an obligation, it is an appropriate case

in which declaratory or mandatory relief should be granted.  The
final question to be considered will be whether the applicants
are
entitled to the relief restraining Metrorail from operating the
commuter rail service in breach of its general operating
instructions.
The obligations of Metrorail and the
Commuter Corporation
[62] The applicants argue that, as far
as Metrorail and the Commuter Corporation are concerned, subsections
15(1) and 23(1) of the
SATS Act should be interpreted in the light of
the Constitution as imposing positive obligations upon them to
protect the rights
of rail commuters to dignity, life and security of
the person when they travel on trains.  They argue, therefore,
that the
interpretations of these subsections adopted by Howie P and
Cloete JA, on the one hand, and Streicher JA on the other, should be

rejected.  It will be recalled that Howie P and Cloete JA
interpreted the sections without reference to the Constitution to

mean that an obligation was imposed upon Metrorail and the Commuter
Corporation in providing a rail commuter service to serve the
needs
of the public.  Streicher JA, on the other hand, considered that
the values and rights in the Constitution needed to
be considered in
interpreting the subsections, but concluded that the phrase “in
the public interest” should be interpreted
to mean only “that
the public would be better off by having the service than by being
without it”.
[63] The applicants prefer the approach
adopted by Farlam and Navsa JJA, who held that in order to interpret
a provision of a statute
so as to incorporate constitutional norms,
it is necessary to consider “its context, the overall purpose
of the statute,
the legislative history and to hold the provision
concerned up to constitutional scrutiny.”
[68]
The judges held that, understood in context, the rail commuter
service serves mainly the needs of the indigent and is “unlikely

ever to be profitable”.  In offering the service, the
reasoning went, the respondents are “obliged to render such

services in a manner contemplated in the empowering statute and not
in conflict with constitutional norms.”
[64] Metrorail and the Commuter
Corporation dispute that they are under any obligation to protect
rail commuters from crime when
they are travelling on Metrorail.
They and the fourth respondent argue that the SAPS is the only bearer
of that obligation
in terms of section 205(3) of the Constitution.
Section 205(3) provides that:
“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.”
The first and second respondents argue
that the Service Agreement, which asserts that the primary
responsibility for preventing
crime and maintaining law and order on
Metrorail services lies with the SAPS, is consistent with the
constitutional obligation
imposed by section 205.  They argue
that Howie P and Cloete JA’s interpretation of subsections
15(1) and 23(1) is therefore
the correct one, which this Court should
endorse.
[65] In interpreting the provisions in
the SATS Act, it is necessary first to understand the context of the
legislation as a whole.
As indicated above, the legislation was
enacted to facilitate the privatisation of the provision of a range
of transport services
that had previously been provided by the
state.  However, it was accepted at the time, and the
legislation makes it plain,
that rail commuter services were
different to many of the other services which were in the process of
being privatised.  In
particular, it was acknowledged that,
although there was a great public need for such services, they were
unlikely ever to be profitable.
Accordingly, the second
respondent was established to requisition and monitor the provision
of rail commuter services “in
the public interest”.
Relevant, too, is the particular importance of rail commuter services
to disadvantaged communities
in South Africa, particularly in the
light of apartheid spatial planning which relegated such communities
to the fringes of our
cities and imposed inevitably direct and
indirect costs on those communities occasioned by their distance from
the urban centres.
[66] It is also necessary to consider
the relevant provisions of the Constitution.  The applicants
rely on sections 10, 11
and 12 of the Bill of Rights.  Section
10 provides that:
“Everyone has
inherent dignity and the right to have their dignity respected and
protected.”
Section 11 provides that:
“Everyone has
the right to life.”
Section 12 provides that:
“(1) Everyone
has the right to freedom and security of the person, which includes
the right─
. . .
(c) to be free from
all forms of violence from either public or private sources;”.
The applicants argue that these
provisions need to be read in the light of section 7(2) and 8(1) of
the Constitution.  Section
7(2) provides that:
“The state must respect, protect,
promote and fulfil the rights in the Bill of Rights.”
Section 8(1) provides that:
“The Bill of
Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.”
An “organ of state” is
defined in section 239 of the Constitution as meaning:
“(a)
any department of state or administration in the national, provincial
or local sphere of
government; or
(b)
any other functionary or institution─
(i)
exercising a power or performing a function in terms of the
Constitution or
a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation,
but does not
include a court or a judicial officer”.
[67] The applicants argue that all the
respondents are organs of state.  There can be no doubt that the
third and fourth respondents
as Ministers in the national Executive
fall within the scope of “organ of state”.  The
first and second respondents
exercise powers and perform functions in
terms of the SATS Act and it was accordingly argued that they
constitute “organs
of state” within the meaning of
section 239(b)(ii).  This must be correct.  All the
respondents are bearers of
obligations in respect of the rights
conferred by the Bill of Rights.
[68] It is not claimed by the applicants
that the conduct of the respondents invades those rights.  Rather,
it is their argument
that the first and second respondents bear a
positive obligation in terms of the provisions of the SATS Act read
in the light of
the Constitution to take steps to protect the safety
and security of rail commuters.  They also argue that, as the
first and
second respondents both deny the existence of this
obligation and fail to observe it, they are entitled to both
declaratory relief
and a mandamus against those two respondents.
[69] The rights contained in the Bill of
Rights ordinarily impose, in the first instance, an obligation that
requires those bound
not to act in a manner which would infringe or
restrict the right.  So, for example, the right to freedom of
expression requires
those bound by it not to act in a manner which
would impair freedom of expression.  The obligation is in a
sense a negative
one, as it requires that nothing be done to infringe
the rights.  However, in some circumstances, the correlative
obligations
imposed by the rights in the Bill of Rights will require
positive steps to be taken to fulfil the rights.  In the case of
most of the socio-economic rights in the Bill of Rights,
[69]
the ambit of the positive obligation that flows from the right is
explicitly determined in the Bill of Rights.
[70]
The precise ambit of the positive obligation thus imposed has
been discussed by the Court in several cases concerned with

socio-economic rights.
[71]
[70] It is clear that rights other than
the social and economic rights in the Constitution do at times impose
positive obligations.
In
S v Baloyi (Minister of Justice and
Another Intervening),
[72]
the Court was considering a declaration of invalidity made by the
High Court in respect of certain provisions of the
Prevention of
Family Violence Act, 133 of 1993
.  In considering the
constitutionality of those provisions, the Court held that
section
12(1)(c)
read with
section 7(2)
–
“has to be
understood as obliging the State directly to protect the right of
everyone to be free from private or domestic
violence.”
[73]
The Court emphasised the importance of
this obligation in the light of our Constitution’s commitment
to gender equality and
the rights of children and the need to take
steps to ensure that women and children were provided with effective
forms of relief
against family violence.  Thus the Court
reasoned that the
Prevention of Family Violence Act had
to be
understood in the context of the state fulfilling the positive
obligations imposed upon it by the provisions of the Bill
of Rights.
[71] In
Carmichele v Minister of
Safety and Security
,
[74]
in considering the obligations imposed by the rights to life, dignity
and freedom and security of the person, this Court held that:
“It follows
that there is a duty imposed on the State and all of its organs not
to perform any act that infringes these rights.
In some
circumstances there would also be a positive component which obliges
the State and its organs to provide appropriate protection
to
everyone through laws and structures designed to afford such
protection.”
[75]
The Court went on to distinguish our
constitutional framework from that of the United States of America in
this regard
[76]
and approved instead the approach adopted by the European Court on
Human Rights where that Court held:
“It is thus
accepted by those appearing before the Court that Article 2 of the
Convention [which entrenches the right to life]
may also imply in
certain well-defined circumstances a positive obligation on the
authorities to take preventive operational measures
to protect an
individual whose life is at risk from the criminal acts of another
individual.”
[77]
[72] It is not necessary to decide in
this case whether sections 10, 11 and 12 of the Constitution impose
positive obligations upon
Metrorail and the Commuter Corporation as
the case made out by the applicants relates primarily to the
obligations Metrorail and
the Commuter Corporation bear in terms of
the SATS Act.  In determining the scope of the obligations
created by sections 15(1)
and 23(1) of the SATS Act, regard must be
had to the provisions of the Constitution and, in particular, the
provisions must be
interpreted to “promote the spirit, purport
and objects of the Bill of Rights”.
[78]
[73] Since this Court’s judgment
in
Carmichele,
the SCA has developed the legal principles
governing the state’s delictual liability in respect of its
constitutional obligations,
and particularly, those relating to the
rights to dignity, life and freedom and security of the person in a
series of cases.
[79]
In developing that approach, the SCA has explicitly acknowledged that
one of the considerations relevant to the question
of whether a legal
duty for the purposes of the law of delict is the constitutional
value of accountability, in terms of which
government and those
exercising public power should be held accountable to the broader
community for the exercise of their powers.
[80]
[74] Accountability of those exercising
public power is one of the founding values of our Constitution and
its importance is repeatedly
asserted in the Constitution.  Section
1 of the Constitution provides as follows:
“The Republic
of South Africa is one, sovereign, democratic state founded on the
following values:
. . .
(d) Universal adult
suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
Accountability is also to be found in
chapter 3 of the Constitution, in which section 41(1) provides:
“All spheres
of government and all organs of state within each sphere must─
. . .
(c) provide
effective, transparent, accountable and coherent government for the
Republic as a whole.”
It is again
recognised as one of the key values of public administration in
section 195 of the Constitution which provides that:
“(1) Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including
the following
principles:
. . .
(f) Public
administration must be accountable.
. . .
(2) The above
principles apply to─
(a) administration
in every sphere of government;
(b) organs of state;
and
(c) public
enterprises.”
[75] The value of accountability is thus
expressly mentioned in a range of provisions in the Constitution.
As importantly,
however, the value is asserted within the scheme of
the Bill of Rights.  The Bill of Rights requires that where an
entrenched
right is limited, that limitation may be constitutionally
permissible if it is “reasonable and justifiable in an open and

democratic society based upon human dignity, equality and
freedom”.
[81]
Section 36(1), therefore, requires the state, or any person asserting
that a limitation of a right falls within the provisions
of section
36(1), to show that the limitation is reasonable and justifiable.
It is one of the objects of the Bill of Rights
to require those
limiting rights to account for the limitations.  The process of
justifying limitations, therefore, serves
the value of accountability
in a direct way by requiring those who defend limitations to explain
why they are defensible.
The value of accountability,
therefore, is one which is relevant to a consideration of the
“spirit, purport and objects of
the Bill of Rights”.
[76] The value of accountability is
asserted not only for the state, but also for all organs of state and
public enterprises which
would include all four respondents.
The principle that government, and organs of state, are accountable
for their conduct
is an important principle that bears on the
construction of constitutional and statutory obligations, as well as
on the question
of the development of delictual liability.
[77] In
Van Duivenboden
,
[82]
the SCA emphasised that the principle of accountability would not
always result in the existence of delictual remedies enforceable

against the state.  In particular, the SCA emphasised that there
may be other legal or political remedies more suitable for
ensuring
that the principle of accountability is observed.  The SCA also
recognised that in some circumstances, even where
no other remedy
exists, there may be reasons of public interest, which would suggest
that a legal duty cognizable in delict would
not arise.
Accordingly, in
Olitzki Property Holdings v State Tender Board and
Another
,
[83]
the SCA concluded that no action for damages for lost profit lay in
circumstances where the procurement provisions of the Constitution

had not been followed in the award of a tender.
[84]
[78] The principle of accountability,
therefore, may not always give rise to a legal duty whether in
private or public law.
In determining whether a legal duty
exists whether in private or public law, careful analysis of the
relevant constitutional provisions,
any relevant statutory duties and
the relevant context will be required.  It will be necessary too
to take account of other
constitutional norms, important and relevant
ones being the principle of effectiveness
[85]
and the need to be responsive to people’s needs.
[86]
[79] The applicants sought declaratory
relief on the basis of the provisions of the SATS Act read in the
light of  the Constitution.
The SCA has expressly
recognised in
Van Duivenboden
and
Olitzki
that there
may be legal remedies, arising from public law, rather than from
private law, which will serve to protect the constitutional
rights in
issue here.  The question posed by this argument is not whether
Metrorail and the Commuter Corporation bear a private
law duty to the
individual applicants or other rail commuters to protect them from
criminal activity while travelling on Metrorail
trains.  It is
rather whether the first and second respondents are under a public
law duty, arising from the provisions of
the SATS Act read in the
light of the provisions of the Constitution, that is enforceable by
the public law remedies of declaratory,
mandatory and prohibitory
relief.
[80] In determining whether the
applicants are entitled to public law relief under the SATS Act as
requested, the Court should bear
in mind that private law damages
claims are not always the most appropriate method to enforce
constitutional rights.  Private
law remedies tend to be
retrospective in effect, seeking to remedy loss caused rather than to
prevent loss in the future.
Moreover, the use of private law
remedies to claim damages to vindicate public law rights may place
heavy financial burdens on
the state.  Ackermann J’s
observations in
Fose v Minister of Justice
[87]
in the context of an application for punitive damages bear repeating:
“In a country
where there is a great demand generally on scarce resources, where
the government has various constitutionally
prescribed commitments
which have substantial economic implications and where there are
‘multifarious demands on the public
purse and  the
machinery of government that flow from the urgent need for economic
and social reform’, it seems to me
to be inappropriate to use
these scarce resources to pay punitive constitutional damages to
plaintiffs who are already fully compensated”.
[88]
(footnotes omitted)
[81]  These remarks should not, of
course, be understood to suggest that delictual relief should not lie
for the infringement
of constitutional rights in appropriate
circumstances.  There will be circumstances where delictual
relief is appropriate.
It is important, however, that we do not
overlook the value of public law remedies as effective and
appropriate forms of constitutional
relief.  It should also be
emphasised that a public law obligation such as that under discussion
does not automatically give
rise to a legal duty for the purposes of
the law of delict.  It is not necessary to consider the
circumstances in which it
would do so and I expressly refrain from
considering that question.
[82] Metrorail and the Commuter
Corporation bear obligations in terms of sections 15(1) and 23(1) of
the SATS Act.  Those obligations
must be interpreted in the
light of the provisions of the Bill of Rights, and in particular
sections 10, 11 and 12 of the Constitution.
They should be
interpreted too in the context in which those obligations are to be
performed.  It must be borne in mind that
the first and second
respondents enjoy, in effect, a monopoly over the provision of rail
commuter services for the period of the
agreement they have entered
into.  Moreover, as organs of state they exercise that monopoly
in circumstances where the spatial
planning of our cities means that
those most in need of subsidised public transport services are those
who often have the greatest
distances to travel.  Those people
are also often the poorest members of our communities who have little
choice in deciding
whether to use rail services or not.  The
rail commuter services operated by the first and second respondent
are used by hundreds
of thousands of commuters on a daily basis.
Another relevant consideration is the fact that once a commuter
enters a train,
he or she cannot easily leave it while it is in
motion.  Boarding a train renders commuters intensely vulnerable
to violent
criminals who target them.  The applicants emphasised
in argument the double bind in which commuters find themselves: they

generally have little choice about using the train, and once on the
train they are unable to protect themselves against attack
by
criminals.
[83] These factors make it clear that in
construing the nature of the obligations imposed upon Metrorail and
the Commuter Corporation,
the need to hold these respondents
accountable for the exercise of their powers is important.
Institutions which are organs
of state, performing public functions
and providing a public service of this kind, should be held
accountable for the provision
of that service.  It is for this
reason that the Constitution affirms accountability as a value
governing public administration.
Metrorail has the obligation
to provide rail commuter services in a way that is consistent with
the constitutional rights of commuters.
In the absence of a
public law obligation of the kind contended for by the applicants,
there is no way of ensuring that Metrorail
complies with this duty.
Nor could it be argued by Metrorail and the Commuter Corporation that
a public law obligation of
this sort would impose undue burdens on
them that would impair their ability to provide the service
effectively or efficiently.
[84] In these circumstances, I conclude
that Metrorail and the Commuter Corporation bear a positive
obligation arising from the
provisions of the SATS Act read with the
provisions of the Constitution to ensure that reasonable measures are
in place to provide
for the security of rail commuters when they
provide rail commuter services under the SATS Act.  It should be
clear from the
duty thus formulated that it is a duty to ensure that
reasonable measures are in place.  It does not matter who
provides the
measures as long as they are in place.  The
responsibility for ensuring that measures are in place, regardless of
who may
be implementing them, rests with Metrorail and the Commuter
Corporation.
[85] It should be noted that the
formulation of this duty does not flow from a narrow interpretation
of the phrase “in the
public interest” as contained in
sections 15(1) and 23(1) of the SATS Act.  To that extent, it
differs from the approach
taken in all three judgments in the SCA.
As this Court has said previously, our Constitution constructs and
restrains the
exercise of public power in our democracy.
[89]
Determining the scope of public power, therefore, and any duties
attached to it requires an analysis not only of the statutory

provisions conferring the power, but also of the social, political
and economic context within which the power is to be exercised
and a
consideration of the relevant provisions of the Constitution.  If
this approach is followed, the ambit of public duties
of organs of
state will be drawn in an incremental and context-driven manner.
[86] The duty thus identified requires
Metrorail and the Commuter Corporation to ensure that reasonable
measures are in place to
provide for the safety of rail commuters.
The standard of reasonableness requires the conduct of
Metrorail and the Commuter
Corporation to fall within the range of
possible conduct that a reasonable decision-maker in the
circumstances would have adopted.
[90]
In assessing the reasonableness of conduct, therefore, the context
within which decisions are made is of fundamental importance.

Furthermore, a court must be careful not to usurp the proper role of
the decision maker.
[91]
In particular,
“[a] decision
that requires an equilibrium to be struck between a range of
competing interests or considerations and which
is to be taken by a
person or institution with specific expertise in that area must be
shown respect by the Courts.  Often
a power will identify a goal
to be achieved, but will not dictate which route should be followed
to achieve that goal.  In
such circumstances a Court should pay
due respect to the route selected by the decision-maker.”
[92]
This Court considered the manner in
which the standard of reasonableness should be applied to positive
constitutional obligations
in
Government of the Republic of South
Africa and Others v Grootboom and Others.
[93]
The Court held that the standard would need to be assessed in
the light of the “social, historical and economic context”

of housing and in the light of institutional capacity.
[94]
[87] In adopting this standard the Court
requires the bearer of constitutional obligations to perform them in
a manner which is
reasonable.  This standard strikes an
appropriate balance between the need to ensure that constitutional
obligations are met,
on the one hand, and recognition for the fact
that the bearers of those obligations should be given appropriate
leeway to determine
the best way to meet the obligations in all the
circumstances.  As this Court reasoned in
Minister of Health
and Others v Treatment Action Campaign and Others (2)
:
[95]
“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.”
[88] What constitutes reasonable
measures will depend on the circumstances of each case.
[96]
Factors that would ordinarily be relevant would include the nature of
the duty, the social and economic context in which
it arises, the
range of factors that are relevant to the performance of the duty,
the extent to which the duty is closely related
to the core
activities of the duty-bearer – the closer they are, the
greater the obligation on the duty-bearer, and the extent
of any
threat to fundamental rights should the duty not be met as well as
the intensity of any harm that may result.  The
more grave is
the threat to fundamental rights, the greater is the responsibility
on the duty-bearer.  Thus, an obligation
to take measures to
discourage pickpocketing may not be as intense as an obligation to
take measures to provide protection against
serious threats to life
and limb.  A final consideration will be the relevant human and
financial resource constraints that
may hamper the organ of state in
meeting its obligation.  This last criterion will require
careful consideration when raised.
In particular, an organ of
state will not be held to have reasonably performed a duty simply on
the basis of a bald assertion of
resource constraints.  Details
of the precise character of the resource constraints, whether human
or financial, in the context
of the overall resourcing of the organ
of state will need to be provided.  The standard of
reasonableness so understood conforms
to the constitutional
principles of accountability, on the one hand, in that it requires
decision-makers to disclose their reasons
for their conduct, and the
principle of effectiveness on the other, for it does not unduly
hamper the decision-maker’s authority
to determine what are
reasonable and appropriate measures in the overall context of their
activities.
[89] Metrorail and the Commuter
Corporation deny that they bear obligations to rail commuters to
protect their safety and security.
They argue that it is the
SAPS who bears such obligations, in terms of section 205 of the
Constitution, and not them.
They accordingly clearly
misconstrue the nature of the obligations imposed upon them by the
SATS Act.  In the alternative,
Metrorail and the Commuter
Corporation asserted that their obligations were met by the
conclusion of the Service Agreement, and,
in particular annexure 6 to
the Service Agreement, the provisions of which have been described
above.
[97]
[90] It will be recalled that annexure 6
allocates the responsibility for the public component of safety and
security on the trains
to the SAPS, and reserves for Metrorail only
“a supportive and/or complementary role” in this
regard.
[98]
On the other hand, Metrorail bears full responsibility for the
“non-public” component of security relating primarily
to
the protection of assets and personnel.  To show what they have
done to meet both these responsibilities, Metrorail and
the Commuter
Corporation have put a wide range of information before us to
indicate how many security guards they employ in different
regions,
the nature of their contracts with private security companies, and
the processes for crime-recording.  There are
disputes of facts
in relation to the detail of these matters and particularly, in
relation to the activities of security guards
and the methods adopted
for them to report crime.  In relation to these disputes, the
version of the respondents needs to
be accepted.
[91] However, it is clear that Metrorail
and the Commuter Corporation have known for some time that the SAPS
have only the scantiest
resources for providing security to rail
commuters.  Indeed, in March 1999, Metrorail and the SAPS
jointly produced a report
which recorded that the effective
disestablishment of the SA Railways and Harbours Police in 1986 had
left a “void”
which led to an increase in “theft,
vandalism, intimidation, robberies, attacks on commuters and unsafe
conditions on trains
and stations in general”.  Although
the Service Agreement arrangements between the Commuter Corporation
and Metrorail
had suggested that the SAPS was primarily responsible
for ensuring the safety and security of rail commuters, the report
noted
that:
“The changed
environment in South Africa, after the 1994 elections and the rising
crime, forced the SAPS to prioritise and
concentrate its efforts in
maintaining law and order in the broad perspective.  The
unfortunate shortage of resources resulted
in the re-allocation of
the Mobile Units into normal policing functions at station level,
once again creating a void in the train
commuter environment.
The existence of such a void forced Metrorail, with its limited
resources, to manage the public and
non-public components without the
assistance of a dedicated police force.”
The report continued that the working
group had concluded that the way forward was the establishment of a
rail commuter transit
police which would report to the Commuter
Corporation.
[92] From their affidavits and their
argument to this Court, it was clear that neither Metrorail nor the
Commuter Corporation considered
that they bore any obligation in
relation to the security of rail commuters, and that they did not
interpret the void as something
they had to fill.  In this
regard, they erred both in relation to their obligations, and in
relation to annexure 6.
Annexure 6 makes it clear Metrorail’s
role in relation to the security of rail passengers is a “supportive”
and
“complementary” one.  The ordinary meaning of a
complementary role implies that where a void is created, it will
be
filled by the person who has the complementary duty.  Once it
was clear that the SAPS was unable for resource reasons to
carry out
the task imposed upon them by annexure 6 given their resource
constraints, Metrorail had to take reasonable steps to
ensure that a
void was not created.
[93] In the circumstances, it is clear
that the terms of annexure 6 are not themselves in conflict with the
legal obligations borne
by Metrorail and the Commuter Corporation.
There is no reason why Metrorail cannot fulfil its legal obligations
in terms
of annexure 6 by taking reasonable measures to provide for
the security of rail commuter passengers, once it is clear that the
SAPS is unable to do so.  I conclude therefore that annexure 6
is not in conflict with Metrorail and the Commuter Corporation’s

legal obligations.
[94] There are a range of factual
disputes on the papers as to what steps have been taken by them in
relation to annexure 6.  It
is also clear that the situation is
not static.  Indeed, the term of the validity of the Service
Agreement and annexure 6
was due to end on 31 March 2003, though it
still appears to be regulating the relationship between Metrorail and
the Commuter Corporation.
Much water has flowed under the
bridge since the time the record was completed in mid-2002.  In
the circumstances, it
does not seem that much purpose will be served
by a determination of whether the respondents’ conduct in 2002
in meeting
their obligations was reasonable or not.  Before
turning to the question of relief, I turn to consider the question of
the
argument of the applicants that the respondents bore a duty
arising from the law of delict, as well as the question of the legal

duties of the third and fourth respondents.
The legal duty actionable in delict
[95] The applicants sought an order that
Metrorail and the Commuter Corporation bear a legal duty towards
commuters for the purposes
of the law of delict.  However, for
the reasons outlined in
Carmichele
,
[99]
it is not ordinarily desirable for this Court on motion proceedings
to decide the elements of delictual liability.  There
can be no
doubt that that reasoning applies here as well.  Whether or not
Metrorail and the Commuter Corporation bear a legal
duty in respect
of the injuries caused to any of the individual applicants or their
family members is not something that this Court
could or should
determine on the papers in this case.  Extensive disputes of
fact exist.  It is not desirable to determine
elements of a
legal duty in delict in the abstract on the basis of facts that may
or may not be proved.  To the extent, therefore,
that the second
prayer for relief sought in this case is seeking this Court to
determine the existence of a legal duty for the
purposes of the law
of delict, it cannot succeed.
The obligations of the third
respondent
[96] It will be recalled that the High
Court did not conclude that the third respondent bore an obligation
in terms of the SATS
Act or a legal duty to take steps to protect the
rights of rail commuters to safety and security.  It ordered
relief against
the third respondent, only in relation to the
mandatory relief, “[i]n the light of the inter-relationship
between the first
and second respondents, and the second and third
respondents”.
[100]
[97] On appeal to this Court, the
applicants argue that the third respondent does bear an obligation to
rail commuters in the Western
Cape, on the basis that the third
respondent is the national Minister responsible for transport.
The third respondent argues
in turn that the responsibility for the
prevention of crime in terms of our Constitution rests solely on the
fourth respondent
in terms of section 205 of the Constitution.  The
question that arises is whether the provisions of the SATS Act impose
any
obligations upon the third respondent in respect of the safety
and security of rail commuters, on the facts of this case.
[98] Although it is clear that the
national Minister is responsible for transport generally, it is also
clear on the record that
the primary responsibility for ensuring the
provision of rail commuter services has been imposed on the Commuter
Corporation, a
separate legal entity, by the SATS Act.
[101]
It is true, as the High Court noted,
[102]
that the Minister appoints and dismisses the members of the Board of
Control of the Commuter Corporation,
[103]
but that does not mean that the Minister bears the obligations of the
Commuter Corporation.  It is also true that the Commuter

Corporation may be requested by the Minister to ensure that rail
commuter services are provided in any area in South Africa.
[104]
This interrelationship however cannot destroy the fact that the
Commuter Corporation and Metrorail together bear the responsibility

for providing rail commuter services and not the third respondent.
For this reason, the High Court erred in granting relief
against the
third respondent solely on the basis of the interrelationship between
the third respondent and Metrorail and the Commuter
Corporation.
Relief could only have been granted against the third
respondent on the ground that it independently was the
bearer of an
obligation, not on the ground that it was related to other
respondents, who are separate legal entities, who did bear
an
obligation to the applicants.
[99] In the light of the fact that it is
Metrorail and the Commuter Corporation who bear the legal
responsibility to provide commuter
services under the SATS Act, it
cannot be concluded that the third respondent, whatever policy making
obligations he may have in
terms of the Constitution, bears an
obligation in terms of the SATS Act directly to take steps to protect
the safety and security
of rail commuters.
The obligations of the fourth
respondent
[100] The fourth respondent accepts that
he bears an obligation in terms of section 205 of the Constitution to
maintain law and
order in the Republic
[105]
but points out that it is a duty which runs throughout the Republic
and which requires the fourth respondent to make a range of
policy
decisions to determine how best it should be met.  The
applicants note that in 2001, despite the problem of crime on
the
trains in the Western Cape, the fourth respondent decided to reduce
its Commuter Patrol Unit based in the Western Cape from
approximately
200 members to 38.  They argue that this was an unreasonable
decision in the circumstances.  The fourth
respondent rebuts
this, however, by pointing to the fact that the SAPS does not perform
guard duties, and that in the light of
the shortage of available
police officers, it must prioritise as effectively as possible.
The fourth respondent has placed
evidence on the record, which
identifies the process of prioritisation that has been undertaken in
which key police stations have
been identified.
[101] In considering the evidence put
forward by the fourth respondent, the High Court concluded that it
had not been shown by the
applicants that the policy of the fourth
respondent was not rational, lawful or directed to proper
purposes.
[106]
In the circumstances, the High Court dismissed the relief against the
fourth respondent.  I agree that the applicants
have not made
out a case against the fourth respondent, for the reasons given by
the High Court.
The General Operating Instructions
[102] The final aspect of the case to be
addressed, before I turn to relief, is the question of whether the
applicants are entitled
to relief in relation to the General
Operating Instructions.
[107]
The clauses of the Operating Instructions relied upon by the
applicants relate to the rules prohibiting trains travelling
with
open doors.  The applicants did not seek this relief in their
original notice of motion, nor was it fully addressed in
their
founding affidavit, but the supplementary founding affidavit raises
the issue and they successfully sought the amendment
of their notice
of motion before the High Court in this regard.  The High Court
held that there was no dispute between the
parties as to the fact
that the Operating Instructions were binding on Metrorail,
[108]
but could not make a finding of fact on the record as to how often
and in what circumstances trains do travel with doors open.
[103] It is disputed by the respondents
on the record that trains travel with open doors, though it is
conceded that the design
of the doors is such as to permit commuters
to prevent the doors from closing.  On the other hand, the
respondents also furnished
a video recording which shows commuter
trains travelling in the Western Cape from which it is apparent that
trains do travel with
doors open, when no person appears to be
holding them open.
[104] The SCA held that the High Court
erred in granting an interdict in circumstances where it had not
found that there was a general
practice of operating the trains in
conflict with the General Operating Instructions.
[109]
In my view, one cannot determine on the record before us how
widespread or severe the practice of travelling with doors open
is.
The general allegations made in this regard are contradicted by the
respondents’ deponents, though their own video
evidence
suggests that in at least some cases, trains do travel with doors
open.  There is no explanation from the respondents
to explain
the video footage.  It may well be that the video footage does
not represent a general practice, but we have no
way of determining
that.
[105] In the light of the dispute of
facts on the record, I am not persuaded that it is appropriate to
grant the applicants the
relief they seek in this regard.
Relief
[106] I have concluded that Metrorail
and the Commuter Corporation bear an obligation in terms of the SATS
Act interpreted in the
light of the Constitution to ensure that
reasonable measures are taken to provide for the safety and security
of rail commuters
on the rail commuter service they operate.  In
this Court, they both denied that they bore such an obligation.  The
first
form of relief that is sought by the applicants is
declaratory.  Section 172(1)(a) of the Constitution states that
this Court
must declare “any law or conduct that is
inconsistent with the Constitution” to be invalid to the extent
of its inconsistency.
It is a special constitutional provision,
different to the common law rules governing the grant of declaratory
orders.
[110]
It does not mean, however, that this Court may not make a declaratory
order in circumstances where it has not found conduct
to be in
conflict with the Constitution.  Indeed section 38 of the
Constitution makes it clear that the Court may grant a
declaration of
rights where it would constitute appropriate relief:
“Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has
been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
Unlike under section 172(1)(a), the
courts are not obliged to grant a declaration of rights but may do so
where they consider it
to constitute appropriate relief.  The
principles developed at common law, and under the provisions of the
Supreme Court Act,
[111]
will provide helpful guidance to consider whether such a declaratory
order should be made,
[112]
though of course the constitutional setting may at times require
consideration of different or additional matters.
[107] It is quite clear that before it
makes a declaratory order a court must consider all the relevant
circumstances.  A declaratory
order is a flexible remedy which
can assist in clarifying legal and constitutional obligations in a
manner which promotes the protection
and enforcement of our
Constitution and its values.  Declaratory orders, of course, may
be accompanied by other forms of relief,
such as mandatory or
prohibitory orders, but they may also stand on their own.  In
considering whether it is desirable to
order mandatory or prohibitory
relief in addition to the declarator, a court will consider all the
relevant circumstances.
[108] It should also be borne in mind
that declaratory relief is of particular value in a constitutional
democracy which enables
courts to declare the law, on the one hand,
but leave to the other arms of government, the executive and the
legislature, the decision
as to how best the law, once stated, should
be observed.
[109] In this case, Metrorail and the
Commuter Corporation denied, in error, that they bore obligations to
protect the security
of rail commuters.  Given the importance of
that obligation in the context of public rail commuter services, it
is important
that this court issue a declaratory order to that
effect.  The applicants also sought an order in which this Court
would put
Metrorail and the Commuter Corporation on terms to take
steps to implement that order.  While such an order is no doubt
competent,
[113]
I am not persuaded that it is an appropriate order in the
circumstances of this case.  There is nothing to suggest on the

papers that Metrorail and the Commuter Corporation will not take
steps to comply with the terms of the order.
Costs
[110] The applicants have been
successful in this Court against the first and second respondents,
though only in part, and are accordingly
entitled to be awarded costs
in that regard, save in relation to the applications to tender
further evidence to this Court.
Each of the parties shall bear
their own costs in respect of the applications to tender further
evidence.  The third and fourth
respondents must pay their own
costs in the High Court, the SCA and this Court.  Although the
applicants were finally not
successful against them, the applicants’
litigation against them was neither frivolous nor vexatious, but
raised important
and difficult constitutional issues.  It would
not accordingly be appropriate to require the applicants to pay the
costs of
the third and fourth respondents.  The applicants are
entitled to recover the costs incurred in opposing the first and
second
respondents’ appeal to the SCA.  However, in
relation to costs in the High Court proceedings, it is appropriate to
reinstate
paragraphs 6.3, 6.4 and 6.5 of the High Court costs order,
which directed the respondents to pay the applicants’ costs in

respect of the respondents’ applications to strike out on the
attorney and client scale.  I cannot conclude that the
court in
making this order exercised its discretion improperly.  As to
paragraphs 6.2 and 6.7 of the High Court order, in
which costs orders
were made against the applicants, it appears from the SCA judgment
that the respondents waived these costs orders
when before that
court. They did not seek to alter that waiver in this Court.  It
would not be appropriate therefore to reinstate
these orders.
The remaining costs orders made in the High Court need not be
reinstated.  Their substance is dealt with
in the costs order
made by this Court.
Order
[111] It is ordered that:
1.
The application for leave to appeal is granted.
2.
The appeal is upheld and the order made by the Supreme Court of
Appeal is set
aside, but the order of the High Court is not
reinstated, save for paragraphs 6.3, 6.4 and 6.5 of the High Court
order dealing
with costs.
3.
It is declared that the first and second respondents have an
obligation to ensure
that reasonable measures are taken to provide
for the security of rail commuters whilst they are making use of rail
transport services
provided and ensured by, respectively, the first
and second respondents.
4.
The first and second respondents are, jointly and severally, ordered
to pay the costs
of the applicants in these proceedings in the High
Court, Supreme Court of Appeal and this Court, including the costs of
the “informal
discovery” and the postponements in the
High Court, but excluding the costs of the applications to tender
further evidence
in this Court, such costs to include the costs of
three counsel.
Langa ACJ, Mokgoro J, Moseneke J, Sachs
J, Skweyiya J, Van der Westhuizen J and Yacoob J concur in the
judgment of O’Regan
J.
For the
applicants:

M Seligson SC, RP Hoffmann SC, DJ Dippenaar instructed by Heyns and
Partners.
For the first and second
respondents:

JJ Gauntlett SC, JNS Du Plessis SC, K Pillay instructed by Napoleon
and Vogel and Jan S de Villiers.
For the third
respondent:

M Donen SC, M Salie, instructed by the State Attorney (Cape Town).
For the fourth
respondent:

PB Hodes SC, RT Williams SC, instructed by the State Attorney (Cape
Town).
[1]
See paragraphs 1, 2 and 6 of the relief sought.
[2]
See paragraphs 2 and 4 of the amended notice of motion.
[3]
See paragraph 2 of the relief sought.
[4]
See Transfer of the South African Railways Police Force to the South
African Police Act, 83 of 1986 which came into force on
1 October
1986.
[5]
South African Transport Services, 1986, Condensed Report of the
Study by Dr WJ de Villiers regarding the Strategic Planning,

Management Practices and Systems of the South African Transport
Services.
[6]
See section 15(3) of the SATS Act.
[7]
Rail Commuter Action Group and Others v Transnet Ltd t/a
Metrorail and Others (No 1)
2003 (5) SA 518
(C) at 558A-B;
2003
(3) BCLR 288
(C) at 320A-B.
[8]
Id at 566F-H of the SALR and 328E-F of the BCLR.
[9]
Id at 569F-570B of the SALR and 331C-H of the BCLR.
[10]
Section 39(2) provides:
“When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights.”
[11]
See
Carmichele v Minister of Safety and Security and Another
2004 (3) SA 305
(SCA)
;
2004
(2) BCLR 133
(SCA);
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (10) BCLR 995
(CC);
2001 (4) SA 938
(CC);
Minister of Safety
and Security v Van Duivenboden
2002 (6) SA 431
(SCA);
Van
Eeden v Minister of Safety and Security
2003 (1) SA 389 (SCA);
[2002] 4 All SA 346 (SCA).
[12]
Above n 7 at 579E of the SALR and 340H of the BCLR.
[13]
Id at 571B-C of the SALR and 332G-H of the BCLR.
[14]
Id at 573F-G of the SALR and 335B-C of the BCLR.
[15]
Id at 577J-578B of the SALR and 339D-E of the BCLR.
[16]
Id at 578H-579A of the SALR and 340B-D of the BCLR.
[17]
Id at 591C-592G of the SALR and 352A-353E of the BCLR.
[18]
Transnet Ltd t/a Metrorail and Others v Rail Commuters Action
Group and Others
2003 (6) SA 349
(SCA);
2003 (12) BCLR 1363
(SCA) at para 17.
[19]
Id at para 20.
[20]
Id at para 21.  The SCA main judgment held that the fact that
the fourth respondent made common cause with the applicants
on this
issue did not resolve the dispute of fact, id at para 22.
[21]
Id at para 21.
[22]
Id
[23]
Id
[24]
Id at para 25.
[25]
Plascon-Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.  Id at para 22.
[26]
Above n 18 at paras 28-29.
[27]
See the judgment of the High Court above n 7 at 578I-579E of the
SALR and 340B-G of the BCLR.  “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”.
[28]
Above n 18 at para 32.
[29]
Id at para 33.
[30]
Id at para 34.
[31]
Id at para 39.
[32]
Above n 18 at para 42 of the SALR and para 2 of the judgment of
Streicher JA in the BCLR.
[33]
Id at paras 56-58 of the SALR and paras 16-18 of the judgment of
Streicher JA in the BCLR.
[34]
Id at para 71 of the SALR.
[35]
Id at para 72 of the SALR.
[36]
Id at para 10 of the judgment of Howie P and Cloete JA.
[37]
There might be some debate as to which rules should apply to the
admission of the new affidavits in this matter.  The

application for leave to appeal was launched when the 1998 Rules
were still in force.  Since then, the 2003 Rules have come
into
operation.  On the ordinary rules governing the introduction of
procedural rules, it would seem that the new Rules
apply.  In
any event, there is no material difference between the two sets of
Rules in this respect.  I have accordingly
referred to the
provisions of the 2003 Rules not the 1998 Rules.  The parties
did this as well.
[38]
Note that it was also incorporated in the 1998 Rules under rule 29.
[39]
Rule 19 provides in relevant part:
“(3) An application referred to
in subrule (2) shall be signed by the applicant or his or her legal
representative and shall
contain:
. . .
(c) such
supplementary information or argument as the applicant considers
necessary        to bring
to the
attention of the Court.”
[40]
1997 (4) SA 1176
(CC);
1997 (10) BCLR 1348
(CC).
[41]
Id at para 19.
[42]
Id at para 23.
[43]
2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC).
[44]
Id at para 10.  Chaskalson CJ, Ackermann and Kriegler JJ
concurred with Ngcobo J on this point.  See also para
98.
[45]
Rule 30 of the Rules of the Constitutional Court makes section 22 of
the Supreme Court Act applicable to this Court.
[46]
Above n 40 at para 24.
[47]
Original footnote reads: “See Rule 33, which incorporates by
reference the provisions of s 22 of the Supreme Court Act
59 of
1959.”
[48]
S v Louw
[1990] ZASCA 43
;
1990 (3) SA 116
(A) at 123H.
[49]
1933 AD 141
at 161-3.
[50]
Id at 162.  This criterion was recently approved by the SCA in
Knox D’Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 378B.
[51]
Above n 48 at 123-4.
[52]
1999 (2) SA 448 (C).
[53]
Id at 450J-451A.
[54]
Id at 451G-I.
[55]
Id at 452H-453B.
[56]
2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC).
[57]
Section 167(3)(b) of the Constitution.
[58]
Above n 56 at para 15.
[59]
See, for example,
Premier,
Mpumalanga, and Another v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal
[1998] ZACC 20
;
1999
(2) SA 91
(CC);
1999 (2) BCLR 151
(CC);
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC);
S v Thebus
and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10)
BCLR 1100
(CC);
Alexkor Ltd and Another v
Richtersveld Community and Others
2004 (5)
SA 460 (CC); 2003 (12) BCLR 1301 (CC).
[60]
Above n 25 at 634-635.  See, for earlier authority,
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty)
Ltd
1957 (4) SA 234
(C) at 235E-G.
[61]
Above n 25.
[62]
Above n 7 at 571B of the SALR and 332G-H of the BCLR.
[63]
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 79-81.
[64]
Id at para 81.
[65]
Above n 25.
[66]
It should be noted that the applicants no longer seek relief in this
Court on this score.
[67]
See the discussion in
S v Basson
[2004] ZACC 13
;
2004 (6) BCLR 620
(CC) at
paras 50-53.
[68]
Above n 18 at para 70 of the SALR.
[69]
Not all the socio-economic rights contain an explicit determination
of the ambit of the positive obligation.  See, for example,
the
right to basic education in section 29(1)(a).
[70]
See, for example, section 26(2) which provides that: “The
state must take reasonable legislative and other measures, within

its available resources, to achieve the progressive realisation of
this right”.  See also section 27(2).
[71]
See
Soobramoney v Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1)
SA 765
(CC);
1997 (12) BCLR 1696
(CC) at paras 11-14;
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at paras 19-20 and
paras 26-47;
Minister of Health and Others v Treatment Action
Campaign and Others No 2
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR
1033
(CC) at paras 23-73 and paras 82-95;
Khosa and Others v
Minister of Social Development and Others; Mahlaule and Another v
Minister of Social Development and Others
[2004] ZACC 11
;
2004 (6) BCLR 569
(CC)
at paras 40-67.
[72]
2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC).
[73]
Id at para 11.
[74]
2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC).
[75]
Id at para 44.
[76]
Id at para 45, where the Court distinguished the decision in
De
Shaney v Winnebago County Department of Social Services
489 US
189
(1988).
[77]
Osman v United Kingdom
[1998] ECHR 101
;
29 EHRR 245
(1998) at 305.
[78]
Section 39(2) of the Constitution.
[79]
See
Minister of Safety and Security v Hamilton
2004 (2) SA
216
(SCA);
Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA);
Van Eeden v Minister of Safety and
Security
2003 (1) SA 389
(SCA);
Minister of Safety and
Security and Another v Carmichele
2004 (3) SA 305 (SCA); 2004
(2) BCLR 133 (SCA).
[80]
See
Minister of Safety and Security v Van Duivenboden
id at
para 21:
“[I]n my view, the norm of
accountability must necessarily assume an important role in
determining whether a legal duty
ought to be recognised in any
particular case.” (per Nugent JA)
[81]
See section 36(1) of the Constitution.
[82]
Above n 79 at para 21.
[83]
2001 (3) SA 1247
(SCA).  See also
Faircape Property
Developers (Pty) Ltd v Premier, Western Cape
2000 (2) SA 54
(C)
at 65E – I.
[84]
The relevant provision was section 187 of the Republic of South
Africa Constitution Act, 1993 (“the interim Constitution”).
[85]
Section 41(1)(c) and section 195(1)(b).
[86]
Section 195(1)(e) of the Constitution.
[87]
1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
[88]
Id at para 72.  See also
Olitzki
above n 83 at paras
41-42.
[89]
President of the Republic of South Africa and Others
v South African Rugby Football Union and Others
2000
(1) SA 1
(CC)
;
1999
(10) BCLR 1059
(CC) at para 132;
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 83
;
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR
687
(CC) at para 22.
[90]
See
Bato Star
id at para 44.
[91]
Id at para 48.
[92]
Id
[93]
Above n 71.
[94]
Id at para 43.
[95]
Above n 71 at para 38.
[96]
See the test for reasonableness set out in
Bato Star
above n
89 at para 45.
[97]
See paras 11-13 above.
[98]
The relevant provisions of annexure 6 are cited at para 12 above.
[99]
Above n 63 at paras 80-81.
[100]
Above n 7 at 577J-578B of the SALR and 339D-F of the BCLR.  See
para 17 above.
[101]
Section 22(1) of the SATS Act.
[102]
Above n 7 at 528B-C of the SALR and 292A-B of the BCLR.
[103]
Section 24(1) of the SATS Act.
[104]
Section 23(1) of the SATS Act.
[105]
See para 64 above.
[106]
Above n 7 at 578I-J of the SALR and 340C-D of the BCLR.
[107]
The terms of Operating Instructions clause 12001.2.3, 12001.4.1,
12001.4.2, and 12001.4.3 are set out in the relief claimed in
this
Court.  Above para 31.
[108]
Above n 7 at 545B-C of the SALR and 307F-G of the BCLR.
[109]
Above n 18 at para 29.
[110]
For a discussion of the differences between the jurisdiction of the
High Court to grant declaratory relief and section 172 of
the
Constitution, see
Islamic Unity Convention v Independent
Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5)
BCLR 433
(CC) at paras 8-12 and
National Director of Public
Prosecutions and Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC) at paras 55-56.
[111]
Section 19(1)(a)(iii).
[112]
See
Ex parte Nell
1963 (1) SA 754
(A) at 759A-B, interpreting
section 19(1)(a)(iii) of the Supreme Court Act.  See also
Myburgh Park Langebaan (Pty) Ltd v Langebaan Municipality
2001 (4) SA 1144
(C) at 1153B-1154B.
[113]
See
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC);
1998
(3) BCLR 257
(CC) at para 96;
Minister of Health and Others v
Treatment Action Campaign and Others (2)
above n 71 at paras
96-114.