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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:
[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