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Transnet Ltd t/a Metrorail and others v Rail Commuters Action Group and others (2) (148/2004) [2003] ZASCA 109 (29 September 2003)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

REPORTABLE

CASE NO: 148/2003

In the matter between :

TRANSNET LTD t/a METRORAIL First Appellant

THE SOUTH AFRICAN RAIL COMMUTER

CORPORATION LIMITED Second Appellant

THE MINISTER OF TRANSPORT Third Appellant

(First to Third Respondents in the Court a quo)

and

THE RAIL COMMUTERS ACTION GROUP First Respondent

LESLIE DAVID VAN MINNEN Second Respondent

JANE LINDSAY STYER Third Respondent

JUDIN RUDLUFF BEUDINE COULSEN Fourth Respondent

RAYMOND JOHN LOVE Fifth Respondent

HESTER FOUCHÉ Sixth Respondent

MIRIAM MURIEL ADOLF Seventh Respondent

BERENDINA SUSANNA FULLER Eigth Respondent

ZOLANI CHRISTIAN MATYENI Ninth Respondent

(First to Ninth Applicants in the Court a quo and cross-appellants)

And the matter between:

THE RAIL COMMUTERS ACTION GROUP First Appellant

LESLIE DAVID VAN MINNEN Second Appellant

JANE LINDSAY STYER Third Appellant

JUDIN RUDLUFF BEUDINE COULSEN Fourth Appellant

RAYMOND JOHN LOVE Fifth Appellant

HESTER FOUCHÉ Sixth Appellant

MIRIAM MURIEL ADOLF Seventh Appellant

BERENDINA SUSANNA FULLER Eight Appellant

ZOLANI CHRISTIAN MATYENI Ninth Appellant

(First to Ninth Applicants in the court a quo)

and

THE MINISTER OF SAFETY AND SECURITY First Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL FOR

COMMUNITY SAFETY IN THE WESTERN PROVINCE Second Respondent

(Fourth and Fifth Respondents in the court a quo)

________________________________________________________________________________

Before: HOWIE P, STREICHER, FARLAM, NAVSA, CLOETE JJA

Heard: 9 & 10 SEPTEMER 2003

Delivered: 29 SEPTEMBER 2003

________________________________________________________________________________

J U D G M E N T

________________________________________________________________________________

STREICHER JA

STREICHER JA:

[1] I agree with the order proposed by Howie P and Cloete JA. I shall, as was done in their judgment, refer to the first respondent, the second respondent, the third respondent and the applicants in the court a quo as they were in that court.

[2] In my view, for the reasons set out hereunder, the phrase ‘a service that is in the public interest’ in ss 15 and 23 of the Legal Succession to the South African Transport Services Act 9 of 1989 (‘the Act’) means no more than that the service should be a service benefiting the public in the sense that the public would be better off by having the service than by being without it.¹ Whether the public would be better off would of course depend on all the relevant circumstances including the values and fundamental rights enshrined in the Constitution.

[3] There is no statutory obligation on the Department of Transport to provide a rail commuter service. It may, however, request the second respondent to ensure that such a service is provided in the public interest (s 23(1)). The second respondent is thereupon obliged to ensure that such a service is provided. It may do so by requesting the first respondent to provide the service in the public interest, whereupon the first respondent is obliged to do so (s 15(1)).

[4] The terms upon which the service is to be rendered are to be agreed between the first and the second respondent or if they fail to agree they are to be determined by way of arbitration by an arbitration tribunal consisting of three arbitrators, one of whom shall be appointed by the second respondent, one by the first respondent and one by the third respondent (s 15(3)). In terms of s 15(6) the terms stipulated by the arbitration tribunal –

(a) shall include such terms as would normally be included in a contract for the provision of the relevant service including terms which oblige the first respondent to provide the service required;

(b) present the first respondent with an opportunity to earn a reasonable profit;

(c) provide for the granting by the first respondent or the transport authority of adequate security for payment for the service;

(d) provide for a reasonable cash flow to the first respondent in respect of the provision of the service; and

(e) stipulate the period during which the service shall be provided.

[5] The terms stipulated by the arbitration tribunal are for all purposes deemed to constitute a contract concluded by the parties and may be enforced, amended or cancelled in the same manner as the terms of any other contract (s 15(5)).

[6] The Act does not confer any jurisdiction on a court to make a contract for the parties i.e. the contract between the parties or the terms stipulated by the arbitration tribunal cannot be amended or supplemented by a court.

[7] The standard of the service would of necessity depend on financial considerations. Rail commuter services in the various regions in South Africa, including the Western Cape, are being subsidised by the Department of Transport. In 2002 the subsidy amounted to approximately R93 million per month. Not being obliged to render a rail commuter service a court has no jurisdiction to order the Department of Transport to increase that subsidy. It follows that the terms of the contract or the terms stipulated by an arbitration tribunal and, therefore, the standard of the service rendered or to be rendered would depend on the subsidy the Department of Transport is prepared to pay.

[8] In the light of the aforegoing the phrase ‘a service that is in the public interest’ could not have been intended to mean more than a service from which the public would benefit in the sense that the public would be better off with the service than without it. To interpret the phrase so as to require a service of a higher standard may result in the public being deprived of a service from which they would benefit in the aforementioned sense and which the Department of Transport may be prepared to subsidise and make available to the public through the second and the third respondents. Such an interpretation would in fact be against the public interest. It is in the public interest that the public should have a service which would put them in a better position than the position in which they would be in if they have to go without the service.

[9] It follows that by providing that the service should be in the public interest the intention was not to prescribe the quality of the service to any greater extent than that the service should be a service benefiting the public in the sense aforementioned.

[10] The applicants did not make out a case that the public are no better off with the service provided in terms of the agreement between the first and the second respondents than they would have been without the service. Initially one of the applicants’ prayers was that the first respondent be interdicted from (a) operating any train on the Western Cape rail commuter service which was not staffed with at least three guards and one conductor; and (b) permitting any train on the Western Cape rail commuter service to stop at any station or platform ‘which is not manned with personnel responsible for and capable of providing proper and adequate safety services and providing control of access to and egress from rail commuter facilities used by the public and rail commuters’. However, when the first respondent indicated that it would then not be able to operate the service at all the respondents abandoned that prayer, thereby, by implication, conceding that the public is better off with the service than they would be without the service.

[11] The court a quo found that the manner in which the rail commuter services in the Western Cape are provided by the first respondent and ensured by the second respondent is not in the public interest insofar as (a) the provision of proper and adequate safety and security services; and (b) the control of access to and egress from rail facilities used by rail commuters in the Western Cape, are concerned. In para 1 of its order it made an order to that effect.² It arrived at this conclusion on the basis that it is in the public interest that public transport be provided which adheres to reasonable standards of safety, security and reliability.³ It then proceeded (a) to deal with the factual dispute as to whether improved access and egress control would reduce crime;⁴ (b) to refer to evidence to the effect that trains at times travelled with open doors;⁵ (c) to deal with the dispute of fact as to whether crime on commuter rail facilities in the Western Cape was disproportionately high⁶; and (d) to find that there are certain deficiencies in the present system of security and that there was a need for improvement⁷. It held that the evidence appeared to favour the applicants’ argument⁸ and concluded that the service does not meet the standards of a service run in the public interest.

[12] Apart from the fact that the court a quo ignored the well known Plascon-Evans rule⁹ in regard to disputes of fact and evidence contained in replying affidavits, it erred in finding that because of some deficiencies in certain aspects of the service provided by the first respondent, the service was not in the public interest. The Act does not prescribe that access and egress control or safety or security should be of a specified standard. It left it to the first and second respondents to negotiate or to the arbitrators to determine to what extent the available funds should be allocated to specific aspects of the service and what the standard of the various aspects of the service should be. The Act requires the service as a whole to be in the public interest. To determine whether that is the case all the features of the service, positive and negative, have to be taken into consideration and given such weight as is considered proper in the circumstances.¹⁰

[13] For these reasons the appeal against para 1 of the order by the court a quo (‘the court order’) should be allowed.

[14] In terms of para 2 of the court order the court a quo declared that the first and second respondents had a legal duty to protect the lives and property of members of the public who commuted by rail, whilst they were making use of rail transport services provided and ensured by, respectively, the first and second respondents.

[15] The court a quo held:

1. That the underlying obligations of first and second respondents were to be located in the Act.¹¹

2. That those obligations were similar to those imposed upon the respondent in Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae)¹² in terms of the South African Police Service Act 68 of 1995.¹³

3. That commuters enjoyed a constitutional right to life as well as a constitutional right to freedom and security of the person, which included the right to be free from all forms of violence from either public or private sources.¹⁴

4. That commuters who were subjected to violent crime which jeopardised their right to life and their right to freedom and security of their person were effectively remediless unless it could be said that a legal duty existed whereby first and second respondents had to act to minimise the extent of violent crime and lack of safety on the commuter rail service.¹⁵

[16] It does not follow from the fact that commuters enjoy the constitutional rights referred to that the first and second respondents have a legal duty to protect their lives and property whilst they are making use of rail transport services provided and ensured by respectively the first and second appellants. The court a quo apparently found that such a duty should be recognised in the light of the fact that, according to it, the underlying obligations of the first and the second respondents in terms of the Act were similar to those imposed on the South African Police in terms of the South African Police Service Act. However, the obligations of the first and second respondents in terms of the Act, cannot be equated with those of the South African Police.

[17] Section 205(3) of the Constitution reads:

‘The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.’

Referring to that section and to the fact that under the South African Police Service Act the functions of the police included the maintenance of law and order and the prevention of crime Vivier ADP stated in Van Eeden:¹⁶

‘The police service is thus one of the primary agencies of the State responsible for the discharge of its constitutional duty to protect the public in general and women in particular against the invasion of their fundamental rights by perpetrators of violent crime.’

[18] The first and second respondents are not agencies of the State responsible for the discharge of its constitutional duty to protect the public against invasion of their aforesaid fundamental rights. In terms of the Act the second respondent’s duty is to ensure a service in the public interest by way of a contract or arbitration. The first respondent’s obligations in terms of the Act are to be found in the contract it concluded with the second respondent. Whether those obligations give rise to a duty to protect the life and property of a member of the public depends on the terms of the contract and the circumstances of the particular case.

[19] For these reasons the appeal against para 2 of the court order should be allowed.

[20] In terms of paragraph 3 of the court order the first, second and third respondents were ordered to forthwith take all such steps as were reasonably necessary to put in place proper and adequate safety and security services which had to include steps to properly control access to and egress from rail commuter facilities used by rail commuters in the Western Cape.

[21] The order was based on the court a quo’s, in my view, erroneous, interpretation of the phrase ‘a service in the public interest’.¹⁷ It has financial implications. The court a quo was alive to that fact but, once again disregarding the Plascon-Evans rule in regard to disputes of fact and evidence contained in replying affidavits, it concluded that the evidence placed before it provided no support for the argument that affordability alone was an obstacle to the granting of the order. It stated, furthermore:¹⁸

‘This Court is required to determine whether there is a legal duty upon respondents in this case to provide improved security and safety for rail commuters. In the event that a duty is found to exist, respondents must find the resources to fulfil their legal duty.’

[22] As stated above it was for the first and the second respondents to determine how to allocate the available resources and if they could not do so for the matter to be determined by way of arbitration. By granting the order the court a quo was imposing a term on the contract between the first and the second respondents. It had no jurisdiction to do so.

[23] For these reasons I agree that the appeal against para 3 of the court order should be dismissed.

[24] I agree with the judgment of Howie P and Cloete JA in all other respects and, therefore, agree with the order.

_________________

STREICHER JA