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South Africa: Supreme Court of Appeal |
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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:
________________________________________________________________________________
J U D G M E N T
________________________________________________________________________________
FARLAM and NAVSA JJA:
[1] We have had the benefit of reading the judgment of Howie P and Cloete JA. We agree with the order proposed by them but find ourselves unable to agree with their approach to the interpretation of the phrase ‘in the public interest’ in ss 15 and 23 of the Legal Succession to the South African Transport Services Act 9 of 1989 (‘the Act’).
[2] In our view the error made by our learned colleagues in paragraph [17] of their judgment is that they hold the phrase ‘in the public interest’ in ss 15 and 23 of the Act imposes no greater obligation than what was described in s 7(1) of the South African Transport Services Act 65 of 1981 as ‘the total transport needs of the Republic’. In our view this is too narrow an approach and one that ignores a significant change of wording and the deliberate choice by the legislature of the wider expression ‘in the public interest’.
[3] Writing in (2003) 120 The South African Law Journal (pp 322-329) on the approach of the Supreme Court of Canada to the interpretation of words in statutes when dealing with administrative law problems the distinguished administrative law scholar and judge of the Federal Court of Canada, Appeal Division, John M Evans, inter alia states the following at 326:
‘(a) While dictionaries provide the range of meanings that words can bear in “ordinary speech”, the particular shade of meaning to be attributed to a given word or phrase is derived from the context in which it is used. In the case of statutory language, the interpretative context includes: the overall purposes of the statute; the legislative history of the scheme and the Act; the function in the statutory scheme of the particular provision in dispute; and the impact of the legislation on fundamental individual rights and constitutional values, including, in particular, those protected by constitutional and quasi-constitutional instruments, and by international legal norms.’
This approach is consonant with the approach of our courts.
[4] In Carmichele v Minister of Safety and Security 2001(4) SA 938 (CC) at para [54] the following was said:
‘Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system. As was stated by the German Federal Constitutional Court:
“This jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the Legislature, Executive and Judiciary.”
The same is true of our Constitution. The influence of the fundamental constitutional values on the common law is mandated by s 39(2) of the Constitution. It is within the matrix of this objective normative value system that the common law must be developed.’
[5] In Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) at para [33] at 692E-G Chaskalson P said the following:
‘The control of public power by the Courts through judicial review is and always has been a constitutional matter. Prior to the adoption of the interim Constitution this control was exercised by the courts through the application of common-law constitutional principles. . . The common-law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution and, insofar as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts.’
In para [50] of the same judgment at 698D-F the following appears:
‘What would have been ultra vires under the common law by reason of a functionary exceeding a statutory power is invalid under the Constitution according to the doctrine of legality. In this respect, at least, constitutional law and common law are intertwined and there can be no difference between them. The same is true of constitutional law and common law in respect of the validity of administrative decisions within the purview of s 24 of the interim Constitution. What is “lawful administrative action”, “procedurally fair administrative action” and administrative action “justifiable in relation to the reasons given for it” cannot mean one thing under the Constitution and another thing under the common law.’
[6] The proper approach to a case in which a court is asked to interpret a provision of a statute so as to incorporate constitutional norms is to consider inter alia its context, the overall purpose of the statute, the legislative history and to hold the provision concerned up to constitutional scrutiny.
[7] The privatisation of transport services is clearly one of the objects of the Act. However, it is clear that privatisation of the rail commuter service is still in a transitional phase. It is clear as set out in paras [4] and [5] of the judgment of our learned colleagues that the State, through the scheme of the Act, is still in effect the controller and provider of this service. Put differently, even though the provision of the rail commuter service in the present case is regulated by a written agreement it is nevertheless pursuant to the statutory scheme and is ultimately the exercise of public power. It is common cause that the rail commuter service is unlikely ever to be profitable and presently serves mainly the needs of the indigent. It is surely unarguable that the provider of such a (state subsidised) service through a statutory scheme in a constitutional state such as ours is obliged to render such services in a manner contemplated in the empowering statute and not in conflict with constitutional norms. For example a discriminatory commuter service based on racial lines would clearly be unlawful and challengeable at the instance of a member of the public. A rail commuter service using coaches built with materials hazardous to public health could, in appropriate circumstances, conceivably be challenged by an interested member of the public. In the first example not only would there be a breach of s 9 of the Constitution (the equality clause) but it would also be a service not in the public interest. In the last mentioned example it is arguable that the service would offend against a commuter’s right to an environment that is not harmful to his or her health or well-being as protected by s 24 of the Constitution. The service rendered would also not be in the public interest.
[8] The problem for the applicants in the present case is that they failed to provide any basis for judicial intervention. First they attempted to cast upon the providers of the commuter rail service the overall responsibility for maintaining law and order on trains. Second they failed to show factually in circumstances in which arguably the providers of the service have some security responsibilities that such responsibilities were not being discharged. Third they sought an order the effect of which would be to involve the court in venturing into areas outside its jurisdiction, namely, of policy and budgetary allocation. These are matters, which in a constitutional state based on the doctrine of the separation of powers are not appropriate for judicial intervention. On these aspects we are in full agreement with our colleagues.
[9] A distinction should be made between non-sustainable cases and cases in which members of the public could conceivably mount a challenge to the manner in which rail commuter services are rendered. To limit commuters to their contractual and delictual remedies is to take too narrow a view.
[10] We have also had the advantage of reading the judgment of Streicher JA. We note that in his approach to the interpretation of the phrase in question he considers it appropriate to take constitutional values into account. We disagree with him that the phrase means no more than that the rail commuter service should be a service benefiting the public in the sense that the public would be better off by having the service than being without it. We adopt the approach set out above.
_______________
IG FARLAM
Judge of Appeal
_______________
MS NAVSA
Judge of Appeal
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.RTF of original document