Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others

• Jurisdiction: South Africa

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others
2005 (2) SA 359 (CC)

2005 (2) SA p359

Citation	2005 (2) SA 359 (CC)
Case No	CCT 56/03
Court	Constitutional Court
Judge	Langa DCJ, Mokgoro J, Moseneke J, O'regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	August 17, 2004; August 18, 2004
Judgment	November 26, 2004
Counsel	M Seligson SC and R P Hoffman SC (with them D J Dippenaar) for the applicants.; J J Gauntlett SC and J N S du Plessis SC (with them K Pillay) for the first and second respondents.; M Donen SC (with him M Salie) for the third respondent.; P B Hodes SC and R T Williams SC for the fourth respondent.

Flynote : Sleutelwoorde B

Transport services — Railway — Safety and security of commuters on trains and stations — Duties of commuter rail service providers — First and second C respondents (Metrorail and Commuter Corporation) bearing certain obligations in terms of ss 15(1) and 23(1) of Legal Succession to the South African Transport Services Act 9 of 1989 (SATS Act) — Those obligations having to be interpreted in light of provisions of Bill of Rights — Institutions such as Metrorail and Commuter Corporation, which are organs of State performing public functions and providing certain public services, D should be held accountable for provision of those services — Constitution affirming accountability as value governing public administration — Metrorail having obligation to provide rail commuter services in way consistent with constitutional rights of commuters — In absence of public law obligation of kind contended for by applicants, no way of ensuring E that Metrorail complying with this duty — Metrorail and Commuter Corporation bearing positive obligation arising from applicable provisions of SATS Act and Constitution to ensure that reasonable measures in place to provide for security of rail commuters when providing rail commuter services under the SATS Act.

Public service — Provision of public service 'in the F public interest' as required by ss 15(1) and 23(1) of Legal Succession to the South African Transport Services Act 9 of 1989 — Meaning of discussed — Narrow definition of 'public interest' inappropriate — Formulation of duty imposed on Metrorail and Commuter Corporation not flowing from narrow interpretation of phrase. G

2005 (2) SA p360

Constitutional law — Human rights — Right to A life — Commuters enjoying constitutional right to life, freedom and security of person, including right to be free from all forms of violence from either public or private sources — Constitution, s 11.

Constitutional law — Human rights — Right to freedom and security of person — Commuters enjoying B constitutional right to life, freedom and security of person, including right to be free from all forms of violence from either public or private sources — Constitution, s 12.

Constitutional law — Organ of State — Accountability of — Organs of State performing public functions and providing public service to be held accountable for provision of such service — Must provide service in way consistent with constitutional rights of users of service. C

Constitutional practice — Courts — Constitutional Court — Jurisdiction — To determine constitutional issue involving disputes of fact — Such disputes of fact constituting 'issues connected with decisions on constitutional matters' as intended in s 167(3)(b) of Constitution — Court accordingly often obliged to D determine on appeal facts of matter in order to determine constitutional claim before it — Opposite conclusion would lead to frustration of Court's ability to fulfil constitutional task of determining constitutional matters — Accordingly, where dispute of fact existing on papers in application for constitutional relief, identification of facts on which constitutional matter to be adjudicated constituting issue 'connected with decision on constitutional matter' falling within jurisdiction of Court. E

Constitutional practice — Appeal — New evidence on appeal — Stringent test adopted for admission of new evidence on appeal in terms of Rule 19(3)(c) read with Rule 31 of Constitutional Court Rules, alternatively Supreme Court Act 59 of 1959 (incorporated into said Rules by Rule 30 of Constitutional Court Rules) — Rule 19 not vehicle for F admission of new evidence on appeal — New evidence admissible on appeal, including in motion proceedings, in terms of s 22 — Court required to exercise powers conferred by s 22 'sparingly', and further evidence on appeal falling outside ambit of Rule 31 to be admitted only in exceptional circumstances — Such evidence having to be weighty, material and to be believed — Furthermore, reasonable G explanation for its late filing being important factor — Existence of substantial dispute of fact would militate against its being admitted.

Constitutional practice — Appeal — Affidavits — Late filing of — Regrettable practice that affidavits tendered on appeal often only days before appeal hearing, if not on day of H appeal itself — This being unacceptable practice which has to be discouraged — Late filing of affidavits in circumstances not meeting stringent test for admission set out in present judgment will not be permitted by Constitutional Court — Attorneys should take care to consider test for admission of late affidavits and satisfy themselves before filing affidavits that they do qualify for admission in terms of Rules of Court and principles elucidated in present judgment. I

Headnote : Kopnota

The first applicant, the Rail Commuters Action Group (the commuter association), was a voluntary association representing the interests of rail commuters in the Western Cape. The second to ninth applicants were all individuals who had been affected by violent crimes committed on Metrorail trains. J

2005 (2) SA p361

The first respondent was Transnet Ltd, a public company with share capital, but in which the State was the only A shareholder. It was formed in terms of s 32 of the Legal Succession to the South African Transport Services Act 9 of 1989 as amended (the SATS Act). Metrorail was one of the five business units of Transnet Ltd, but it lacked a separate legal personality. The second respondent was the South African Rail Commuter Corporation Ltd (the Commuter Corporation), a legal person established in terms of s 22 of the SATS B Act. The third respondent was the Minister of Transport, and the fourth respondent was the Minister of Safety and Security. The applicants brought an application in a High Court for declaratory, mandatory and prohibitory relief against the respondents in order to address the problem with safety of commuters on Metrorail trains in the Western Cape. Their application succeeded, and the respondents C appealed to the Supreme Court of Appeal (SCA). The SCA found, inter alia, that the disputes of fact could not be resolved on the papers, and upheld the appeal. The applicants then approached the Constitutional Court for leave to appeal. The relief sought was of three kinds: Declaratory, mandatory and prohibitory. As to declaratory relief, the applicants sought an order declaring, first, that the manner in which commuter rail services were operated in the Western D Cape was not 'in the public interest' as contemplated in ss 15(1) and 23(1) of the SATS Act; and, secondly, that the first to third respondents and the SAPS had 'a legal duty to protect the lives and property of rail commuters in the Western Cape, while they (were) making use of rail transport services'. The mandatory relief sought required the respondents forthwith 'to take all such steps (including interim steps) as (were) reasonably necessary to put in E 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 . . . enshrined in the Constitution, to life, to freedom from all forms of violence from private sources and to human dignity'. The relief sought placed respondents on terms to report on oath, within four months of the date of the order to the High Court, on the steps they had taken to F comply with the order. The prohibitory relief would restrain Metrorail from operating rail commuter services otherwise than in accordance with the terms of its general operating instructions.

Additional affidavits lodged with the Court on appeal

Some time after the lodging of the application for G special leave to appeal, the parties lodged a number of further affidavits. The applicants contended that those affidavits constituted further information as contemplated within Rule 19(3)(c) read with Rule 31 of the Constitutional Court Rules. The applicants sought the admission of the initial supplementary affidavits on the basis of Rule 19(3)(c) read with Rule 31 of the said Rules. In relation to the other subsequent affidavits, they relied not H only on Rule 19(3)(c) read with Rule 31, but also on s 22 of the Supreme Court Act 59 of 1959, which was incorporated into the Constitutional Court Rules by Rule 30.

Held, that Rule 19 could not, despite the changes adopted in the 2003 Rules, be used to secure the admission of new evidence on appeal. (Paragraphs [36] - [37] at 386B and E.)

Held, further, that since all the late-tendered evidence had I been put in issue by the respondents, none of it fell within the ambit of Rule 31, and that the affidavits lodged at the time of the application for leave to appeal fell to be excluded on that basis alone. (Paragraph [38] at 387C - D.)

Held, further, with regard to the new affidavits the applicants sought to tender after the application for leave to appeal, that, insofar as reliance was placed (albeit in the alternative) on s 22 of the Supreme Court Act, the new J

2005 (2) SA p362

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