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

• Jurisdiction: South Africa
• Citation: 2003 (6) SA 349 (SCA)

Transnet Ltd t/a Metrorail and Others v Rail Commuters Action Group and Others
2003 (6) SA 349 (SCA)

2003 (6) SA p349

Citation	2003 (6) SA 349 (SCA)
Case No	148/2003
Court	Supreme Court of Appeal
Judge	Howie P, Streicher, Farlam, Navsa and Cloete JJA
Heard	September 9, 2003; September 10, 2003
Judgment	September 29, 2003
Counsel	J N S du Plessis SC for the first and second appellants.; M Donen SC (with him M Salie) for the third appellant.

Flynote : Sleutelwoorde G

Transport services — Provision of public service 'in the public interest' as required by ss 15(1) and 23(1) of Legal H Succession to the South African Transport Services Act 9 of 1989 — Discussion of meaning of — Three different meanings given by Judges of Supreme Court of Appeal.

Transport services — Railway — Safety and security of commuters on trains and stations — Railway policing — In provision of rail commuter service to I public — Maintenance of law and order and prevention of crime were functions transferred to South African Police in terms of s 1 of Transfer of the South African Railways Police Force to the South African Police Act 83 of 1986 — No provision made in Act for safety and security services to be provided by railway company to commuters — Sections 15(1) and J

2003 (6) SA p350

23(1) of Act not interpreted as conferring obligation on either first or second A respondent as providers of rail commuter service to protect constitutional rights by providing safety and security services.

Practice — Applications and motions — Dispute of fact — Applicants could not succeed because there were fundamental disputes of fact on papers — Disputes between applicants and first and second respondents simply not capable of resolution on papers — No proper case for relief sought made out — Application should have been B dismissed — Appeal succeeding.

Headnote : Kopnota

A group of concerned members of the public took the respondents to Court to address what they perceived to be the unacceptably high and escalating level of violence and lawlessness on commuter trains in the Western Cape. The Cape High Court granted them wide-ranging relief. The C first to third respondents appealed; and the applicants cross-appealed. The first applicant was a voluntary association of persons who had styled themselves the Rail Commuter Action Group. The association was formed to advance the cause of safe urban commuting by train in the Western Cape. It had no legal personality. The second to ninth applicants were all directly or indirectly affected by crime on D commuter trains in the Western Cape. The first respondent was Transnet Ltd, a public company established by the Minister of Economic Co-ordination and Public Enterprises pursuant to the provisions of the Legal Succession to the South African Transport Services Act 9 of 1989 (the Act). The State was the only member and shareholder of the first respondent. The second respondent, the South African Rail E Commuter Corporation Ltd, was also established in terms of the Act. The affairs of the second respondent were, in terms of the Act, managed by a board of control appointed by the third respondent, the Minister of Transport. The right of ownership in the rail commuter assets of the South African Transport Services (SATS) was transferred to the second respondent. The first respondent had a number of operational divisions, one of which was Metrorail. Metrorail operated a F railway commuter service in five urban regions, one of which was the Western Cape. It did so pursuant to a 'request' made by the second respondent as contemplated in s 15(1) of the Act and in terms of a service agreement concluded with the second respondent, also as contemplated in s 15 of the Act. The fourth respondent was the Minister of Safety and Security, cited in his capacity as the member of G Cabinet charged with the responsibility for policing. The fifth respondent was the Member of the Executive Council for community safety, Western Cape Province. There was no appeal against the order granting the amendments of the notice of motion, but there was an appeal by the first and second respondents against the costs order made against them. In addition, the respondents sought the reversal of the costs orders in certain striking-out applications. H

Held (per Howie P and Cloete JA), that, in establishing the meaning of 'in the public interest' as contemplated by s 15(1) and s 23(1) of the Act, the Court a quo had lost sight of the purpose behind the Act. The ordinary meaning of 'public interest' considered by the Court a quo offered no real assistance. The phrase by itself was not capable of clear and comprehensive definition. The answer must lie in an analysis of the context provided by the Act and its predecessor, the South African I Transport Services Act 65 of 1981. (Paragraphs [14] and [15] at 364I - 365B.)

Held, further, that the 'public' contemplated was 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 J

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to in s 15(11). Section 7(1) of the 1981 Act provided, inter alia, that SATS should be A 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) imposed no greater obligation than to serve those needs. (Paragraph [17] at 365F - G.)

Held, further, that, first, it meant for the purpose of public transport. Secondly, the phrase had the purpose of making it clear, particularly because of the possibility of privatisation of the B 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. (Paragraph [17] at 365G - H.)

Held, further, that the maintenance of law and order and the prevention of crime (on trains) were functions which had previously been entrusted to the South African Railway Police Force. The Railway Police Force was dissolved and its functions and members were C transferred to the South African Police in terms of s 1 of the Transfer of the South African Railways Police Force to the South African Police Act 83 of 1986. The Act and in particular s 15(11) made 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. (Paragraph [17] at 365H - 366B.) D

Held, further, that ss 15(1) and 23(1) of the Act did not have to be interpreted, and could not properly be interpreted, as conferring an obligation on either the first or second respondent to protect the rights mentioned by providing safety and security services. That was the function of the South African Police Service (SAPS) which arose from the express provisions of s 205(3) of the E Constitution. (Paragraph [18] at 366D - E.)

Held, further, that urban rail commuters had no greater rights under the section than travellers on mainline trains, the airways or railway buses or than users of the harbours or visitors to SATS-owned buildings. Moreover, as a public carrier the first respondent had contractual and delictual obligations and if these required development in satisfying constitutional rights it was in that F context that s 39(2) of the Constitution would play a role, not in stretching the language of the section beyond limits its wording could accommodate. (Paragraph [19] at 366H/I - J.)

Held, further, that it was not competent for the applicants to seek to prescribe, amend or supplement the terms of the agreement, which had in terms of s 15 of the Act to be settled between the first and second respondents, and this was particularly so where more G onerous obligations in regard to operational safety and security of commuters would clearly have had cost consequences for the contracting parties. (Paragraph [20] at 367D - E.)

Held, further, that the applicants could not succeed because there were fundamental disputes of fact on the papers which altogether precluded the Court a quo from granting the relief which it did in paras 1 to 3 of its order. Faced with extensive disputes of H fact, the Court a quo concluded that 'the evidence appeared to favour applicants' argument'. That approach conflicted with the trite principles delineated by this Court in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A) at 634E - 635C. The disputes between the applicants and the first and second respondents were simply not capable of resolution on the papers. (Paragraphs [20] and [22] at 367E/F - F and 367J - 368B.) I

Held, further, that rail commuters were justified in being concerned about crime on trains. It would be irresponsibly dismissive for Courts not to share that concern. The vast majority was compelled to use trains because they could not afford other transport. However, Courts were not at large to go further and grant relief when no proper case for it has been made out. Unfortunately J

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for the applicants and their cause, their case was seriously flawed in fundamental respects. A (Paragraph [35] at 372B - C.)

Held, further, that the incorrect view of the Court a quo of the merits led to an incorrect view of the interlocutory costs. It followed that all the costs orders in favour of the applicants in respect of the amendment and striking-out applications should be set aside. (Paragraph [39] at 372J - 373A.)

Held, further (per Streicher JA), that the phrase 'a service that is in the public interest' in ss 15 and 23 the Act B meant 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...