When a government grants a company concessionary rights, you get the worst of both worlds: a private monopoly combined with the government's monopoly on force produces the most authoritarian of bureaucracies.
The Gautrain is a case in point. Last week, a group of South Africans replicated a public transport prank started by Improv Everywhere in New York City. No sooner had they shed their pants on the Gautrain, than security guards corralled them and hauled them off, in handcuffs, to the police station.
To the credit of the police, they couldn't think of anything with which to charge the group – all of whom were still wearing boxers or shorts after they removed their longs pants. The Gautrain operating company, Bombela, however, was not satisfied with having detained the participants for several hours, and reportedly fined them R700 each.
"Don't believe everything you read in the media," said a senior spokesperson for the Bombela Concessions Company, who did not want to be named if he was not permitted to see this column prior to publication.
However, several newspapers, including the Mail & Guardian, Times LIVE, News24, The New Age and, indeed, the Daily Maverick, quoted more than one participant about the fines. The unnamed spokesperson admitted that Bombela did levy fines against them, but would not confirm the amount. He said the company is "meeting with representatives" of the culprits over how to proceed.
Their crime is outlined in point 8.1(j) of the Gautrain's extensive list of rules. It states: "[No person may] enter into and remain in a Gautrain vehicle when, in the reasonable opinion of a Gautrain Official or a Gautrain Security Official, his or her clothing is unfit or improper ..."
The Bombela Concession Company, as the name implies, seeks monopoly profit opportunities from government concessions. Gautrain is one such project, run by Bombela on behalf of the Gauteng Provincial Government, which owns the taxpayer-funded infrastructure. In terms of the Control of Access to Public Premises and Vehicles Act no. 53 of 1985, a special law grants Bombela officials wide-ranging powers of search, seizure and detention.
Contrast this with a private establishment. Behaviour that the owner does not like can, at best, be met with ejection. A club owner, for example, who not infrequently has to deal with rowdy or drunken behaviour, has no powers to detain anyone unless they commit a criminal offence such as assault or damage to property, and can under no circumstances fine someone for misbehaviour. They, like anyone else in civilised society, rely on the police to take action.
Not so for the Gautrain, which has a law unto itself.
Admittedly, the rebels were silly to think shorts would be considered fit and proper in the "reasonable opinion" of an "official". Next they'll be wearing pre-bleached jeans or socks with sandals, or expose muffin tops and whale tails. That would make public transport as unbearable as it is in London or New York.
Still, as reasonable as it seems to put Gautrain officials on fashion police duty, a diligent reading of the entire 15-page list of rules (only a few of which appear on public information posters) raises more serious concerns.
The fine for a "level three" offence, under which fashion no-nos are classed, is R600. If one does believe the publications cited earlier, a R700 fine seems a clear violation of section 4.2 of the Gautrain rules, which states: "A person issued with a penalty notice for contravention of or failure to comply with a Rule mentioned in Column 1 of Annexure 'A', may be issued with a penalty notice for a penalty not exceeding the amount mentioned in Column 2 of Annexure 'A' opposite the number of that Rule."
That's Mr Rule to you.
To add insult to injury, deliberate fare-dodging – which you might think is a crime on a par with shoplifting – is only a "level two" violation, subject to a lesser fine. The reasoning, the anonymous spindoctor explains, is because this affects only the fare-dodger, while violations of behaviour rules might affect the safety and security of other passengers.
Still, it seems odd to pay only R400 for fare-dodging, and be fined R600 for, say, singing. Or putting your feet on a Gautrain seat. Or insulting someone. Or chewing gum. Or shouting. Or playing a portable radio. Or swearing. Or taking a photo on the Gautrain.
You read right. All of those are "level three" offences jeopardising safety and security, ranked just below "Serious Transgressions: Criminal Offences" such as sabotage, arson or "participating in a demonstration".
The age-old tradition of busking at train stations is also verboten. "[No person may without authorisation] use any kind of musical instrument, radio sound system or other equipment capable of producing or reproducing sound within the premises or a vehicle of the Gautrain network."
Do mobile phones count? After all, they do fit the description.
Of course, you could just ignore the rules that appear to be insane. The Bombela spokesperson says passengers routinely do so by taking photographs, for example. The company doesn't mind, as long as it can take action if you take "photographs of an inappropriate nature".
Presumably that is not meant to refer to racy photos, since those will merely compound the offence of wearing "unfit or improper clothing". The company must mean casing the joint for criminal purposes.
While it seems reasonable to safeguard public transport facilities against terrorist plots, and indeed, it is standard practice for public transport systems worldwide, one might hope that a would-be terrorist does not merely run up a fine or two while preparing Gautrain's doomsday.
"What we want to do is establish and operate a system that is safe and comfortable and reliable to use," the anonymous Bombela man said. That intent does not, however, make banning all photography – "8.4.(c) [No person may] take photographs or record images" – any less ridiculous. Inevitably, passengers will ignore such broad rules as pointless, stupid and worthy of petty acts of rebellion. Besides, how will officials spot plotters who take "inappropriate" pictures if they don't enforce a blanket ban?
If you do get a fine and you don't pay – perhaps because you were begging and you haven't made R600 yet – you could be hauled off to court according to section 4.3 of the rules. Clause 4.4 makes you liable for the Gautrain's legal expenses. In 4.5, Bombela gets the right to blacklist you with a credit bureau.
Although a good lawyer might get you off on the grounds that the relevant Gautrain rule says "bereau", the potential consequences of taking a photo or a sip from a water bottle are severe, and entirely at the discretion of Bombela officials.
"I'd be surprised if an offence of that nature went to that extent," said the nameless one, "but the long and the short of it is that our authority to levy fines is a legally devolved authority."
Your average passenger would be equally surprised to find that it is possible, and indeed legal, for a two-bit official to ruin their credit record because of some petty misdemeanour listed somewhere in a lengthy legal document hidden deep on the Gautrain website.
So, next time you buy a train ticket, do your homework. Then ask yourself one question: Do I feel lucky? Well, do ya, punk? DM
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