The unhappy lot of the rail commuters also brings to mind long and hard public interest litigation that was waged around the turn of this century in the High Court in Cape Town, the Supreme Court of Appeal and finally in the Constitutional Court. When the highest court handed down judgment it characterised the issue facing it as follows:

“This application for leave to appeal raises the question of who bears responsibility for ensuring the safety of passengers travelling on commuter trains. The applicants assert that all the respondents bear obligations to ensure the safety of passengers, and also that all the respondents have failed to meet those obligations. The first three respondents argue that the South African Police Service (“SAPS”) bears the primary responsibility to ensure the safety of passengers, not the institutions that operate the trains nor the Minister of Transport.”

The SAPS was of course the fourth and last respondent in the case.

I should disclose an interest in the matter. Not only did the old SAR&H (South African Railways and Harbour) pay for my tertiary education out of the wages (plus tips) which I earned as a “varsity long vac job” steward on the mainline trains, I was also one of the team of counsel for the applicants in the case. The Rail Commuters Action Group and several individuals from various communities in Cape Town, who had been affected by the lack of safety and security on the commuter trains operating on the 690 km of Cape Town lines, launched an urgent application. In their papers they invoked various of the human rights of passengers and their loved ones, not least of which was the right to bodily and psychological integrity. At the time the police had 35 individuals covering the safety of the entire network.

My involvement in the case began with a phone call from an old school friend who at the time edited and published the People’s Post newspaper in Fishhoek. “What” he asked dramatically, “will they do to me if I torch a couple of carriages in the siding at Fishhoek Station?” I replied that he would be incarcerated for arson and that I would not visit him at Pollsmoor prison. It transpired that he was having difficulty getting the attention of the authorities following the death by stabbing of one of the most popular young men in Fishhoek, who was attacked by robbers on the train at Wynberg station. My friend was in search of accountability from those responsible for commuter safety.

It seems that burning carriages is still an attention getting alternative that is being resorted to with increasing frequency.

As an alternative to arson, the idea of the litigation was born, not without some lateral thinking and despite the widely held view that it would be impossible to get any legal relief for the distressed and beleaguered commuters.

The case changed my life. The power of public interest litigation to change the lives of ordinary folk for the better fascinated me and the willingness of the courts to do the right thing by the people kindled a career change that saw me leave the quite comfort of the Bar for the jungle of NGO activism.

The “urgent” application took over three years to find its way through the courts, but in the end the commuters triumphed, at least on paper. The Constitutional Court found that the rail authorities bear responsibility. The order made is instructive and ought to be obeyed to the letter by the rail authorities to this day. The finding against the rail authorities (the first and second respondents) was that they:

“…have an obligation to ensure that reasonable measures are taken to provide for the security of rail commuters whilst they are making use of rail transport services provided and ensured by, respectively, the first and second respondents.”

This conclusion was reached after the commuters had won much more detailed relief in the High Court and had lost completely and comprehensively in the Supreme Court of Appeal.

There are some gems in the unanimous decision of the Constitutional Court that ought to afford some comfort to those who still need to use trains to commute or may be contemplating some other form of public interest litigation.

First, on the topic of accountability:

“The principle of accountability, therefore, may not always give rise to a legal duty whether in private or public law. In determining whether a legal duty exists whether in private or public law, careful analysis of the relevant constitutional provisions, any relevant statutory duties and the relevant context will be required. It will be necessary too to take account of other constitutional norms, important and relevant ones being the principle of effectiveness and the need to be responsive to people’s needs.”

Second, on the reasonableness of measures taken:

“What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty-bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer. Thus, an obligation to take measures to discourage pick-pocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb. A final consideration will be the relevant human and financial resource constraints that may hamper the organ of state in meeting its obligation. This last criterion will require careful consideration when raised. In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bald assertion of resource constraints. Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state will need to be provided. The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision-maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.

“Metrorail and the Commuter Corporation deny that they bear obligations to rail commuters to protect their safety and security. They argue that it is the SAPS who bears such obligations, in terms of Section 205 of the Constitution, and not them. They accordingly clearly misconstrue the nature of the obligations imposed upon them.”

These carefully considered words from the pen of Justice Kate O’Regan have been called in aid by public interests litigants ever since. They have been relied on in later judgments of the court, most notably the Glenister litigation concerning the adequacy of the anti-corruption machinery of state. In the majority judgment of March 2011 in that case the legislature was exhorted by the court to make the decision of “a reasonable decision-maker in the circumstances” a notion clearly in sync with the above-quoted passage. The Peace Centre will shortly base its case impugning the adequacy of the current anti-corruption set up in SA upon the findings made that have been mentioned above.

Prasa would do well to reconsider its “Pontius Pilate” attitude.

The existence of a specialised Railway Police establishment until 1986 was able to keep criminality at bay on Cape commuter trains in a previous violent and unhappy century; perhaps it should be tried again. The newly established specialised and expertly trained unit in Cape Town may be the start of a turnaround strategy that could work. Despite the fact that the SAPS were exonerated in the Rail Commuters Action Group case, there are more than a thousand police personnel working on trains in the Western Cape today. DM