Tracey Farren
Exactly a year after 20-year-old Juan van Minnen was stabbed to death on a homebound train, a Western Cape organisation the Railway Commuter’s Action Group (RCAG) is taking Metrorail to court for failing to protect train passengers.
Also summoned to a hearing in Cape Town’s High Court in June are the South African Rail Commuter Corporation, the minister of transport and the national and Western Cape ministers of safety and security.
The RCAG claims Metrorail is violating its “contract of carriage” with commuters by allowing loss, injury and death on its trains. The group charges the government with failing to protect passengers, despite ample “prior knowledge” of gang hot spots and the high risk of attack on Western Cape trains. The police, it submits, are failing in their mandate to protect the most vulnerable sectors of society.
Van Minnen’s murder triggered the formation of the RCAG, which is joined in its application by his father and Jane Styer, a 40-year-old commuter who fractured her skull and lost part of her hearing after thieves pulled her out of a moving train.
The applicants are determined to maintain an urgent momentum. Other than the payment of legal costs, they demand immediate protection on trains and that “trains must not stop” at unmanned stations. In the longer term, they ask the court to direct Transnet (trading as Metrorail), the South African Rail Commuter Corporation and the Ministry of Transport to spend R15,2-million a year on the provision of safety services on Western Cape railways.
In the meantime, they have asked for access to an exhaustive list of documents and tapes relating to rail safety. The RCAG’s attorney, Francois Theron of the firm Heyns and Partners, says they are expecting an avalanche of paper. Metrorail appointed a special consultant to start collating the material after the RCAG served it a letter of demand in August last year.
Determined not to get “buried in paper”, Theron has organised an unprecedented amount of legal back-up. He approached prominent members of the Cape Bar to help on a contingency basis and received offers from about 20 advocates. Louis du Preez of Jan S de Villiers, the legal firm assisting Metrorail’s lawyers, Napoleon and Vogel, confirms that this is “certainly the biggest case ever in the rail commuter industry” and that the volume of paperwork sets a new record in the country.
In their final affidavit the applicants warn that “lack of funds” will not vindicate Metrorail or the South African Rail Commuter Corporation. They point to evidence of “mismanagement” like the fact that vandalism in the Western Cape costs Metrorail R8,2-million a year and that Metrorail reported a national loss as a result of fare evasion of R150-million to R170-million last year.
They also raise the ugly issue of fraud, referring to an inquiry ordered by President Thabo Mbeki in 1999 into unlawful conduct within the company. Ironically many allegations of rigged tenders relate to security upgrades.
Metrorail spokesperson Riana Jacobs says rail crime statistics and “anything to do with rail safety” are now sub judice. Metrorail’s statistics, by its own admission, are unreliable. Metrorail relies on police records to supplement its own, but South African Police Service media officer Puti Putati says that it does not separate statistics relating to railway crime.
The confusion over statistics reflects the historical haggle between Metrorail and the police over responsibility for rail safety. The Department of Transport’s railway police were phased out during the late Eighties and rail safety passed into the hands of the South African Police. The police’s containment of political and criminal violence on trains proved inadequate and a 1992 sit-in of the African National Congress, South African Communist Party, Congress of South African Trade Unions alliance resulted in Spoornet’s agreeing to establish a rail guard. A commission led by Judge Richard Goldstone in the same year came to the same conclusion. In 1994 the restructuring of the police force and rising crime rates resulted in the disbanding of police mobile units dedicated to rail protection.
The new Metrorail was not at all satisfied with full responsibility. In 1999 a working committee of the police and Metrorail ended in a stalemate. While they agreed that there should be a single command transit police, they could not decide who should fund it.
The situation came to a head in February 2001 when national Police Commissioner Jackie Selebi drastically cut the number of police patrolling trains. The year saw dramatic evidence of railway dysfunction all over the country. Seven people were killed in a stampede at Johannesburg station. Rampant commuters set Pretoria station alight. Rail crime spun out of control in the Western Cape, sparking the threat of litigation.
Minister of Transport Abdullah Omar announced that he would fast-track new safety measures, like the establishment of a regulatory body responsible for rail safety. Transport ministry spokesman Ndiboya Mabaya says that it is already “up and running”, despite the fact that public hearings on the associated Bill have only just been held. In February Omar reported that the Cabinet has agreed to a special transit police unit. It appears that this time the police have caught the ball, for spokesman Mike Mabasa says the police are “to take a lead in rail security”.
However, even if the government suddenly solves the issue, the case will continue. The applicants say that they want to lay a framework for future claims. At the moment, letters to Metrorail asking for help after serious injury, even death, are met with a standard few paragraphs denying responsibility. Martin Frylinck, chair of the RCAG, says: “We are not suing anyone. We just want to clarify who is responsible. We will stand back after that. Then the people can sue.”
The RCAG has set up a help line for people who are prepared to tell their stories: (021) 424 3666