Last year a rail commuter action group, together with other applicants who were either victims of crimes committed on commuter trains or widows of persons who died as a result of acts of violence committed on the trains, brought an action before the Cape High Court.
The basis of the application turned on whether the rail commuter service in the Western Cape provided by Metrorail had been conducted in the public interest. The main issue concerned the provision of proper and adequate safety and security services and the control of access to and egress from rail commuter facilities.
The applicants sought orders to the effect that Metrorail and the South African Rail Commuter Corporation (SARCC), together with government departments, failed to provide policing on commuter trains in the Western Cape. In particular, they contended that Metrorail had a contractual obligation to convey fare-paying passengers safely and securely on commuter rail services.
Metrorail was in breach of such duty in that it had failed to provide and/or fund proper and adequate safety and security services.
Judges Dennis Davis and Belinda van Heerden upheld the application. They found that Metrorail and the SARCC had a legal duty to protect the lives and property of rail commuters. The duty was based primarily on the statutory duty imposed upon Metrorail and the SARCC to provide rail commuters services in the public interest.
The court held that these respondents had to formulate and implement a policy that promoted the general welfare of the public that used the commuter rail facilities. The court concluded that the respondents should be ordered to take such steps as were reasonably necessary to put proper and adequate safety and security services into place.
While the court was not prepared to make any order relating to the allocation by the government of adequate funding towards the provision of proper and adequate safety and security services, it held, notwithstanding the respondents’ contention to the contrary, that the evidence placed before it did not provide any support for the argument that affordability alone was an obstacle to the granting of the order.
The respondents were directed to present a report to the court as to the implementation of such measures within a period of four months from the date of the order.
This judgement (which is likely to be examined by higher judicial authority) follows hard on the heels of earlier Constitutional Court judgements of the Grootboom and the Treatment Action Campaign (TAC) cases. It again raises the question as to whether unelected judicial officers have a right to hand down orders that may have far-reaching policy and financial implications for other arms of the government and public institutions.
There can be no argument that the judiciary, as a watchdog, must ensure that the policies the government implements are reasonable and rational. It can and will be argued that a judgement such as in Metrorail is an improper use of judicial power in that a court is not empowered to tell the government what policy it ought to implement, and when it does so it constitutes a serious violation of the separation of powers doctrine.
As the Constitutional Court said in Soobramoney, difficult and agonising judgements have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of people. This decision about allocation is not a judgement that the court can make. Any decision as to how a budget must be spent should be taken by the executive, not by judges sitting in the high court.
This argument is a powerful one, but is not without its counter. Our Constitution clearly imposed upon judges a series of onerous obligations to ensure that public institutions perform in terms of the spirit, purport and objectives of our Constitution — which means ensuring the promotion of a society based on human dignity, freedom and equality. Where public institutions formulate or implement policy that breaches these fundamental principles, courts may well be obliged to provide relief to citizens for whose benefit the Constitution has been formulated.
In performing this task, as with the TAC and Grootboom cases, the relief granted to applicants may have serious budgetary implications for the government. A further and related point concerns the reasons as to why commuters have sought to employ the costly option of approaching the court for relief.
That they consider they have no other option reflects on the efficacy of the government’s policy in transforming our society to ensure vastly improved living conditions for the majority of the citizenry, who bore the brunt of apartheid’s yoke. Viewed in this context, regular recourse to the courts for relief reflects a failure of the government rather than an overreaching of powers by the judiciary.