The Constitutional Court has given rail commuters a reason to celebrate and reaffirmed their right to be safe from crime.
Last week the Constitutional Court ruled that Metrorail and the South African Rail Commuter Corporation (SARCC) were responsible for the safety of train passengers, effectively overturning the findings of the Supreme Court of Appeal (SCA).
The case was brought by the Rail Commuters Action Group and other individuals who had been assaulted or whose loved ones had been injured or killed while travelling on trains. They sued Metrorail and the SARCC, arguing that the two bodies and the ministers of transport and safety and security were responsible for the safety of commuters.
The decision has been hailed as a victory for poor people because, as the court noted, “average monthly income of rail commuters per province is also very low”. In the year 2000 it varied from R1 868 for the Free State to R3 265 for the Western Cape. “The Western Cape has the highest per capita income probably because of the fact that it has one of the few commuter rail routes that services a suburban area. Commuter rail services thus provide poor communities with essential public transport,” said the judgement.
The Constitutional Court cleared the South African Police Service as well as the minister of transport, saying “it is true, as the High Court noted, that the minister appoints and dismisses the members of the Board of Control of the Commuter Corporation, but that does not mean that the minister bears the obligations of the Commuter Corporation”.
The judgement also underscored accountability as a core value of public administration. “Accountability of those exercising public power is one of the founding values of our Constitution and its importance is repeatedly asserted in the Constitution,” said the unanimous judgement written by Judge Kate O’Regan.
The judgement was a victory of substance over legal terminology. The SCA had remarked that “the applicants’ case has been characterised throughout by a singular lack of direction”. The Constitutional Court found that “the vacillation in the precise terms of the relief sought, however, should not blind us to the fact that the thrust of the applicants’ case throughout has remained unchanged. They seek to establish that the respondents bear a legal obligation (based on statute, delict and/or the Constitution) to take steps to ensure the safety and security of rail commuters who travel on Metrorail trains.”
Metrorail and the Commuter Corporation had disputed that they were under any obligation to protect rail commuters from crime while they were travelling on Metrorail. They claimed it was the responsibility of the police, in terms of Section 205 of the Constitution. The police replied that their responsibilities extended to the whole country and they could not be expected to perform “guard duties” for Metrorail and the Commuter Corporation.
The court ruled: “It does not matter who provides the [security] measures, as long as they are in place. The responsibility for ensuring that measures are in place, regardless of who may be implementing them, rests with Metrorail and the Commuter Corporation.” It found that rail commuters were particularly vulnerable because once they had entered the train they could not get out until it was stationary, which made them sitting ducks for criminals.
The court declined to make specific recommendations relating to security measures, but said the security provision should be adequate to deal with the risks involved. “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 pickpocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb.”