Accountability and Mobility (cont.)
In the corporate and official policy making contexts accountability means that those who take decisions and actions should be able to justify the former and explain the latter. Policy makers have to ensure that their conduct is consistent with the Constitution, our national blue-print for a better life, while those in the corporate world have the additional burdens of the draft King III Code of Conduct to consider on the economic, environmental and social fronts.
Mobility on the other hand is all about access. Access to a place of work, a family abode, an educational facility, a place of worship or of play, access to services such as health care, food distribution and retail outlets are all encompassed by using one’s mobility to "get there" and back safely. The journey is the means to these ends.
In June 2001 a young engineering student from Fish Hoek, Juan van Minnen, was fatally wounded in a knife attack on him while traveling on a commuter train as it pulled into Wynberg station. He was going to the aid of a friend, whose bag was being ripped off him by a gang of thugs, when he was stabbed in the neck. Next day Juan’s parents had to make the agonizing decision to disconnect the life support systems keeping him alive at Grootte Schuur Hospital.
The death of Juan turned out to be a tipping point. He was popular in his community and its outrage at the lack of accountability and indifference of the rail and police authorities sparked the formation of the Rail Commuters' Action Group (RCAG) at a town hall meeting called to hold the authorities to account for the unacceptably high rates of crime on commuter trains in the Western Cape in general and on the Simon’s Town line in particular. The RCAG left no stone unturned in its ongoing campaign to promote safety for rail commuters.
After the demise of the Railway Police in 1987 the provision of security services on trains became a contested obligation. The SAPS and its predecessor did not consider themselves to be railway guards and the train authorities did not regard themselves as police personnel. Into the void created by these conflicting attitudes came hordes of young criminals, easily able to prey on passengers who are effectively trapped in a confined space and legally unable to bear arms to protect themselves. By the time Juan died there were a total of 35 police personnel responsible for crime prevention and combating on the entire peninsula rail system of almost 700 kilometers of railway lines.
The RCAG took legal advice and sued for a declaration of rights, a mandatory interdict requiring the authorities to take all reasonable and accountable steps necessary to render rail travel safe and a supervision order aimed at ensuring that the steps needed are in fact taken. The case was based on the violation of a variety of human rights guaranteed to all in the Constitution: the rights to life, bodily integrity, freedom of movement, from violence and security of property all featured. The legal obligation of the rail authorities to provide a service "in the public interest" received close scrutiny in argument and the police took up the attitude that they have other fish to fry and can not be expected to do the dirty work of the rail authorities.
The case was brought by way of an urgent application, a risky process in a situation in which there were disputes of fact about the nature and extent of the problem facing the beleaguered commuters on the Metrorail trains providing transport to those unable to afford any other more expensive means of mobility. It was won, as against the rail authorities in the Cape High Court, lost all ends up in the Supreme Court of Appeal in Bloemfontein but eventually won in the Constitutional Court in Braamfontein which ruled that the rail authorities are liable to take reasonable and accountable steps to ensure the safety of persons and property on the rail facilities.
The case is of wider interest because of the impact its ruling has on the notion of accountability in our law. The Constitutional Court was at pains to uphold the sanctity of the human rights guaranteed in the Bill of Rights which is a part of the Constitution. The state is obliged to respect, protect, promote and fulfill the rights so guaranteed. Although the police were not held liable to become rail guards by any of the courts seized of the matter, there are now in excess of 1000 police personnel working exclusively on the rail commuter network in the Western Cape. Security personnel in the employ of the rail authorities have also been beefed up and the rate of crime on trains is dwindling by about 30% per year, year on year.
The RCAG is not however resting on its laurels. A class action of injured rail passengers has recently been settled and dependents of those killed in crime on trains have been paid out compensation for their loss of support. A joint monitoring committee consisting of representatives of the RCAG and the railway operators is in the process of being set up to deal pro-actively and responsively to the needs of those who travel by train and find themselves on the wrong end of criminal activities.
The big lesson learned, at great expense and over a number of years in two court cases, is that buck passing is not tolerated in our constitutional and democratic order. Accountability is a founding value of the new South Africa; responsiveness to the needs of the people and the efficient performance of constitutional obligations are all exacted from those in authority. The courts sitting in disputes of this kind make short shrift of buck-passing. It is lamentable that while the police and rail authorities dithered and dallied over whose call the safety and security of rail passengers really is, so many commuters, like Juan van Minnen, died, were injured, or lost their money and goods at the hands of criminals who are seldom brought to book.
This is what the Constitutional Court unanimously held on the topic of accountability:
"Accountability of those exercising public power is one of the founding values of our Constitution…. [T]he value is asserted within the scheme of the Bill of Rights…. It is one of the objects of the Bill of Rights to require those limiting rights to account for the limitations. The process of justifying limitations, therefore, is one which is relevant to a consideration of the 'spirit, purport and objects of the Bill of Rights'….The principle that government, and organs of state, are accountable for their conduct is an important principle that bears on the construction of constitutional and statutory obligations..."
It is perhaps apposite to add that the Constitution expressly provides that conduct that is inconsistent with it is invalid. This is a concept all policy makers and indeed all in positions of power and authority need to bear in mind at all times. Accountability ought not to be exacted through the Courts; it is due to everyone, every day.
Paul Hoffman SC
May 2009