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2012
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[2012] ZAGPJHC 203
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Mabuya v South African Rail Commuter Corporation (09/50133) [2012] ZAGPJHC 203 (15 October 2012)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 09/50133
DATE:15/10/2012
In
the matter between:
MABUYA,
PHILLIP
.........................................................................................
Plaintiff
and
SOUTH
AFRICAN RAIL COMMUTER CORPORATION
…......................
Defendant
JUDGMENT
A
J BESTER, AJ:
[1]
In this action, launched in November 2009, the plaintiff claims
damages in delict from the defendant for injuries allegedly
sustained
at approximately 16H30 on 15 October 2009, when he fell out of a
moving rail commuter train at Inhlanzane Station, Soweto,
Gauteng, as
a result of an alleged negligence on the part of the defendant.
[2]
At the commencement of the hearing the plaintiff, with the agreement
of the defendant, applied for an order directing a separation
of the
issues of liability and quantum in terms of rule 33(4); an order
directing that the hearing proceed only for the purposes
of a
determination of the alleged liability of the defendant; and for an
order directing that the quantum related issues be postponed
sine die
for hearing at a later date. That order was accordingly made and the
hearing proceeded only on the liability issues
[3]
In its particulars of claim the defendant alleged the following
grounds of negligence:-
"6.1
The defendant failed to ensure the safety of members of the public in
general and the plaintiff in particular on the coach
of the train in
which the plaintiff travelled;
6.2
The defendant failed to take any or adequate steps to avoid the
incident in which the plaintiff was injured, when by the exercise
of
reasonable care it would and should have done so;
6.3
The defendant failed to take any or adequate precautions to prevent
the plaintiff from being injured;
6.4
The defendant failed to employ employees, alternatively, failed to
employ an adequate number of employees to guarantee the safety
of
passengers in general and the plaintiff in particular on the coach in
which the plaintiff intended to travel;
6.5
The defendant failed to employee employees, alternatively failed to
employee and adequate number of employees to prevent passengers
in
general and the plaintiff in particular from being injured in the
manner in which he was;
6.7
The plaintiff allowed to coach of the train in which the plaintiff
was travelling to be overcrowded, which resulted in the plaintiff
being pushed out of the train;
6.8
The defendant allowed the train to be set in motion without ensuring
that the doors of the train and coach in which the plaintiff
was
travelling were closed before the train was set in motion;
6.9
The defendant took no steps to prevent the coach in which the
plaintiff was travelling from becoming overcrowded;
6.10
The defendant allowed the train to move with open doors and failed to
take any, alternative, adequate steps to prevent the
train from
moving with open doors;
6.11
The defendant failed to keep the coach safe for use by the public in
general and the plaintiff in particular;
6.12
The defendant neglected to employ security staff on the platform
and/or the coach in which the plaintiff was travelling to
ensure the
safety of the public in general and plaintiff in particular."
[4]
The plaintiff further alleges, in paragraph 7 of his particulars of
claim, that as a result of the alleged incident caused by
the
negligence of the defendant, the plaintiff sustained the following
injuries:-
"7.1
Fracture of the rip (sic, must be "rib");
7.2
Fracture of the right femur;
7.3
Injured pelvis;
7.4
Painful right hip;
7.5
Left hip bruised."
[5]
The defendant's plea constituted, in essence, a bare denial of, among
others, the incident and the alleged negligence. Furthermore,
apportionment of damages was not pleaded and neither was contributory
negligence on the part of the plaintiff canvassed during
the course
of the hearing.
[6]
However, at commencement of the hearing I was informed by the
defendant's counsel that it is the defendant's position that the
plaintiff's claim is fraudulent and that the defendant's defence will
be directed at showing that deceit. The tenor of the evidence
that
the defendant intended to reduce, I was informed, would therefore be
to show that the plaintiff was not injured in the train
incident and
that his injuries were not on the scale as alleged, but that he had
suffered a lesser injury at home. Furthermore,
I was told, the
evidence would show that the medical record of the Chris Hani
Baragwanath Hospital, Johannesburg (Soweto) ("Baragwanath"),
Gauteng upon by the plaintiff relied was a forgery as the patient
number reflected on it was that of another patient, one Ms Ntilashe
Thandeka ("Thandeka").
[7]
As a precursor to what follows below, it is necessary at this
juncture to record that the evidence led by the parties in this
case
was, to echo the lament in Mokwena v South African Rail Commuter
Corporation Ltd and Another (14465/2010) [2012] ZAGPJHC 133
(14 June
2012), strikingly sparse, that is, for a case in which the total sum
claimed exceeds R2,000,000.00. For the most part,
the evidence is of
very little assistance in determination of the issues in the action.
Evidence vital to the claim and the defence
was not presented, for
example:-
a)
Although Thandeka was traced and contacted, she was not called upon
or subpoenaed to give evidence;
b)
The relevant train driver, train guards and security officials on
duty on the day of and during the alleged incident was not
called
upon or subpoenaed to give evidence;
c)
The maintenance records of the train on which the plaintiff had
allegedly travelled were not discovered or subpoenaed;
d)
There was no evidence by an appropriately qualified expert on safety
measures to prevent rail coach doors from opening or from
being
forced open by commuters while the train was in motion;
e)
The doctors, nursing staff, etc., on duty at Baragwanath on the day
of the incident and who had allegedly treated the plaintiff
and had
completed his medical records were not called upon or subpoenaed to
give evidence;
f)
The admissions staff, admin personnel and data processors at
Baragwanath who had processed and recorded the plaintiff's patient
detail, diagnoses, nature and cause of injuries and treatment were
also not called upon or subpoenaed to give evidence.
[8]
To further compound matters, neither of the parties sought
particulars for trial nor did they employ those crucial tools
afforded
under Rule 37(4). The parties' attorneys did have a
pre-trial meeting, but it is apparent from the minute, the body of
which comprises
a sparse two pages, that it was no more than a
perfunctory, mechanical affair with little purpose other than to
secure an enrolment
for hearing. The meeting, therefore, did not even
begin to aspire to achieve the objectives of Rule 37.
[9]
It is furthermore necessary to say at the outset that there were
sharp conflicts on topics pertinently relevant to the disputes
in the
action between the testimonies of the plaintiff and his own witnesses
and between these and the evidence presented on behalf
of the
defendant. Moreover, cross-examination revealed various
inconsistencies in the evidence of all of these witnesses. The
paucity of the evidence before me and it's very unsatisfactory, if
not completely unreliable nature, all but confounded a determination
of the credibility of any particular witness. That was so,
particularly because the blemishes in the evidence could entirely or
partly have been caused by factors such as the lapse of time since
the incident and the general fallibility of human memory as
a result
of which information could innocently have been forgotten, modified,
added, or distorted by subsequent information; or
could simply
inadvertently have been reconstructed. See: Commissioner for Inland
Revenue v Pick 'n Pay Wholesalers (Pty) Ltd
1987 (3) SA 453
(A) at
469F - G:-
"Human
memory is inherently and notoriously liable to error. One knows that
people are less likely to be complete and accurate
in their accounts
after a long interval than after a short one. It is a matter of
common experience that, during the stage of retention
or storage in
the memory, perceived information may be forgotten or it may be
modified, or added to, or distorted by subsequent
information. One is
aware too that there can occur a process of unconscious
reconstruction."
In
this regard it is also apposite to refer to the remarks of Diemont JA
in S v Nyembe
1982 (1) SA 835
(A) at 842F - H in respect of
contradictions relating to events that had occurred only some eight
months (three years in this case)
before the hearing in that case:-
"I
am always surprised that witnesses can, or think they can, after a
passage of weeks and months, recollect how they were
seated in a
motor car, what route they travelled and at what time they reached
their venue. I am not surprised, however, when they
fall into
contradiction. The wise trial Judge knows that human memory is only
too fallible ..."
[10]
Perhaps, in an attempt to make up for the mentioned paucity of the
evidence I was, during argument by counsel for the plaintiff,
invited
to take judicial notice, as done in Mokwena, supra, of a variety of
matter relevant to the determination of a negligent
act or omission
by the defendant and the general abysmal circumstances under which it
operated its trains and under which its commuters
were forced by
circumstances to commute. In Mokwena the learned judge held, at
paragraph 96, that "Judges cannot pretend they
live in ivory
towers" and that they "must have some knowledge of what is
reasonable or unreasonable in particular circumstances
and of
particular individuals and entities", which knowledge include
rail travel. Therefore, she said, "Judges are entitled
to rely
upon some of their own experience and knowledge as to rail travel".
[11]
With deference to the learned judge (whose legal acumen and judicial
experience and expertise overshadow my much more limited
capabilities
by a wide margin), I would decline to tap into my own experiences and
knowledge in an attempt to determine the dispute
in this case. As the
learned trial judge, I too, am white, but as opposed to her, we were
in childhood by any standards very poor.
Therefore, in years now long
gone, we travelled on SAR & H trains and public busses, not by
choice but of necessity for that
was our only means of transport
(when it could be afforded). Looking back from where I am now, my
recollection of the service and
the conditions of those services is
that they were by no means perfect, but then we knew no better,
accepted it without further
thought and made do with it. I have since
also been privileged to have used ordinary public rail, road and
water transport in cities
such as Hong Kong, London, Paris, Rome,
Vancouver and Toronto. I have also experienced the notorious Teutonic
efficiency, punctuality
and cleanliness of public transport in
Austria and Germany. I have more recently also used public transport
in and between South
African cities.
[12]
Measured by criteria such as overcrowding, crowd control, security,
signage, safety measures, etc., I have witnessed appalling
conditions
and failures, abject overcrowding and total lack of supervision and
crowd control, for example, in Hong Kong, Rome,
London and Paris that
equal the worst of what I have seen and experienced in South Africa.
And there, despite much greater resources
and readily available,
competitively priced, advanced technology, rail commuter injuries and
fatalities are also not unusual. I
have there also witnessed the
forcing or wedging open of rail coach doors by impatient and even
felonious commuters, particularly
when a train slows at a platform;
rivers of humanity rushing to embark and disembark before a train is
quite stationary; inconsiderate
shoving, jostling; etc. My personal
experiences are therefore quite different to that experienced by the
learned judge in Mokwena.
[13]
I am also embarrassed to disagree with the learned judge on another
point - judges (and acting judges), drawn mostly from the
ranks of
the well-educated, financially comfortable professional classes, do
live in ivory towers - privileged conditions that
are more often than
not worlds apart from that of the ordinary commuter. Accordingly, we
will not readily accept what the ordinary
commuter considers
reasonable; we demand and take for granted much higher standards than
the average commuter. How then can we,
from that lofty perspective,
realistically judge the reasonableness or otherwise of the actions of
ordinary rail commuter plaintiffs
and the difficulties faced by the
rail services defendants to keep affordably priced wheels of
transport rolling within the limits
of their often meagre resources?
[14]
I am accordingly reluctant to conclude that, when sitting in
judgement, I may rely on my own personal knowledge and experiences
(which would inevitably be coloured and shaded by factors such as
culture, personality, sensitivities, etc.) to place the issue
of
negligence in this case in context. The mere notion of doing so
leaves me with the uncomfortable realisation that I might very
well,
if not inevitably, descend into the arena and permit the issues to be
clouded by my own perceptions, idealisms and even prejudices.
[15]
I would therefor endeavour to decide the negligence issue this case
bearing in mind that the simple question in issue is whether
the
plaintiff had discharged the burden of establishing, on a balance of
probabilities, that the alleged incident in which he was
injured
would not have occurred but for the negligence of the defendant. The
plaintiff therefore had to place at least some evidence
before the
court that gives rise to an inference of negligence on the part of
the defendant, including a showing that such negligence
was causally
connected to the alleged harm suffered. It is only then that the
defendant would be called upon to adduce evidence
to rebut that
inference, or to face the prospect of having judgment entered against
it: Shabalala v Metrorail
2008 (3) SA 142
(SCA) paragraphs 7-11. A
plaintiff can hardly expect of me to supplement the deficiencies in
his or her case with my own experience
and knowledge, the accuracy of
which a defendant can hardly seek to measure, test or contest.
[16]
I re-emphasise this basic requirement restated in Shabalala because
it appeared to me that the plaintiff in this case, perhaps
seduced by
the accommodating approach in certain other cases of a similar
nature, was somehow of the view that, if a commuter is
injured when
embarking or disembarking a rail coach, particularly if the coach is
in movement while the door is open, then cadit
quastio, for res ipsa
loquitur - the mere fact of an open door on a moving rail coach
equals a prima facie case of negligence on
the part of the defendant.
Hence, perhaps, the sparse evidence on behalf of the plaintiff. As
pointed out in Ngubane v South African
Transport Services
[1990] ZASCA 148
;
1991 (1) SA
756
(A), the mere fact of an open door does not automatically equate
negligence - the open door is not the cause of the injury. The
cause
of the injury could be the opening of the door by a rail services
official before the train had come to a complete standstill.
Therefore, if railway officials had ordered or allowed the train to
proceed with an open door, or if they opened the door prematurely,
that failure could be the real cause of the injury. Similarly, if
there were reasonable means available to a defendant to prevent
a
door from being forced open by a commuter while a train is in motion,
then the failure to install those means could also be a
cause of the
injury.
[17]
Turning then to the evidence in this case, the plaintiff, an
unemployed former security guard, narrated an, at occasion, somewhat
incredible tale that went, in summary, as follows:-
a)
On the morning of the incident, at approximately 05H00 AM, he had
left his house for Inhlanzane Station to catch a train to Park
Station, Johannesburg. He went on that journey to drop off, at any
security company that he came across, two pre-prepared CV's
for a job
as a security guard.
b)
He initially testified under cross-examination that he went "to
a lot of security companies around Park station", but
stated
that he could not recall which companies exactly he had visited.
Pressed further, he changed his story and testified that,
upon his
arrival at Park Station, he went into the street where he gave his
CV's to two random security guards in uniform that
he had met on the
street. When pushed further, he made an about-turn and denied that he
had gone into the street, but nevertheless
maintained that he had
given the CV's to such guards.
c)
He testified that he again boarded a train at Park Station for
Inhlanzane Station, where he arrived at shortly after 08H00 AM
d)
As the train pulled into Inhlanzane Station, but before it had come
to a complete stop, the doors of the coach had opened. He
was pushed
out and fell onto the ground on the platform. Under cross-examination
he testified that, before the train had pulled
into the station, he
got up from where he was seated in preparation to disembark. He
walked to, and held onto a pole some meters
away from the door. There
were other commuters between him and the door, but he could not
recall how many. He initially said that
he did not let go of the pole
while the train was in motion, but then stated that he let go of the
pole when it was safe to disembark,
but while the train was still
moving slowly. The door opened and commuters started pushing in and
out through the door before the
train had quite stopped. He got
entangled in the flow of commuters, was pushed out of the door and
fell to the ground on the platform.
In his recollection, he was only
a commuter who had fallen.
e)
He testified that the incident had occurred at approximately 08H10
AM. When it was put to him that he alleged in his particulars
of
claim that the incident had occurred at 16H30, not at 08H10; he
contended that he did not know where his attorneys got that
time.
f)
He said that no guard or rail official had come to his assistance -
he had noticed some in the far distance, but they were busy
and did
not notice the incident.
g)
After the fall, he was essentially immediately assisted by an unknown
male. As he demonstrated in court, he placed his arm over
the
shoulder of that male and together they walked to his home which was
approximately 10 to 15 minutes of walking time from the
station.
h)
He testified that he had hurt his right thigh in the fall and that he
was limping while walking home. He was unaware that he
had fractured
his right femur.
i)
After spending some time at home, his leg became painful and he told
his brother Altos Mabuya ("Altos") that he needed
to go to
the hospital. He was then taken to the Baragwanath by Altos and his
girlfriend where he was received at between 10:H00
and 11H00AM, and
was X-rayed and treated. He further testified that he had spent
approximately 6 to 7 days in hospital; his leg
was operated on; metal
plates were used to fix the fractured femur; and
that the
operation wound was joined with staples.
j)
The plaintiff said that he did not report the injury to the
defendant. Under cross-examination, when asked why it was not
reported,
he said that he had left the station without reporting it
to anyone because he thought that the injury was minor.
k)
The plaintiff testified that the above-mentioned Baragwanath medical
report was, after his discharge, given to him. He confirmed
that it
related to him. It was put to him under cross-examination that the
patient number on that report was in fact not his, but
that of
Thandeka. He denied all knowledge of that apparent discrepancy. It
was further put to him that the injury to his thigh
was sustained
when he had fallen off the roof of a carport at his home on the
afternoon of the day of the incident, after a drinking
session with
two friends, namely Happy Malokwane ("Malokwane") and
Christopher ("Makgomo") Makgomo, and his
brother Altos. The
plaintiff persisted with his version and denied the drinking session.
l)
In response to clarification sought by the court, the plaintiff
insisted that the only injury suffered by him was that to his
right
thigh. When referred to the Baragwanath medical report, which also
listed, among others, pain in the hip; fractured ribs;
tenderness of
the pelvis; the removal of sutures; etc., the plaintiff was adamant
that his only injury was that to his right thigh
and that he had
metal staples to secure the operation wound, not "stitching".
[18]
That claimed injury to the thigh only, of course also stands in stark
contradiction not only to the Baragwanath medical report,
but also to
the injuries alleged in paragraph 7 of the plaintiff's particulars of
claim.
[19]
Two supporting witnesses were called by the plaintiff, namely his
brother, Altos, and his friend and neighbour, Malokwane.
The evidence
of these two witnesses, ignoring the numerous contradictions and
inconsistencies in their evidence highlighted during
the course of
their cross-examination, contributed little of value to the case.
Their evidence was apparently presented to corroborate
the
plaintiff's version that the injury was sustained during a fall at
Inhlanzane Station. However, they could do no more than
to confirm
that they were informed by the plaintiff that he was injured during a
fall at the station, because they were not witnesses
to the alleged
fall at the station. On the other hand, their evidence was also
tendered to lend support for the plaintiff's evidence
that he was
transported to Baragwanath at about midday on the day of the incident
and to corroborate the treatment that he had
received there for a
fractured femur.
[20]
The defendant called three witnesses in its case, namely a Mr Jan
Paul Jordaan ("Jordaan"), a Metro Rail investigator;
Mr
Siphiwe Zachariah Nkosi ("Nkosi"), and accident
investigator; and Malokwane, a nearby neighbour of the plaintiff.
[21]
Jordaan's evidence in chief comprised, in the main, generalities
about security systems employed by the defendant, reporting
procedures, etc., that had little direct relevance. More
specifically, he testified that he had inspected the posting sheets
and
occurrence books relevant to incidents that occurred at
Inhlanzane Station for the period around 15 October 2009. He
testified
that no incidents such as described by the plaintiff had
been reported.
[22]
Jordaan's cross-examination on behalf of the plaintiff, however,
solicited information that did not serve to advance the plaintiff's
case on the alleged negligence; it advanced the case of the
defendant. In particular, he testified that coach doors are operated
by means of a vacuum system that ensured that, while the train is in
motion, the doors remain closed. When closed, he said, the
doors can
only be opened by the use of force, much in the way as is the case
with elevator doors. He further testified that, in
his experience,
commuters at times tend to put a foot between the doors to prevent
them from closing fully, or that they forced
the doors open and that
it was basically impossible to police and prevent all such
occurrences as guards can simply not be placed
on each and every
coach. When the version of the plaintiff that the door had opened as
the train had slowed down to stop at the
station was put to him, he
testified that it could only have happened if the doors had been
forced open by a commuter; a train
guard will only activate the door
release mechanism when the train is stationary. He further testified
that all coach doors in
any event also had prominent notices in
various languages warning commuters not to approach the doors while
the train is in motion.
[23]
The evidence of Nkosi, whose abject inertia as an investigator was
amply demonstrated under cross-examination on behalf of
the
plaintiff, simply served to highlight the failures in the preparation
and the presentation of the defendant's case on the alleged
fraud:-
a)
He testified, among others, that he had searched for the plaintiff's
medical records at Baragwanath.
b)
He established that the patient files for the plaintiff and Thandeka
were missing, but that the patient number on the record
that purports
to be that of the plaintiff, was in fact the patient number for
Thandeka.
c)
Nevertheless, no consultations were conducted by him with medical,
nursing or admin personnel to verify the recordals in the
medical
report for the plaintiff, and no statements were taken from any of
them.
d)
However, he succeeded in tracing Thandeka and was in telephone
contact with her. Again, he did not bother to enquire about, or
to
obtain her own hospital records from her, and apparently also did not
bother investigate, for example, the date of, and the
nature of her
injuries or ailments treated at Baragwanath. Neither did he attempt
to have her at the hearing to give evidence on
behalf of the
defendant.
e)
He further testified that, among others, he had made enquiries with
the plaintiff's neighbours about the plaintiff, his injury
and the
cause of it. During the course of that investigation, he was told by
Malokwane that the injury to the plaintiff's right
thigh was
sustained when he had fallen off a car port roof after a drinking
session with Malokwane, Makgomo and Altos. He secured
a sworn
statement from Makgomo in which Makgomo stated, among others, that
the plaintiff was not injured in a train incident, but
in a fall at
home.
[24]
Makgome's evidence, tendered in an endeavour to establish a fraud on
the part of the plaintiff requires no more than a passing
mention.
His testimony permeated inconsistency and contradiction and hardly
rises to meet acceptability on any standard. Numerous
glaring
contradictions between his evidence in court and his sworn statement
given to Nkosi were casually dismissed by him with
the excuse that he
just wanted Nkosi to go away because he, Makgome, had no interest in
the matter and that, when the matter came
to court, he would set the
statement straight.
[25]
Turning then to a determination of the alleged fraud, and despite the
plaintiff's fantastic tale about his job search and 10
to 15 minute
(assisted) walk home from Inhlanzane Station on a leg with a femur so
badly fractured that it required surgery and
metal plates to repair,
there is nothing before me to gainsay the plaintiff's evidence that
he did sustain an injury on 15 October
2009, and that he was on that
day admitted for treatment Baragwanath. Furthermore, incredible as
the plaintiff's version might
be, there is also no evidence to
gainsay his statement that he was injured in a fall at Inhlanzane
Station. Undeniably, on a conspectus
of the evidence before me,
various indicators point to the possibility of a fraudulent claim.
Moreover, although I have serious
doubt as to whether the plaintiff
was in fact injured in the train incident described by him, the
suspicion of a fraud created
by these indicators simply does not gel
into probability.
[26]
Accordingly, the defendant failed to prove the alleged fraud on the
part of the plaintiff.
[27]
That finding having been made, it is necessary to consider whether
the evidence of the plaintiff establishes negligence on
the part of
the defendant that is causally connected to the injury sustained by
him.
[28]
On the plaintiff's version it is established only that shortly before
the train had stopped at Inhlanzane Station, and while
it was still
slowly moving, the door of the coach had opened and that commuters
had immediately commenced embarkation and disembarkation.
Irrespective of whether or not the plaintiff had let go of the pole
used by him for support after the train had stopped or whether
or not
he had released it when the train was still in motion (his evidence
in this regard was contradictory), the plaintiff also
established
that he was caught up in a tangle caused by commuters pushing into,
and those pushing out of the coach. In consequence,
he was jostled
out through the open door of the coach and fell to the ground on the
station platform, fracturing his femur.
[29]
On the plaintiff's evidence, therefore, the door of the coach was in
fact operational - it was not at all times open; it had
only opened
when the train was about to stop. However, no evidence whatsoever was
placed before me to show, or that would permit
the inference, that
the coach doors were prematurely and precipitously opened by a train
guard, the train driver or some other
functionary of the defendant.
The mere fact that the doors had opened shortly before the train had
come to a standstill, does not
warrant an inference of negligent
conduct on the part of an employee of the defendant. It is equally
probable, as testified by
Jordaan, that the doors might have been
forced open prematurely by commuters anxious to get out and to be on
the way. It is similarly
equally probable that the plaintiff's injury
was occasioned by the mere fact that he was pushed out of the coach
by such impatient
fellow commuters. The latter two scenarios would be
happenstances over which the defendant was not shown to have had
control; or
that it was in default of an obligation to take
reasonable measures to avoid them; or that it was reasonably possible
to avoid
them at all. In essence, therefore, the plaintiff has not
shown that the most plausible probable conclusion to be drawn from
the
proven facts and circumstances of this case is that the doors of
the coach had opened as a result of a negligent conduct or omission
on the part of the defendant. There are a variety of other
conclusions that are equally probable.
[30]
As for unacceptable overcrowding, no evidence was led on behalf of
the plaintiff, for example, on the seated and standing commuter
capacity of a coach; the maximum number of seated and standing
commuters that can be accommodated in a coach; and that the number
of
standing and/or commuters in his coach was permitted to exceed the
permitted maximum. At best for the plaintiff, he contended
that the
coach in which he had travelled, was full and maybe even crowded, but
it was not said to have been overcrowded. On the
basis of the
evidence before the court, therefore, it cannot simply be assumed or
inferred that an impermissible or even unreasonably
unacceptable
number of commuters were permitted in the coach (or on the platform)
and that the defendant was therefore remiss in
not exercising control
over those numbers or over their potential behaviour.
[31]
Moreover, other than the plaintiff's evidence that during
disembarkation and embarkation, there was a rush of many commuters,
there is no evidence of an out-of-control type of stampede that ought
to have been anticipated and prevented by the defendant by
means of
the application of adequate and effective crowd control. On the
contrary, the evidence of the plaintiff showed no more
than that the
behaviour and flow of commuters at the time of his fall was that
which can reasonably be expected in a morning rush
hour period: see
South African Rail Commuter Corporation Ltd v Thwala (661/2010)
[2011] ZASCA 170
(29 September 2011) paragraph 14.
[32]
In the premises I find that the plaintiff has not discharged the onus
that it bore to show that the defendant was negligent
in any way.
[33]
In respect of the costs of the action, it is necessary to record that
the greatest part of the hearing was consumed by the
defence of fraud
belatedly put up by the defendant. During argument I therefore
enquired
from counsel for the defendant, if the defendant's defence was
dismissed and if I were to hold that the plaintiff had not
discharged
his onus, whether it would be appropriate to make any order of costs.
Counsel for the defendant fairly submitted that
an appropriate order
in that event would be to make no order as to costs. I agree.
I
accordingly make the following order
(a)
the defendant's defence of fraud on the part of the plaintiff is
dismissed;
(b)
the plaintiff's claim is dismissed;
(c)
there shall be no order as to costs.
A
J BESTER
ACTING
JUDGE OF THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF : ADV MTHEMBU
INSTRUCTED
BY : DUDULA ATTORNEYS
COUNSEL
FOR THE DEFENDANT : ADV NGUTSHANE
INSTRUCTED BY : MAJAVU INC
DATES
OF HEARING : 10, 11, 12 OCTOBER 2012
DATE
OF JUDGMENT : 15 OCTOBER 2012