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[2014] ZAGPJHC 50
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Mfula v Passenger Rail Agency of South Africa (12/4222) [2014] ZAGPJHC 50 (12 February 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 12/4222
In
the matter between:
OBED
MWEZI
MFULA
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
Defendant
(“PRASA”)
J U D G M E N T
BHAYAT,
AJ
INTRODUCTION
[1] The plaintiff
instituted these proceedings against the defendant for compensation
for damages as a result of injuries he sustained
on 10 July 2012 at
approximately 19h30 whilst he was a passenger on a train travelling
from Germiston to Katlehong.
[2] The injuries were
sustained, after the plaintiff was physically attacked by two unknown
males, who robbed him of some of his
possessions. Whilst fleeing from
them to another carriage, his left foot was trapped between the tread
plates positioned between
carriages. Almost simultaneously, his head
had hit the floor which resulted in him having lost consciousness.
[3] The plaintiff does
not know how his left hand and left leg became traumatically
amputated (non surgical) thereafter.
[4] The plaintiff claimed
the following:
(a)
Payment
of the sum of R6.210million;
(b)
Interest
on the aforesaid sum at the rate of 15.5% per cent per annum from
date of issuing of summons to date of payment;
(c)
Cost of
suit; and
(d)
Further
and/or alternative relief.
[5] The action was
defended on the basis that the defendant did not act negligently in
any of the respects alleged and, in particular,
denied that it failed
to provide adequate security for commuters.
THE PARTIES
[6] The plaintiff is Obed
Mwezi Mfula, an adult unemployed […..], […….],
now aged […….], who
resides at [………].
[7] The defendant is
Passenger Rail Agency of South Africa (“PRASA”), a
company duly incorporated with limited liability,
a statutory body
conducting business from [……..].
PLAINTIFF’S
CASE
[8] On the morning of 10
July 2012, plaintiff reported to work at Coverland Germiston where he
was temporarily placed by labour
brokers as a pallet controller. He
requested leave to consult with a doctor as he was feeling unwell.
Permission was granted and
he attended on Dr H Singh in Germiston.
[9] A medical certificate
(Exhibit A) was produced. The nature of his illness was described as
Arthralgia (joint pain) for which
the doctor had dispensed
painkillers. He was declared unfit for work from 10 July 2012 to 12
July 2012 due to this illness.
[10] After the visit to
the doctor, he proceeded to the Golden Hawk Shopping Centre where he
purchased a Kaizer Chiefs soccer jersey.
From there he proceeded to
the Body Lab Gym to register himself as a member. After registering,
he visited a snooker hall to play
snooker. He left the snooker hall
at approximately 19h00 and proceeded to the taxi rank to transport
him to his home in Vosloorus.
[11] No taxis were in
attendance and therefore he proceeded to the Germiston Train Station.
At the station, he purchased a ticket
and boarded the train at
Platform 1. Prior to boarding, the ticket was shown to a security
guard who also operated as a ticket
examiner. Plaintiff stated that
he was familiar with this train station.
[12] No one, including
himself, was searched before boarding the train. He had an Adidas
school bag with him which contained the
Kaizer Chief’s jersey,
the painkillers, his ID book, the Body Lab Gym receipt and coins
totalling R95. His cellphone was
in his tracksuit pants.
[13] He entered the
carriage, sat down and proceeded to put on his earplugs to listen to
music. He noticed approximately nine other
commuters in his carriage.
[14] Whilst the train was
still stationary at Germiston Station, two unidentified males
physically attacked him by punching and
kicking him. His cellphone
had fallen out. They were trying to rob him. He had retaliated and
defended himself by punching back
at his attackers. The attack
continued after the train departed from Germiston Station and
continued for approximately four minutes
and ended as the train was
approaching President Station.As his attackers were overpowering him,
plaintiff fled from them towards
the next carriage.
[15] He had opened the
door of the carriage leading onto the tread plates anti clockwise. He
observed that the safety gummis were
missing. Nonetheless he
proceeded onto the tread plate as he was desperately trying to escape
from his attackers regardless
of the potential danger this posed. In
between the carriages, his left foot was trapped in a gap between the
tread plates. He had
fallen down and his head had hit the floor
causing him to lose consciousness.
[16] Thereafter the
plaintiff is unsure as to how his left arm and left leg were
amputated. He could only recall the incident described
above eight
months later. All his possessions were taken.
[17] The plaintiff
observed that there were no security guards on the train, no alarm
bells and/or sirens in the carriages. Under
cross examination,
plaintiff stated that it would be reasonable to have at least two
armed or unarmed guards per carriage to protect
commuters.
[18] The defendant
omitted to place armed or unarmed security guards in each carriage,
that as a result of inadequate security measures,
he was forced to
flee from his attackers which resulted in his severe injuries for
which he holds the defendant liable.
DEFENDANT’S
CASE
The defendant called
four witnesses:
First witness –
Milfred Chemere
[19] He commenced
employment with Metrorail in 2002. At the time of the incident,
he was the Planning and Logistics Manager
and, to date, he occupies
the same position.
[20] Pre-trip inspections
are done on a daily basis by the train driver and a train guard.
The train driver is given a journal
which contains the schedule of
his trips for his shift. Upon receipt of same, the driver assisted by
a train guard does a pre-trip
inspection of the train set. This
covers an inspection regarding mechanical and maintenance issues.
[21] In the event that an
inspection reveals faults, the train driver completes a Form T403
which the manager or his staff receives.
This information is captured
on the Facility Maintenance Management System. Should any faults be
noted requiring maintenance or
repairs, the train is immediately
withdrawn from service and shunted. He pointed out that refurbishment
is distinct from maintenance
issues.
[22] He did not receive
any report concerning any maintenance issues relating to the incident
described by the plaintiff, namely
the absence of gummis or a gap
between the steel tread plates regarding any train on the day.
[23] As a logistics
manager, the witness oversees maintenance/repairs and refurbishments
of the train sets. He takes decisions to
withdraw trains from
operational service when he receives a Form T403.
[24] He randomly inspects
trains. Technical supervisors and planners are employed to
attend to maintenance. The technical
supervisors oversee artisans.
His division also employs quality assurers who check train sets in
outlying depots for faults.
[25] All operational
carriages are refurbished every ten years. During 2001, a decision
was taken to install standardised doors
in all carriages as there
were no doors previously and to replace the aluminium gummis between
the carriages with one metre high
rubber gummis.
[26] The aluminium gummis
were replaced as these were frequently vandalised and stolen. The
gummis are mounted onto the carriages.
There are no reported
incidences of the gummis being stolen. The entire gummi unit is
replaced if a tear appears in the rubber.
At the point where the
gummis rotate against each other, to and fro, a person cannot push
his fist through.
[27] All carriages are
connected by steel couplings, above which are vestibule buffers.
Above the vestibule buffers are tread plates.
These buffers are
connected by springs which pushes from each end of the carriage and
from side to side to provide stability when
the train takes a bend.
[28] The spring-loaded
vestibule buffers causes continuous compression which keeps the tread
plates together continuously, thus
preventing any gaps.
[29] The train photos
utilised for the purposes of the trial (as appears in plaintiff’s
Bundle D) depict photos of trains
undergoing maintenance and repairs
at the maintenance depot and is not a photo of the train boarded by
the plaintiff.
Second witness: Frans
Samson Khoza
[30] He is employed by
Metrorail as a peace officer. During July 2012, he was stationed at
Kaalfontein when he was called and told
that someone had been hit by
a train at Platform 3 Germiston.
[31] He arrived at the
scene at 22h30 and found the plaintiff lying injured on the railway
line. His left arm and left leg were
amputated and lying
approximately 5 metres from the plaintiff. The plaintiff could
not speak. A bag was found at the scene.
On his arrival, the
ambulance service was already there. He did not witness the incident.
[32] He compiled a report
from the information he gathered from the security guards. The train
involved was Train 7866 which had
returned from Kwesine Station (a
turning point) to Germiston. The train was stationed at Platform 3.
[33] He was unsure as to
whether or not the plaintiff was conscious. Security guards and peace
officers are not allowed to touch
or search any victim as per
Metrorail’s employment policy. Only medics and police are
allowed to do so.
[34] The plaintiff was
identified from a document which was removed from his bag lying
nearby.
[35] Commuters have
access to Platforms 1, 2 and 3 from the same point of entry. There
are ten platforms at Germiston as reflected
in Exhibit B. Exhibit B
is a diagram drawn by the witness of Platforms 1, 2, 3 and 4 to
assist counsel and the court.
[36] He had completed a
Railway Occurrence Report (aka liability report) on
10 July 2012
(Annexure A2 – pg 27 of plaintiff’s Bundle C).
Third witness:
Tobekile Nthandi
[37] During July 2012, he
was employed by Changing Tides Security Company (“Changing
Tides”) as a site supervisor. Changing
Tides are contracted by
Metrorail.
[38] A security officer
had reported an accident to him. He attended the scene and found the
plaintiff lying injured on the railway
track at Platform 3 Germiston
Station. He reported that the plaintiff had a deep cut on his head,
his left arm was cut off at the
elbow and left leg was cut off above
the left knee.
[39] The plaintiff was
lying behind Train 7866 which was stationary. He witnessed the
ambulance arrive and the medics searching
the bag found near the
plaintiff. The medic found his ID document from which he was
identified.
[40] On average, two
security guards are posted at each platform. The duties of the
security officers are to prevent crime and to
assist people who are
injured.
[41] He did not see the
accident and found the plaintiff unconscious. The amputated limbs
were approximately 5 metres away.
[42] Generally he
receives reports of pick pocketing but not of theft and robbery. He
did not receive any crime reports on the day.
[43] The security guards
do not patrol the inside of the carriages. He did not receive any
crime report concerning the route between
President and Germiston
Stations.
[44] He confirmed the
contents of his report of the accident and affidavit dated 10 July
2012 respectively which appears from page
30 to 39 of plaintiff’s
Bundle C.
Fourth witness:
Lutendo Godfrey Ramaremela
[45] In July 2012, he was
employed as a train guard by Metrorail. Currently he is employed by
Metrorail as train driver. He worked
along various routes leaving
from Germiston Station, which included Kwesine. He was on duty
on the same route taken by the
plaintiff from Germiston to President
and finally to Kwesine stations.
[46] He stated there are
three motor carriages on a train set. He occupies the rear one
from which he observes the platform
and the opening and closing of
the exit doors to the carriages. Once all the passengers are on
board, he closes the doors and signals
to the driver that it is clear
and safe to depart.
[47] As a train guard, he
was stationed inside a cabin (cab) in the train. He was required to
be on board whilst the train was in
motion. He is alerted about
problems inside the carriages by screams from victims who require
assistance as well as when
commuters lodge a complaint with him at
his cab at the next station. If there was a problem, his duty was to
stop the train and
investigate.
[48] He receives a daily
journal which contains his duties for the day. The witness confirmed
the contents of the daily journal
for 10 July 2012 as appears on page
41 of plaintiff’s Bundle C, which he received from his Section
Manager.
[49] He had prepared
several trains, including Train 7866. He had checked that the doors,
couplings, brake blocks, gummis, lights
and tread plates between the
carriages were in working order.
[50] On his way to
commence the preparation on Train 7866 for the following day’s
trips, he walked along the railway line
and did not see the
plaintiff. He moved the train a short distance as per his
instructions as it was parked in the wrong place
for the morning
trip. He then prepared the train. He found no faults on Train
7866 or any gaps between the tread plates nor
did he find any
evidence of blood or missing gummis.
[51] After preparation he
saw the plaintiff lying injured on the railway line in between the
position from where he had moved the
train to its final parking
place. He has no idea as to what occurred that led to the plaintiff
being injured and being found on
the railway line through which he
passed through when moving the train earlier.
[52] The preparation of
several trains commenced at approximately 20h10 and was completed by
22h00. He could not recall how long
it took to prepare Train 7866.
ABSOLUTION FROM THE
INSTANCE
[53] The defendant
brought an Application for Absolution from the Instance at the end of
the Plaintiff’s case.
[54]
The test that was applied was ‘. . . whether there is evidence
upon which a court, applying its mind reasonably to such
evidence,
could or might (not should nor ought to) find for the plaintiff’
as stated in
Gascoyne v Paul and Hunter
1917 TPD 170
at 173
. This test was
referred to and applied in many other subsequent cases and remains
unchanged.
[55] The application was
refused and costs were reserved.
SEPARATION OF
ISSUES
[56] The parties had
agreed at their second pre-trial meeting that the matter should
proceed on liability and the aspect of quantum
be postponed sine die
with the leave of the court.
[57] Leave of the court
to separate the issues was sought in terms of
Rule 33(4) of the
Uniform Rules. The application was granted and the matter proceeded
on merits only. The issue of quantum was postponed
sine die.
ISSUES IN DISPUTE
[58] Was the plaintiff a
passenger on a train?
[59] Was the plaintiff
attacked on the train?
[60] Was the plaintiff
trapped between the tread plates?
[61] Did the defendant
cause the plaintiff’s injuries as a result of its negligence in
not providing adequate security for
commuters?
ANALYSIS OF
PLAINTIFF’S EVIDENCE
[62] The plaintiff had
testified that he was only able to recall the incident approximately
eight months later. However, prior to
the expiry of the eight months
(March 2013), the plaintiff had instructed his attorneys to prepare a
Summons and Particulars of
Claim which was signed on 07 November 2012
and issued on 09 November 2012. This indicates that he was able to
recollect the events
much sooner. This shows willingness to state a
version of events which to the knowledge of the plaintiff may not be
true.
[63] Plaintiff’s
version does not correspond in all material respects with an
affidavit he had deposed on 26 October 2012
(page 2, Bundle C).
He states under oath that he was travelling on a train from Germiston
to Katlehong when he was attacked
by two males who wanted to take his
cellphone. After he refused, one of them hit him over the head with
an object. He thereafter
ran towards another carriage when he was
trapped between the carriages. Its at this spot where he was injured
and lost his left
foot and left hand.
[64] Plaintiff testified
that he was certain that he had boarded the train on Platform 1 which
goes through President and other
stations before reaching Kwesine,
the turnaround station. He retracted this when he was confronted that
the train to Kwesine leaves
from Platform 3.
[65] Plaintiff stated
that the attack commenced whilst the train was stationary at
Germiston Station and continued to the point
when the train was
approaching President Station, which is en route to Kwesine. However,
he could not offer any explanation as
to how he was found lying on
the tracks at Platform 3 Germiston Station together with his bag and
with his amputated limbs found
lying close by.
[66] In addition,
plaintiff testified that his ID document was stolen by his attackers
but the third defendant witness testified
that a medic had found the
ID document in his bag from which he was identified. The second
defendant witness also testified
that the plaintiff was identified
from a document retrieved from his bag.
[67] The plaintiff’s
version that all his possessions, including ID book, cannot be
accepted as true as his ID document was
found in his bag close to his
injured body by the medic which was seen by the defendant’s
third witness.
[68] The incident
happened just after 19h30 but the plaintiff was only found around
22h30 with traumatic amputations and still alive.
Plaintiff has not
accounted for his whereabouts for the three hours between 19h30 and
22h30. The only plausible inference is that
the assault and trapping
did not occur as described around 19h30. This is difficult to
comprehend.
[69] The injuries
sustained by the plaintiff is not consistent with injuries he would
have sustained had his leg been trapped up
to the ankle between the
tread plates.
[70] The hospital records
discovered by the plaintiff contain no notes by the medical staff of
any wounds or injuries consistent
with the assault described by the
plaintiff (pages 3 to 8 of plaintiff’s Bundle C).
[71] Under cross
examination, the plaintiff denied that he had consumed any alcohol
whilst playing snooker for a few hours that
afternoon. The
Chris Hani Baragwanath Hospital record indicates that he was
intoxicated upon admission (page 5 of plaintiff’s
Bundle C).
[72] Had the attack and
the trapping of the leg occurred as described by the plaintiff, other
commuters would have, in all probability,
alerted the train guard and
any other security personnel on the platform.
[73] The train driver and
the guards did not report any gummis missing or of having received a
report of a criminal incident.
[74] In his original and
amended Particulars of Claim, plaintiff states in para 9.3 and 9.4 ‘.
. . that prior to the collision
he was employed as a
carpenter’.
Reference is made to a collision incident and
not that as described by the plaintiff in his evidence in chief. This
is in conflict
with his evidence that he was severely assaulted and
trapped at the ankle between carriages.
ANALYSIS OF
DEFENDANT’S EVIDENCE
The overall analysis of
the four witnesses called by the defendant revealed the following:
[75] No train ticket was
found on plaintiff’s person or in his bag.
[76] None of them
witnessed how the plaintiff sustained these injuries.
[77] They were all
employed either directly or indirectly by Metrorail in different
capacities.
[78] Systems were in
place for reporting any incident, accident or criminal activity on
the platform or in the carriages, any maintenance/repairs
or
refurbishment.
[79] No report was
received of any criminal attack on the plaintiff nor was any report
received relating to faulty tread plates
or missing gummis. An
inspection of Train 7866 in order to prepare it for the trips for the
next morning did not reveal any
missing gummis or faulty tread
plates.
[80] No traces of blood
were found to corroborate plaintiff’s version of the trapping
incident and the subsequent fall leading
to his unconsciousness.
[81] The three
photographs contained in plaintiff’s Bundle D are pictures of a
train being repaired in the maintenance depot
of Metrorail. It
has not been established that it was the train travelled on by the
plaintiff. The photographer was
not called to testify.
[82] Two train guards are
stationed on each platform. There are no train guards
positioned inside the carriages to prevent
or combat crime with the
exception of a train guard positioned in a cabin at the rear end of
the train. This train guard
does not patrol the carriages
neither are there any security cameras.
DISPUTE OF FACT
[83]
‘In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003 (1) SA 11
(SCA) at para 5
,
the Supreme court of Appeal explained how a court should resolve
factual disputes and ascertain, as far as possible, where the
truth
lies between conflicting factual assertions:
“
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability ; and (c) . . . the probability or improbability of
each party’s version on each of the disputed issues.
In light
of the assessment of (a), (b) and (c), the court will then, as a
final step, determine whether the party burdened with
the onus of
proof has succeeded in discharging it. The hard case, which will
doubtless be a rare one, occurs when a court’s
credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing
the former, the less
convincing will be the latter. But when all factors equipoised
probabilities prevail.’
[1]
[84] There is
disagreement between the litigants regarding:
(a)
Whether
plaintiff was a passenger on a train;
(b)
Whether
the incident of trapping and loss of consciousness occurred;
(c)
Failure
to provide adequate security on board the train in not placing armed
or unarmed security guards in each carriage;
(d)
Failure
to provide adequate safety measures in failing to provide gummis
between the carriages and ensuring that there were no gaps
between
the tread plates.
PARTICULARS OF
CLAIM
[85] The plaintiff states
in his Particulars of Claim that the incident of assault and trapping
between the carriages which resulted
in his severe bodily injuries
was caused solely by the negligence of the defendant, who was
negligent in one or more of the following
ways:
“
6.1
The defendant failed by its conduct and/or omission of the staff on
duty to provide security;
6.2
The Defendant failed to provide adequate security for commuters on
conveyance thereby breaching
its legal duty;
6.3
Defendant failed to ensure that there was sufficient supervision to
ensure the safety of commuters
on board;
6.4
The Defendant failed to ensure that the doors of the carriages were
properly secured;
6.5
The Defendant failed to post security guards at the point of entry to
search for dangerous weapons;
6.6
The Defendant failed to install metal detectors to search for
dangerous weapons.”
[86] The evidence in
chief of the plaintiff is inconsistent with his pleadings. The
grounds of negligence relied on by the plaintiff
in the trial is that
the defendant failed to provide armed or unarmed guards in each
carriage; the gummis were missing
and that the tread
plates were not compressed thus leaving gaps. This was not
particularised in the pleadings. The viva voce evidence
was not
consistent with the above particulars.
[87] In addition, the
plaintiff pleaded in para 9.3 and 9.4 which deals with estimated past
and future loss of earnings that “prior
to the collision
plaintiff was employed as a carpenter”. His evidence in chief
was that he was employed as a pallet controller
and that his injuries
resulted from the attack and the subsequent trapping of his ankle and
not as a result of a collision with
a train.
[88] To worsen matters,
the plaintiff pleaded in para 5 that his severe bodily injuries were
as a result of being severely assaulted
and being trapped between the
carriages. This is a glaring contradiction in plaintiff’s
pleadings.
[89] The bodily injuries
described in para 7 of plaintiff’s Particulars of Claim is
inconsistent with the nature of the injuries
as described by the
plaintiff in his evidence in chief. The injuries do not
correspondence to an assault and the trapping
of the ankle.
SECURITY MEASURES
[90] It is common cause
between the parties that the defendant bears certain obligations in
terms of subsecs 15 (1) and 23(1) of
Legal Succession to the South
African Transport Services Act 9 of 1989 (“the SATS Act”)
and the South African Constitution
to ensure that reasonable security
measures are in place for security of rail commuters when providing
rail commuter services under
the SATS Act.
[91]
The defendant is an organ of State performing public functions and
providing public service and is held accountable to protect
the
commuter’s constitutional right to right to life, freedom and
security of person, including the right to be free from
all forms of
violence from either public or private sources as held in
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
CC.
[92] The plaintiff
testified that the defendant’s failure to place two security
guards (armed or unarmed) in each carriage,
is unreasonable and a
breach of its legal duty. Further, that failure to provide security
doors in each carriage is also a failure
of its legal duty.
[93]
In
Tshabalala v Metrorail
2008 (3) SA
142
(SCA)
it was held that:
(a)
failure
by the respondent to take reasonable steps to provide for
commuters safety would render it liable in delict;
(b)
failure
by the respondent to ensure that there was a security guard in each
and every coach, did not give rise to an inference of
negligence.
[94] Given the Tshabalala
decision, the plaintiff’s argument that the defendant has
breached its legal duty in not providing
guards in each railway coach
as being unreasonable, is not tenable.
ONUS
[95] The Tshabalala case
establishes the following:
(a)
the
onus is on the plaintiff to establish whether reasonable protective
steps were taken by the defendant and that had reasonable
steps been
taken, the attack would not have had occurred;
(b)
that a
negligent omission, unless wrongful, does not give rise to a
delictual liability;
(c)
the
failure to take reasonable steps to prevent foreseeable harm to
another will result in liability only if the failure is wrongful;
(d)
it is
the reasonableness or otherwise of imposing liability for such a
negligent failure that will determine whether it is to be
regarded as
wrongful.
[96] In the circumstances
of this case, the plaintiff has not made out that the measures
adopted by the defendant were unreasonable.
The defendant
provided evidence that Changing Tides was contracted by it to prevent
and combat crime and had deployed two security
guards on each
platform and a train guard on each train. Against the background of
the binding decision of the Tshabalala case,
these measures appear to
be reasonable.
FACTUAL CAUSATION
[97]
It was stated in
Carmichele v Minister
of Safety and Security and Another
2003 (2) SA 656
CC
that:
‘
As
previously pointed out by this court, in law of delict causation
involves two distinct inquiries. The first is a factual one
and
relates to the question whether the Respondent’s wrongful act
was the cause of the Appellant’s loss. This
has been
referred to as “factual causation”.
In determination of the
factual inquiry, the usual test that is applied is the condictio sine
qua non test, which is also known
as the “but for test”
which is postulated as follows “whether the wrongful conduct of
the Respondent is a necessary
condition such that, but for such
conduct, the incident would not have happened“.’
[98] Even if proved that
the assault and trapping occurred, the plaintiff has not established
that the security measures taken by
the defendant of meeting its
legal obligations were unreasonable neither has the plaintiff
satisfied the court that the assault
was not the cause of the
damages.
PROBALITIES
It
must be decided whether on
all
the evidence, the plaintiff’s version is
more probable
than
the defendant’s.
[99]
‘The Supreme Court of Appeal in
Santam
Bpk v Biddulph
2004 (5) SA 586
(SCA) at 589 para 5
held
that, as a general rule, it is undesirable to rely on a creditability
finding as a sole basis for assessing the probative value
of
evidence. Of course, there are occasions when on the face of the
record of a witness’s evidence, the witness’s testimony
is so riddled with patent inconsistencies and contradictions that
their credibility and the unreliability of that testimony is
glaringly obvious. Ordinarily though, findings of credibility cannot
be judged in isolation, but should be considered in light
of the
proved facts and the probabilities of the matter under consideration.
As
stated in
Mabona and Another v Minister
of Law and Order and Others
1988 (2) SA 654
(SE) at 662,
the
credibility of witnesses and the probability or improbability of what
they say are part of a single investigation into the acceptability
or
otherwise of a version. In this single investigation, questions of
impression are measured against the content of a witness’s
evidence, the importance of any discrepancies or contradictions are
assessed and a particular story is tested against facts which
cannot
be disputed and against the inherent probabilities.
In the
case of Network Field Marketing (Pty) Ltd v Mngezana NO and Others
(2011) 32 ILJ 1705 (LC) at para 17
referring to
Santam
Bpk v Biddulph
2004 (5) SA 586
(SCA) at 589 para 5,
the
Court found that an analysis of the conflicting evidence using a
balance of probabilities, rather than resorting to credibility
finds,
would have produced a more accurate factual finding.
In
Minister of Safety and Security and Others v Craig and Others NNO
2011
(1) SACR 469
CA
,
the Supreme Court of Appeal held that although courses of appeal are
slow to disturb findings of credibility, they generally have
liberty
to do so where a finding of fact does not primarily depend on the
personal impression made by a witness’s demeanour,
but rather
on inferences and other proved facts and on probabilities. The
Supreme Court of Appeal found that the witness’s
version, which
the trial court had preferred, was contrived and inconsistent with
the overall probabilities of the case.’
[2]
[100] From the
aforementioned analysis of the totality of all the evidence, the
plaintiff’s version is inconsistent and highly
improbable.
FINDINGS
[101] As a result of the
unsatisfactory nature of the plaintiff’s evidence which has not
been corroborated in any material
respect and the fact that his
evidence is that of a single witness, it has to be treated with
caution.
[102] In the result, the
following order is made:
The plaintiff’s
case is dismissed with costs, including the costs reserved by this
court on 05 February 2014.
_____________________
A Y BHAYAT
ACTING JUDGE OF THE
SOUTH GAUTENG HIGH COURT
COUNSEL FOR THE
PLAINTIFF
ADV V P NGUTSHANE
PLAINTIFF’S
ATTORNEYS SEPAMLA
ATTORNEYS
COUNSEL FOR THE
DEFENDANT ADV
M SMIT
DEFENDANT’S
ATTORNEYS CLIFFE
DEKKER HOFMEYER INC
DATE OF
HEARING 03
– 05 FEBRUARY 2014
DATE OF
JUDGMENT 12
– FEBRUARY 2014
BIBLIOGRAPHY
1.
Bellengere A, Palmer R, Theophilopoulos C, Whitcher B, Roberts L,
Melville N,
Picarra E, Illsley T, Nkutha M, Naude B, van der Merwe A
and Reddy S. 2013.
The Law of Evidence in South Africa
. Cape
Town: Oxford University Press Southern Africa.
[1]
Bellengere,
Palmer, Theophilopoulos, Whitcher, Roberts, Melville, Picarra,
Illsley, Nkutha, Naude, van der Merwe and Reddy 2013:168.
[2]
ibid
169-170
.