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[2015] ZAGPJHC 36
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Phoshoko v Passenger Rail Agency of South Africa (PRASA) (10/46975) [2015] ZAGPJHC 36 (15 February 2015)
REPUBLIC OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO. 10/46975
DATE: 15 FEBRUARY 2015
In the matter between:
NTELENG ALBERT
PHOSHOKO
...........................................................................................
Plaintiff
And
PASSENGER RAIL AGENCY OF SOUTH
AFRICA (PRASA)
.........................................
Defendant
JUDGMENT
OPPERMAN AJ
INTRODUCTION
[1] Mr Phoshoko instituted action
against the defendant for damages suffered as a result of personal
injuries sustained on 30 October
2010 when he fell from a moving
train while its doors were open. The parties had reached an
agreement that the issues of quantum
and merits be separated in terms
of rule 33(4) of the Uniform Rules of Court which was ordered. The
court was advised that the
only issue in dispute was negligence and
the trial was conducted on this basis. At issue was whether Mr
Phoshoko was ejected from
the train by some negligence on the part of
the defendant, or whether he negligently injured himself by jumping
off the moving
train, or whether an apportionment of liability should
be found in terms of the Apportionment of Damages Act no. 34 of 1956
(as
Amended).
PLAINTIFF'S EVIDENCE
[2] Mr Phoshoko testified that on
Saturday, the 30th of October 2010, he had boarded a train at
Northmead Station, which is situated
at Benoni, next to the Lakeside
Mall. He explained that he was coming from work and was heading
home. Having boarded at Northmead
Station, he disembarked at
Dunswart Station to board another train. His final destination was
Angelo Squatter Camp. The stations
following upon Dunswart where the
last leg of his fateful journey began are: Boksburg East, Boksburg,
East Rand Station and then
Angelo.
[3] He explained that the train was
full upon entering. There were no seats available to sit but there
was standing space. He
testified that he stood in the middle of the
coach with his back to the door he had used to board the train,
facing the opposite
door. The distance from either door was about
the same (which he estimated to be approximately 2 feet).
[4] Just before the train arrived at
Boksburg Station, it started breaking in a jerking manner going
forwards and backwards erratically.
He explained that he was "way
too short" to reach the overhead handles and could also not
stabilise himself in any other
manner. This action, a foundation of
the negligence that plaintiff sought to lay at defendant’s
door, caused him to fall
out of the carriage exiting the same door
that he had entered. He landed on the concrete stone bedding next to
the railway tracks
(between the tracks and the platform). He managed
to move himself from the place where he had landed, to the platform,
whereafter
he lost consciousness and only regained consciousness at
the hospital on the Tuesday (4 days later).
[5] He explained that he had started
using the train approximately seven months prior to this incident
when he had commenced employment
as a general labourer. He was
earning approximately R500 per week.
DEFENDANT’S EVIDENCE
[6] The defendant called two witnesses,
Mr Themba Mtambo and Mr Senzo Mnyandu.
[7] Mr Mtambo testified that during
2010 he had been employed by Singobile Security Company. On the day
in question, being 30 October
2010, he was stationed at platform 2 at
East Rand Station. At approximately 15:45, he witnessed a train
coming from the direction
of Springs heading towards Johannesburg. He
saw a man standing on the stairs between two coaches (ie on the
outside of the coaches)
holding onto iron bars attached to the
outside of the coaches. This individual then jumped and fell onto
the platform. Mr Mtambo
noticed that he had injured his toes in that
the foot appeared to have been de-gloved. He approached the man (Mr
Phoshoko) and
observed that although quiet, he was still breathing.
He informed the train driver that a person had been injured and
returned
to Mr Phoshoko who was still lying on the platform. Mr
Phoshoko was crying. Mr Mtambo asked him whether he had any telephone
numbers of any relatives that they could contact on his behalf but he
said that he could only remember his girlfriend's telephone
number.
Next to him was a black plastic bag with a lunch box inside. He was
wearing one sandal. The other sandal had fallen
next to the railway
line. Mr Phoshoko was lying beyond the yellow barrier line and Mr
Mtambo requested some bystanders to assist
him to move Mr Phoshoko
away from the rim of the platform. Mr Mtambo asked him what he had
been doing but he didn't answer the
question. He cried persistently.
Mr Mtambo asked him about his ticket and he admitted that he did not
have a ticket. Mr Mtambo
stated that because it was a Saturday there
were not many people at the station. Another security person was
stationed at the end
of platform 2 being one Mr Senzo Mnyandu. Mr
Mtambo called his controller who contacted an ambulance.
[8] Mr Senzo Mnyandu testified that on
30 October 2010 he was an employee of Sibongile Security Company and
that on that day, he
was stationed at East Rand Station. He was on
duty with his co-employee, Mr Themba Mtambo. He explained that East
Rand Station
has four platforms and that he and Mr Mtambo were
stationed at platform 2. Mr Mnyandu explained that he did not see
the incident
and that he had only seen Mr Phoshoko after the injury
and whilst he was lying on the platform. This was so because he was
positioned
towards the end of the platform next to the gate where the
ticket examiner was stationed, whereas Mr Mthambo was performing his
duties at the other end of the platform ie the side that the train
had entered the station. Mr Mthambo had called him. He then
noticed
that Mr Phoshoko was lying on the platform and that he had an injured
foot. He observed that the skin on his toes was missing.
He
recalled that he and Mr Mtambo had spoken to Mr Phoshoko. Mr
Phoshoko did not respond initially but did so later. He was
asked
where he resided and had explained that he stayed in Angelo. He was
asked about the telephone numbers of relatives but could
only
remember the telephone number of his girlfriend. They had asked him
how old he was and he had explained that he was 21 years
of age. He
noticed that one sandal was on his foot and the other sandal was
lying inside the railway track. He was asked about
a ticket and he
had explained that he did not have a ticket.
THE AMENDMENTS
[9] The original particulars of claim
signed on 17 November 2010 (two and a half weeks after the incident)
recorded that the incident
had occurred at the Boksburg Station.
During April 2012 this fact was amended to record that the incident
had occurred at East
Rand Station.
[10] During the cross-examination of Mr
Phoshoko, plaintiff's counsel moved for an amendment to paragraphs 3
and 3.1 of the particulars
of claim to read:
"On and(sic) about the 30th of
October 2010 at Boksburg station, in the vicinity of Johannesburg,
within the area of jurisdiction
of this Honourable Court, the
Plaintiff:
3.1 Was in possession of a valid weekly
ticket allowing him to travel on trains
from Northmead to
Angelo and return."
[11] The amendment was opposed by the
defendant, contending that it would be prejudiced if the amendment
were granted in that it
had brought witnesses to court to testify
that the incident in issue had occurred at East Rand Station. Mr
Phoshoko did not seek
to redefine the issues which fell for
determination by this Court. Negligence being the only issue which
was in dispute and all
other issues being common cause, the dispute
relating to the location of the station where the incident had
occurred, had a bearing
on, primarily, credibility. The amendment
was granted. The defendant did not seek a postponement nor did it
request that the
matter stand down to deal with the changed facts.
EVALUATION OF THE EVIDENCE
[12] The Court is faced with two
mutually destructive versions. Mr Phoshoko contends that he was
ejected from the inside of the
coach whereas the defendant’s
evidence is to the effect that Mr Phoshoko was standing on the stairs
between the carriages
(on the outside of the carriages) holding onto
the iron bars on either side of the carriages. When the train got to
the station
he jumped, inflicting the de-gloving of his foot by his
own conduct.
[13] This Court is to approach these
versions by applying the principles enunciated in the decision of
Stellenbosch Farmers Winery
Group Ltd and Another v Martell et Cie
and Others
2003 (1) SA 11
at 14I-15D where Nienaber JA held as
follows:
"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
probabilities. As to (a), the court's finding on the credibility of a
particular witness will
depend on its impression about the veracity
of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily
in order of importance, such as (i) the
witness' candour and demeanour in the witness-box, (ii) his bias,
latent and blatant, (iii)
internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his
behalf, or with established
fact or with his own extracurial
statements or actions, (v) the probability or improbability of
particular aspects of his version,
(vi) the calibre and cogency of
his performance compared to that of other witnesses testifying about
the same incident or events.
As to (b), a witness' reliability will
depend, apart from the factors mentioned under (a)(ii), (iv) and (v)
above, on (i) the opportunities
he had to experience or observe the
event in question and (ii) the quality, integrity and independence of
his recall thereof. As
to (c), this necessitates an analysis and
evaluation of the probability or improbability of each party's
version on each of the
disputed issues. In the light of its
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
the 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 are equipoised probabilities
prevail."
[14] Mr Phoshoko was cross-examined on
the content of the trial bundle. The truth of the content of the
documents was not admitted.
In the absence of the author/s of the
document/s having been called to testify in respect of the truth of
the content thereof,
the content remains hearsay evidence and thus
inadmissible and it will be disregarded save where the content was
admitted during
cross examination or other safe-guards can be found
in the objective evidence.
Mr Phoshoko – Tendency to
exaggerate
[15] Mr Phoshoko did not make a
favourable impression as a witness. He was prone to exaggeration.
So, for example, he stated that
he had lost consciousness on the
Saturday and only regained consciousness on the Tuesday. The
hospital registration form reflects
that he was admitted at 17:32 and
his residential address is recorded as 1482 8th Street, Boksburg. He
testified that that was
his mother's residential address where she is
employed as a domestic worker. The undisputed evidence is that he
was admitted to
the hospital without any relatives being present.
The only source of the particulars relating to the residential
address could
have been Mr Phoshoko. The significance of this is, as
the defendant's counsel correctly pointed out, that he was conscious
when
admitted to the hospital. Mr Phoshoko attempted to explain this
away by stating that that which was written down on the registration
form, was only recorded after he had regained consciousness. This
does, however, not explain how his signature appeared on the
consent
to operation form (he admitted that it was his signature), nor does
it explain why the person who completed the progress
report at 21:45
on 30 October 2010 had recorded "patient verbalised that he was
pushed out a moving train". Mr Phoshoko
was the only source of
information for the address of his mother’s employer (which
save for one digit is, according to Mr
Phoshoko, the correct address)
and for the version recorded in the progress report. It is
unfortunate that Mr Phoshoko deemed
it necessary to exaggerate the
extent of his injuries by stating that he had lost consciousness for
4 days. He was seriously injured
already. There was no need to
exaggerate. His willingness to do so does, unfortunately, affects
his credibility. He persisted
with contending that he was
unconscious until the Tuesday post the incident despite overwhelming
evidence to the contrary. This
included documentary recordals and,
of course, the two witnesses called on behalf of the defendant who
both testified that they
had spoken with Mr Phoshoko. Neither of
these witnesses had any incentive to recount a false version of
events, but more about
them later.
External contradictions
[16] Eighteen days after the incident,
action was instituted by Mr Phoshoko against the defendant. At that
point he had instructed
his attorneys of record that the incident had
occurred at the Boksburg Station. During 2012, an amendment was
effected to the
pleadings to reflect that the incident had occurred
at the East Rand Station. An amendment during 2013 confirmed this
feature
and amended certain other aspects of the claim.
[17] The parties came to trial on the
basis that the incident had occurred at the East Rand Station.
During Mr Phoshoko's evidence-in-chief,
he changed the place where
the incident had occurred to the Boksburg station. A sympathetic
analysis of these facts might lead
to the conclusion that Mr Phoshoko
is (or was) simply mistaken and/or confused about the place where the
incident had occurred.
During cross-examination, he blamed his
attorneys of record for having made a mistake. No evidence has been
placed before this
Court as to how this mistake might have arisen.
In the absence of evidence explaining how the attorneys of record for
the plaintiff
might have gotten the place where the incident had
occurred so very wrong, this Court is compelled to conclude that Mr
Phoshoko
changed the place where the incident had occurred in order
to get around the damning evidence of the two independent witnesses
called by the defendant. I find it highly improbable that the
attorneys for the plaintiff would have gotten something so
fundamental
so completely wrong.
[18] Another material aspect of Mr
Phoshoko's evidence which changed from the time action was instituted
until he testified in this
Court, was that he had initially, and in
the particulars formulated 18 days after the incident, stated that he
had been pushed
out of the moving train by other passengers. During
his evidence-in-chief, he disavowed this notion. When confronted
with this
change in version, Mr Phoshoko stated that someone could
have pushed him.
[19] The reasons advanced by Mr
Phoshoko in his evidence in chief for falling out of the train were
primarily the jerking movement
of the train, the speed at which it
was travelling and the fact that the doors were open. This was the
foundation of his allegation
of negligence against the defendant and
it had clearly been modified from the version that he had been pushed
from the train. This
volte face unfortunately casts further doubt on
his credibility.
[20] It does appear as though Mr
Phoshoko had boarded the train without a ticket. It is a factor that
goes to whether he was inside
or outside the carriage shortly before
his fall. Without a ticket he would have been concerned about
detection by the defendant’s
officers. Not only could he not
produce the ticket at the time of the incident, but his evidence as
to the nature of the ticket
that he allegedly had at the time, also
changed during the course of this litigation: The particulars of
claim served 18 days
after the incident recorded that he had a ticket
which would allow him to travel from Boksburg, returning to Boksburg.
This version
changed during 2013 when the particulars were amended to
record that at the time of the incident he had a ticket which allowed
him to travel from Angelo station to Dunswart station. The version,
which was finally advanced, was that Mr Phoshoko had a ticket
entitling him to travel from Northmead to Angelo station and back to
Northmead.
Internal Contradiction
[21] During Mr Phoshoko's
evidence-in-chief he testified that he had not held onto the overhead
handles as he is "way too short".
During
cross-examination, the parties agreed that Mr Phoshoko is
approximately 1,65 metres tall. When it was put to him during
cross-examination that a person of his height could easily reach
those belts, Mr Phoshoko admitted that he could reach them but
then
advanced a different speculative alternative being that it depended
on whether or not those belts were present in that particular
train.
He agreed that if there were belts, he would have been able to hold
onto them.
Improbability of plaintiff’s
version
[22] Mr Phoshoko's description of how
he had fallen out of the carriage seems improbable. He testified that
he was about two feet
away from the door he had used to board the
train and that after getting to the centre of the train, he was
surrounded by other
commuters. He had entered the train facing the
opposite door and had remained in this position even when the train
was entering
the Boksburg Station. He explained that the train had
started jerking and he was unable to maintain his balance. He was
at pains
to explain that the train was full and that he was
surrounded by commuters.
[23] One wonders why Mr Phoshoko was
propelled from the centre of the train, past all the other commuters,
out of the door but that
not one of his fellow commuters, and those
closer to the door, had fallen out of the train. I find this version
improbable. One
would have expected those who were closer to the open
doors to have fallen out.
Defendant’s Witnesses
[24] The defendant's witnesses gave
evidence which was not only credible but also reliable. Mr Mtambo
was not an employee of the
defendant at the time. He was employed by
an independent security company. He, at the time of testifying,
owed such security
company no allegiance and advised this Court that
he was employed elsewhere. Mr Mnyandu too was employed by the same
security
company as Mr Mtambo although at the time of testifying, Mr
Mnyandu too was employed by a different, also independent, security
company. No reasons were advanced why these witnesses would have
come to court to perjure themselves and to have fabricated a
set of
facts which would exculpate the defendant. Notably, it was not put to
either of them that they were lying and had concocted
this entire set
of facts to favour the defendant.
FINDING ON DISPUTED ISSUES
[25] I find Mr Phoshoko not to be
either credible or reliable. The probabilities are also strongly
against the version advanced
by Mr Phoshoko. I accordingly find that
the incident occurred in the manner described by the defendant’s
witnesses.
ALTERNATIVE BASIS FOR LIABILITY
[26] As a separate argument, Counsel
for Mr Phoshoko contended that the defendant ought to have put
measures in place to deal with
overcrowding. Reliance was placed on
the decision of South African Rail Commuter Corporation Ltd v Thwala
(661/2010)
[2011] ZASCA 170
(29 September 2011). In this judgment
Maya JA held at paras [15] and [16] as follows:
"[15] But I have a difficulty with
the factual finding made by the court below that the train and, in
particular, the respondent’s
coach, was ‘overcrowded’,
from which the inference of negligence was drawn. The sum of the
respondent’s evidence
on this aspect was merely that the train
was ‘very full … even up to the door’. She neither
pleaded nor established
in evidence that the appellant had a duty to
regulate the numbers of its rail passengers nor what reasonable
measures it ought
to have implemented in that regard to ensure
passenger safety that it omitted to take. She led no evidence, for
example, on the
passenger capacity of the coach; if that number was
exceeded, how many passengers remained in the coach when the train
reached
her station etc. One cannot assume simply from the fact that
there were standing passengers that the coach carried an
impermissible
number as the appellant’s policy and applicable
safety standards might well legitimately have allowed that practice.
[16] I say this aware that the
appellant’s policies and legal obligations in the conduct of
its rail service are, of course,
peculiarly within its knowledge. So
too is the nature and extent of the relevant precautionary measures
it must take to ensure
rail commuter safety. However, the fact
remains that it did not have to prove that it could not reasonably
have prevented the respondent’s
fall. The record shows no
indication that the respondent attempted to ascertain this kind of
evidence by, for example, employing
the mechanisms provided by the
rules of court such as seeking discovery, requesting particulars for
trial etc. The nature of the
respondent’s onus was such as to
oblige her to adduce evidence that gave rise to an inference of
negligence. Only then would
the appellant have had to rebut that
inference by adducing evidence relating to the measures it took to
avert harm. But the onus
of proving that such measures were
inadequate and unreasonable in the circumstances would nevertheless
remain on the respondent."
[27] Mr Phoshoko did not testify that
the train was overcrowded. He simply stated that it was full so that
there was no place to
be seated but there was place to stand. The
Thwala (supra) decision accordingly has no application. But even on
the aspect of the
extent of occupancy of the train, I find the
version of Mr Phoshoko improbable. In this regard, Mr Mthambo's
evidence was in
direct contrast to that proffered by Mr Phoshoko. Mr
Mthambo testified that it was a Saturday afternoon and consequently
there
were not many people, either on the station or in the train. I
thus find that the factual foundation for reliance on the Thwala
matter is absent.
[28] The plaintiff’s counsel
further contended that because the defendant is aware that trains
become too full to the point
that commuters board outside moving
trains, the defendant had a duty to guard against the conduct
testified to by its own witnesses.
As the defendant's counsel
correctly pointed out, the evidence was that the train had arrived at
the East Rand Station with Mr
Phoshoko positioned in between the
coaches, holding onto the bars on each side of the coach. It is not
the defendant's case that
Mr Phoshoko had boarded the train in such
position. Moreover, it is the defendant's case that Mr Phoshoko had
conducted himself
in this manner by virtue of the fact that he was
not possessed of a ticket entitling him to commute between those
destinations.
He did not resort to this conduct because the train
was overcrowded. It was rather that he wanted to avoid detection.
CONCLUSION
[29] For the reasons advanced herein, I
conclude that Mr Phoshoko has failed to discharge the onus which he
bears, and has also
failed to lay the factual foundation for a
finding in his favour even if it were based on the defendant's
version of events.
[30] Mr Mokotedi, who appeared on
behalf of the defendant, requested that the action be dismissed with
costs. I enquired from Mr
Mokotedi what order I should make in
respect of costs, assuming I were to find in his favour bearing in
mind that the plaintiff
is a man of straw. Mr Mokotedi advised that
the costs order would in all probability not be executed. Normally a
mere inability
to pay costs on the part of an unsuccessful litigant
would not lead to a finding excusing such litigant from paying the
other side's
costs. I cannot see any reason for deviating from this
rule and none was advanced, but trust that Mr Mokotedi’s
advices
to his client in regard to the execution of the costs order
will be followed.
ORDER
[31] In the result I grant the
following order: The separated issue of liability is determined
against the plaintiff. Accordingly,
plaintiff's action is dismissed
with costs.
I OPPERMAN
Acting Judge of the High Court
Heard: 23 September 2014
Judgment delivered: 15 February
2015
Appearances:
For Plaintiff: Adv R Ralikhuvhana
Attorneys Denga Incorporated
For Defendant: Adv K M Mokotedi
Attorneys Norton Rose South Africa