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[2016] ZAGPJHC 194
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Passenger Rail Agency South Africa v Moabelo (A5015/2014, 16217/2014) [2016] ZAGPJHC 194 (31 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A5015/2014
CASE
NO: 16217/2014
DATE:
31 MAY 2016
In the
matter between:
PASSENGER
RAIL AGENCY
SOUTH
AFRICA
..............................................
Appellant/Defendant
And
MOABELO,
MMAKGABO
SIMON
...................................................................
Respondent/Plaintiff
ORDER
:
On
appeal from the judgment of Monama J, Gauteng Local Division, High
Court, Johannesburg.
1.
The appeal is dismissed with costs.
SUMMARY
Delict
– railways – safety and security fare paying passengers
on trains – plaintiff alleging that he was pushed
out of moving
train – with open doors – overcrowded – and
sustained injuries – mutually destructive versions
of plaintiff
and defendant’s (PRASA’s) witnesses and train driver –
approach of courts – version of train
driver improbable and
somewhat fabricated – appeal dismissed with costs, and PRASA
held to be liable for plaintiff’s
proven damages.
DRAFT JUDGMENT
MOSHIDI, J
:
(MASIPA J AND FRANCIS J Concurring)
INTRODUCTION
[1]
The appellant appeals against the whole of the judgment of Monama J
(“
the court a quo
”)
in finding that: the appellant is liable to compensate the
respondent for all proven damages suffered by him as a
result of an
incident at Kaalfontein station on 3 August 2009; and ordering the
appellant to pay the costs of the action in the
court
a
quo
. The present appeal is with
the leave of the court
a quo
.
[2]
It appears appropriate to commence this judgment, in proper context,
by recalling what was said over eighty years ago by Wessels
JA, in
National
Employers’ Mutual General Insurance Association v Gany
:
[1]
“…
But
it must be remembered that an appeal is in substance a new trial, and
this Court must be satisfied that there are sound and
substantial
reasons for the Court a quo
to
hold that an onus resting on the plaintiff, as it does in this case,
has in fact been discharged. Where there are two stories
mutually destructive, before the onus is discharged, the Court must
be satisfied upon adequate grounds that the story of the litigant
upon whom the onus rests is true and the other false …
”
More
about this legal principle later below.
THE
RESPONDENT’S CLAIM
A QUO
[3]
In the court
a
quo
,
and indeed in this appeal, the only issue for determination was the
merits of the respondent’s claim against the appellant.
The
issue of the quantum of damages stood down indefinitely. In
essence, the respondent’s claim, as mirrored in the
particulars
of claim, and his evidence, came to this: based on the
allegation that at the time of the incident in question,
namely 3
August 2009, he was a fare paying passenger on the appellant’s
train, and was injured in transit, in the manner
as described later
below. As a consequence, he claimed damages for personal
injuries which he sustained.
[2]
[4]
The circumstances, the background, as well as the geography where
exactly the incident occurred, leading to the instant litigation,
were sketched extensively in the court
a
quo’s
judgment.
[3]
It is, for present purposes, truly unnecessary to do so again.
THE
ORIGIN OF THE INCIDENT
[5]
The tragic incident had its origin at the Kempton Park train station
when the respondent boarded a train at about 18h00. It
was already
dusk. He was en-route to Tembisa township and would disembark
at Tembisa train station. For what is relevant,
there are two
train stations between Kempton Park train station and Kaalfontein
train station, namely Van Riebeeck Park and Birchleigh
stations.
These stations have four platforms, and called platforms 1 to 4, with
four lines or lanes that traverse these platforms.
[6]
The down slow lines (“
dsl
”),
run from Kempton Park station to either Leralla station in the
Tembisa area or Pretoria station on platform 4, at all
the mentioned
stations. On the other hand, the down main lines (“
dml
”)
pass on platform 3 at Kempton Park station, in a south to north
direction, until Kaalfontein station. The up lanes
operate from
north, i.e. from Tembisa or Pretoria, to the south (Kaalfontein).
These lines are divided into two lines, i.e.
the upper main line
(“
uml
”),
and the up slow line (“
usl
”).
[7]
On the version of the respondent, when he boarded the train at
Kempton Park station, the train was full of passengers. It picked
up
more passengers along the way at Van Riebeeck, Birchleigh and
Kaalfontein stations. On the respondent’s version,
from
Kempton Park station, the train’s doors were open. He was
standing in the middle of the coach and surrounded by
other
passengers.
THE
INCIDENT
[8]
As to the exact incident, the respondent testified broadly in the
following terms: the train entered Kaalfontein station
at
platform 3. He was facing the door of the coach. More
passengers entered. He was due to alight at the next
station,
i.e. Tembisa station. However, as the train was leaving
Kaalfontein station, there had been pushing and shoving
by
passengers, and whilst the respondent was readying himself to alight
at his destination (Tembisa station). As the train
left
Kaalfontein station, the respondent was pushed violently by other
passengers towards the doors. He turned in order to
hold on to
the aisle in the middle of the coach. However, due to the force
of the pushing, the respondent was pushed out
of the moving train
door. He fell backwards out of the train and landed on his
back. The doors were open. On
landing outside the train,
the respondent lost consciousness, which he regained in the ward at
the Tembisa hospital. He sustained
the injuries as described in the
particulars of claim. The injuries are not in dispute. Whilst in
hospital, the respondent’s
wife visited him. She was
handed his personal belongings including his cellphone, clothing, as
well as his train ticket.
In turn, these items were handed to a
Mr Khuzwayo at hospital who undertook to secure legal advice on
behalf of the respondent.
The respondent was cross-examined
extensively, and although limited holes were dug out of his evidence,
he was adamant in his core
version.
SOME
COMMON CAUSE FACTS
[9]
The following were not in dispute, or not seriously challenged in
evidence. The train which left Kaalfontein station,
travelling
towards Tembisa, shortly before the respondent was thrown out of the
train, was train no. 0547, which was on the dsl
line. This
train was scheduled to depart from Kaalfontein station at about
18h52, but it was more than 21 minutes late.
On the evidence of
the appellant, this train passed the cabin signal at Kaalfontein
station at about 19h13. This was the
same time when train no.
1886, driven by one of the appellant’s witnesses, Mr G F Van
der Mescht (“
Van der Mescht
”),
entered the Kaalfontein station passed the cabin signal, entering
Kaalfontein station. This train too, like all
the other trains
that day, was late. It was some 40 minutes late as it passed
Kaalfontein station at approximately 19h13.
The trains from
Tembisa station and Pretoria station and from Kaalfontein station and
beyond, were running late as well and were
overcrowded. These trains,
and this is significant, were operating with open doors, in
particular, the train in which the respondent
was a passenger.
THE
RESPONDENT’S WITNESSES
[10]
Several witnesses testified for the respondent. One of whom was
Mr Pelani Sam Baloyi (“
Baloyi
”).
[4]
At the time of the incident, he was on duty and employed by a
security company called Singobile at Kaalfontein station. He
came on
duty at about 18h00 that day. He and a colleague, Mr M
Ramalafa, patrolled the area around Kaalfontein station.
The
area was well-lit and visibility was satisfactory. He received
a call from the control office about a passenger who fell
from a
train. On investigation and search, the respondent was found between
19h00 and 20h00. The respondent was injured severely
and had to
be rushed to the nearby Tembisa hospital. The area next to the signal
cabin was securely fenced off, and in particular
the location where
the respondent was discovered. Significantly, Baloyi denied in
rather strong terms, that the respondent
was running across any
trains’ tracks, and kneeled down on the uml lane, as alleged by
the appellant. If this had occurred,
Baloyi testified that he
would have observed it. Baloyi was equally cross-examined
closely, but kept to his core version
in the end.
THE
RESPONDENT’S PERSONAL CIRCUMSTANCES
[11]
What appears to be crucial in the context of this matter, was the
evidence covering the respondent’s personal circumstances
presented by two witnesses. These were Mr Peter Mathebula
(“
Mathebula
”),
at the time the operations manager at the respondent’s place of
employment, and the respondent’s wife, Mrs
Mavis Moabelo (“
Mrs
Moabelo
”). The evidence is so,
when comparing the appellant’s evidence through Van der Mescht
that the respondent was attempting
to commit suicide at the time of
the incident by throwing himself in front of the train driven by him
on the evening in question.
[12]
I deal briefly with the evidence of Mathebula. En passant, he
too, like all the respondent’s witnesses, was cross-examined
intimately. I must also hasten to mention that the first
witness for the respondent at the trial was Mr Luyanda Jona
(“
Jona
”),
a candidate attorney of the respondent’s attorneys of record at
the time. He attended an inspection
in
loco
at the Kaalfontein station on 24
March 2011. If necessary and relevant, I shall deal with his
evidence later below.
[13]
Mathebula, despite what appeared to be his casual and somewhat
lackadaisical composure, however testified convincingly and
almost
indisputably, that the respondent was due to proceed on annual leave
from 11 August 2009 (about seven days before the incident)
until 1
September 2009. He explained satisfactorily too, the reason why
the respondent had in his possession a weekly ticket
only for the
ensuing week of August 2009 to September 2009. At the time, the
respondent had applied for, and was granted
leave as requested. His
evidence, regarding the respondent’s work circumstances could
hardly be countered in cross-examination.
[14]
Mrs Moabelo testified simply and incontestably, in the following
terms: she proceeded to the Tembisa hospital pursuant to a
telephone
call she received. There she found her husband, the respondent,
injured severely. The hospital staff handed to
her, the
respondent’s personal belongings, as described above. One
of the items included a weekly train ticket. Her
uncontested evidence
was that at the time of the incident in question, their marriage was
a happy one, bereft of any notable problems.
THE
EVIDENCE OF THE APPELLANT
[15]
For the appellant, about five witnesses testified. The most
crucial and relevant of which, was Van der Mescht.
His
evidence, which was clearly in direct contrast to that of the
respondent, came to this: at the time of the incident,
he had
been a train driver for Metrorail for some four years, having been a
guard previously. On the day of the incident,
he was the train
driver of train no. 1886, operating from Leralla station to
Elandsfontein station and back. His train guard
was Ms Beauty
Masete (“
Masete
”).
His train, and others were running late the whole day on the day of
the incident.
[16]
Van der Mescht testified that that evening, at about 18h43, his train
(1886) came from the direction of the Tembisa side, approaching
Kaalfontein station on the up main line. On approach at
Kaalfontein station, he crossed another train, train no. 0547,
travelling
on the slow line, in the opposite direction. In
other words, in the direction of Tembisa station, and Leralla
station.
The latter station is a turnaround point, where trains
turn around and restart journeys. His train’s headlights
were
set on bright.
[17]
At that point, and crucially too, Van der Mescht observed a movement
coming from the right-hand side of his train, underneath
the bridge.
On closer observation, the movement emanated from somebody running
over the rails in the direction of his train.
That movement of
a person, which later turned out to be the respondent, proceeded to
the front of Van der Mescht’s train.
That person, suddenly
kneeled in front of the train, and Van der Mescht ran him over.
At that time Van der Mescht was travelling
at about 30 kilometers per
hour, driving a train that was some 41 minutes late. He and his
guard, Masete, later discovered
that it was the respondent that was
run over by the train and had sustained certain severe injuries.
Upon close analysis
and scrutiny the evidence of Van der Mescht,
where it conflicted with that of the respondent, suggested in no
uncertain terms,
that the respondent attempted to commit suicide.
[18]
The appellant’s witness Mr R M Kgare (“
Kgare
”),
the signalman on duty at Kaalfontein station, testified about the
movement of the trains on that day. The court
a
quo
dealt with his evidence as
reflected in exhibit “D701”, of the trial bundle.
It is noteworthy that the evidence
of Kgare, as against that of the
respondent, to an extent, was also conflicting. For example, in
regard to the platforms at Kaalfontein
station. However, Kgare
confirmed that Van der Mescht’s train was late. He also
confirmed the existence of a bridge
as testified by Van der Mescht.
The other witnesses for the appellant were Mr J A Lesley, and Mr D S
Kapelus. The evidence
of the respondent’s first witness,
Jona, in essence, did not help much in resolving the critical issues
in dispute here.
He and members of the respondent’s legal
team attended an inspection
in loco
at the Kaalfontein station on a public holiday in March/April 2011.
Indeed, this was long after the pleadings were closed, and
after the
trial was initially postponed. At the inspection, the
respondent could not point out the exact spot where he was
pushed out
of the moving train, and fell. Jona took photographs of the
scene, the album whereof formed part of the exhibits
at the trial.
He was cross-examined intimately about his observations at the scene
as well as the photos he took. However,
in my view, the limited
value of his testimony came to this: he observed trains
entering and leaving Kaalfontein station;
some of the trains departed
to Tembisa station; some of the trains were over-crowded, with
passengers hanging to the outside; and
whilst others travelled with
open doors. I can put the limited value of the evidence no
higher since it was after the incident,
and on a public holiday.
THE
FINDINGS OF THE COURT
A QUO
[19]
At the end of the trial, the court
a
quo
, in finding for the respondent,
acknowledged that the versions of the respondent and Van der Mescht
were indeed mutually destructive.
Further that when all factors
are equipoised, the probabilities prevailed in favour of the
respondent. Indeed, this, and
other grounds, form the
subject-matter of the current appeal before us. It is conceded
equally by the respondent in the heads of
argument that the versions
presented
a quo
,
were in fact mutually irreconcilable.
THE
PERTINENT QUESTIONS AND LEGAL PRINCIPLES
[20]
Based on the above, as well as the relevant overall evidence to be
accounted for, the pertinent questions are these:
firstly, the
conventional approach of courts to mutually destructive versions on
the same issue. More so, that, on appeal,
it is alleged that
the court
a
quo
ignored the two mutually destructive versions, in particular, the
versions of the respondent and Kgare, where these conflicted.
[5]
Secondly, the powers of this Court, on appeal, to interfere with the
factual findings of a trial court. I deal with
the first
question immediately below.
[21]
I have already referred above to the approach enunciated in
National
Employers’ Mutual General Insurance Association
,
supra
.
Much later, and in
SFW
Groups Ltd & Another v Martell et Cie & Others,
[6]
the Court said:
“
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised 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’s 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’s 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.
”
See
also
Motor
Vehicle Assurance Fund v Dubuzane
,
[7]
and
Santam
Bpk v Biddulph
,
[8]
and
Grancy
Property Ltd v Manala and Others.
[9]
[22]
In regard to specifically, Van der Mescht’s evidence, the court
a
quo
firmly found that his evidence stood to be rejected on account of the
evidence of Baloyi, who testified for the respondent.
The court
a
quo
went further to find that, in the circumstances of the case, it was
reasonable to infer that the respondent was on the train (no.
0547)
that passed train no. 1886, driven by Van der Mescht, and that the
respondent fell from that train in and around the area
of cross-over
by Van der Mescht’s train.
[10]
[23]
Based on the above legal principles, which the court
a
quo
applied, correctly so in my view,
the findings cannot be faulted at all. Indeed, the version of
Van der Mescht, in particular
that the respondent was attempting to
commit suicide when he sustained the injuries, was either extremely
disingenuous or fabricated.
The version plainly lacked
credibility. It was improbable for several reasons. In
the first place, the version was
discounted overwhelmingly and
convincingly by the positive aspects of the evidence of the
respondent’s personal circumstances
as described by his wife,
Mrs Moabelo, and employer, Mathebula, as set out in paragraphs [11]
to [14] of this judgment. In
short, the respondent was in
fulltime employment at the time, and due to go on annual leave at the
time of the incident. He was
happily married with a family. He was in
possession of a valid train ticket when he was pushed out of the
moving train.
[24]
In addition, the record of the proceedings shows that when it was put
to Van der Mescht in cross-examination, whether it appeared
to him
that the respondent was trying to commit suicide, he replied in the
following terms:
“
I
do not think so sir. I do not know but he was running over the
rails. He was running over the rails and then he was kneeling
down
between the rails.
”
[11]
This
response from Van der Mescht questions highly his reliability and
credibility, to say the least. Furthermore, as argued
by the
respondent, in his evidence and his extracurial statements, Van der
Mescht alleged that prior to knocking down the respondent,
he noticed
someone running from under the bridge towards the rails. This
aspect was never mentioned to any of the witnesses
to whom he later
reported what had happened, including his guard, Masete. He mentioned
seeing a movement only, and was unsure what
it was at the time.
[12]
In addition, the version of Van der Mescht was discounted credibly by
the evidence of the security guard, Baloyi. One
more cynicism
in the version of Van der Mescht, is this: if the respondent
indeed kneeled in front of his oncoming train
between the rails, and
he knocked him down, one would reasonably have expected the entire
body of the respondent to have been smashed
to smithereens and not
with the present injuries. The body of the respondent would
also not have been found, as it was, at
the back of the train.
In his extra-curial statements, immediately after the incident, Van
der Mescht, asked his guard, Masete,
to look for the body at the back
of the train. This she did, after peeping through the back window of
the train. She observed,
and later discovered the body of the
respondent at the back of the train, in an injured state. This was
also confirmed by the report
made by Van der Mescht to Mr Z D Tshuma,
the Segment Security Commander at Kaalfontein station, immediately
after the incident.
It appears to me that Van der Mescht deliberately
evaded the obvious probability that the respondent fell out of train
number 0547
(which crossed his train), as alleged by the respondent,
and invented carefully the suicide fiction, to the detriment of the
appellant.
In short, logic tells that it is highly improbable to be
hit by a train head-on, on the rails, and land up at the back of such
train, with the calibre of the injuries sustained by the respondent
in this case. The entire contents of the statements he make
to
various persons immediately after the incident, supported partly by
the evidence, contradicted rather substantially, his version.
It is truly difficult to accept his version. The evidence of Kgare
equally did not entirely persuade the court
a
quo
.
The reasons are not far to find. In short, Kgare had no independent
recollection of the incident. This much he admitted.
[13]
He did not witness how the respondent was injured.
CONCLUSION
[25]
For all the above reasons, I have come to the conclusion that, when
accounting for the totality of the evidence, the credibility
findings, and the probabilities found by the court
a
quo
,
cannot be faulted at all. There was no irregularity or misdirection
in the findings and conclusion reached. To suggest that
the
respondent was not a fare paying passenger on the train, but a
trespasser running along the railway lines, as suggested by
the
appellant, would be highly illogical, unreasonable and unfounded, in
the circumstances of this case. There were truly
no credible
reasons advanced why this Court on appeal, should interfere with the
factual findings of the court
a
quo
.
See for example,
Ndlovu
v AA Mutual Insurance Association Ltd
,
[14]
and
Rex
v Dhlumayo and Another
.
[15]
The appeal must therefore fail. What is particularly worrying in this
case is this: it is not in dispute that the trains
were running
late on the day of the incident. In addition, the respondent
consistently and rather credibly contended that the doors
of the
train, shortly before and during the incident, were open.
However, in view of the described conflicting versions,
it is purely
unnecessary to make a definitive finding on some of these aspects,
save to refer briefly to what was said recently
in
Mashongwa
v PRASA
[16]
at
para [18]:
“
The
vulnerability of rail commuters and the precarious situation in which
they often find themselves ought, by now, to be self-evident.
It is 10 years since Metrorail in effect highlighted the need to keep
coach doors closed to secure rail commuters and the significance
of
failing to provide safety and security measures for them when a train
is in motion. Even then it was not a new problem as there
were
reported decisions in other courts, that dealt with it. This
underpins the utmost importance of PRASA’s duty to
ensure that
reasonable measures are in place to provide for the safety of rail
commuters.
” (footnotes omitted)
[26]
I must mention prior to concluding that: the appellant
initially applied for condonation for the late filing of the appeal
record, as well as the late application for the allocation of a date
for the hearing of the appeal. The respondent opposed the
application. However, this issue was not in serious contention at the
hearing, and the appeal proceeded on the basis that the condonation
sought was granted.
THE
COSTS
[27]
I deal briefly with the issue of costs. It is tritely a
discretionary matter. There was no reason advanced by either
party
why the costs should not follow the result. Both parties engaged the
services of two counsel. I must add that, in my discretion,
it would
be proper that the appellant ought to pay the costs of the
condonation applications, as well as all the reserved costs.
ORDER
[28] In the result the following order is made:
28.1
The
appeal is dismissed with costs.
28.2
The
costs should include the costs consequent upon the employment of two
counsel. The costs shall also include the costs in
the
condonation applications as well as all reserved costs.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
T
M MASIPA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
E
J FRANCIS
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPELLANT T J BRUINDERS SC
ASSISTED
BY UNKNOWN
INSTRUCTED
BY NORTON ROSE FULBRIGHT SA INC
COUNSEL
FOR THE RESPONDENT M CHAITOWITZ SC
ASSISTED
BY M SIBUYI
INSTRUCTED
BY MAFORI LESUFI INC
DATE
OF HEARING: 27 JANUARY 2016
DATE
OF JUDGMENT: 31 MAY 2016
[1]
1931
(AD) 187 at 199.
[2]
See
particulars of claim pp 507 and 523, vol, 7 pleadings.
[3]
See
appeal record vol 3, from p 225.
[4]
See
appeal record, vol ?, page ?.
[5]
See
appellant’s heads, pp 13 to 14 paras [21] to [23].
[6]
2003
(1) SA 11
(SCA) para [5].
[7]
1984
(1) SA 700
(A).
[8]
2004
(5) SA 586
(SCA) at para [7].
[9]
[2013]
3 All SA 111
2015 (3) SA 313
(SCA).
[10]
See
judgment
a
quo
,
para [29].
[11]
See
supplementary appeal record, vol 5, p 381, lines 15 to 20.
[12]
See
supplementary appeal record, vol 5, p 333, lines 5 to 6, and p 347,
lines 24 to 25.
[13]
See
supplementary appeal record, vol 6, p 441, lines 23 to p 442, line
10.
[14]
1991
(3) SA 655
(E) at 659E-F.
[15]
1948
(2) SA 676
(A) at 706.
[16]
[2015]
ZACC 36.