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[2014] ZASCA 7
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Morare v SA Rail Commuter Corporation Limited (585/2013) [2014] ZASCA 7 (13 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 585/2013
In
the matter between:
GLEN
MORARE
...............................................................................................
APPELLANT
and
SA
RAIL COMMUTER CORPORATION
LIMITED
..............................
RESPONDENT
Neutral
citation
:
Morare
v SA Rail Commuter Corporation Limited
(585/2013)
[2014] ZASCA 7
(13 March 2014)
Coram
:
Navsa, Theron and Wallis JJA and Swain and Mathopo AJJA
Heard
:
28 February 2014
Delivered:
13 March 2014
Summary
:
Delict – appellant claiming
he was pushed through an open door of a train and suffered injuries –
appellant failed to
prove he was on a train operated by respondent –
appeal dismissed.
Order
On
appeal from
the full court of the South Gauteng High Court,
Johannesburg, sitting as the court of appeal (Kathree-Setiloane J
with Saldulker
J concurring, Makgoka J dissenting):
1
The appeal is dismissed with no order as to costs.
JUDGMENT
Swain
Aja
(
Navsa,
Theron and Wallis JJA and Mathopo AJA
concurring):
[1]
The appellant, Mr Glen Morare, claimed
payment of damages in the sum of R1 900 000 from the
respondent, SA Rail Commuter
Corporation Limited (SA Rail), in the
South Gauteng High Court (Randera AJ). Mr Morare alleged that whilst
being conveyed on a
train operated by SA Rail he was attacked by
unknown persons and pushed through an open door, whilst the train was
in motion. He
said that as a consequence he was seriously injured. He
claimed compensation from SA Rail on the basis that SA Rail had
negligently
failed to ensure his safety whilst being conveyed on the
train and had failed to take steps to prevent the train travelling
whilst
the door in question was open, which had enabled his
assailants to eject him from the train.
[2]
By consent between the parties the issues
of liability and quantum were separated in terms of rule 33(4) of the
Uniform Rules of
Court and the court of first instance was asked to
determine only the issue of the liability of SA Rail to compensate Mr
Morare.
[3]
That issue was resolved in favour of Mr
Morare in the form of an order declaring that SA Rail was liable to
compensate Mr Morare
‘for such damages as he was able to prove
in consequence of being pushed out of the train on 7 November 2008 at
or near Doornfontein
Station’. The trial court accepted his
evidence that he was travelling on a train from Park Station to
Naledi and SA Rail
was liable to compensate him for the injuries he
sustained as a result of being ejected from the train.
[4]
An appeal to the South Gauteng full court
by SA Rail, was successful, the order being set aside and replaced
with an order dismissing
Mr Morare’s claim with costs. The
present appeal is with the leave of this court.
[5]
From the outset SA Rail placed in issue the
following allegations made by Mr Morare in his particulars of claim:
‘
5.1
On the 07
th
November 2009 at approximately 20h10 at Park Station, the Plaintiff
boarded the commuter train traveling from Park Station to Naledi
Station.
5.2
Between Doornfontein and Braamfontein, the Plaintiff was attacked and
was pushed and/or became dislodged from the said train
at a dangerous
and inopportune moment by persons unknown to the Plaintiff.
5.3
The Plaintiff was pushed through the open door of the moving train.’
The
entire factual basis for Mr Morare’s claim depended on his
having been on a train. This was in issue, because although
it was
uncontested that Mr Morare had been found alongside the railway
tracks at Doornfontein Station which is east of Park Station,
the
train to Naledi from Park Station travels west towards Braamfontein.
[6]
Mr Morare had to prove on a balance of
probabilities that he had been a passenger on a train operated by SA
Rail. Intrinsically
linked to proof of this issue was proof of Mr
Morare’s allegations as to where he had boarded the train, the
time he did
so, where the train was headed and where the incident
occurred. His difficulty was that he was found at a place in the
opposite
direction from that in which he claimed to have been
travelling.
[7]
Mr Morare testified that on the day in
question he had finished working as a packer at a Pick & Pay
family store at Craighall
at 18h00, after working overtime. He
travelled in a taxi from Craighall to Park Station in order to board
a train to travel to
his home in Naledi, Soweto. He was familiar with
the route and the train he had to catch, because he had been
travelling by train
between his home and work for at least five
months prior to the incident.
[8]
Having arrived at Park Station he boarded
the train at some time between 19h00 and 20h00, from platforms one
and two, as these platforms
were combined in the same area. The train
he boarded was travelling to Naledi via Braamfontein and Mayfair. He
agreed that platforms
one and two were known as the Soweto platforms
because trains travelling west to Naledi and Soweto departed from
these platforms.
The first stop at Braamfontein Station was only a
few hundred metres down the line so that you could, according to Mr
Morare, see
the trains at Braamfontein Station from Park Station. He
agreed that Doornfontein Station was in the opposite direction to
Braamfontein
Station from Park Station.
[9]
When it was put to Mr Morare in
cross-examination that SA Rail would lead evidence that he was found
injured at Doornfontein Station
and he was asked how he got there, he
replied ‘I ask myself, how did I get to Doornfontein’.
When it was suggested
to him that the question was whether he was on
a train at all he replied ‘Yes, I was on the train’. When
it was then
put to Mr Morare that he could not have been on the train
to Naledi, he replied ‘I was assaulted. I cannot say we were on
the train going towards Doornfontein or towards Braamfontein’.
When pressed for an explanation he said ‘I do not have
any’.
[10]
Evidence that Mr Morare was found injured
alongside the tracks at Doornfontein Station was given by Ms
Elizabeth Khumalo, a segment
security commander employed by SA Rail,
who explained that her duties included receiving reports of any
incidents from the joint
operation centre of SA Rail and then
attending the scene of the incident to investigate. A guard or train
driver who witnessed
an incident would usually report it to the joint
operation centre.
[11]
Ms Khumalo gave evidence as to what Mr
Morare said to her as well as what she was told at the scene by a
security guard named Mr
Mshengu employed by Hlanganani Security, who
apparently found Mr Morare injured next to the track and moved him
onto the platform.
In turn SA Rail led the evidence of Mr Patrick
Seshonga, a supervisor employed by Hlanganani Security who, apart
from giving direct
evidence that Mr Morare was lying injured on the
platform when he came on the scene, also gave evidence as to what Mr
Morare said
to him, and what he was told by Mr Mshengu, and another
security guard employed by Hlanganani Security, Mr Kuba. No regard
was
paid to the admissibility of any of these statements, or the
weight to be attached to them during the proceedings before the court
of first instance. Simply put, one of the statements made by Mr
Morare was a previous consistent statement and the statements by
Mr
Mshengu and Mr Kuba were hearsay evidence. Mr Shepstone, who appeared
on behalf of the appellant, sought to find corroboration
for Mr
Morare’s evidence that he had been travelling on a train at the
relevant time, in the statements made to Mr Khumalo
and Mr Seshonga
by Mr Morare, Mr Mshengu and Mr Kuba. I will assume in favour of Mr
Morare that these statements are admissible
and only deal with the
weight to be attached to their content.
[12]
Ms Khumalo confirmed that trains from Park
Station bound for Naledi, Soweto departed from platforms one and two.
She said that there
was a train known as Jigaleza that ran in the
opposite direction from Park Station via Doornfontein to Naledi and
Soweto, during
the peak hour in the morning, but that this train did
not operate during the afternoon and evening, which are the times
relevant
to the incident. Ms Khumalo said that trains that travelled
from Park Station towards Doornfontein in the evening did not travel
to Naledi, but travelled to Springs, Pretoria and Thembisa. She was
emphatic that no trains travelled to Naledi from Park Station
via
Doornfontein in the evening. This evidence was never challenged by Mr
Morare. In addition, when cross-examined she said that
if Mr Morare
had been travelling on a train to Naledi in the evening, he would not
have been found at Doornfontein Station, but
would rather have been
found between Johannesburg and Braamfontein.
[13]
I turn to Ms Khumalo’s evidence of
what transpired at Doornfontein Station. She said Mr Mshengu was on
the scene when she
arrived and she found Mr Morare lying on the
platform. Doornfontein Station was not operational at the time as it
was being renovated
for the Soccer World Cup, with the result that
trains did not stop there and commuters did not enter the station. Ms
Khumalo said
Mr Mshengu informed her that Mr Morare had been found
lying next to the tracks and had been moved to the platform. Although
badly
injured, Mr Morare was able to furnish his personal details
such as his name, identity number, home address and telephone number.
She asked Mr Morare whether he had a ticket to which he replied ‘no’.
Mr Morare told her that he had been robbed and
pushed from the train
but did not say he had been assaulted. However, she agreed that it
was recorded in the occurrence book of
the joint operations centre at
21h50 that she had reported that ‘at Doornfontein there is a
person who has been hit by a
train’. Mr Louw, counsel
representing SA Rail, however, agreed when questioned by the court of
first instance that this ‘is
a generic term used for an
accident’. This concession is somewhat startling when regard is
had to clause 10 of the railway
occurrence report, partially
completed by Ms Khumalo at the scene, which provides for a number of
ways in which a person may be
killed or injured by a train.
[14]
Be that as it may, Ms Khumalo also agreed
that there was a later entry in the occurrence book that recorded at
00h25 that she had
reported ‘that at Doornfontein Station Glen
Morare of 5605 Protea Glen alleged that he jumped from unknown metro
and is 30
years of age contact no. 9[…] fell between km points
AE12/631 and AE 12/729 as jumped off . . . was not in possession of
valid ticket’. She initially agreed that she had reported that
Mr Morare had jumped from the train and that she had obtained
this
information from Mr Morare. She however then added that the word
‘jumped’ was totally wrong. There is, however,
a later
entry in the occurrence book at 00h30 to which Ms Khumalo was not
referred, which refers to a report by her ‘that
the person . .
. was hit by the train at 20:48’.
[15]
Mr Patrick Seshonga gave evidence that he
was employed by Hlanganani Security to ensure that the line between
the platform end of
Doornfontein Station and Johannesburg Station was
patrolled. He had posted two guards to patrol that portion of the
line. There
is considerable confusion concerning the identity of
these two guards. Mr Seshonga mentioned three names, namely Mr
Mshengu, Mr
Bonga and Mr Malopa. Counsel then continued on the basis
that Mr Mshengu and Mr Bonga were one and the same and that Mr Malopa
was Mr Kuba. However, it is plain from the documents that Mr Mshengu
and Mr Bonga are different people and Mr Bonga was patrolling
the
section between Doornfontein and Johannesburg with Mr Kuba. It seems
likely that Mr Mshengu was patrolling between Doornfontein
and Jeppe.
[16]
Mr Seshonga had been unable to trace Mr
Mshengu and Mr Kuba had since died. No mention is made of any
endeavours to trace Mr Bonga.
He stated he was at Park Station and
received a report from the joint operation centre that a person had
been found at Doornfontein
Station. He immediately went there and
found Mr Morare lying on platforms two and three in the company of Mr
Mshengu and Mr Kuba.
Ms Khumalo had already arrived at the scene and
he questioned Mr Morare after Ms Khumalo had already done so. Mr
Seshonga said
he asked Mr Mshengu and Mr Kuba what had happened. Mr
Seshonga’s evidence was as follows ‘they tell me the guy
is falling
off from the train’ and ‘they said they saw
the train, it was (indistinct). He said they fell off . . . They said
he
fell to the train, so the train was in motion . . .’. This
evidence was inconsistent with the statements he obtained from
Mr
Kuba, Mr Bonga and Mr Mshengu, none of whom claimed to have seen Mr
Morare fall from the train. Mr Morare told Mr Seshonga that
he was
travelling to Naledi and was robbed in the train. He asked Mr Morare
for his name, address and his ticket, but Mr Morare
did not have a
ticket. Mr Seshonga confirmed that it was only the morning trains
that travelled from Park Station in the direction
of Doornfontein to
Naledi, which was never challenged by Mr Morare. By reference to the
occurrence report that he completed at
the scene, he confirmed that
Mr Morare told him he was travelling home from work at the time.
[17]
SA Rail had placed in issue the allegation
made by Mr Morare that at the time of the accident he was in
possession of a valid train
ticket. Both Ms Khumalo and Mr Seshonga
independently asked Mr Morare whether he had a ticket to which he
replied ‘no’.
That this was his reply is confirmed by the
fact that they both recorded Mr Morare’s answer in the relevant
railway occurrence
reports, which they had completed independently
and contemporaneously at the scene of the incident. When this
evidence was put
to Mr Morare in cross-examination his reply was
‘they did not search me’. Ms Khumalo and Mr Seshonga
confirmed they
did not search Mr Morare, because that was the
function of the police. When Mr Morare was asked whether he
remembered them asking
whether he had a ticket he said he did not.
However, when regard is had to the evidence of Ms Khumalo and Mr
Seshonga that Mr Morare
was able to furnish them with his name,
identity number, home address and telephone number, there can be no
reason to doubt Mr
Morare’s ability to understand the question
and furnish a reliable answer. Although maintaining he did not
remember being
asked he never disputed that he had given such an
answer. When giving evidence Mr Morare maintained that when he
boarded the train
he was in possession of a monthly ticket. Included
in the record is a document which appears to be a metro monthly train
ticket
valid from Naledi to Johannesburg for November 2008. However,
there is no evidence to prove its authenticity or any admission by
SA
Rail in this regard. Indeed it is recorded in the rule 37 minutes
that ‘the truth and correctness’ of any documents
were
not admitted and would have to be proved. The court of first instance
accordingly erred when it found that a valid ticket
was annexed to
the particulars of claim and was not placed in dispute. I am
accordingly satisfied that Mr Morare failed to prove
that he had been
in possession of a valid train ticket at the time.
[18]
It is quite clear that Mr Morare could not
have boarded a train at Park Station, at that time of the night, to
travel home to Naledi
via Braamfontein Station as he says he did. Mr
Morare could not have been mistaken about the train he boarded. The
westbound Soweto
train to Naledi leaves from platforms one and two at
Park Station. That is the train he had taken on a regular basis to
travel
home from work for the previous five months. Trains travelling
east leave from platform nine. I accordingly disagree with the
conclusion
of the appeal court that the only reasonable inference is
that Mr Morare boarded the wrong train. No evidence was led to
suggest
that because of the injuries he had sustained his mental
faculties had been impaired, or that he was unable to recall what he
was
doing immediately before the incident. On Mr Morare’s
version of events there is no logical reason why he would be on a
train
travelling in the opposite direction to that which he had to
board to get home. On this basis there is no reasonable ground for
concluding on a balance of probabilities that Mr Morare was
travelling on a train and that his injuries were caused by being
thrown
off that train.
[19]
As regards the costs of the appeal Mr Smit,
who appeared for SA Rail, did not persist in a prayer for costs
against Mr Morare. He
also informed us that SA Rail was not intent on
recovering the costs of the trial or the previous appeal from Mr
Morare.
[20]
The following order is accordingly granted:
1
The appeal is dismissed with no order as to costs.
K
G B SWAIN
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant: R Shepstone
Instructed
by:
Diale
Attorneys, Benoni
Morobane
Inc, Bloemfontein
For the Respondent:
M Smit
Instructed
by:
Cliffe
Dekker Hofmeyr Inc, Sandton
McIntyre
& Van Der Post, Bloemfontein