About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2022
>>
[2022] ZAGPJHC 119
|

|

Mohlala v Passenger Rail Agency of South Africa (41178/2016) [2022] ZAGPJHC 119 (4 March 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 41178/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
04
MARCH 2022
In
the matter between:
THABO
MOHLALA

PLAINTIFF
And
PASSENGER
RAIL AGENCY OF SOUTH AFRICA

DEFENDANT
JUDGMENT
Delivered:
This judgment was
prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation to
Parties / their legal
representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The date
of the judgment is deemed to
be 4
th
of March 2022
TWALA
J
[1]
The plaintiff, Thabo Mohlala, sued the defendant out of this Court
for damages arising
out of a train incident that occurred on the 27
th
of July 2016 at New Canada Station as a result whereof he sustained
injuries to his head and broke his left knee and the sequelae

thereto.
[2]
At the commencement of the trial the parties sought the issue of
quantum to be separated
from the issue of liability in terms of Rule
33(4) of the Uniform Rules of Court as it was agreed between them in
the pre-trial.
Therefore, the issue that is for determination before
this Court is that of liability/merits.
[3]
Furthermore, after the plaintiff had closed its case and during the
re-examination
of the defendant’s first witness, the defendant
applied for the reopening of the plaintiff’s case in order to
afford
it the opportunity to cross-examine the plaintiff with regard
to the statement or affidavit it deposed to before the protection

officer of the defendant. The reason advanced by the defendant was
that it did not anticipate that the plaintiff would make an
issue
about the contents of the affidavit – hence it did not cross
examine him with regard to the contents thereof and did
not call the
commissioner of oath to testify on how the statement was noted.
[4]
Although the plaintiff objected to the re-opening of its case, the
prejudice it complained
about was with regard to its travelling costs
to the premises of its counsel since the matter was heard virtually.
Then the defendant
tendered the travelling costs of the plaintiff.
Since it was in the interest of justice that all the evidence be
placed before
the court, I granted leave to recall the plaintiff to
subject himself to further cross-examination by the defendant.
[5]
The background to this case is that on the 27
th
of July
2016 at about 10h25 the plaintiff and his twin brother, his witness
in this case, bought the train tickets and boarded
the train at
Naledi Station
(“Naledi”)
with the intention to
drop off their curricula vitae at New Canada Police Station and
thereafter were to board a train again at
New Canada Station
(“New
Canada”)
and proceed to Johannesburg. The train was not
full to capacity when it left Naledi but picked up quite a number of
passengers
as it proceeded on its journey and was full when it
reached New Canada. The plaintiff was not familiar with the train
route and
did not know that the train had reached New Canada until he
asked some of the passengers.
[6]
Realising that he had reached his first destination, he started to
move towards the
door in an attempt to disembark the train. His
brother was following him but because of the crowd of people who were
pushing to
embark and others disembarking the train, his brother was
a distance behind him. Before reaching the door to disembark the
train,
the people who were nearer to the door block his way and the
train started to depart the platform. He turned around, faced the
direction where he came from and where his brother was, and before he
knew it, he was pushed out of the moving train. He fell on
his back
injuring the back of his head and his left knee. He testified that
the doors of the train were wide open at the time he
was pushed out
of the moving train. The doors of the train were open all the time
since he boarded the train in Naledi and there
were no guards on the
train.
[7]
The train moved for a short distance and stopped. The security guards
attended on
him and asked if he was travelling with somebody and
requested him to produce his train ticket. He told them that his
train ticket
was with his brother who was on the train and the
security called his brother and advised him to stay on the train
until it gets
back to New Canada as it was a Jikeleza. He was then
attended to by paramedics whilst he was still on the platform. A
police officer
came whilst he was relating his story to the security
guards and took a statement. The police officer caused him to sign
the statement
when he was in the ambulance on his way to Helen Joseph
Hospital. He did not read the statement nor was it read back to him
before
signing it.
[8]
Thabiso Mohlala testified that on the 27
th
of July 2016 he
was in the company of his twin brother, the plaintiff, when they
bought the train tickets and boarded a train at
Naledi with the
intention to deliver their curricula vitae at New Canada Police
Station and further to proceed to Johannesburg.
He kept both their
train tickets in his backpack. The train was not full with passengers
as it left Naledi but picked up more people
and it was full by the
time it reached New Canada. As they were not familiar with the train
route, they asked other passengers
if the train was now in New Canada
and they started to move towards the door to disembark from the
train. The plaintiff was some
distance in front and before the
plaintiff reached the door, the train started moving.
[9]
As the train was moving, he saw the plaintiff being pushed out of the
moving train
and he fell on the platform. The train moved for some
distance but came to a stop, however, he was unable to disembark as
there
were still people at the door. The doors of the train were
continuously open from the time it left Naledi and were still open
when
the plaintiff was pushed off the train. The was no security
guard posted on the train. They never got a chance to disembarking
the train at New Canada due to the number of people who were pushing
to embark and disembark the train. He deposed to an affidavit
but it
was not read back to him when he placed his signature on it. He came
back to the scene of the incident later with the same
train since it
was a Jikeleza to find his brother being attend to by the security
guards and paramedics.
[10]
Ms Sylvia Nyadzeni Nethonzhe
(“Nethonzhe”),
testified
that she was the train guard of train number 9927 on the 27
th
of July 2016 having started her shift at 09H25 at the Naledi Depot.
Her duties entailed the opening and closing of the doors of
the train
and to signal to the driver to depart the platforms when she has
ascertained that the platform was clear and nobody was
in danger. She
opens the doors of the train when it reaches the platform of the
station by pressing a button or door release which
releases the
pressure allowing the passengers to open the doors. She again presses
the door release button to close the doors of
the train before
signalling to the driver that it was safe for the train to depart the
platform.
[11]
As a train guard she occupies the rear cabin of the last coach of the
train. The train was a
Jikeleza, i.e. it was going around to a number
of stations before reaching its final destination, and was not full
since it was
not pick hour at the time. The door mechanism was
working, however, she could not dispute that the doors were not
closed when the
train left New Canada for she could not see all the
coaches from her cabin when the train was stationary in a straight
line especially
in New Canada. The train had twelve coaches on that
day. At New Canada she continued with her duties, opened the doors
when the
train arrived at the platform, observed what was happening
on the platform and when she was certain that it was safe, she blew
her whistle twice to signal that she was about to close the doors of
the train, closed the doors of the train and signalled to the
driver
that it was safe to depart the platform.
[12]
Whilst observing what was happening on the platform, she noticed two
young men standing on the
staircase which was near her coach. As the
train started to depart the platform, one of the two young men
started to run towards
the train. He ran past her coach and attempted
to board the train at the second coach from her cabin. He attempted
to board the
second coach from her cabin and he bumped against the
train and fell onto the platform. He stood up and walked towards the
staircase.
Realising that the plaintiff has collided the train, she
signalled for the driver to immediately stop the train and it stopped
with about three coaches having left the platform. She called the
control office and thereafter disembarked from her cabin to
investigate
what had happened to the plaintiff but before reaching
him, the security guards attended to him – thus she went back
to her
cabin and signalled to the driver that it was safe to depart
the platform.
[13]
When the train came back to New Canada, she saw that the plaintiff
was still lying on the platform
but was being attended to by the
paramedics. She did not investigate what was happening but submitted
a statement to her manager
in Naledi about the incident. She was
interviewed by protection officers from the defendant some time later
and she confirmed her
statement. She testified further that she could
not have done anything to save the plaintiff for this happened very
fast. The train
moved for about ten meters from its stationary
position until it stopped after she rang the safety bell thrice to
signal an emergency.
[14]
Mr Norman Wayne Liedeman
(“Liedeman”),
testified
that he is working for the defendant as an investigation officer,
however, he does not remember this particular incident
nor could he
deny that he caused the plaintiff to sign his statement whilst he was
in the ambulance about to be transported to
Helen Joseph Hospital.
All the information he has written on the statement he obtained from
the plaintiff but he could not testify
about the state of mind of the
plaintiff on that day.
[15]
Mr Siyabonga Mhlongo
(“Mhlongo”),
a protection
officer of the defendant stationed at New Canada, testified that his
duties are to ascertain that the customers or
passengers of the
defendant are protected and safe at all times. On the day in question
he was standing at the top of the middle
overhead bridge over
platforms five and six. It’s a pedestrian bridge with closed
sides of about one comma six
(“1.6m”)
meters in
height and five meters in width. Because of his height he was able to
observe what was happening on platform five where
train number 9927
came from his behind as he was facing in the Johannesburg direction.
The train stopped at platform five for passengers
to disembark and
embark at the same time.
[16]
Mhlongo testified that he observed two gentlemen who disembarked from
the middle coaches of the
train and were following each other at a
distance of about seven meters between them as they approached the
staircase which leads
to the exit of the station. The staircase is
about sixteen meters from where the train had stopped. The train
guard blew its whistle
twice signalling that the train is about to
depart the station. As the train started moving, he saw the gentlemen
who was seven
meters behind the other turning back and started
running after the train. He tried to open the door of the coach but
the train
knocked him and he fell onto the platform. He came down the
stairs and attended to the plaintiff on the platform and enquired
from
him as to why he was trying to board a moving train. Plaintiff
replied he was trying to retrieve his file or backpack in the train.

At the time the plaintiff was with his brother who came back from the
staircase to be with him.
[17]
Mhlongo then left the plaintiff in the care of the security guard and
went to the monitor room
to fetch the incident report file
(“Liability form”)
which he completed with the
information he received from the injured plaintiff. Plaintiff is the
only person who was injured in
the incident and the train was not
full at the time since it was not pick hour. The doors were closed at
the time the plaintiff
attempted to board the moving train. It took
him four seconds to get to the plaintiff on the platform but he first
waited for the
train to stop before he went down the stairs.
[18]
It is trite that for the plaintiff to succeed in a case that involves
negligence, it must prove
that there was a duty of care owed to it by
the defendant which the defendant has breached and that the breach
has caused harm
to occur which resulted in damages.
[19]
In
Kruger v Coetzee 1966 (2) SA (A) 430
the Supreme Court of
Appeal stated the following:
a)
“
a
diligens paterfamilias in the position of the defendant –
(i)
Would foresee
the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss;
and
(ii)
Would take
reasonable steps to guard against such occurrence; and
b)
The defendant
failed to take such steps.
[20]
In
Le Roux and Others v Dey [2011] (3) ZACC SA 274 (CC)
the
Constitutional Court stated the following at para 122:
“
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements of delictual

liability to present – it would be reasonable to impose
liability on a defendant for the damages flowing from specific
conduct;
and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and
legal policy
in accordance with constitutional norms. Incidentally,
to avoid confusion it should be borne in mind that, what is meant by
reasonableness
in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s conduct, but it concerns
the
reasonableness of imposing liability on the defendant for the
harm resulting from that conduct.”
[21]
In
Country Cloud Trading cc v MEC Department of Infrastructure
Development
[2014] ZACC 28
;
2015 (1) SA 1
(CC)
the Constitutional
Court sated the following:
“
Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm demands
the imposition
of liability or, conversely, whether ‘the social, economic and
other costs are just too high to justify the
use of the law of delict
for the resolution of the particular issue’. Wrongfulness
typically acts as a brake on liability,
particularly in areas of the
law of delict where it is undesirable and overly burdensome to impose
liability.”
[22]
The central issue in this case is whether the defendant, through its
employees, is to blame for
the incident which caused the plaintiff
injuries to the back of his heard and on his left knee. It is
undisputed that the plaintiff
was involved in the incident which
caused him to suffer injuries on the day in question. However, the
dispute is whether the plaintiff
attempted to board a moving train or
whether he was pushed out of a moving train and fell onto the
platform.
[23]
It is well established that in civil cases the onus is on the
plaintiff to prove its case on
a balance of probabilities and where
there are factual disputes, in resolving those factual disputes the
Court will employ the
technique which was summarised as follows in
Stellenbosch Farmers’ Winery Group Limited and Another v
Martell & Cie SA and Others
2003 (1) SA 11
(SCA):
“
Paragraph
5 On the central issue, as to what the parties actually decided,
there are two irreconcilable versions. So too on a number
of
peripheral areas of dispute which may have a bearing on the
probabilities. The technique generally employed by court 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 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 witnesses’
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.”
[24]
The defendant’s case is that the plaintiff attempted to board a
moving train and thereby
placed himself in danger of sustaining an
injury. In other words, by attempting to board a moving train the
plaintiff voluntarily
assumed the risk of sustaining an injury or
causing harm to himself. The relevant and factual witnesses for the
defendant on this
point are the train guard and the protection
officer.
[25]
The difficulty I have with the testimony of the defence witnesses is
that they place the plaintiff
in two different places at the same
time. Nethonzhe completely refuted the version that the plaintiff
disembarked from the train
but placed the plaintiff and his brother
on the staircase next to her cabin. She testified that the plaintiff
ran past her cabin
and attempted to board the second coach of the
train whereas Mhlongo said the plaintiff disembarked from the middle
coaches of
the train and attempted to board that same coach when the
train started to depart from the station. It should be recalled that
the train had twelve coaches on the day and Nethonzhe was occupying
the last coach. It is therefore improbable for the plaintiff
to have
been in two different places at the same time.
[26]
Mhlongo’s testimony is that he completed the liability form
from information furnished
to him by the injured plaintiff
immediately after the incident. However, he noted the name of the
plaintiff on the form as ‘Thabo
Nhlapo’ instead of Thabo
Mohlala. Again, he noted on the form that the plaintiff was
travelling alone but in Court he testified
that the plaintiff was in
the company of his twin brother. Furthermore, he noted on the form
that there were no witnesses to the
incident but he included Ms
Maihlole as a witness and left out the other guard saying that it is
company policy that they mention
only one witness. He said he
obtained the ticket from the plaintiff when the evidence of the
plaintiff and his brother is that
the ticket was with his brother who
later joined him after the Jikeleza train came back to New Canada.
[27]
It is telling that people who are employed by the defendant
specifically to observe what is happening
on its train platforms and
stations and protect its customers and passengers observe the same
incident and come out with different
views or see it differently. If
Mhlongo witnessed the incident and spoke to the plaintiff whom he
said was fine at the time, he
would not have written his name as
Nhlapo and that he was travelling alone when he completed the form.
Furthermore, Mhlongo would
not have disclosed Ms Maihlome as the only
witness on the form whereas his testimony in court is that there were
two people whom
he says witnessed the incident. On the same liability
form, Mhlongo placed the plaintiff as lying on the platform but in
his testimony
he said the plaintiff was sited on the bench on the
platform.
[28]
These contradictions in the evidence of the defence witnesses are
material and goes to the root
of their credibility. In a nutshell the
evidence of both defence witnesses is unreliable because of the
contradictions. The improbabilities
of their testimony is clear when
considering their positioning at the top of the bridge and at the
back of the last coach of the
train and the distances between the
plaintiff and the train. Mhlongo says the plaintiff was less than a
meter from the train when
he turned around and started running
towards it whereas Nethonzhe has about sixteen meters for the
plaintiff to cover before reaching
the train.
[29]
The testimony of Nethonze is that she saw the plaintiff and his
brother standing on the staircase
and since the platform was clear,
she signalled the driver to depart the station. She then saw the
plaintiff turning around and
running towards the train and he
continued to run and went past her cabin in an attempt to board the
second coach of the moving
train. She only signalled to the driver to
stop the train after the plaintiff had fallen. She could not explain
why she did not
stop the train when she saw the plaintiff for the
first time running towards the train. She could not give a cogent
explaination
why she did not signalled the train to stop when the
plaintiff ran past her coach in an attempt to board the second coach
from
hers except to say that it happened very fast.
[30]
Regard being had that her testimony is that the train moved for only
ten meters and stopped,
it is improbable that the plaintiff would run
the distances she alleges and went past her coach to attempt to board
the second
coach of the train. Even if I were, for a moment, accept
her version of the events of that day, it fortifies the contention
that
she had ample time to signal to the driver to stop the train but
failed and neglected to do so. Therefore, the conduct of the
defendant
was wrongful in that Nethonzhe who was sited at the back of
the train delayed to stop the train when by the exercise of
reasonable
care and diligence, she should have foreseen the danger of
the plaintiff causing harm to himself when he turned around and
started
running alongside the train and should have immediately
signalled for the train to stop. I therefore conclude that, on the
version
of the defendant, it owed the plaintiff a duty of care and
has breached that duty which breach has caused harm to the plaintiff

as a result whereof the plaintiff has suffered damages.
[31]
In the more recent past in
Mashongwa v Prasa (CCT03/15)
[2015]
ZACC 36
;
2016 (2) BCLR 204
(CC);
2016 (3) SA 528
(CC) (26 November
2015)
the Constitutional Court stated the following when it was
dealing with the issue of wrongfulness:
“
Para
19 What then is this case about? It concerns physical harm suffered
by a passenger when attacked and later thrown off a moving
train as
well at the sufficiency of the safety and security measures employed
by PRASA. And the question is whether PRASA’s
conduct was
wrongful. Khampepe J pointed out in Country Cloud that:
‘
Wrongfulness
is generally uncontentious in cases of positive conduct that harms
the person or property of another. Conduct of this
kind is prima
facie wrongful’.
In my view, that
principle remains true whether one is dealing with positive conduct,
such as an assault or the negligent driving
of a motor vehicle, or
negative conduct where there is a pre-existing duty, such as the
failure to provide safety equipment in
a factory or to protect a
vulnerable person from harm. It is also applicable here.
[32]
The Court continued to state the following in paragraph 20:
“
Public
carriers like PRASA have always been regarded as owing a legal duty
to their passengers to protect them from suffering physical
harm
while making use of their transport services. That is true of taxi
operators, bus services and the railways, as attested to
by numerous
cases in our courts. That duty arises, in the case of PRASA, from the
existence of the relationship between carrier
and passenger, usually,
but not always, based on a contract. It also stems from its public
law obligations. This merely strengthens
the contention that a breach
of those duties is wrongful in the delictual sense and could attract
liability for damages”.
[33]
The uncontroverted evidence of the plaintiff which is corroborated by
his brother is that the
doors of the train were open as from the time
they boarded the train in Naledi and even at the time it departed New
Canada. The
plaintiff maintained this version even in his statement
which was noted by the investigators of the defendant on the scene of
the
incident the same day that the train doors were open at all
times. Nothing turns on the defendant’s contention that the
plaintiff
has made two affidavits and has failed to disclose this
fact in Court. Considering the contents and context of both
affidavits,
it is undisputed that the plaintiff maintains that the
doors of the train were always open on that day. The train guard
testified
that she only presses the lever to release the pressure so
that the doors can be opened by the passengers and presses the lever

again to allow them to be closed. She could not dispute that the
doors were open when the train left New Canada.
[34]
In the Mashongwa case quoted above, the Court stated the following:
“
Paragraph
46: It bears yet another repetition that there is a high demand for
the use of trains since they are the arguably the
most affordable
mode of transportation for the poorest members of our society. For
this reason, trains are often packed to the
point where some
passengers have to stand very close to or even lean against the
doors. Leaving doors of the moving train open
therefore poses a
potential danger to passengers on board.”
[35]
The Court continued to state the following:
“
Paragraph
48: Doors exist not merely to facilitate entry and exit of
passengers, but also to secure those inside from danger. PRASA

appreciated the importance of keeping the doors of a moving train
closed as a necessary safety and security feature. This is borne
out
by a provision in its operating procedures requiring that doors be
closed whenever the train is in motion. Leaving them open
is thus an
obvious and well known potential danger to passengers.
[36]
The testimony of the plaintiff is clear and unambiguous that he
boarded the train at Naledi and
was unable to disembark at his first
stop at New Canada because his way to the exit door was blocked by
other people but found
himself being pushed out of the train as it
departed New Canada. There is no merit in the contention that why is
it only the plaintiff
that fell from the train at New Canada when he
says the were people before him at the door – hence he could
not disembark
because the train was full. It is not for the plaintiff
to know why he was pushed out of the train and why other people did
not
fall with him when he was pushed out of the train.
[37]
The defendant has failed to proffer any evidence why there were no
guards and or train marshals
posted in the train. It is my respectful
view therefore that the irresistible conclusion is that the
defendant’s conduct
was wrongful in not providing the train
marshals and or guards on the train who could have assisted and
prevented the plaintiff
from being pushed out of the moving train.
Furthermore, the defendant’s failure to provide guards or
marshal in the train
was a neglect of the defendant’s duty to
provide protection and safety for the passengers including the
plaintiff which negligence
resulted in the plaintiff suffering harm
to his body and has suffered damages therefrom.
[38]
In the circumstances, I make the following order:
1.
The issue of quantum of
damages is in terms of Rule 33(4) of the Uniform Rules of Court
postponed sine die;
2.
The defendant is liable
to pay 100% of the proven damages of the plaintiff;
3.
The defendant is liable
to pay the costs of the action.
______________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of Trial:
14
th
– 17
th
February 2022
Date
of Judgment:
4
th
March 2022
For
the Plaintiff:
Advocate L Molope
Instructed
by:
SS Ntshangase
Attorneys
Tel: 011 333 0926
Ref: Mr Ntshangase
For
the Defendant:
Advocate K Mokotedi
Instructed
by:
Cliff
Dekker Hofmeyr Inc
Tel: 011 526 1140
Ref: B
O’Connor/01994493