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[2014] ZASCA 202
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Passenger Rail Agency of South Africa v Mashongwa (966/2013) [2014] ZASCA 202 (28 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No.: 966/2013
Reportable
In
the matter between
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
..................................................
APPELLANT
and
IRVINE
VAN SAM
MASHONGWA
.............................................................................
RESPONDENT
Neutral
citation:
Passenger Rail Agency of
South Africa v Mashongwa
(966/13)
[2014] ZASCA 202
(28 November 2014)
Coram:
Ponnan, Majiedt, Pillay and Zondi JJA
and Dambuza AJA
Heard:
4 November 2014
Delivered:
28 November 2014
Summary
:
Delict – passenger thrown off train - liability for- whether
rail agency negligent.
ORDER
On
appeal from
: Gauteng Division, Pretoria
(Pretorius J sitting as court of first instance):
1.
The appeal succeeds with costs.
2.
The order of the high court is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed with costs.’
JUDGMENT
DAMBUZA
AJA (Ponnan, Majiedt, Pillay and Zondi JJA concurring):
[1]
This is an appeal, with leave of the trial court, against the
judgment of the Gauteng Division, Pretoria (Pretorius J) which
held
the appellant, the Passenger Rail Agency of South Africa (PRASA)
liable for damages suffered by the respondent, Mr Irvine
Sam
Mashongwa (Mr Mashongwa) in consequence of a robbery and assault
perpetrated on him whilst he was a fare-paying passenger on
a train
in Pretoria. At the request of both parties the high court had
separated the issues of liability and quantum of damages
and the
matter proceeded solely in respect of the former.
[2]
PRASA conducts business as Metro Rail and is charged with the
function of rendering public rail transportation nationally. On
1
January 2011, at approximately 11h00, Mr Mashongwa was travelling on
a train from Walker Street where he had boarded, to the
Mamelodi
Gardens Station. He was the sole occupant of his coach. His evidence
was that the doors of his coach remained open as
the train left
Walker Street Station. Shortly after the train departed, four men
entered his coach from an adjacent coach. They
demanded his cellphone
and money, which he handed over. They then assaulted him causing him
to fall. They continued to assault
him with fists and kicked him
whilst he was lying on the floor of the train. Then they picked him
up and threw him off the train
through the open doors of the coach as
the train approached the next station, Rissik Street. He landed on
the railway platform
where he cried out for help and two security
guards came to his assistance.
[3]
The robbery and assault on Mr Mashongwa was common cause in the high
court, although the version of the incident by Ms Beauty
Mothotsi,
one of the security guards who responded to Mr Mashongwa’s
cries for help, was different to that of Mr Mashongwa.
It appears
from the evidence that PRASA had indeed adopted measures to avert
crime. The question here is whether Mr Mashongwa had
discharged the
burden of establishing on a balance of probabilities that those
measures were inadequate in the circumstances and
that had certain
additional measures which he postulates should have been taken, had
indeed been taken, the attack would not have
occurred.
[4]
In his claim for damages Mr Mashongwa relied on two negligent
omissions on the part of PRASA: firstly, that PRASA had failed
to
provide adequate security guards to ensure his safety and the safety
of other rail commuters; and secondly, that PRASA had negligently
failed to ensure that the coach doors were closed whilst the train
was in motion. Both of those found favour with the high court.
[5]
The classic test for negligence was set out by Holmes JA in
Kruger
v Coetzee
[1]
as follows:
‘
For
the purposes of liability
culpa
arises if –
(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.’
[6]
In
Shabalala
v Metrorail
[2]
this court warned that:
‘
[M]erely
because the harm which was foreseeable did eventuate does not mean
that the steps taken to avert it were necessarily unreasonable
. . .
To hold otherwise would be to impose on the respondent a burden of
providing an absolute guarantee against the consequence
of criminal
activity on its trains. There clearly is no such burden and the
appellant did not contend that there was.’
[7]
What constitutes reasonable measures depends on the circumstances of
each case.
[3]
The presence of Ms
Mothotsi and her colleague Mr Malatji at Rissik Street Station is
evidence that there were security measures
in place and that guards
had indeed been deployed. The evidence of Mr Mzwandile Khumalo, the
Gauteng provincial security manager
for Metrorail at the time of the
incident, was general in nature, being an explanation of security
strategies that PRASA had in
place during that period. Mr Khumalo’s
evidence was that during the period of the incident Metrorail had
employed about 800
security personnel. Part of PRASA’s security
enforcement strategy was directed at increased levels of crime over
peak periods,
such as the festive season which would include the day
of the incident, namely New Year’s Day. But, nothing, it would
appear
turns on all of this, and in determining whether PRASA should
be held liable, I shall limit myself to the case foreshadowed in the
pleadings and sought to be advanced before us on appeal. In that
regard to the extent that there are factual disputes on the evidence
I shall – as the high court did - approach the matter on the
basis that Mr Mashongwa’s evidence is to be preferred.
[8]
The
causa
sine qua
non
test (or the ‘but for’ test) is widely accepted, by
courts both in this country and in other jurisdictions, as the
method
by which the factual causal link or absence thereof is determined.
[4]
In
International Shipping Co (Pty) Ltd v Bentley
[5]
Corbett CJ set out the test as follows:
‘
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is a
factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiff's loss. This has
been referred to as
"factual causation". The enquiry as to factual causation is
generally conducted by applying the so-called
"but-for"
test, which is designed to determine whether a postulated cause can
be identified as a
causa
sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff's
loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff's
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa
sine qua non
of the loss suffered, then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a
causa
sine
qua non
of the loss does not necessarily result in legal liability. The
second enquiry then arises, viz whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This
is
basically a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called "legal
causation.’
[9]
Each of the two grounds of negligence relied on by Mr Mashongwa will
be considered in turn. As to the first: Let us assume in
his favour
that two guards had been stationed at the Walker Street Station and
that they had ensured that the coach doors were
closed before the
train departed that station; that would not have prevented the
occurrence complained of, because on his own version
the assailants
would have still entered his coach, robbed and assaulted him,
inasmuch as they had not boarded the train at Walker
Street Station.
According to him, they entered his coach from an adjoining coach. He
thus accepted that they must have boarded
the train prior to Walker
Street Station. Whether there were security guards on the other
coaches is unclear. What is clear is
that there were no guards in his
coach. It is also clear that to avert the attack there would have had
to have been at least one
security guard in his coach. I say at least
one because, given the number of attackers, a single security guard
may well have made
no difference. But even if one were sufficient to
avert the attack, the question remains whether it would be reasonable
to require
PRASA to have a security guard in every coach. To insist
on such a requirement would exceed by far the precautionary measures
to
be expected of PRASA (
Shabalala
para
9). Counsel for Mr Mashongwa accepted as much. In
Shabalala
[6]
Scott JA accepted that in order to avert the attack on the appellant,
there would have had to be, at least, one security guard
in Mr
Shabalala’s coach. But in view of the brazen nature of the
attack, where the assailant had shot Mr Shabalala three
times when he
said he had no money on him, the learned judge found that it was
doubtful that one guard, even if armed, would have
made any
difference. Like Scott JA, I too have my doubts whether the presence
of a guard in the particular coach would have made
any difference in
this case.
[10]
As to the second: Having decided that they were going to remove Mr
Mashongwa from the train after robbing him (probably to
avoid
identification), nothing would have stopped them from forcing the
coach doors open and throwing him out. The evidence was
that the
doors could be forcibly opened from the inside – they were
deliberately designed in that manner to allow for an
exit from the
coach in cases of emergency. The highly speculative submission by Mr
Maritz that had the doors been closed the assailants
would have
struggled to open them until the train reached the Rissik Street
Station, is untenable. No evidence was adduced as to
precisely how
long it would ordinarily take to open the doors of a coach in a
moving train. Nor, for that matter, was any evidence
adduced as to
the time that it takes for the train to make its way from the one
station to the next. The evidence is to the effect
that Mr Mashongwa
was thrown off the train in close proximity to the platform of the
Rissik Street Station. It therefore must follow
that the fear of
reaching the following station did not deter the assailants. It
follows that the appeal must succeed.
[11]
The following order is made:
1.
The appeal succeeds with costs.
2.
The order of the high court is set aside and replaced with the
following:
‘
The
plaintiff’s claim is dismissed with costs.’
____________
N
Dambuza
Acting
Judge of Appeal
APPEARANCES:
For
Appellant: JG Cilliers SC
Instructed
by:
Stone
Attorneys; Pretoria
Symington
& De Kok; Bloemfontein
For
Respondent: SG Maritz (S Maritz)
Instructed
by:
CP
van Zyl Incorporated; Pretoria
Spangenberg,
Zietsman, Bloem Incorporated,
Bloemfontein
[1]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-F.
[2]
2008
(3) SA 142
(SCA) at 145F-G.
[3]
J
Neethling &J M Potgieter
Law
of Delict
( 6
th
ed, 2010) at 148.
[4]
J
Neethling & JM Potgieter
Law
of Delict
(6
ed, 2010) at 178-179.
[5]
1990
(1) SA 680
at 700 F-G.
[6]
Para
9.