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[2023] ZAFSHC 469
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SJL Marais and Others v Transnet SOC Ltd (3517/2015) [2023] ZAFSHC 469 (24 November 2023)
FLYNOTES:
CIVIL LAW – Delict –
Veld
fire
–
Claim
for damages after fire affecting surrounding farms – Alleged
that fire started by Transnet train – Maintenance
and
testing records missing – Hearsay evidence because of
disappearance of original record – Risk of unreliability
because of manufactured evidence was high and ability to
cross-examine effectively compromised – Defendant presenting
weak case – Negligence in maintenance or inspection caused
composite brake blocks to overheat and disintegrated and
cause
points of ignition – Transnet liable to each of plaintiffs
for their proven or agreed damages.
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
Case No: 3517/2015
In
the matter between:
SJL
MARAIS AND 14 OTHERS
PLAINTIFFS
and
TRANSNET
SOC LTD
DEFENDANT
HEARD
ON:
07, 08, 10, 14, 15 February 2023, 12, 13,14 and 15
June 2023 and 10-11 August 2023.
JUDGMENT
BY
:
BOMELA, AJ
DELIVERED
ON:
24
NOVEMBER 2023.
INTRODUCTION
[1]
These matters arise from veld fires that took place on 11 August 2012
at approximately 14h00 around the railway
reserve and railway tracks
in the vicinity of the Karee railway station, Brandford, Free State
Province referred to as Transnet’s
property, between poles
numbered 167/13 to 160/05. The “site of ignition.) The
defendant is the owner of the site of ignition.
[2]
These fires affected the surrounding farms of the plaintiffs who sued
in their different capacities under
fifteen (15) different case
numbers duly consolidated in terms of Uniform Rule 11.
[3] It
is the plaintiffs’ case that the fire was caused as a result of
the negligence of the defendant and/alternatively
by employees of the
defendant acting in the course and scope of their employment with the
defendant, and/or alternatively by persons
acting under the control
and direction of the defendant, they having been negligent, failed to
comply with their duty of care as
pleaded in the particulars of
claim. It is the plaintiffs’ case that as a result of the
defendant’s negligence, the
plaintiffs suffered damages.
[4] By
agreement between the parties, this trial proceeded only to determine
the merits of the claim, the quantum
was stayed for later
determination.
[5] The
defendant denied that its duty of care arose as alleged, it submitted
that its train was operated with
the necessary degree of care and
skill and was properly maintained. It denied that the fire originated
as a result of overheated
metal fragments and/or other mechanical
fragments and/or sparks being deposited from a diesel-powered railway
engine no. 8910 operated
by the defendant which resulted in the fire
starting in the site of ignition.
THE INSPECTION IN LOCO
[6] On
7 February 2023, an inspection in
loco
was held with regard to
the mapping of the fire scar at the point of ignition.
[7] The
minutes of the inspection in
loco
admitted to court as exhibit
“A” and the fire scar map by SANSA was by agreement
admitted as an exhibit “A”
and “B”
respectively.
FACTS
[8] The
plaintiffs presented the evidence of Mr Steven Patella, Mr Pieter
Swanepoel, Dr Cor Botha, Mr Flip Weyers,
Mr Willem Voster, Mr
Bogatswi, Mr Van Der Merwe and Dr Jock Danckwerts. The defendant
presented the evidence of Mr Hendrik Slabber,
Mr David Hansen, Ms
Jantjies and Mr Moerane.
[9] The
parties agreed, for the purposes of conducting the trial, to use the
case file of Mr Maas under case number
3519/2015 for all other
matters are similar. The defendant conceded
locus standi
of
all the plaintiffs, and, that the plaintiffs suffered damages. It was
not in dispute that there was a fire in the vicinity of
the
defendant’s property on 11 August 2012.
[10] The parties
were in agreement in terms of the wind direction and there were no
objections to the late filing of Mr Foster’s
additional
documents.
[11] It is common cause
that the train journal marked “T1” was illegible and
there was no better copy. The locomotive
inspection record of the
railway stations where the locomotive stopped and the data captured
through the condition assessment system
(CAS) of the relevant
locomotives were not available as the defendant did not have these
documents in its possession and the document's
whereabouts were
unknown to the defendant.
[12] The diagram
from the train control officer at Bloemfontein and Brandford was also
not available and the defendant did
not have them in its possession,
their whereabouts were unknown to the defendant. The defendant filed
its Rule 36(10) notice containing
photographs to which the plaintiffs
had no objection.
[13] Mr Stefan
Moeketsi Patella testified on behalf of the plaintiffs and confirmed
that he noted point B on the map and that
is on the railway line, on
the eastern side of point B is a green gate, and to the east of point
B is farm Karee Fontein.
[14] On 11 August
2012, he was on duty under Mr Joe Maree, he worked as a cattle header
looking after the cattle and feeding
them.
[15] It was between
14h00 and 15h00 in the afternoon when he was exiting the green gate
to feed the cattle, he was traveling
in the northern direction and
was from Mr Maree’s house, the house is situated in the middle
of Karee Fontein. When he reached
the gate, he got out of the car to
open it, he saw from the Glen side a smoke billowing, he noticed that
there was a train coming,
he returned to the car, passed through the
gate and stopped again so that he can go and close the gate. It was
when he was returning
to close the gate when the engine passed him,
the train was goods train with goods carriages, he got into his car
and he drove
alongside the train and there was an uphill somewhere
and it was at that point of uphill at the Katop where the last
carriage of
the train passed him, he saw a flame from the grass after
the last carriage of the train had passed and that the grass where
the
flame erupted from, was next to the rail track.
[16] The grass was
on the embankment next to the railway line where the flames started
on the other side of the fence, the
fire started from the top
downwards, he stopped the car when he saw the flames, alighted and
tried to put the fire out with tree
branches, the fire came fiercely
towards him and he ran as he could not put the fire out, he went back
to the farm to take the
fire extinguisher and when he got to the
farmhouse, he found the owner, Mr Maree, and they observed the smoke,
Mr Maree said the
fire is strong and they have to go and protect the
homesteads, he did not go back to the Katop, the fire had spread at
this point
to Kareefontein.
[17] In
cross-examination he repeated his story without any contradictions
regarding what he witnessed.
[18]
Dr K Botha, a mechanical engineer with
expertise in engineering in both the Railway and Building industries
testified
. He was commissioned by the
plaintiff to explain the possible causes of the fire after it was
witnessed by Patella. In preparing
his report, he consulted Mr
Patella, Mr Louw and Mr Swanepoel.
[19] He confirmed
that Mr Louw had since passed away and he concentrated on the facts
stated to him by Mr Patella and Mr Swanepoel.
He was in court when Mr
Patella was testifying, he heard Mr Patella’s evidence and he
agreed with it. He dealt with the possibility
of trains causing
wildfires. He testified that there were numerous causes of
potentially hazardous hot materials and spark ignitions
emanating
from the train during operations, the hazards could potentially arise
from faults in the powerful internal combustion
engines, electrical
transmissions of power from engine to wheels, electrical resistance
(dynamic) brakes, friction brakes on locomotives
and wagons, steel
wheels on steel rails, white metal/friction axel bearings and human
factor.
[20] The defendant
was alive to these hazards as the defendant protected these railway
reserves against fires. The occurrence
of hot material and/or
spark/metal ignitions from locomotives or wagons causing multiple
wildfires over some distance was not uncommon,
particularly with the
operation of heavy freight trains, and particularly when steam
locomotives were used and wagons were equipped
with cast iron brake
logs and white metal bearings.
[21] The risks of
dangerous levels of these hazardous ignitions from trains is
minimized by design and maintenance standard, including
modern design
standards for rolling stock, including spark arresters, composite
brake blocks and roller bearings and regular preventative
maintenance
on all equipment, including locomotive engines, exhaust system,
electrical equipment and brake gear. The risk of spark
emissions
leading to wayside fires is further minimized by keeping the right of
way clear of flammable material including dry grass.
These
preventative initiatives are the responsibility of the defendant,
stipulated by internal organizational rules and instructions.
[22]
He assessed the possibility of trains causing wildfires and looked at
one or more combinations when a train causes a
wildfire. His
opinion was that it was difficult without a detailed inspection of
the rolling stock and rails shortly after
the incident and with
limited documentary evidence available to identify with absolute
confidence which of the fire-causing hazards
may have occurred.
I will deal with this later when I deal in the Judgment with the role
documentary evidence plays.
[23]
He expressed the opinion that the most probable generation of heat
was by dynamic friction between steel and/or cast-iron
surfaces or
break blocks and wheel threads of the train in that this in
conjunction with the high winds and dry way-side grass
in close
proximity to the track could have been sufficient to cause hot metal
particles or hot pieces of brake blocks to ignite
the dry grass.
He conceded that he was not an expert in respect of the temperature
at which dry grass would ignite.
The generation of heat may
have been attributable to cast iron brake shoes applied against the
wheels due to possibly missing brake
blocks, they could be the result
of inadequate inspection and maintenance or faulty installations.
Another cause could have
been handbrakes not properly disengaged by
the yard or train crew, or the disintegration of a brake block caused
by a prolonged
and sustained application of brakes and this could be
due to incorrect brake settings during installation or maintenance,
or the
locomotive’s independent brakes being engaged. If
the handbrakes were engaged on a wagon or if the brakes were engaged
erroneously by faulty or misaligned brake gear, the blocks could
build up heat over a distance. This could happen even to
the
point of overheating and disintegration. Him and Hansen, the
defendant’s expert, did not discount this happening
to even
empty wagons as in the main this this could happen with loaded
wagons.
[24]
Dr Botha was of the view that on a 20-ton tar empty wagon traveling
at 50 to 60km/h, the energy generated at the brake
block to wheel
interface where one brake block is engaged only to one wheel would
exceed 70 kilowatts and under sustained conditions
given a long
enough time span, the temperatures may surpass the blocks, the
composition temperature. The hot pieces of brake
blocks could
then break off and come into contact with flammable trackside
vegetation. Dr Botha testified that the composition
temperature
of composite brake blocks is greater than 350 degrees.
[25]
He was cross-examined on the assumption that all the tests he
referred to were properly executed prior to the departure
of the
train on 11 August 2012 in respect of the possibilities of the cause
of the fire, he conceded that defendant would have
taken all
reasonable steps to prevent the train from causing fires assuming
that these tests were done. This was a very important
concession as
the opposite is true. No documents were provided to confirm whether
the tests were indeed done and evidence led in
this regard was not
backed by any form of documentary evidence.
[26]
He further testified that he mechanical fault would have been
detected by the people checking the wagon before it was
certified in
terms of the yard test. Dr Botha conceded that all those three tests
when having been conducted properly would have
confirmed that the
braking system was in a working condition and that the handbrakes
were released. It was further put to
Dr Botha that assuming
that these tests were properly done before departure, one would not
have expected the train to cause fire
and he agreed. No documentary
proof of these tests was made available.
[27]
In his report, Dr Botha dealt with the alleged acts of negligence
which the plaintiff alleged were committed by defendant
and which
caused the fires. He also dealt with all the unlikely scenarios which
I will not repeat. His report was handed
in as an Exhibit.
[28]
Mr Flip Weyers, a Rail Train Specialist was called to give expert
evidence on the assembly of a train, the handling of
a train, the
application of a brake test prior to departure, known as the A-brake
test, for the A-brake test as well as the post-departure
brake test
known as the efficiency brake test or the B-brake test. He
explained that as soon as the train is assembled, the
handbrakes of
some of the rolling stock are engaged to secure the train for
movement. Thereafter the A-brake test is undertaken
by the
train driver and the train assistant. The train assistant is
the person who walks the distance of the train to, inter
alia, ensure
that the brake system operates correctly. Once the A-brake test
has been performed the train assistant must
once again walk the
length of the train and disengage the handbrakes of the train.
Once the A-brake test is completed the
combined brake test and load
certificate (T3216) must be completed and delivered to the train
driver. The said document will
then form part of the train
journal.
[29]
He stated that the incidents during the journey that require
maintenance or repairs must be reported to the train control
officer
and it must be recorded in the locomotive trip report for locomotive
repairs (T1510) as well as the (T49) “repair”
or the
(T50) “not to go-karts”. When a train reaches its
destination, the driver leaves the locomotive trip report
in the
locomotive as part of the records of the train. It is known
that the risks associated with the running of trains are
that they
are sources of fire. One of the causes of fires emanating from
the operation of trains is when the brake system
of a train does not
function properly. This happens when the brake blocks of trains do
not release completely when the brake system
disengages. He
testified further that it is the duty of a train driver and his
assistant to constantly monitor the train
to its destination, this is
particularly so if the train is moving around a bend because the
driver/assistant has an opportunity
to physically inspect the whole
length of the train. If the train for whatever reason causes
sparks to be emitted from the
wheels or causes a fire in the rail
reserve, the driver and/or assistant will be able to observe same and
take appropriate action.
He himself had experience of a train
that caused a fire when the driver forgot to disengage the handbrake
system of the trailing
locomotives. He further testified that
when a train reaches its destination, the train inspector will again
inspect the train
and any problems, maintenance requirements and/or
urgent repair work will be recorded on the applicable recording
system of the
defendant.
[30]
Pieter Swanepoel testified that he visited the site of ignition three
(3) days after the fire. He walked in a southern
direction and
saw burnt and unburnt patches on the eastern side of the railroad.
He picked up objects, approximately 8 to
10 of them at point “D”
and “H”. These were the objects identified by Dr
Cor Botha as disintegrated
parts of a composite brake block, two (2)
of the objects were handed in as exhibit “C”. He
took photos of the
object he picked up and photo 4 in the photo
bundle depicts a piece of disintegrated composite brake block in the
burnt railway
reserve at point “B” on the map.
Photo 5 depicts a piece of disintegrated composite brake block in the
railway
reserve at point “H” on the map. Photo 6
depicts a piece of disintegrated brake block which Mr Swanepoel
picked
up in the burnt railway reserve at point “C” and
photo 7 depicts a piece of disintegrated composite brake block at
point “F” on the map. He further collected a
disintegrated composite piece of brake block at point "G"
on the map. He was not cross-examined by Mr Knoetze.
[31]
Willem Vorster, a Remote Sensing Specialist in the employ of the
South African National Space Agency obtained instructions
in October
2012 from a Loss Adjuster of the defendant to prepare an
investigation report on the fire which had burned north of
Bloemfontein next to the railway line. He used Satellite-based
data from two (2) Satellites in order to determine the path
and
timing of the fire of 11 August 2012. This was two months immediately
after the incident had occurred and the defendant must
have had all
the necessary documents to assist in this investigation.
[32]
He mapped the fire scar as depicted in exhibit “A” and
calculated and concluded that the fire started on
11 August 2012
before 14h05. According to him, based on the Satellite imagery,
the fire started at least in three (3) places
next to the railway
line. He indicated the three (3) places where the fire started.
His evidence was not disputed.
[33]
Dr Jock Danckwerts, a Specialist Fire Investigator and Fire Ecologist
was called. His testimony was
that multiple ignitions which in
his opinion were at least five (5) took place at or very close to the
railway line, approximately
20 kilometres south/south west of
Brandfort, near Glen College.
[34]
All ignitions took place within 9.2-kilometre distance of the railway
track and took place on the eastern
or South Eastern side of the
railroad track. He stated that there were indications of
malfunction in the form of pieces of
fractured brake blocks (pads)
that have been found adjacent to and to the east of the railroad
tracks. These are the pieces of
brake blocks that were found by
Swanepoel near locations “D”, “C” and “H”
in the map several
days after the fire event. At least one of
the fire ignitions was witnessed by Patella very shortly after a
train had passed
point “C” on annexure 3. Satellite
imagery had identified three (3) active fires along the railway
track, each
of these active fires were in the vicinity of the
respective heels (basis of the fire scars at 14h05 on 11 August
2012).
This indicates all the fires ignited at approximately
the same time or shortly after one another.
[35]
In his understanding, the allegation was that the subject fires
originated as a result of a malfunction of
a passing train, and to
his knowledge, no other potential cause of the fire has been
suggested. After he examined all information
available to him,
he could not find any other possible cause of the fire. His
conclusion was that the fire was caused by
some form of malfunction
of a train traveling along the railroad tracks as depicted on the
various annexures, malfunction resulted
in some form of ignition
source being emitted from the train as it passed which ignited the
adjacent grass under conditions extremely
favourable for spread of
fire, in his opinion, any other possible ignition source would call
for improbable coincidence.
In elaborating, he stated that an
alternative cause would require someone or something traveling along
or adjacent to the railway
line at approximately the same time as the
train seen by Patella passed and over a short period of time to have
inserted multiple
ignitions adjacent to the railroad track.
Added to that, there is no road along railway tracks at least from
point “E”
to point “H” on the map.
After considering some evidence, his conclusion was that the pieces
of brake block such
as those collected by Swanepoel and seen in the
photos, at 350 degrees Celsius, would readily ignite dry grass fuel,
under windy
conditions.
[36]
After the plaintiffs’ case, the defendant presented its
evidence by calling Mr Slabber who was the
train driver on the 11
August 2012. He did not have any recollection of the events of
the 11 August 2012. He could
not produce any proof of any
report whatsoever which supported the defendant’s case.
No witnesses were called to give
direct evidence in relation to the
incident.
[37]
The defendant led the evidence of Ms Jantjies who
conceded during cross-examination that her evidence was not
based on
her own recollection of events but rather on documents that she
consulted prior to testifying in Court and that none of
those
documents were discovered by the defendant.
[38]
Mr Moerane testified on the manufacturing of Jumbo Wagons and the
quality control measures followed by the
defendant in the
manufacturing process, he was only appointed as a quality assurer on
1 September 2016 and could not give any information
in respect of the
fire that took place on 11 August 2012, he could not give evidence in
relation to the quality assurance done
on the train in question
during the process of manufacturing and the tests done immediately
prior to its departure from Bloemfontein.
[39]
At that time relevant to this inquiry, he was an artisan in the
Underframe Assembly Department
of the defendant and his evidence in
that regard was irrelevant to the case in point.
[40]
Mr Hansen was called as an
expert dealing with the locomotive’s brake system and
in
particular the electronic controlled pneumatic brake system (ECP).
[41]
He and Dr Botha produced a joint expert report which in general was
in agreement
on a number of aspects and to their credit, where they
disagreed, such disagreements were valid and acceptable. Of
importance,
is that Mr Hansen prepared a second report after Dr Botha
had testified. The opportunity to cross-examine Dr Botha in that
regard
was missed and he could not be confronted with any of the
aspects raised in Mr Hansen’s second report. What was
strange
was that the first Hansen report was prepared without having
consulted with the train driver or any other witness, he conceded
this fact. He conceded that the train journal was compiled by
the train assistant, the train assistant was not called by the
defendant to testify. Hansen also conceded that he had no
personal knowledge of the compilation of the train in question
and
there was no evidence led by the defendant in respect of the
compilation of the train. The only document available that
was
discovered by the defendant with regards to the compilation of the
train was the “train journal” which indicated
ex facie
the document that the train was made up of three (3) locomotives
which were one (1) a Class 37 and two (2) Class 34 locomotives.
[42]
According to Hansen’s evidence, the ECP system does not operate
or function on Class 34 locomotives.
He did not have any
knowledge of whether any of the wayside equipment was operational on
the day in question. He had no knowledge
as to whether the
wagon brake test was performed when the newly manufactured wagon in
question left the Bloemfontein manufacturing
depot and conceded that
he had no knowledge of the reliability of the wagons coming from the
yard and/or whether the brake tests
were performed on them. On
the assumption that the ECP system did function on the day in
question, Hansen conceded that the
brake system of a train can still
overheat if the clearances of the brakes were not set correctly
during manufacturing and the
handbrake of a train functions
independently of the ECP system and thus any fault or failure to
disengage the handbrakes system
will not be picked up or prevented by
the ECP system.
[43]
Mr Hansen further conceded that his opinion “that it is highly
unlikely as a result of the workings
of the ECP brake system that the
fire started in the railway reserve in the vicinity where the fire
occurred was caused by the
bonding and consequent overheating of the
train’s brakes”, does not cover the mechanical system of
the train, like
the handbrakes.
[44]
His opinion is based on the premise that if all things were done
correctly as per the layout instructions
issued by the defendant, it
is highly unlikely that the fire was caused by bonding and consequent
overheating by the train’s
brakes. He conceded that his
opinion on the ECP system did not include mechanical failures and
that things could go wrong,
for example, handbrakes that are not
released, faulty brake settings, sticky beams and when the equipment
is not manufactured correctly.
This remains a possibility.
ISSUES
[45]
The issues to be decided were the origin and the cause of the fire of
11 August 2012, and whether the fires
were the result of negligence
on the part of the defendant or of the defendant’s employees,
and whether, if it is found that
the defendant acted negligently, the
plaintiff’s actions contributed to their own damages and if so,
to what extent.
THE
LAW
[46]
In
Kruger
v Coetzee
[1]
Homes JA made the following well-known statement:
“
For the
purposes of liability culpa arises if:
(a)
a diligence pater familias in the position of the defendant:
(i)
would foresee 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.
”
[47]
This has been constantly stated by this Court for some fifty (50)
years. Requirement (a)(ii) is sometimes
overlooked. Whether a
diligence pater familias
in the position of the person
concerned would take any guarding steps at all and if so, what steps
would be reasonable, must always
depend upon the particular
circumstances of each case. No hard and fast basis can be laid
down. Hence the futility, in general,
of seeking guidance from the
facts and results of other cases.
[48]
Foreseeability of the eventuality of harm is an
element of the test for negligence. The test for
culpa
can, in
the light of the developments of our law since this judgment is
stated as follows:
“
For the purpose
of liability culpa arises if a reasonable person in the position of
the defendant would have foreseen harm of the
general kind that
actually occurred, would have foreseen the general kind of causal
sequence by which that harm occurred, would
have taken steps to guard
against it and the defendant failed to take those steps.
”
ANALYSIS
[49]
In order to determine the issue of foreseeability, one would have to
examine
if a reasonable person in the position of the
defendant would have foreseen harm of the general kind that actually
occurred, would
have foreseen the general kind of causal sequence by
which that harm occurred, would have taken steps to guard against it
and the
defendant failed to take those steps
.
The defendant
conceded ownership of the railway reserve, that it was responsible
for the operation and maintenance of its property
at the site of
ignition, and that it was responsible for the operation and
maintenance of the railway cars, engines and equipment
which
travelled through the site of ignition. It further admitted that the
farming operations carried on by the plaintiffs in the
general area
of its property consist of cattle, sheep, and game farming which
carries a high risk of damage should a veld fire
occur and that
during the winter months of May to October, a high risk of veld fires
occurring exist by virtue of the expected
weather conditions during
the winter months and that plaintiffs suffered damages. As a result,
it is not difficult to find that
the defendant foresaw the harm of a
general nature that occurred as well as the general kind of causal
sequence by which the harm
occurred. What is left to be determined is
what steps have been taken to guard against it and whether the
defendant failed to take
such steps. Documentary evidence becomes
critical in this regard.
[50]
In
Khoza
v Member of the Executive Council for Health and Social Development
of the Gauteng Provincial Government,
[2]
the
defendant, contended that the plaintiff did not produce any evidence
to show that the medical staff were negligent, and even
if they were
negligent, it did not cause or contributed to the HIE. The starting
point was the defendant’s contention that
there were no
hospital records to demonstrate foetal distress and that evidence of
the medical staff, demonstrated that proper
procedures were followed
including the monitoring of the patient and foetus.
[51]
The Court in that case accepted that it was correct that the
plaintiff was unable to rely on the CTG.
However, the reason
was that the CTG tracings at the critical period were missing.
[52]
Nonetheless, the defendant submitted that the Court was left with the
evidence of the plotting done by the
medical staff on the Partogram,
reinforced by viva voce evidence it presented.
[53]
The Court remarked that it was common cause that this was not the
first time in a claim of negligence involving
the Chris Hani
Baragwaneth maternity ward that CTG recordings have disappeared.
It cited
Ntsele
v MEC for Health, Gauteng Provincial Government
[3]
[2013]
2 All SA 356
(GSJ), where Mokgoatlheng J noted at para [116] that all
the clinic and hospital notes were missing from the patient’s
file
and that no explanation was proffered.
[54]
In Khoza, the case file was called for, it contained every document
one would expect save for the critical
CTG tracings. No proper
explanation was offered. On the contrary, Dr Mtsi who was
called by the Defendant confirmed
that CTG records should be kept in
the mother’s file.
[55]
The CTG records were possibly the single most important monitoring
device during labour to detect foetal
distress and appear to be
essential where labour is being induced by the use of prescribed
drugs, such as Prostin and Sintocinon.
[56]
In this regard the court referred to Lamont J in
Makgomarela v
Premier of Gauteng and another
. At paragraph [18] of that
Judgment, the Court stated the following:
“
Had
the mother in bed been monitored as required, the monitoring would
have yielded data which would have enabled the medical team
to
intervene at an early stage so as to prevent hypoxia occurring.
A CTG could have been used to effect tracings on a continuous
basis
as such was available at the hospital.”
[57]
In cases where a CTG machine is used, its recordings are regarded as
the key evidence. The keeping of the
documents may have evidential
ramifications in civil suits. The cases referred to indicate
that the overwhelming evidence
presented was that where it is
utilized, the CTG is the single most important and reliable
monitoring device during the critical
phases of labour.
[58]
On the facts, the CTG traces constitute the original and foundational
documentary evidence having been produced
directly by the machine.
See:
South African Law of Evidence
, 2nd edition by
Zeffert & Paizes page 830 to and
Principles of Evidence
,
3rd edition, by Schwikkard & Van der Merwe para 20.3.1 page 405
to 406.
[59]
The subsequent alleged noting of the CTG data and the viva voce
evidence of its alleged contents is hearsay
evidence. Unless
there is a satisfactory explanation as to why the original documents
are not available, a Court is entitled
to treat such “secondary”
evidence with caution or even refuse to allow it into evidence.
See
Vulcan
Rubber Works (Pty) Ltd v SAR & H
[4]
where
Schreiner JA said:
“
The
starting point in considering the admissibility of such evidence is
the statutory provision which, in each province, refers
the Courts in
matters of hearsay to the law of evidence in England. Although
there is reference in our cases to the statutory
requirement that
facts must be proved by the best evidence, I do not think that it is
really relevant. Weaker evidence is
not excluded by the
availability of uncalled stronger evidence except in the case of
documents, when the original must be produced
or its absence properly
explained. In that case, the secondary evidence itself proves
the existence of the better evidence,
namely, the original. No
doubt the difference between evidence and hearsay can be said to be
an illustration of a broad rule
favouring the use of the best
evidence, but the better way of stating the position is that hearsay,
unless it is brought within
one of the recognized exceptions, is not
evidence, that is legal evidence, at all. There is no doubt
that Brunet’s
statements about the reports he had received from
other officials were of the nature of hearsay. In several
modern cases
in South Africa, statements of a generally similar kind
have been admitted (see: Garment Workers Union v De Vries and
others,
1949 (1) SA 1110
(W); Rex v Ferguson,
1949 (3) SA 69
(N);
Gibson v Arnold and Co (Pty) Ltd
1951 (2) SA 139
(T). In the
last-named case reference was made to Nike v Pillay Trustee,
1923 AD
471
, where, at page 477, De Villiers JA, appears to give recognition
to a principle of necessity as affording a ground for the admission
of evidence that would otherwise be inadmissible. There is no
doubt that the exception to the rule against hearsay has come
into
existence mainly because there was felt to be a strong need for such
an exception if justice was to be done. But that
is a different
thing from recognizing a principle that the rule against hearsay may
be relaxed or is subject to a general qualification
if the Court
thinks that the case is one of necessity.”
[60]
In
S
v Ndlovu and others,
[5]
the
Court was obliged to consider the constitutionality of Section 3 of
the Amendment Act. In doing so, the SCA per Cameron
JA
[6]
approved the passages in
Vulcan
at
296 F that, “hearsay, unless it is brought within one of the
recognized exceptions is not evidence that is, legal evidence,
at
all”, but said that what the Amendment Act had brought about
was a fundamental change to permit the relaxation of the
evidentiary
rules by allowing hearsay evidence to be received only if it is in
the interest of justice to do so and relied on the
statement to that
effect by Navsa JA in
Makhathini
v Road Accident Fund.
[7]
[61]
It was however necessary for the Court in Ndlovu, to also deal with
the necessary distinction between the
admissibility of evidence and
its reliability and its application in light of the Amendment Act.
This aspect is relevant
for present purposes because the SCA
explained that the mere relaxation of the hearsay rule does not
result in the automatic admissibility
of hearsay. The Court
stressed, by way of illustration at para [29] to [31], that:
“
When
hearsay evidence is tendered, the person on whose credibility the
probative value of the hearsay evidence may –
(i)
Testify and confirm its correctness;
(ii)
Not testify;
(iii)
Testify but deny ever making the hearsay statement;
(iv)
Testify and admit making the statement but deny its correctness;
(v)
Testify but neither confirm nor deny making the statement.
“
If
the witness, when called, disavows the statement, or fails to recall
making it, or is unable to affirm some detailed aspect of
it
(situations (iii) to (iv) above), the situation under the Act is not
in substance materially different from when the declarant
does not
testify at all. The principal reason for not allowing hearsay
evidence is that it may be untrustworthy since it
cannot be subjected
to cross-examination. When the hearsay declarant is called as a
witness, but does not confirm the statement,
or repudiates it, the
test of cross-examination is similarly absent, and similar safeguards
are required
”.
“
The
probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration,
and the
central question is whether the interests of justice require that the
prior statement should be admitted notwithstanding
its later
disavowal or non-affirmation. And though the witness’
disavowal of or inability to affirm the prior statement
may bear on
the question of the statement's reliability at the time it was made,
it does not change the nature of the essential
enquiry, which is
whether the interest of justice require its admission.”
[62]
The same consideration applies in civil proceedings. See:
Giesecke
and Devrient Southern Africa (Pty) Ltd v Minister of Safety and
Security.
[8]
There
does not appear to be anything in the Constitutional Court decision
of
Savoi
and Others v National Director of Public Prosecutions and another
[9]
that
might qualify the key aspect of the ratio in
Ndlovu
or
Makhathini
,
that a Court in the interest of justice may either hold hearsay
evidence inadmissible or may admit it as part of the evidential
material but ultimately find it unreliable or untruthful.
[63]
If these considerations are applied to the present case, then there
is no explanation for the disappearance
of the train journal that
would have contained the A-Brake test, the assembly of the train
report, load certificate, handbrake
test of the rolling stock,
locomotive trip report, the train inspector’s report as well as
the originals of the discovered
documents, particularly those
pertaining to the assembly of the train.
[64]
Mr. Slabber the train driver, had no recollection
of what transpired on the day and had testified that when
the train
reached its destination the only report he had of the tests conducted
was destroyed. The train assistant was not
called to give
evidence.
[65]
The public policy consideration is that prima facie, it would appear
not to be in the interest of justice
to condone, without an
acceptable explanation, a failure on the part of a State institution
to comply with an obligation to ensure
the records are preserved, are
not tampered with and that proper access controls are put in place.
[66]
There is no suggestion that the internal procedures were inadequate
to ensure the safe custody of the documents.
[67]
I align myself with the view expressed in
Khoza t
hat the
defendant has the most to gain by ensuring their safekeeping as the
records are the surest way of demonstrating that they
had done the
tests as alleged and carried out proper procedures. Similarly, the
defendant also has the most to gain by the disappearance
of these
documents if they failed to carry out their duties. They are
also the ones who would be giving hearsay evidence
because of the
disappearance of the original record. The risk of unreliability
because of manufactured evidence is high and
the ability to
cross-examine effectively compromised.
[68]
The origin of the brake block discovered by Swanepoel could not be
established due to the missing records.
It must be noted that the
defendant commissioned an investigation into the incident two months
after it occurred. These documents
ought to have been available at
that time.
[69]
I would therefore have no difficulty in finding
that the evidence relied upon by the defendant which purportedly
represented the train journal and its contents constitutes
inadmissible hearsay. If I am wrong and I have exercised my
discretion
incorrectly then I would have no hesitation in rejecting
the testimony of Slabber, Hansen, Jantjies and Moerane. Slabber
remembered
nothing, Hansen made no effort to consult any of the
defendant’s witnesses when preparing his first expert report,
prepared
a second report after Botha’s testimony, Jantjies
consulted documents not discovered, could not testify on discovered
documents
and Moerane was only appointed as a quality assurer in
September 2016. At best, their testimonies were hearsay.
[70]
The Court further stated the following in
Khoza
:
“
In
my view, the inadmissibility of hearsay testimony is not necessarily
the only consequence that results from the failure to produce
the CTG
records without inadequate explanation. That is a negative
consequence which provides legal comfort to a plaintiff
who still
bears the onus of demonstrating negligence.
”
I share these views.
[71]
It is the defendant’s view that the plaintiffs have failed to
furnish proof that the fires were in
fact started as suggested by
their witnesses. I disagree with this view in the light of the
evidence tendered by the plaintiffs
and the lack thereof by the
defendant. Danckwerts puts the position in its proper perspective.
Effectively, the defendant tendered
no evidence and the
cross-examination offered no version.
[72]
It was submitted on behalf of the defendant that the pieces picked up
by Swanepoel of composite brake blocks
do not constitute evidence
that the said pieces of brake blocks started the fire for the reason
that there is no direct evidence
that the brake blocks started the
fires and that there is also no evidence that the said pieces of
brake blocks originated from
wagons of the kind that formed part of
the train in this case. In my view, this does not help the defendant
in the light of the
concessions by Hansen, the missing documents, the
amnesia by Slabber, the failure to call the train assistant and the
totality
of the evidence led by the plaintiffs.
[73]
The limitation in a definite conclusion on the cause of fire is the
lost documentation. The plaintiffs do
not need to prove a definite
cause; they rely on reasonable possibilities. Any criticism of the
case made out by the plaintiffs
on probabilities is defeated by the
weak case the defendant has presented.
[74]
The defendant submitted that the plaintiffs have not discharged their
onus of establishing a causal link
between the conduct of Transnet
and the damages that they suffered. I disagree with this submission
particularly when one has regard
to the missing records, loss of
memory from the train driver, the train assistant not having
testified and no reason advanced for
same, Hansen’s first
report having been compiled without the input of the defendant’s
witnesses, Hansen’s second
report after Dr Botha had testified
and witnesses that are called by the defendant when they knew nothing
about the incident and
cross-examination based on assumptions. It is
my considered view that the test as set out in
Kruger v Coetzee
has been met by the plaintiffs.
[75]
In summary, the failure to produce these records which were under the
care of the defendant and where there
is no acceptable explanation
for their disappearance or alleged destruction, results in the
inadmissibility of ‘secondary’
evidence if the interest
of justice so dictates. It is for this reason that I find that the
defendant took no steps to guard against
harm of a general nature
from occurring and it failed to take such steps.
[76]
I am constrained not to find that on probabilities, there was
negligence on the part of the defendant in
circumstances where
Patella saw the fire starting at the site of ignition, Botha
scientifically explained the possible cause of
the fire as seen by
Patella starting and Hansen agreeing with him in that regard,
Swanepoel discovering brake blocks on the site
of ignition three days
after the incident and no records are available to disprove that
those were not from the train in question
and the uncontested
testimonies of Weyers, Voster and Danckwerts.
[77]
The plaintiffs succeed, on a balance of
probabilities, in their
contention that the
fire originated as a result of overheated material fragments and/or
other mechanical fragments and/or sparks
being deposited from a
diesel-powered railway engine or engine number 8910 operated by the
defendant which resulted in the fire
starting in the vegetation
growing in the defendant’s property and spreading from the
various points of origin in an eastern
direction towards various
other farms including the plaintiffs’ farms is a reasonable
possibility, more so where no other
possibility is presented by the
defendant. The scientific and factual evidence presented established
that there were indeed veld
fires as pleaded by the plaintiffs.
[78]
I accept the testimony of Patella in respect of the origin of
the fire and I find him to be a credible witness. His
evidence was
corroborated by the SANSA report and the expert evidence of Botha and
Hansen in respect of the possible causes.
[79]
Dr Botha was upfront about the fact that it would be difficult
without a detailed inspection of the rolling
stock and rails shortly
after the incident and with limited documentary evidence available to
identify with absolute confidence
which of the fire-causing hazards
may have occurred. Having conceded this, he put quite a number
of possible scenarios, where
he had to concede he conceded. He agreed
with Hansen that things could go wrong. I accept his evidence.
[80]
It becomes difficult to state what further
steps defendant could and should reasonably have taken
when defendant
presents Hearsay evidence or no evidence at all. In my view,
the totality of the evidence led by the plaintiff
has established a
case on a balance of probabilities.
[81]
The train driver or any of the witnesses of the
defendant did not present evidence to show that the wagons and
locomotives were fitted with carbon resistance that made it unlikely
for their engine to start a veld fire, that the driver drove
at a
speed that avoided wheel spin by the locomotives and accordingly
excluded the generation of sparks as a result of wheel spin,
that in
the direction the train travelled, the stretch of the railway track
where the fires originated was slightly uphill, which
meant that
there was no reason for the train brakes to be applied in the area,
and that the driver did not apply the train brakes
in the area at all
as he could not remember anything.
[82]
No evidence was led that the newly built forty-eight
(48) wagons of the train were, before their departure from
Bloemfontein, subjected to both the handbrake test and the A- brake
test as the train driver could not give any evidence in this
regard
nor was the train assistant who was supposed to have done these tests
called to testify.
[83]
No evidence was led that the brakes of the wagons fitted with ECP
could not bind and overheat so as to forcibly
disintegrate, no
evidence was led that the wheels of the wagon were fitted with roller
bearings which eliminated possible overheating
of the bearings and
that there were “
hot boxes
” installed along that
stretch of the railway line that would have detected an overheated
bearing, and would have made the
person concerned aware of the
problem.
[84]
The cross-examination was always on the assumption that all the tests
that Mr Knoetze
referred to if properly executed prior to the
departure of the train on 11 August 2012 the defendant would have
acted in line with
its duty of care, Dr Botha agreed that Transnet
would have taken all reasonable steps to prevent the train from
causing fires,
no evidence was subsequently led that indeed these
tests were done. No documentary proof was provided as to the
conduct of
these tests.
[85]
It was Mr Knoetze’ s
position that the mechanical fault would have been detected
by the
people checking the wagon before it was certified in terms of that
long test that he had read to Dr Botha and the Court,
no proof of
such was provided. Further, Mr Knoetze put it to Dr Botha that
assuming that these tests were properly done before
departure, one
would not have expected that the train would cause fire, again, no
evidence was led to the effect that these tests
were properly done
before departure. Dr Botha agreed with Hansen in this regard. I
disagree with the submission by Mr Knoetze
that Transnet did do these
tests as no proof to that effect was ever presented. This
therefore defeats the argument that
the plaintiffs had not indicated
what, in addition to the aforesaid tests, the defendant could
reasonably have done to prevent
damage to them as a result of
brakes-related causes as no such tests were ever done at least
according to the evidence presented.
[86]
It is for this
reason that it is difficult for this Court to accept
that the
wrongful conduct was not a cause of the Plaintiffs’ loss if it
would not so have ensued. I cannot accept that
the wrongful act
is shown not to be a
causa sine qua non
of the loss suffered
and therefore no legal liability arises. It is incorrect to
submit that Dr Botha was unable to identify
the cause of the fire as
he said he could not do so with certainty in the absence of the
necessary documents which documents ought
to have been in possession
of the defendant. Even without those documents he could set out
scenarios which I accept that
one of them could have been the cause
if one has regard to Patella’s evidence. The SANSA report
confirms the origin
of the fires and that report is not in dispute.
A defendant need only to have foreseen harm of a general kind that
actually
occurred, and the plaintiff needs to prove what steps the
defendant failed to take to guard against the damage that actually
occurred.
[87]
Dr Botha sets out that the most probable
generation of heat that caused the fire was “
by dynamic
friction between steel and/or cast iron surfaces, or brake blocks and
wheel threads of the train. This, in conjunction
with the high
winds and dry wayside grass in close proximity to the track could
have been sufficient to cause hot metal particles
or pieces of hot
brake block to ignite the dry grass.
”
This in my view, is the
logical explanation to what Mr Patella testified to. It is on
this basis that I find that the plaintiffs
have discharged their onus
of establishing a causal link between the conduct of the defendant
and the damages that they suffered.
[88]
I can therefore reasonably infer that the fires were caused by
friction brake-related causes and as a result
of the missing records,
the loss of memory by Slabber, the failure to call the train
assistant, Hansen’s first report compiled
without consulting
the train driver and the train assistant and the fact that he had
drafted a second report after Dr Botha had
tendered his evidence
resulting in the opportunity which is lost for Botha’s
cross-examination in that regard as well as
the calling of irrelevant
witnesses that could not take the matter any further, the defendant
failed to complete the factual picture
in this case and it has failed
to do so by the evidence of Slabber and Moerane.
[89]
I reject the evidence of Slabber that the A-brake
test was properly performed before the train left the
Bloemfontein
station and therefore no reasonable step was taken by Transnet. I
also reject the evidence of Moerane as hearsay when
he testified that
wagons would not be allowed to leave the Transnet engineering
workshop in Bloemfontein if the quality of the
work and the end
result thereof was not controlled as the control sheet that appears
on page 2 to 12 of Transnet’s trial
bundle as that is merely an
example not an actual control that was done on this day on this
train. Moerane did not even provide
a single cart test that was
done as proof that Transnet did something to avoid liability.
No certificate for technical completion
for this specific train was
tendered as evidence. He was only appointed as a quality assurer in
September 2016.
[90]
It did not help Slabber to insist that or to be adamant that he would
under no circumstances have departed
from Bloemfontein with the train
if that test had not been done without actually providing proof to
that effect. I cannot accept
that Mr Slabber participated in the
A-brake test when he cannot remember anything.
[91]
I have no choice but to accept, in the absence of
documentary proof that in line with the reasoning in the
Khoza
judgment. For that reason, I find that there was reasonable
foreseeability of the general nature of the harm that might,
as a
result of this conduct, befall the properties of the plaintiffs
exposed to the risk of harm in case the train causes fire.
This
is in line with the
ratio
decidendi
in
Mashongwa
v
Passenger Rail Agency of South Africa
.
[10]
[92]
Once harm is foreseeable, reasonable measures have
to be put in place to prevent the foreseeable harm from
occurring.
I cannot but restate that this could have been established if
documentary evidence was led in this regard as proof,
in this regard
I cannot find that the defendant put in place reasonable measures to
prevent the foreseeable harm from occurring.
[11]
This is in line with the
dictum
of
Majiedt AJ, in the
Jacobs-
matter.
[93]
From the evidence tendered by the
plaintiff and lack thereof by the defendant, I can infer that
the
defendant was negligent and the plaintiff passes the test as set out
in
Kruger
v Coetzee
.
[12]
[94]
In the light of the facts I have found
proven and admitted there is a sufficient balance of probabilities
in
the plaintiffs’ favour.
[13]
[95]
I find that on a balance of
probabilities the inference may properly be drawn that the train
was
the source of the ignition of the subject fire. Mr Patella
testified as to the cause of the fire and same was corroborated
by
Botha, Swanepoel, Wyers, Voster and Danckwerts. The possibility
is that the train emitted the hot pieces of brake blocks
into the
vegetation growing next to the railway line causing the fire which
fire was seen by Patella when it started.
CONCLUSION
[96]
I find that the plaintiffs have proven on a balance of probabilities
that the
defendant’s negligent failure in either the
manufacturing process, and/or in the
maintenance and/or in
inspecting the train 8910, with the necessary skill and
prior
to departure of its journey from Bloemfontein on 11 August 2012 has
caused the composite brake blocks to overheat to the point where
it disintegrated and caused multiple points of ignition in the
railway reserve from where the fire spread onto the properties of the
various plaintiffs. The costs shall follow the result and
due to the
complexity of the matter, the costs of senior counsel are warranted.
[97]
In the circumstances, I make the following order:
ORDER
(1) The defendant is
liable to each of the Plaintiffs in the above case numbers for all of
each plaintiff’s proven or agreed
damages flowing from the fire
that occurred on 11 August 2012.
(2) The defendant
shall pay the party and party costs of the plaintiffs' including the
costs of senior
counsel and t
he reasonable
preparation, qualifying, traveling, accommodation and reservation
fees and expenses, if any, of the following expert
witnesses:
2.1.1.
Dr C. Botha;
2.1.2.
Mr F Weyers;
2.1.3.
Mr W Vorster – SANSA;
2.1.4.
Dr J Danckwerts;
2.1.5.
Mr F Mosetlho and
2.2.6.
JA Rossouw – weather services.
L.
BOMELA, AJ
On
behalf of the Plaintiffs:
Adv.
PJJ Zietsman SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
B Knoetze SC
Instructed
by:
Phatsoane
Henny INC
BLOEMFONTEIN
[1]
1966
(2) SA 42
(A) at 430 E – G.
[2]
2012/20087)
[2015] ZAGPJHC 15;
2015 (3) SA 266
(GJ);
[2015] 2 All SA 598
(GJ) (6
February 2015).
[3]
2011/35273)
[2012] ZAGPJHC 217 (1 November 2012) para [6] to [8].
[4]
1958
(3) SA 285
(A) at 296 D – H.
[5]
2002
(6) SA 305
SCA.
[6]
Para 14.
[7]
2002
(1) SA 511
(SA) para 21.
[8]
2012
(2) SA 127
(SCA) para 24 per Brand JA.
[9]
2014
(5) SA 317
(CC) at para 44, 46 and 49.
[10]
2016
(3) SA 528
(CC) para 53 to 59.
[11]
Jacobs
and another v Transnet Limited t/a Metrorail and Another
2015
(1) SA 139
(SCA) para 8].
[12]
See
also
De
Wet and another v President Versekeringsmaatskappy Bpk
1978
(3) SA 495
(C) at 500 F;
Macleod
v
Ren’s
1997 (3) SA 1039
(E) at
1046, 1047 D – 1048 B, 1048 D and 1048 J to 1049 B.
[13]
South
African Railways & Harbors v Dlamini
1967
(2) SA 203
D at 207.