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[2022] ZAGPPHC 756
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Chikwanda v Passenger Rail Agency of South Africa (76681/2019) [2022] ZAGPPHC 756 (10 October 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
76681/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
10
October 2022
In
the matter between:
TADIWA
MERCY CHIKWANDA
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Defendant
JUDGMENT
DE
VOS AJ
Introduction
[1]
This is an action for delictual damages.
The plaintiff sues PRASA for injuries
sustained after she was thrown through the open doors of a moving
train by third parties.
She
wishes to hold PRASA liable for the injuries she sustained.
[2]
The plaintiff needed to get home from a
job interview.
She
had been successful and was told she got the job.
To get home, she needed to use the train
and from the station she would take a taxi home.
As she was returning from a job
interview, she had with her, in her handbag, her certificates showing
her qualifications, her travel
documents, her cellphone and the money
she needed to get onto a taxi from the train station.
The plaintiff had never used the train
before.
As
the experience was novel, she was assisted by a family member who
went to see her off at the station.
He
showed her the ropes and she boarded the train.
She noted four men boarded the carriage
with her.
The
men were communicating with each other and gesturing towards her.
She felt unsafe.
She decided she would put some space
between her and the men by moving to the next carriage.
As she got up from her seat, in an
attempt to evade the men, they attacked.
[3]
The focus of their attack was her
handbag.
Her
handbag held not only documents that are both hard to replace, vital
to her employment and consequent livelihood, but also the
money she
needed to board a taxi to make her way home to her six month old
baby.
She
therefore held onto her possession as much as she could.
A scuffle broke out.
At this stage, the train was in motion
with the doors open.
She
was overpowered and thrown out of the open doors of the train.
From this moment on her memory fails
her.
The
impact of her landing, made her lose consciousness, break her leg and
injure her elbow.
She
believes she landed on grass as she found grass marks on her clothes,
but does not remember the moment of impact.
She recalls making her way back to the
platform where she declined the assistance of an ambulance as her
immediate and pressing
priority was to return to her child.
[4]
The plaintiff claims that PRASA is
responsible for the injuries she suffered. At this stage, the Court
is called on only to decide
the issue of merits. The parties
requested the separation of issues and the Court granted such an
order at the outset of the trial.
[5]
PRASA opposes the relief on several
grounds.
PRASA
denied in its pleadings that the incident occurred.
At the hearing PRASA shifted its
position and led evidence that the doors of the train were in fact
closed, that there was contributory
negligence on the part of the
plaintiff and that her engagement in the scuffle was a new
intervening cause that resulted in the
injuries.
[6]
PRASA admitted that it bears a duty to
take reasonable steps to prevent injuries on its trains.
The admission goes to wrongfulness.
Distilled, this means that the elements of delict in dispute are the
act, negligence (including
the defence of contributory negligence)
and causation.
The
Court can make quick work of the dispute relating to the act and
causation, before it turns to the issue of negligence.
The
act and causation
[7]
PRASA in its pleadings denied the act
giving rise to the claim (ie it denied that the incident occurred).
At the hearing, PRASA’s sole
witness, Ms Nancy Nethengwe, told the Court that the incident had
occurred – though disputing
the manner in which it occurred.
The pleaded case was contradicted by the
evidence led at the hearing.
On
the common cause facts, as led in evidence,
the requirement of an act is met.
[8]
As
to causation, PRASA submits that had it not been for the alleged
attack on the plaintiff, she would not have been injured.
PRASA’s
counsel submitted that “one must also bear in mind that the
plaintiff on her own version engaged in a scuffle
with her attackers
and that during this scuffle she was thrown from the train”.
PRASA submits that had she not engaged in
the scuffle, the incident
“may very well have been avoided and so too her injuries”.
[1]
PRASA relies on
Van
der Spy v Minister of Correction Services
[2]
as authority for the proposition that an intervening act may break
the chain of causation.
PRASA
relies on the test for an intervening act as defined by Nugent AJ in
OK
Bazaars Ltd v Standard Bank of South Africa.
[3]
The test hinges on “the foreseeability of the new acts”
and if the new act was neither unusual nor unexpected, it is
not an
intervening act.
The
question is whether a criminal attack on a moving train is an
intervening act which breaks the chain of causation.
[9]
The
Constitutional Court had dealt with this directly in
Mashongwa.
[4]
Mr
Mashongwa, as the plaintiff in this case, was attacked on a train by
unknown assailants and then tried to fight off the assailants.
The
assailants then threw Mr Mashongwa from the train causing him
serious
injury.
PRASA
contended in Mashongwa that the assailants’ criminal act broke
the chain of causation. The Constitutional Court held
that the attack
and Mr Mashongwa fending off the attackers was not an intervening
act. The Court considered both aspects of causation
– factual
and legal.
Firstly,
in relation to factual causation the court held –
“
Had
the doors of the coach in which Mr Mashongwa was travelling been
closed, it is more probable than not that he would not have
been
thrown out of the train.
In
all likelihood, he would not have been thrown out of the train had
the strict safety regime of closing coach doors, when the
train is in
motion, been observed….. it strikes me as highly unlikely,
based on the evidence tendered, that the three attackers
would have
found it easy to force the doors open and throw out Mr Mashongwa, who
was resisting, as quickly as they did taking advantage
of the already
open doors.
On
a preponderance of probabilities Mr Mashongwa would not have
sustained the injuries that led to the amputation of his leg had

PRASA kept the doors closed
.”
[5]
(emphasis added)
[10]
In relation to legal causation the Court
held –
“
That
the incident happened inside PRASA’s moving train whose doors
were left open reinforces the legal connection between
PRASA’s
failure to take preventative measures and the amputation of Mr
Mashongwa’s leg.
PRASA’s
failure to keep the doors closed while the train was in motion is the
kind of conduct that ought to attract liability.
This
is so not only because of the constitutional rights at stake but also
because PRASA has imposed the duty to secure commuters
on itself
through its operating procedures.
More
importantly, that preventative step could have been carried out at no
extra cost.
It
is inexcusable that its passenger had to lose his leg owing to its
failure to do the ordinary.
This
dereliction of duty certainly arouses the moral indignation of
society
.
And
this negligent conduct is closely connected to the harm suffered by
Mr Mashongwa.
It
is thus reasonable, fair and just that liability be imputed to
PRASA
.”
[6]
(emphasis added)
[11]
The issue of causation has been settled,
by the Constitutional Court in very similar circumstances.
[12]
Our courts have therefore already
concluded, in almost identical circumstances, where a person is
attached on a train and seeks
to defend themselves, that neither the
attack nor the defence, breaks the chain of causation.
Negligence
– were the doors closed?
[13]
The
parties have raised a material dispute of fact in relation to
negligence.
The
plaintiff’s testimony was that the doors were open when she was
thrown out whilst the defendant’s version was that
the doors
were closed.
It
would be attractive to dispose of the matter solely on the
probabilities.
The
plaintiff’s injuries are admitted, it is admitted that she was
in the train and injured as she landed on the ground outside
the
train. It is not only highly improbable, but in fact impossible for a
person to fall out of a train through a closed door.
However,
as the dispute of fact is material the Court will make a finding on
the evidence.
[7]
[14]
The Court must weigh the credibility and
reliability of the witnesses that present the conflicting versions.
Credibility has to do with a witness’s
veracity. Reliability has to do with the accuracy of the witness’s
testimony.
Accuracy engages consideration of the witness’s
ability to accurately observe, recall, and recount events in issue.
[15]
The plaintiff testified first. Her
demeanour was calm.
She
presented
no
bias, nor was any suggested.
Her
version was consistent and presented no contradictions.
The only basis on which she was
cross-examined, in this regard, was the date of the incident as set
out in the particulars of claim.
It
is not a material issue as the parties are in agreement as to the
date of the incident and PRASA did not oppose an application
for
leave to amend the pleadings to correct the date.
It seems to have been a mistake in the
pleadings, rather than proof of a lack of truthfulness on the
plaintiff’s part.
[16]
The plaintiff’s version is
probable. She suffered injuries after being thrown from an open door
by her assailants.
The
only possible way, and therefore probable way, in which the plaintiff
exited the train was through open doors. Any other suggestion
is
fantastical, impossible and therefore improbable.
Not only is the plaintiff’s
version regarding the open doors probable, so is her explanation of
how she was accosted, her
motivation for clinging to her valuable
possessions and the subsequent scuffle.
[17]
As to the reliability of her evidence,
she was cross-examined on her memory loss. The proposition was put to
her that if she suffered
memory loss for a period of the incident how
could her memory of the entirety of the events be trusted.
The plaintiff however explained where
her memory was faulty and what events she recalls clearly. She could
identify the period during
which her memory failed her.
Her candour in this regard persuades the
Court to find her evidence credible and reliable.
The probabilities weigh heavily in her
favour.
[18]
The defendant’s witness does not
receive the same report.
On
the issue of whether the door was open or closed, the witness held
steadfast that it was closed when it left the station.
However, the evidence that underpins
this was inconsistent.
At
first she testified that she looked at trains as they come into the
station. This was her job. However, when asked how she could
have
seen that the train doors were closed as they left the station, the
version changed and she then testified that she also watched
trains
as they leave the station.
[19]
The inconsistencies extend beyond the
issue of whether the doors were open or closed.
She relied on an entry in an occurrence
book she made at the time.
The
entry was – for much of her evidence – the pilar on which
she leaned.
She
testified first that the entirety of the entry was her own, and
later, she changed this version and it was only partly hers.
[20]
The version presented to Court must have
changed between consultation and the witness taking the stand.
During the plaintiff’s
cross-examination counsel for PRASA, as is appropriate, gave the
plaintiff an opportunity to respond
to the evidence PRASA would lead.
The plaintiff was told that PRASA’s
witness would testify
[1]
as to the identities of the men who picked up the plaintiff after she
fell from the train as Franco and Nkonoso; and [2] that
the plaintiff
came from behind the train (after she fell). However, when PRASA’s
witness was called to present this version,
not only was the version
not confirmed but in fact a different one was presented. The witness
denied knowing the men, let alone
their names and changed the version
as to where the plaintiff came from on two occasions.
The witness deviated from the version
counsel informed the court and the plaintiff, would be led.
No explanation for this deviation was
provided despite such an opportunity being provided.
In fact, counsel for the defence sought
to ask to questions of clarity in reply.
[21]
Matters get worse for PRASA when an
affidavit deposed to by the witness was canvassed.
The witness conceded her signature on
the affidavit and its correctness, but then repudiated it contents
when its inconsistencies
with her evidence was highlighted.
The
evidence
took
a
turn
for
the
unfortunate
when
she
alluded
to
the possibility of the investigator, Mr Motsoaledi, introducing facts
in her statement which she did not provide him with, which
were
untrue and which she never said.
[22]
On a balance of probabilities, the
essential features of the story told by the defendant’s witness
cannot be held to be true.
The
defendant’s witness testified that the plaintiff bought apples
from four men who were hawking outside the station; the
plaintiff
then boarded the train without a ticket, but with these four men and
that she then jumped off the train.
The
essential features of this version do not flow or follow.
The version insinuates something planned
about the plaintiff’s injuries, but it is unclear how this is
arrived at or on what
it is based. The Court finds the witness not to
be credible.
The
Court resolves the dispute of fact in favour of the plaintiff and
finds that the train was moving with open doors.
[23]
Our
Courts have concluded, repeatedly
[8]
that PRASA's failure to ensure the doors of a train in motion were
closed, is a negligent act.
The
reasoning underpinning this is that the harm of falling from a train
is reasonably foreseeable, even if the precise sequence
leading to it
was not; and the steps reasonably required to prevent it were easy to
take.
[9]
The
principle is categorically stated in
Maduna
v Passenger Rail Agency of South Africa
[10]
:
“
Open
train doors and injuries resulting from them have often received
judicial attention.
Unsurprisingly the cases all say that a rail
operator who leaves train doors open while the train is in motion,
acts negligently
.” (emphasis added)
[24]
PRASA,
operating a moving train with open doors is, in terms of our settled
jurisprudence, a negligent act.
The
risk of serious injury to an intending commuter resulting from
starting a train while persons are in the act of boarding the
train
are self-evident.
[11]
PRASA
was negligent in allowing the train to start moving with its doors
open.
[12]
Contributory
negligence
[25]
There is a second aspect of negligence
that must be considered. PRASA pleaded the defence of contributory
negligence. The factual
basis on which this was pleaded was that the
plaintiff [i] stood at an open door [ii] failed to take adequate
steps to prevent
the accident; [iii] voluntarily got into an
overcrowded train; [iv] forced the doors of the train to open.
No evidence of [ii] to [iv] were
presented to the Court.
As
for alleging that the plaintiff is negligent as she stood at an open
door, it is unclear how this can be the plaintiff’s
negligence
when it is PRASA’s case that the doors were closed and if they
were not, the law provides that is a basis for
negligence on PRASA’s
part.
In
any event the plaintiff’s version is that she sought to move
away from her position close to the door but was prevented
from doing
so by her assailants.
The
Court concludes that there was no contributory negligence.
Order
[26]
In the result, the following order is
granted:
a)
The defendant is liable for 100% of
plaintiff’s proven or agreed damages.
b)
The
defendant
is
ordered
to
pay
the
plaintiff’s
costs
on
a
party
and
party
scale, including the costs of counsel.
I
de Vos
Acting
Judge of the High Court
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. As a
courtesy gesture,
it will be sent to the parties/their legal representatives by email.
Counsel
for the plaintiff:
FHH
KEHRHAHN
Instructed
by:                                                        Chueu

Incorporated
Counsel
for the Respondent:
Z
MARX DU PLESSIS
Instructed
by:

Makhubela Attorneys
Date
of the hearing:                                              7

September 2022
Date
of submissions:
15

September 2022
Date
of judgment:
10

October 2022
[1]
Defendant’s written submissions p DH 15 paras 32 - 33
[2]
2004 (2) SA 463
at 474G
[3]
OK Bazaars 1929 Limited v Standard Bank of South Africa Limited
(278/2000)
[2002] ZASCA 5
at para 33
[4]
Mashongwa v PRASA (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204 (CC);
2016 (3) SA 528 (CC)
[5]
Mashongwa paras 66 and 67
[6]
Mashongwa para 69
[7]
Venter Du Plessis v RAF (138/2020)
[2021] ZASCA 64
(26 May 2021)
para 15
[8]
In Mthombeni v Passenger Rail Agency of South Africa (13304/17)
[2021] ZAGPPHC 614 (27 September 2021) the Court held -
"It
bears yet another repetition that there is a high demand for the use
of train since they are arguably the most affordable
mode of
transportation for the poorest members of society, for this reason,
trains are often packed to the point where some passengers
have to
stand very close or even lean against doors. Leaving doors of a
moving train open therefore poses a potential danger
to passengers
on board".8
"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".
In
Baloyi v Passenger Rail Agency of South Africa (PRASA) 2018 JDR 2044
(GJ) para 20 it was repeated that ‘it was a basic
fundamental
requirement for the safe operation of a passenger train in any
country that “a train should not depart with
a door open”.
The prohibition of trains travelling with open doors keeping the
doors of the train closed whilst in motion
is an “essential
safety procedure” (paragraph 26). Travelling with open trains
doors is a negligent act. (paragraph
27)
[9]
The Supreme Court of Appeal in Transnet Ltd t/a Metro Rail and
Another v Witter (517/2007)
2008 ZASCA 95
(16 September 2008) has
categorically stated that “a train leaving with open doors
constitutes negligence”. Similarly
in Rodgers v Passenger Rail
Agency of South Africa 2018 JDR 0347 (GP) at para 14 it was held
that “PRASA has an obligation
to protect its passenger's
bodily integrity and failure to do so attracts liability to
compensate for damages suffered as a result
thereof.”
In Maruka v Passenger
Rail Agency of South Africa 2016 JDR 0720 (GP) at 34 the plaintiff
was ejected from a moving train by the
pushing and jostling for
space from fellow commuters while the doors were open. The Court
held that there is a “heavier
burden” placed on PRASA
“where greater risk exists”. A reasonable person or
organ of state would have reasonably
foreseen a commuter would fall
as a result of a train disembarking with open doors. It is also
expected that PRASA should have
taken reasonable steps to prevent
that harm from taking place.
[10]
2017 JDR 1039 (GJ) par [28]
[11]
Ngubane v SA Transport Services
[1990] ZASCA 147
;
1991 (1) SA 576
(A) at 777D
[12]
Transnet Ltd t/a Metrorail v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA) par [1] at
552 and par [5]-[11] at 555