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[2021] ZAGPJHC 729
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Bhengu v Passenger Rail of South Africa (2018/8803) [2021] ZAGPJHC 729 (5 July 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 2018/8803
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
5 JULY 2021
In
the matter between:
BHENGU,
ZANDILE PLAINTIFF
and
PASSENGER
RAIL OF SOUTH
AFRICA DEFENDANT
JUDGMENT
MUDAU,
J:
[1]
The
Plaintiff in this matter (Ms Zandile Bhengu), a fare paying train
passenger, instituted action for payment of a certain sum
of money in
damages against the Passenger Rail Agency, South Africa (“PRASA”)
arising out of an incident where she
was allegedly pushed out of a
train owned and/or managed and under the control of PRASA
(“Defendant”), and sustained
injuries. At the
beginning of the trial, the Plaintiff applied for a separation of the
issues of liability from that of quantum
in terms of Rule 33(4) of
the Uniform Rules. The application was supported by the Defendant. As
the balance of convenience sustained
such a separation, I accordingly
granted the order.
[2]
The
Plaintiff’s claim is founded in delict. However, she wishes to
hold PRASA liable because of the alleged wrongful acts
or omissions
of its employees when they were acting in the course and scope of
their employment. In order to succeed, the
plaintiff would have
to establish that: (a) the Defendant’s employees owed
a legal duty to the plaintiff to protect
her; (b) they acted in
breach of such a duty and did so negligently; (c) there was a
causal connection between such negligent
breach of the duty and the
damage suffered by the plaintiff.
[1]
[3]
PRASA’s
defence
rests
on a mutually destructive version that, the plaintiff attempted to
board the train when the doors were already closed, and
the train was
already in motion at the time of the incident. The question to
be answered, therefore, is whether the plaintiff
has presented
sufficient evidence to establish, on a balance of probabilities, that
the PRASA employees acted in the manner that
she says they did.
The
classic test for establishing the existence or otherwise of
negligence, quoted with approval in numerous decisions of this Court,
is that formulated by Holmes JA in
Kruger
v Coetzee
:
[2]
“
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.”
[4]
Whether
a
diligens
paterfamilias
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.
[3]
[5]
I
turn to the evidence presented by the parties. The plaintiff
testified that, on 15 February 2018 at approximately 10am, while
in
the company of her sister, Nompumelelo Bhengu and a friend (Lindiwe),
she boarded a train at Daveyton train station
to
East Rand station in search of employment
.
They changed trains at
Dunswart station, heading to Johannesburg. The train was not
overcrowded as every passenger had a seat. There
were no standing
passengers.
[6]
She
testified that the train was in motion with open doors from Dunswart
station. She further testified that she was not familiar
with train
stations after Dunswart. She was in phone communication with a person
who was to meet them at the East Rand station.
She testified that she
used that particular route between Daveyton and Johannesburg about 5
or 6 times and she knew, from previous
experiences, that she had to
change trains at Dunswart. On her version, the person they were to
meet up with at East Rand mall
had told them that the East Rand train
station is two stations away after Dunswart. Out of caution, she had
also been requested
to ask anyone in her coach to show her where East
Rand station is. To that end, she asked a woman in the same row of
seats as her
to let her know when they get to the East Rand station.
[7]
At
the next station, the train stopped and commuters embarked. There
were no commuters that disembarked. She got up from her seat
and
proceeded to the door to check where they were at that point. By the
door with the train still stationery, she held onto a
steel pole,
leaned forward and peeped to her right. From a distance, she could
see a board written Boksburg East. She explained
that she did not
know the name of the station because she had never disembarked at
Boksburg East station before that incident.
The train started to
move. After turning to go back to her seat, two boys came running and
bumped her such that she fell outside
of the train. She fell on her
back and landed on the platform. She became unconscious upon falling.
She regained consciousness
at Tambo Memorial hospital.
[8]
Under
cross-examination, she testified that she wanted to check if this was
their intended destination that’s why she got
up to peep at the
door. She remained at the door for approximately 2 minutes. She
testified that the name of the station was written
on a board in big
letters, which she saw clearly. When asked why it took her 2 minutes
to look for the name, she replied by saying
that she just stood
there. The reason why it took her two minutes is because she was
inside the train and if she was outside, it
would have taken her less
than two minutes. After being pressed to clarify this evidence, she
then explained that she did not take
notice of how long she was
standing at the door and the station was in the “veld”.
[9]
After
the two-minute observation, she returned to her seat, which was 3-5
paces away when the 2 boys came running towards her and
pushed her
out of the train. She does not know where they were coming from. The
train was already in motion with the doors open.
The plaintiff’s
sister testified and confirmed her evidence. It is on record that,
Nompumelelo was
present in Court throughout the plaintiff’s evidence-in-chief
and part of the plaintiff’s cross-examination
up to the point
where these two boys allegedly came running towards the plaintiff.
She only left the Court room after there was
clarification sought as
to who she was.
[10]
During
cross-examination, she testified that there is only one door on a
coach and if anyone says otherwise that person would be
wrong. It was
then put to her that the plaintiff testified regarding the two doors
on either side and she remained adamant that
there was only one door.
On her version the incident happened after the plaintiff had turned
her back to the door, and was a step
away.
This
was Nompumelelo’s first journey from Daveyton to Johannesburg
by train. She explained that she was not anxious or excited
and she
was only thinking about the job.
[11]
According
to Nompumelelo, she and Lindiwe provided the plaintiff’s
details to the officer in uniform but disputed that the
plaintiff
attempted to embark the moving train as per the entry in the JOC
occurrence book. It was put to her that all the details
are recorded
save for the manner in which the incident happened. The entry also
recorded that the injured person was bleeding from
the nose and right
ear. Nompumelelo was adamant, after correcting herself twice, that
the plaintiff was bleeding from the ears
only. Although there were
people around the plaintiff, approximately 20, she could not tell
whether anyone attended to the plaintiff.
When she spoke to the
plaintiff, the plaintiff was quiet. As to a question whether anyone
else spoke to the plaintiff, her response
was she did not pay
attention.
[12]
During
the clarification questions by the court regarding the door inside
the coach where the plaintiff was, Nompumelelo blurted:
“[T]he
one she (Zandile) went out through?” The question had to be
repeated to which she stated, it was opposite her.
As to the height
of her fall onto the platform, she testified that, it was about 30
cm. It is common cause from the hospital records
that the plaintiff,
upon admission at the hospital, was fully conscious with the Glasgow
Coma Scale (GCS) reading of 15/15 and
complained of bleeding from the
right eye, with no visible injuries.
[13]
The
defendant’s sole witness, Mr Philani Ngcobo who was a metro
train guard at the time with seven years’ experience,
testified
that he was the train guard in charge of the relevant train 0344
on the day in question stationed at the middle
of the train. The
train was not busy because it was outside peak hour. He testified
that the train arrived at Boksburg East station
on this day and that
the train doors were closed. He testified that the commuters
disembarked and embarked after he opened the
train doors.
[14]
He
testified that his duty was to ensure that passengers embark and
disembark under safe conditions, and insisted that he had done
his
job diligently and properly and had made sure that the doors of the
train were closed after the passengers had alighted from
and boarded
the train before he signalled to the driver, sitting in the front of
the train, that it was safe for the train to leave
the station. He
stated that there was a button in the coach which, when pushed,
closed all the doors of the carriages. He testified
that when the
train was handed over, no faults were reported. There was no
indication that the doors were dysfunctional as he and
the driver
would manually test the doors and also check the train for any air
pressure leakages, which they did.
[15]
Mr
Ngcobo also testified that he would observe as the train would enter
and leave different stations, especially when it is a curved
platform, that would inform him if there was a problem with the
doors. He explained that if the doors of the coaches beyond the
middle coach were open, commuters would make noise and tell him that
there is a problem with the doors. He could not see commuters
“breaching” the doors and that would give him an
indication that the doors are not functioning.
He testified that in the passage of the train coach three people
could stand next to each other and agreed that there is enough
space
for people to move and pass each other. He estimated the space to be
2.5 meters.
[16]
He
then explained that the platform and the safety yellow line intended
to prevent commuters from encroaching was clear, and he
blew the
whistle to warn that the train was leaving. He then closed the doors
and gave the driver the “right away”
signal. As the train
was leaving platform 2 and as he was leaning out of his cabin to
observe the platform on the left side of
the train, he saw a young
lady running towards the train attempting to get onto the step of the
coach but slipped and fell as it
had been raining. The plaintiff was
the only person on the yellow safety line when she crossed in an
attempt to embark the moving
train. He then rang the three emergency
bells which is a signal for the driver to stop the train, which he
did.
[17]
He
phoned Brakpan Assets Protection Service to report the incident.
After the train stopped, he disembarked from his cabin and went
straight to where the plaintiff was. He noticed that she was bleeding
from her nose. He spoke to the plaintiff and asked her what
she was
doing. According to him, she explained that she got off at the wrong
station and the people inside the train called her
to come back. He
was the first to reach the plaintiff who, at that stage, was next to
the name board of the Boksburg East station.
[18]
Not
long thereafter, a security officer arrived at the platform to help
him. He maintained and was emphatic that the plaintiff was
conscious
and she could even stand up. The train remained stationary for less
than 10 minutes after which he handed over the scene
to the station
guard who had arrived. When the version of how the plaintiff
allegedly came to fall was put to him he was adamant
that he could
not testify about what he had not witnessed, but maintained his
version.
[19]
During
cross-examination, he strongly denied the plaintiff’s version.
He was adamant that he had already rang the ride away
bell and closed
the doors when the plaintiff tried to board the train, which was
already in motion. He recorded the incident in
his pocketbook which
was subsequently left at their offices. However, because of the
Covid-19 lockdown regulations, the offices
were broken into and
vandalized. After the breaking-in his pocketbook could not be found.
He further testified that he obtained
her name and cell phone number
from the plaintiff. Had the plaintiff been unconscious he would have
applied CPR as he had received
training for that situation.
[20]
In
answer to clarification questions by the court, he testified that he
found the plaintiff seated on the platform after the train
had come
to a halt. The plaintiff stood up when he approached her with a
yellow reflective jacket on. He confirmed that the height
in between
the door of the train and the platform is about 25 to 30 cm.
[21]
The
Constitutional Court has made it clear that PRASA has a public duty
to provide public rail transport in a safe manner.
[4]
However, the plaintiff, as indicated, bears the onus of proving that
in the present case, that duty was not discharged and fell
short of
what the reasonable rail provider would have done to ensure commuter
safety in the circumstances.
[5]
[22]
The
Court is faced with two mutually destructive versions. In summary,
the plaintiff contends that she was pushed from inside the
coach
through the open doors and fell backwards onto the platform. The
defendant’s version is that the plaintiff attempted
to board a
moving train as it was leaving Boksburg East station. It is trite
that the onus of proof rests with the plaintiff in
this matter for an
entitlement to her claim.
[6]
It
is a time honoured onus.
[7]
However, in circumstances where mutually destructive versions are
presented to the court, certain well established principles
apply. This court is bound to approach these versions by
applying the principles enunciated in the decision of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
[8]
where Nienaber JA held as follows:
"To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the 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 witness' 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' 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."
[23]
However,
findings of credibility cannot be judged in isolation, but should be
considered in light of the proved facts and the probabilities
of the
matter under consideration.
[9]
In addition, each case will depend on its own particular facts.
[24]
In
my view, the plaintiff, as the defendant correctly contended, did not
make a favourable impression as a witness, she was evasive.
She came
up with different versions as her reason for going to the door at
Boksburg East station. The plaintiff’s initial
explanation was
that she had not been at this station and wanted to check the name of
the station. Another explanation was that
she wanted to check the
name of the station so that she could see whether it was their
intended destination because the person
who she was in contact with
told her that the station is after Dunswart station. A third version
was then given by her witness,
Nompumelelo, in that the plaintiff
looked in order to report to the person at the intended destination
where they were. The plaintiff,
for example, could not recall how
long she was standing at the door after estimating two minutes and
then stating that the station
is in the “veld”. I find it
improbable that the plaintiff stood at the door for approximately two
minutes just to verify
the name of the station, written in bold
letters in three separate boards as a defence witness testified. She
had difficulty to
explain where the two boys came from whereas she
had taken a step towards her seat at the very least, before being
pushed out.
[25]
The
fact that the plaintiff’s witness, Nompumelelo, was in court
when the crucial evidence was led requires that her evidence
be
considered with the necessary caution. The poor quality of the
plaintiff’s version is exacerbated when Nompumelelo, as
indicated, blurted “the one she (Zandile) went out through”
with reference to the door, which is consistent with the
defendant’s
case. The statement was unsolicited. Realising her mistake, she tried
to explain it away but was unimpressive
in the process. Nompumelelo
testified that the plaintiff stepped out of the train but attributes
it to the fact that she was confused
between left and right. Both
witnesses for the plaintiff paused on several occasions when pushed
for an answer and came up with
long explanations. The plaintiff, for
example, could not recall how long she was standing at the door after
estimating two minutes
and then stating that the station is in the
“veld”.
[26]
It
was not placed in dispute that Mr Ngcobo was on duty as the train
guard on the Boksburg East train on the day in question. Accordingly,
I accept that he was there and that he was an eye-witness to what
occurred. There is no reason to doubt that he had a good view
of what
occurred at platform 2 as, on the common cause evidence, the incident
happened out of peak hours. There was nothing in
the demeanour of
this witness to suggest that he was being untruthful. In comparison
to the plaintiff and her witness, he was not
evasive in his answers,
nor did he hesitate when asked questions under
cross-examination. Where applicable, he made favourable
concessions to counsel on behalf of the plaintiff, in particular, to
what happened inside the coach which the plaintiff and her
witness
occupied.
[27]
I
gained a distinct impression that Ngqobo was giving honest evidence
based on the best of his recollection from the incident in
question. The fact that the train came to a halt shortly before
it cleared platform 2, lends credence to his version that
he
witnessed the accident and notified the driver of the train who
responded. Accordingly, I find no reasons to conclude that he
was not
a credible witness.
[28]
With
regards to a report of the incident relied upon by the plaintiff from
Sinqobile Security that she “jumped off a moving
train and
fell”, its evidential status, as discovered by the defendant in
respect of which no evidence was led regarding
its authenticity and
reliability, this court (per Sutherland J) stated aptly:
“
[19]
Controversy also arose about reference to documents in the bundle.
The almost universal practice of preparing a bundle of all
the
documents that might be referred to in evidence is a boon to orderly
litigation. However, it invariably occurs that not all
the documents
in a bundle are traversed in evidence. In my view, a document not
traversed in evidence is not before the court,
unless a prior
agreement exists that it be admitted in a fashion other than through
legitimate reference in evidence by a witness
competent to comment
thereon. The customary mantra that ‘all documents in the bundle
are what they purport to be without
any admission to the truth of
their contents’ confers no evidential status on a document
unless it is introduced through
a witness capable of addressing the
contents, called by one or other of the opposing parties. (See, eg:
Howard & Decker Agencies
& Fourways Estates (Pty) Ltd v De
Sousa 1971(3) SA 937 (T) at 940 F – G) The problems that arise
for a litigant who itself
cannot adduce evidence about a document can
sometimes be addressed by compelling, when competent, a person under
a subpoena to
appear and address the document. Accordingly, no
reliance may be placed on such documentary material, however
relevant, in the
absence of these two methods of adducing it.
[20]
Therefore, where for example, a mine of data is contained in the
bundle that would be most useful in the cross-examination
of a given
witness who might testify for the adversary, but that witness is not
called, thereby depriving the cross-examiner of
the chance to advance
the case by challenging the absent witness with the data, it is not
open to a party, later in argument, to
allude to such material,
however relevant it might be to any issue in dispute.”
[10]
[29]
This
is exacerbated by the fact that the incident, as initially recorded
on JOC 918, apparently by a security guard, Mantswi states
that she
“attempted to embark on a moving train 0344” when she
fell and sustained injuries. The Sinqobile Security
report was
compiled based on a report by Mantswi, which is contradictory.
[30]
It
is highly unlikely and therefore improbable that the plaintiff would
have been pushed out of the train by unspecified third parties,
in
this instance two boys whereas the train on the common cause evidence
was not overcrowded. These unidentified boys would on
the
probabilities, have had an option to go around past the plaintiff or
use other exit points to disembark the train. The alleged
presence of
these two boys who rushed out of the train as it pulled out of the
platform when there was no stampede and with no
one else in the
plaintiff’s version disembarking, is opportunistic.
[31]
Having
had regard to all the evidence I consider it very probable, and I
find accordingly, that the plaintiff got off the train
to confirm the
name of the station on the written boards. Understandably, she was
anxious not to miss her appointment at the intended
destination. Of
the three of them, she was the only one with the train experience.
However, as it was off-peak times and the station
was not busy, she
miscalculated the time spent outside the train. For on her version,
she waited for commuters to board the train
before proceeding to the
door. On the defence version, there were commuters who boarded and
those who disembarked. Valuable time
was, on either version, lost
before she stepped out of the train.
[32]
The
injuries sustained on her right eye, right ear and nose, on the
probabilities, are consistent with the defence version that
she
slipped and fell as opposed to the plaintiff’s version that she
was pushed and fell on the platform from a height of
approximately 30
cm on her back. It follows, accordingly, that this claim must be
dismissed.
[33]
I
make the following order:
The
plaintiff’s claim is dismissed with costs.
T
P MUDAU
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
Date
of Judgment: 5
July 2021
APPEARANCES
For the
Plaintiff: Adv.
M Mthombeni
Instructed
by: Mngqibisa
Attorneys
For
the Respondent: Adv.
F F Opperman
Instructed
by: Majavu
Inc.
[1]
Carmichele v
Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at para
[25]
.
[2]
1966 (2) SA 428
(A) at 430E-G.
[3]
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Limited and Another
2000 (1) SA 827 (SCA).
[4]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005
(2) SA 359
(CC).
[5]
Kruger
note
2 above.
[6]
Aegis
Insurance Company Limited v Consani NO
[1996]
3 All SA 547
(A)
at 558.
[7]
See
Passenger
Rail Agency of South Africa v Sithuse
[2021]
ZASCA 78
at
para 26.
[8]
2003
(1) SA 11
(SCA) at 14I-15D.
[9]
Santam
Bpk v Biddulph
2004
(5) SA 586
(SCA
).
[10]
Thomas
v BD Sarens (Pty) Ltd
[2012] ZAGPJHC 161 at paras 19-20.