Mthembu v Transnet t/a Metrorail (157/08) [2009] ZASCA 67; [2009] 4 All SA 225 (SCA) (29 May 2009)

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[2009] ZASCA 67
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Mthembu v Transnet t/a Metrorail (157/08) [2009] ZASCA 67; [2009] 4 All SA 225 (SCA) (29 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 157/08
In
the matter between:
GUGU
PRECIOUS MTHEMBU
APPELLANT
v
TRANSNET
t/a METRORAIL
RESPONDENT
Neutral citation:
Mthembu
v Transnet t/a Metrorail
(157/2008)
[2009]
ZASCA 67
(29 May 2009).
Coram: Streicher ADP, Jafta, Mlambo JJA, Hurt et Griesel
AJJA
Heard: 19 May 2009
Delivered: 29 May 2009
Summary: Application for special leave to appeal –
no reasonable prospects of success in a further appeal.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High Court,
Johannesburg (Blieden, Claassen, Saldulker JJ sitting as a Court of
Appeal).
The following order is made:
‘
The application for special leave to appeal is
refused.’
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO JA (Streicher ADP, Jafta JA, Hurt, Griesel
AJJA concurring)
[1] The applicant sued the respondent in the South
Gauteng High Court for damages arsing from injuries she sustained in
an accident
at the Tembisa Station in Gauteng on 25 May 2002. The
trial court (Fourie AJ), after ordering in terms of Uniform Rule
33(4) that
the issue of liability be determined first and separately
as agreed between the parties, found that the applicant’s injuries
were as a result of the negligence of the respondent’s servants
acting within the course and scope of their employment by it.
The
trial court further refused the respondent’s application for leave
to appeal. This court, however, granted the respondent
leave to
appeal to the full court. That appeal was successful and that court
(Claassen J with Blieden and Saldulker JJ concurring)
granted the
respondent an order for absolution from the instance with costs.
[2] The applicant lodged an application for special
leave to appeal that decision to this court which Cloete JA and Leach
AJA referred
for oral argument in terms of s 21(3)(c)(ii) of the
Supreme Court Act 59 of 1959 and directed that the parties be
prepared, if
called upon, to address the court on the merits. The
approach in such matters is to consider whether there are reasonable
prospects
of success and whether ‘there are special circumstances
which merit a further appeal’ to this court.
Westinghouse
Brake & Equip v Bilger Engineering
1986
(2) SA 555
(A) at 564H. I propose to consider first whether there are
reasonable prospects of success and in doing so I briefly sketch the

background of the matter.
[3] The applicant’s version of how she came to be
injured is that on the morning of 25 May 2002 she went to the Tembisa
Station
in the company of her common law husband, Sipho Sibiya
(‘Sibiya’) and two of his friends, Jeremiah Msweli (‘Msweli’)
and
Themba Khumalo (‘Khumalo’), intending to catch a local train
to Kempton Park. The applicant knew Msweli and Khumalo very well
in
view of the fact that they hailed from the same area in KwaZulu-Natal
as the applicant and Sibiya. After they had waited for
a short while
the train arrived at approximately 9 o’clock and stopped.
[4] The platform was full of commuters who were
alighting from the train and others boarding. She saw Sibiya rushing
towards the
train and lost sight of him. She also saw Khumalo and
Msweli, who were also ahead of her, board the train. As it was her
first
time to board such a train she stood aside for commuters to
alight and she could at that time see Khumalo and Msweli inside the

train. She then moved towards the door of the train and as she put
her foot on the step of the train to board, the train suddenly
pulled
off and she bumped her head against the side of the door and fell
onto the platform. She could not recollect what happened
after she
was hit by the train.
[5] Michael Mthembu (Mthembu), the applicant’s
brother, testified in support of her case. His version was that he
had a telephone
discussion with Khumalo sometime after the accident
and asked him how the plaintiff came to be injured. Khumalo had
informed him
that on the day in question they boarded the train at
Tembisa Station and only realised after the train had departed that
the applicant
was not amongst them, which suggested that something
was wrong. Khumalo told him that they had to wait for the train to
reach the
next station before they could alight and rush back to
Tembisa Station, where they discovered that the applicant had been
injured.
[6] The respondent’s version, on the other hand, came
predominantly from Khumalo and Emma Phasha (Phasha), one of the
security
guards who were on duty at Tembisa Station that morning.
Khumalo’s version was that the four of them had waited at the
Tembisa
Station for quite some time and when the train entered the
station, and before it could come to a stop, the applicant stumbled
in a bizarre fashion towards the train and bumped into it with her
head. None of them had yet boarded the train as it had not stopped.

Thereafter, one of them rushed up the stairs to call the station
security guards to come and assist. Khumalo disputed the appellant’s

version that he, Msweli and Sipho had managed to board the train.
Phasha testified that she and her colleague, Ledwaba, were stationed

on an overhead bridge over platform 1 and the railway lines when she
suddenly heard screaming just before 09h50. The screaming
came from
the platform below and within two minutes or so of hearing the
screaming a young man had approached her and her colleague
and
advised them that someone had been injured on the platform below.
[7] She and Ledwaba then went down to the platform and
found the applicant lying on the platform bleeding profusely from a
wound
on her head. The young man who had summoned them from the
overhead bridge was also there with two others who said they were
travelling
with the applicant. One of these young men related to her
and Ledwaba how the accident occurred and she recorded this in the
occurrence
book. She is the one who summoned an ambulance to ferry
the applicant to hospital. She transcribed the entry she had made in
the
occurrence book into her pocket book. The occurrence book and
pocket book were handed in as exhibits during the trial. The note
she
made in the occurrence book reads:
‘
Saturday 25 May 2002
ACCIDENT REPORT
09h50 At time 09h50 at Tembisa
Station Gugu Mthembu date of birth 1980, address 548 Endulwini sec
Tembisa
that lady hit
a train with her head before the train stop
.
That happened at platform 1 . . . Found injury at the left head (deep
cut) and bruises on the left leg. She hold weekly ticket
from
Limdlela – Elandsfontein ticket no: 19842108736024. Train no: 1832.
Taken her to Tembisa Hospital.
Ambulance Arrive: 10h08
Driver: Samson Baloyi
Reg no. BXV 651 GP
Departure: 10h25.’
[8] As is apparent from the aforegoing the applicant’s
version of how the accident occurred and that of the respondent’s
witnesses
differed materially and were clearly mutually destructive.
A useful reminder on how courts should approach such matters is found

in
SFW Group Ltd & another v Martell et
CIE & others
2003 (1) SA 11
(SCA) at
14I-15E.
[9] The trial court in accepting the applicant’s
version found that she was an honest, straight forward and credible
witness who
did not endeavour to embellish her evidence in order to
strengthen her case. For this reason the trial court reasoned that it
had
no reason to disbelieve her and concluded that her version
accorded substantially with the objective facts. The trial court was

critical of Khumalo branding him as an incredible and unreliable
witness whose version was as absurd as it was improbable. The
trial
court was especially critical of Khumalo’s version that the
appellant had simply stumbled towards the approaching train
as if she
was intoxicated and struck her head against it. In this regard the
trial court reasoned that the respondent had tendered
no evidence to
indicate why the applicant, who had behaved in a perfectly normal and
sane manner up to that time, could all of
a sudden have behaved in
the manner described and demonstrated by Khumalo, stumbling past her
three companions and running head
first into a moving train.
[10] It becomes immediately apparent that in accepting
the appellant’s version and rejecting Khumalo’s the trial court
completely
ignored Phasha’s version. Perusal of the trial court’s
judgment reveals that nowhere does that court consider Phasha’s
version
when analysing the evidence. This was correctly found to be a
misdirection by the full court which reasoned:
‘
1. Nowhere was the vital
importance of the evidence of Phasha discussed. On appeal it was
conceded that the evidence of Phasha was
of vital importance to the
defendant to establish that Khumalo, Sipho and Msweli were in fact on
the platform immediately after
the incident and after the train had
left the station. On the plaintiff’s version, on the other hand,
the three young men boarded
the train and only discovered that
plaintiff had remained behind after the train had left. Phasha’s
evidence in regard to her
contemporaneous recordal of the events on
the platform immediately after the incident confirms the version of
the defendant that
the three young men were on the platform enabling
her to obtain the details of the plaintiff and how her injuries
occurred. On
the plaintiff’s version there would have been no eye
witnesses to the incident to supply Phasha and Ledwaba with any
particulars
regarding the incident. It was therefore important for
the court to deal with this evidence. Its failure to do so fell foul
of
the duty of a court to traverse in judgment
all
relevant evidence.’
[11] Furthermore, the full court stated that:
‘
(16) I am of the view that
the record clearly shows Phasha to have been a credible and
trustworthy witness. Had the court
a
quo
evaluated her
evidence, it would have come to this conclusion. In so doing, it
would not have found in the plaintiff’s favour,
since Phasha’s
evidence corroborates the evidence of Khumalo that he gave a report
to the security officers to the effect that
the plaintiff had
collided with the train prior to it coming to a standstill.
(17) The court
a
quo
also failed to
take into account that plaintiff’s pleaded version of how she had
fallen between the platform and the tracks is
wholly inconsistent
with her evidence as well as the evidence of the defendant’s
witnesses. This fact affects the credibility
of the plaintiff.’
[12] Regarding the trial court’s finding that there
was no dispute that the applicant’s three companions had boarded
the train,
the full court found that the trial court had erred in
that regard as the respondent had disputed the applicant’s
allegation
that her three companions had boarded the train. The full
court found that this misdirection by the trial court indicated a
lack
of understanding of one of the crucial issues that was at stake
during the trial. This was also a correct finding by the full court.
[13] Regarding the trial court’s criticism of the
version tendered by Khumalo, as to why the applicant had suddenly
stumbled towards
the moving train, on the basis that the respondent
had failed to produce evidence showing that the applicant would have
suddenly
behaved in that manner, the full court reasoned thus:
‘
There was no
onus
upon the defendant to tender any evidence to indicate why the
plaintiff acted as Khumalo had alleged. The
onus
is upon the plaintiff to prove on a balance of probabilities that her
version is the correct one. It seems, however, from the statement

quoted above that the court required the defendant to give some
explanation why plaintiff acted as alleged by Khumalo. In this

regard, the court misdirected itself as to a proper evaluation of the
probabilities and
onus
of proof.’
Whilst Khumalo’s description and demonstration of how
the applicant stumbled into a moving train may appear bizarre, the
fact
is Khumalo was an eyewitness and his version is corroborated by
Phasha’s contemporaneous note of that version, taken from one
of
the applicant’s companions on the platform shortly after the
accident occurred.
[14] Furthermore, regarding the trial court’s finding
that there was some suggestion on record that Khumalo had been
persuaded
to give evidence to controvert the plaintiff’s version,
the full court found that the trial court had also misdirected itself

in that regard. The full court reasoned:
‘
The evidence discloses no
such suggestion at all. In my view this is an important misdirection
on the part of the court
a
quo’s
evaluation of
the evidence. It seems as if its conclusion that Khumalo was not a
credible or reliable witness, resulted directly
from a misdirected
appreciation of the onus of proof and a wrong understanding of what
the evidence disclosed as to why Khumalo
testified contrary to the
plaintiff’s version. If those were the only reasons for the court
holding Khumalo not to be a credible
and an unreliable witness, then
such conclusion is unjustified, both in law and in fact.’
[15] The full court concluded that for these reasons it
was of the view that the trial court’s judgment contained
substantial
misdirections, which caused it to come to a wrong
conclusion on the facts as well as on the law. The full court found
that the
trial court should in fact have accepted the evidence of
Phasha as proof that a description of how the collision occurred was
reported
immediately after the incident by one of the applicant’s
companions.
[16] In my view, the full court was fully justified in
concluding that the trial court had committed the misdirections it
identified.
The trial court clearly failed to evaluate the evidence
in line with the approach referred to earlier in
SFW
Group & another v Martell et CIE & others
(supra). On the other hand, the full court dealt with the matter
comprehensively and properly and consequently there is very little

that one can add to its reasons.
[17] Based on the aforegoing, I am of the view that
there are no prospects of success whatsoever in a further appeal. The
probabilities
are very strongly in favour of the respondent’s
version. This being my conclusion, there is no warrant to consider
whether there
are any special circumstances that would warrant a
further appeal to this court. The respondent did not insist on the
costs of
the application.
[18] The application for special leave to appeal is
refused.
_________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANT: G J Strydom
INSTRUCTED BY: Edeling Van Niekerk Inc;
Johannesburg
CORRESPONDENT: McIntyre & Van der Post;
Bloemfontein
COUNSEL FOR RESPONDENT: M M Antonie; A Lapan
INSTRUCTED BY: Deneys Reitz Inc; Johannesburg
CORRESPONDENT: Webbers Attorneys; Bloemfontein