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[2021] ZAGPJHC 650
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Passenger Rail Agency of South Africa v Mokoena (5038/2020; 14289/2014) [2021] ZAGPJHC 650 (26 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
APPEAL
CASE NO: 5038/2020
COURT A QUO CASE
NO.:14289/2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
26 AUGUST 2021
In the matter between:
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Appellant
(Defendant
a
quo)
And
MOKOENA:
LINDIWE ANNA Respondent
(Plaintiff
a quo)
JUDGMENT
Semenya
AJ (
with Vally J and Flatela AJ concurring)
1. This
is an appeal (with leave to appeal having being granted by the
court
a quo
), against the judgment and order of Mbongwe AJ, delivered
on 20 September 2019, where the
court a quo
found the
appellant liable for the injuries sustained by the respondent on 21
June 2011 while commuting between the Johannesburg
station and Angelo
station. The determination of the quantum was deferred for later,
having separated the merits from the quantum
in terms of Rule 33(4)
of the Rules of Court.
2. At
trial, the only evidence tendered was that of the plaintiff
describing how she sustained her injuries. There
was no evidence
tendered on behalf of the appellant. The significance of the
appellant’s failure to testify will become apparent
later. The
pleadings reveal that the allegations of negligence were met by a
plea on behalf of the appellant stating - no knowledge
and inviting
the respondent to the proof of those allegations.
3. The
appellant challenges the judgment on four bases. I will deal with
each of these challenges below. Before
doing so, I recite the facts
as found by the
court a quo,
and against which neither the
appellant nor the respondent takes issue. In this regard, the
court
a quo
stated:
“
FACTS
[4] The
plaintiff boarded a train on the 21 June 2011 at the Johannesburg
Station destined for Boskburg.
She was on her way from work and was
to disembark at Angelo Station. She counted approximately ten
stations between the two points
of her commute. The circumstances
resulting to (sic) her injuries appear to have occurred just after
the train had departed from
the Germiston Station, which was the last
before Angelo Station.
[5] The
doors of the train had closed. The plaintiff, who had been sitting,
had (sic) stood up to make
her way towards the door reading herself
to disembark at Angelo Station. There many people (sic) on the train,
some seated and
others standing. She was stumbled on by other
commuters ostensibly also heading for the doors. She sustained
injuries, could no
longer see, or breathe. She was eventually lifted
up by some people and (sic) placed her near a window. It was those
people who
asked her if there was anyone/family they could contact
and inform them of her ordeal. She directed the people to her
identity
document, in her handbag, where contact details of her
boyfriend would be found. Contact was made with her boyfriend.
[6] At
Angelo Station the plaintiff was lifted and placed on the platform
where her boyfriend and son
were already waiting. She was then taken
by car to hospital.”
4. It
was the respondent’s evidence further that what caused her to
fall and to sustain her injuries was
that she was pushed when
commuters were trying to make their way inside the train. She
testified that as there was no security
and the train being full of
commuters pushing each other to make their way inside the train, she
fell as a result. Her evidence
further was that inside the train
there were no security officers to control the crowd. No evidence
gainsaying the respondent’s
version was tendered and absent the
respondent’s version being manifestly and patently untrue, the
court a quo
was correct to accept that version.
5. I
now turn to deal with the grounds of appeal and the argument advanced
on behalf of the appellant, both in
its heads of argument as well as
in oral argument.
6.
It
was argued on behalf of the appellant that the evidence did not
establish a duty of care towards the commuters who use their
services. For good reason, this argument was abandoned in oral
submissions made on behalf of the appellant. In interpreting the
provisions of ss15(1)
[1]
and
23(1)
[2]
of the South African
Transport Services Act 9 of 1989 (“
the
SATS Act”
),
the duty of care placed on the (appellant has been pronounced upon,
in most lucid terms, by O’regan J (with all Justices
of the
court concurring)) in
Rail
Commuters Action Group v Transnet LTD t/a METRORAIL
[3]
.
In the relevant part, it reads:
“
[84] In
these circumstances, I conclude that Metrorail and the Commuter
Corporation bear a positive obligation arising
from the provisions of
the SATS Act read with the provisions of the Constitution to ensure
that reasonable measures are in place
to provide for security of rail
commuters when they provide rail services under the SATS Act. It
should be clear from the duty
thus formulated that it is a duty to
ensure that reasonable measures are in place.
It
does not matter who provides the measures as long as they are in
place.
The responsibility for ensuring that the
measures are in place, regardless of who may implement them, rests
with Metrorail and Commuter
Corporation.”
7. O’Regan
J continues against paragraph 86 to say:
“
[86] The
duty thus identified requires Metrorail and the Commuter Corporation
to ensure that reasonable measures
are in place to provide for the
safety of rail commuters. The standard of reasonableness requires the
conduct of Metrorail and
Commuter Corporation to fall within the
range of possible conduct that a reasonable decision-maker in the
circumstances would have
adopted. In assessing the reasonableness of
conduct, therefore, the context within which decisions are made is of
fundamental importance.
Furthermore, a court must be careful not to
usurp the proper role of the decision maker. In particular, ‘[a]
decision that
requires an equilibrium to be struck between a range of
competing interests or considerations and which is to be taken by a
person
or institution with specific expertise in that area must be
shown respect by the Courts. Often a power will identify a goal to be
achieved but will not dictate which route should be followed to
achieve that goal. In such circumstances a Court should pay due
respect to the route selected by the decision-maker.’ This
Court considered the manner in which the standard of reasonableness
should be applied to positive constitutional obligations in
Government of the Republic of South Africa and Others v Grootboom and
Others
[4]
.
The Court held that the standard would need to be assessed in the
light of the ‘social, historical and economic context’
and the light of institutional capacity”
8. In
the context of the facts of this matter the positive constitutional
obligation of the appellant has been
established. The next enquiry
should be whether evidence, not argument, was placed showing the
reasonable measures which were taken
by the appellant. Since no
evidence was tendered at all on what measures the appellant put in
place to ensure the safety of the
commuters, the ineluctable
conclusion to be drawn was that no measures at all were in place to
ensure the safety of the commuters
and that of the respondent.
9. The
criticism mounted by the appellant against the judgment of the
court
a quo
that Mbongwe AJ erred in finding that the absence of
security personnel played a role in the injuries sustained by the
respondent,
cannot be sustained.The learned Judge held that:
“
[10] The
absence of security personnel undoubtedly played a role in the
occurrence of the circumstances leading to the
plaintiff sustaining
injuries. The initial push that resulted in her falling was unlikely
to occur in the presence of a security
guard/s. In general, people
tend to behave and exercise restraint where security personnel
insight (sic) or the likelihood of their
presence anticipated and
some would do the opposite when the opportunity avails is (sic)
itself such as in this case, where there
had been no security
personnel insight (sic) ostensibly throughout the plaintiff’s
travels. Further, the possibility exist
that the plaintiff could have
been rescued earlier with swift action by a guard which could have
minimised the extent of her injuries.
[11] Unfortunate
circumstances in commuter trains can arise at any moment. For this
reason, I find, reasonable
measures to counter or mitigate the
effects of such circumstances have to be constantly in place. That
would pale any difference,
real or perceived, in circumstances
demanding, of the defendant, the provision of reasonable measures to
ensure the security and
safety of train commuters.”
10.
The
further challenges to the judgment of the
court
a quo
is
that Mbongwe AJ erred by concluding that the presence of security
personnel in the coach could have prevented the respondent
from
falling; that the appellant had a duty to provide security personnel
in the coach that the respondent was traveling in; or
by finding that
the appellant was negligent by not providing security personnel in
the coach that the plaintiff was travelling
in are also without
merit. Equally baseless were the arguments that the respondent bore a
duty to adduce evidence to the effect
of the origin and nature of the
duty of care, or that she had to lead evidence on what preventative
measures and reasonableness
of such measures to prevent the injuries
that the respondent suffered. A commuter who sustains injuries whilst
commuting has no
such duty to lead such evidence. It is different
where some evidence is tendered, and the enquiry is whether such
measures in the
circumstances of that particular case were reasonable
or not
[5]
.
11. Without
rebuttal evidence, the appellant will be unable to show how on the
facts of this particular case it
discharged its constitutional
obligation to ensure the safety of the commuters including the
respondent, as it was by law required
to.
12. The
further argument made on behalf of the appellant was that the
respondent’s particulars of claim suggested
that she may have
suffered the injuries having disembarked the train and her evidence
was that she got injured inside the train.
This argument too is
without consequence. One would have expected the appellant to have
addressed any embarrassment before trial.
13. In
the circumstances I make the following order:
(a) The
appeal is dismissed with costs; and
(b) The
matter is remitted to the High Court for the determination of the
quantum.
Semenya
AJ
Gauteng
High Court (Johannesburg Division)
I
agree:
Vally
J
I
agree:
Flatela
AJ
Date
of hearing: 28
July 2021
Date
of judgment: 26
August 2021
For
the appellant: E
Raubenheimer
Instructed
by: Cliffe
Dekker Hofmeyr Inc
For
the respondent: A
Sewpersadh
Instructed
by: Raphael
& David Smith Inc
[1]
The
section reads “
15(1)
Subject to the provisions of this section, the company shall
provide, at the request of the Corporation or a transport authority,
a service that is in the public interest.”
[2]
The section reads “
23(1)
the main object and the main business of the Corporation are to
ensure that, the at the request of the Department of Transport
or
any local government body designated under section 1 as a transport
authority, rail commuter services are provided within,
to and from
the Republic in their public interest”.
[3]
[2004] ZACC 20
;
2005 (2) SA 359
at paragraph 84.
[4]
2001 (1) SA 46
(CC).
[5]
Passenger Rail Agency of South Africa v Mashongwa
[2014] ZASCA 202
(By contrast there was evidence about the security processes that
were in place on the facts of that matter); South African Rail
Commuter Corporation v Thwala
(2011) ZASCA 170
(In this matter there
was evidence to counter of the claimant).