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[2020] ZAGPPHC 3
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Masango v Passenger Rail Agency of South Africa (32319/2013) [2020] ZAGPPHC 3 (10 January 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 32319/2013
10/1/2020
In
the matter between:
NOBUHLE
BONANI MASANGO
Plaintiff
And
PASSENGER
RAIL AGENCY OF
SOUTH
AFRICA
Defendant
JUDGMENT
RAULINGA
J,
[1]
The
plaintiff instituted an action against the defendant claiming damages
for bodily injuries sustained while she
was
a
passenger on a suburban passenger
train operated by Metrorail on 5 April 2013.
[2]
She
alleges that the aforesaid incident was caused by the negligence of
the employees and/ or agents of the defendant, acting whilst
in the
course of their employment with it, in one or more of the following
respects in which such employees and/ or agents failed
to:
2.1
Put
in place and/ or implement appropriate measures to ensure that the
doors of the railway carriages on the train where properly
secure
whilst the said train was in motion.
2.2
Put
in place and/ or implement appropriate measures to ensure that the
carriages carrying passengers were not overcrowded with passengers.
[3]
The
defendant puts the issues of liability in dispute and puts the
plaintiff to the proof thereof. It is disputed by the defendant
that
the incident occurred at all and that the plaintiff's version is
improbable.
[4]
At the commencement of the trial the
parties agreed that merits and quantum be separated in terms of Rule
33(4) of the Rules of
Court. The Court will therefore only consider
the merits.
[5]
The
plaintiff testified that on 5 April 2013 at 16h50 she boarded the
train at lkwezi Station on her way to work in Johannesburg.
She was
in possession of a valid monthly ticket that she had produced to the
examiner before boarding the train. She was in carriage
number 5 that
she regularly used on her way to work because there are always
preachers who preach to a Christian congregation therein.
[6]
The
said carriage was overcrowded and as a result she had to hold onto a
pole or rod descending from the roof to the floor of the
carriage.
She was standing about half a meter from the door. The train normally
travels with its doors open. Passengers were leaning
against each
other because the train was overcrowded. As the train was negotiating
a curve, she fell off and landed on ballasts.
She then stood up and
walked up the platform from where she climbed up the stairs. She then
boarded a taxi to work. While in the
taxi she noticed that she was
bleeding. On arrival at work she was taken to Medi-Clinic for medical
treatment. She sustained injuries
on her left foot, particularly her
left ankle. She was later put off from work for two weeks.
[7]
On 18 April 2013 the plaintiff reported the incident to a Mr Shongwe
at lkwezi Station.
She never saw Mr Shongwe again until she saw him
in court on 18 May 2015.
[8]
In
support of the case for the plaintiff, Mr Mandlangapheli Makhoba was
called to testify. He has been a regular passenger of train
number
9335 since 1997. On 5 April 2013 he boarded the train at lnhlazane
station in Parktown. He knew the plaintiff as a regular
passenger of
the said train at lkwezi at 06h50. Just before the train could
negotiate a curve he heard people screaming that somebody
had fallen
off the train. He would later learn that it was the plaintiff who
fell off the train. He confirmed that he had earlier
seen the
plaintiff board the train and that he did not see her get off the
train at Park Station. He did not witness the plaintiff
fall off the
train. However, he knows the plaintiff because she always uses
carriage where he normally preaches to the passengers.
On the said
day the train was overcrowded and he could not move around as he was
preaching. The train doors were open when the
train pulled off. The
plaintiff was standing next to open doors. He was informed by a
certain lady that the plaintiff got injured.
[9]
At
the close of the plaintiff's case, counsel for the defendant launched
an application for absolution from the instance contending
that the
plaintiff did not present prima facie evidence touching on liability
as appears in paragraphs 7.1 and 7.2 of the particulars
of claim.
[10] This Court granted
absolution from the instance which was challenged by the plaintiff by
way of appeal
to the Full Bench of the Local Division. The Appeal
Court dismissed the order for absolution from the instance and
referred the
matter back to this Court to proceed further.
[11]
On 2 October 2019, the matter was placed
on the roll for further hearing. On the said date the defendant
proceeded to call its witnesses.
[12]
Ms Vanya, the train driver, confirmed
that the speed of the train when rounding the curve is 40km per hour
and that it normally
rounds the curve in a smooth manner without
jerking. She further testified that the travel time from lkwezi to
Dube is approximately
6 minutes.
[13] Mr Shongwe
testified that he is employed as a security guard at lkwezi station.
His duties entail
inter alia
patrols
and attending to incidents that occurred at the station. No report
was made to him by the plaintiff on the day of the alleged
incident
by the plaintiff to have been taken by him. He has never made a
statement or filed a report of an incident that he has
not observed
or attended to. He had on occasions witnessed trains leave the
station with doors still open.
[14]
Mr Hlalele testified that he is employed
as a security guard at lkwezi station. His duties entail
inter
alia
patrols and attending to
incidents that occurred at the station. Walking in the section by
people is not permitted and would amount
to a reportable incident. He
would be able to observe people walking in the section. On the day in
the question he did not observe
a person walking in the section. No
report was made to him of an incident that occurred on that
particular day. No report was made
to him after the alleged incident
had occurred. He has never made a statement or filed a report in
respect of an incident that
he had not observed or attended to.
[15]
Mrs Mulaudzi testified that she was on
duty on the particular day and no incident was reported to her.
[16]
The plaintiff submits that there is
uncontested evidence that the train pulled off from the station
whilst the doors to the carriage
were open and that she fell off the
train out the open door whilst the train was in motion. This she
contends is confirmed by the
evidence of Mr Shongwe, the defendant's
witness, who testified that he had seen the train leave the station
on occasions with doors
still open.
[17]
Further, that the defendant has imposed
the duty on itself to secure commuters through its operating
procedures. Consequently, its
negligent conduct is closely connected
to the harm suffered by the plaintiff and therefore liability should
be imputed to the defendant.
[18]
Concerning the evidence of Mr Shongwe
that he neither met with the plaintiff nor took a statement from her
on 18 March 2018, the
plaintiff argues that on 18 May 2015, she
identified Mr Shongwe in Court as the person that she had met on 18
April 2013 and made
a statement to him. Further, that her evidence
was not disputed by the defendant in cross-examination.
[19]
The defendant however, submits that the
Court is faced with mutually destructive versions by the parties. The
plaintiff alleges
that she fell off a moving train through the open
doors of the train resulting in injuries. The defendant on the other
hand alleges
that the incident did not occur at all or did not occur
as alleged by the plaintiff.
[20]
On a proper evaluation of the evidence
in this matter, it can only be fair to decide the issues on
probabilities.
[21]
When faced with mutually destructive
versions, the approach of the Court is whether the matter may be
resolved on the probabilities.
This involves considering the
credibility of the witnesses, their reliability and, finally,
determining on the probabilities whether
the party with the onus has
succeeded in discharging it.
[1]
[22]
In the dictum of Wessels JA case of
National Employees' Mutual General
Insurance Association v Gany
[2]
,
the Court espoused the following
approach:
Where there are two stories mutually
destructive, before the onus is discharged the Court must be
satisfied that the story of the
litigant upon whom the onus rests is
true and the other false. It is not enough to say that the story told
by Clarke is not satisfactory
in every respect, it must be clear to
the Court of first instance that the version of the litigant upon
whom the onus rests is
the true version '
[23]
In assessing two conflicting versions,
only one of which can be correct, the onus is on the plaintiff to
prove on a preponderance
of probabilities that his/ her version is
the truth. This onus is discharged if the plaintiff can show by
credible evidence that
her version is the more probable and
acceptable version. The credibility of the witnesses and the
probability or improbability
of what they say should not be regarded
as separate enquiries to be considered in piecemeal. They are part of
a single investigation
into the acceptability or otherwise of a
plaintiff's version, an investigation where questions of demeanour
and impression are
measured against the context of witness evidence,
where the importance of any discrepancies or contradictions are
assessed and
where a particular story is tested against facts which
cannot be disputed and against the inherent probabilities, so that at
the
end of the day one can say with conviction that one version is
more probable and should be accepted, and that therefore the other
version is false and may be rejected with safety.
[3]
[24]
One can therefore analyse the evidence
of the plaintiff focusing on discrepancies and probabilities.
[25]
The plaintiff alleges that she injured
her left ankle. The medical report compiled on the day of the
incident indicate that it was
the right ankle that was injured. The
plaintiff alleges that there was also a cut on her left foot. The
medical report makes no
mention of a cut to the left foot. In my view
there are glaring discrepancies on the injuries sustained.
[26]
The plaintiff alleges that she was
injured when she fell through the open doors of a moving train. The
train was rounding a curve
at a speed of 40km per hour when she fell
off from a height of approximately 1.5 meters onto the ballast
stones. I must immediately
mention that the Full Bench Court has
already pronounced on this aspect and I must say no more. However,
there is a discrepancy
between the plaintiff's evidence and that of
her witness Mr Makhoba. His evidence is that just before the train
could negotiate
a curve he heard people screaming that somebody had
fallen off the train, whereas she testified that the train was
rounding a curve
at a speed of 40km per hour when she fell off the
train. In my view this is a contradiction between her evidence and
that of Mr
Makhoba.
[27]
The plaintiff offered at least four
versions during her testimony as how she was ejected from the train.
27.1
The train jerked unexpectedly when
rounding the curve;
27.2
She was pushed by other passengers who
were getting ready to disembark at the next station;
27.3
A scuffle broke out amongst passengers
as a result of which she was ejected;
27.4
The version that she mentioned to the
doctor who examined her and completed a medical report, was that she
was pushed off a train
whilst attempting to alight, landing on the
platform and injured her left ankle.
[28]
She further testified that after
sustaining the injuries, she walked back to the platform, a distance
of approximately 400 meters,
lifted herself up the platform, walked
another 150 meters on the platform, climbed up two flights of stairs,
walked past security
officers and ticket examiners without reporting
the incident to any of them, walked into a taxi and went to her place
of work.
[29]
In
an answer to a pre-trial question the plaintiff stated that she was
travelling in train number 9335. It would later transpire
that the
train she alleges she was ejected from could not have been number
9335. The time of arrival and the time of incident did
not correlate.
[30]
Mr
Makhoba testif1ed that he did not witness how, when or where the
plaintiff fell, or to the negligence of the defendant. I agree
with
the defendant that Makhoba's evidence was of little value.
[31]
There
is no need to rehash the defendant's evidence. It is my considered
view that the defendant managed to rebut the plaintiff's
version in
all respects. The only version that I am prepared to accept as
tendered by the plaintiff is that the doors of the train
remained
open while it was in motion. It is for that reason that I part ways
with Mr Hlalele for the defendant who testified that
he has never
seen a train with its doors open while in motion. Otherwise I find
the evidence of the defendant credible. There are
no substantial
inconsistencies in the version of the defendant.
[32]
I
now deal with the evidence of the plaintiff pertaining to
credibility1 discrepancies, probabilities and improbabilities.
[33]
The plaintiff was inconsistent in as far
as the injuries sustained are concerned. It is not clear whether it
was the left ankle
or right ankle that was injured. The report makes
no mention of her left foot. She testified that she was injured when
she fell
through the open doors when the train was rounding a curve,
whereas Mr Makhoba said it was before the train reached the curve.
One is not certain as to which version is true of the four versions
mentioned in paragraph 27 above. It is also unusual that a person
who
was injured could have gone past the ticket examiner, and the
security guards without reporting the incident to any of them.
One is
therefore convinced that her story that she came back to lkwezi
station to report the incident to Mr Shongwe on 18 April
2015 was an
afterthought in order to close the gaps in her original version.
It is therefore more probable that Mr Shongwe
never met her on 18 April 2013, nor did he take any statement from
her on that day.
Her version in this regard must be rejected. Lastly
she is not certain of the number of the train she boarded on that
day.
[34]
In the circumstances, the plaintiff
failed to discharge her onus, she did not tender credible evidence
that her version is more
probable and acceptable. Considering the
evidence as a whole, I find that the evidence of the defendant is
more probable than that
of the plaintiff.
[35]
In the result the following order is
made:
35.1 The plaintiff's claim is
dismissed with costs.
TJ RAULINGA
JUDGE
OF THE GAUTENG HIGH
COURT
DIVISION
Heard
on: 18-21 May 2015; 10 September 2015; and 2 -4 October 2019
Delivered:
... January 2020
APPEARANCES
For
the Applicant/ Defendant:
Adv. M Witz
Instructed
by:
Bove Attorneys
For
the Respondent/ Plaintiff:
Adv. E Raubenheimer
Instructed
by:
Cliff Dekker Hofmeyer Inc.
[1]
Stellenbosch Farmers Winery Group and Another v Martell et Cie
and others
2003 (1) SA (SCA) para 5
[2]
1931 AD 187
[3]
Mabona and another v Minister of Low and Order and others
1988
(2) SA 654