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[2019] ZAGPPHC 8
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Yonge v Passenger Rail Agency of South Africa (14228\17) [2019] ZAGPPHC 8 (21 January 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 14228\17
In
the matter between
Banze
Antonio Yonge
Plaintiff
And
Passenger
Rail Agency of South Africa
Defendant
Coram:
Munzhelele AJ
Heard:
2
October 2018
Delivered:
21 January 2019
JUDGMENT
MUNZHELELE
AJ:
Introduction
[1]
The
plaintiff, Antonio Yonge Banze has instituted an action against the
Defendant, Passenger Rail Agency, South Africa claiming
for damages
arising from an incident in which the plaintiff was injured, at
Kempton Park Station on the 5th August 2016. Summons
were issued and
dully served upon the Defendant and the Parties agreed, at pre trail
and in terms of Rule 33 (4) of the Uniform
Rules of Court to separate
merits and quantum. The trial proceeds to deal with the issue of
liability.
[2]
The
issue to be determined is whether the defendant owed duty of care to
the plaintiff and whether the defendant failed to take
reasonable
steps to ensure the safety of the plaintiff as a passenger in the
train.
Evidence
[3]
The
plaintiff testified that during the day he was working piece job at
Bonearo Park, painting a house. During that time he was
staying at
Ivory Park, Thembisa. He took off after finishing the piece job to
the train station. He testified that his employer
had bought him a
monthly train ticket. The plaintiff proceeded to Kempton Park Train
Station near Shoprite and waited for the Train
to Thembisa at
platform 1. The train arrived. However during cross-examination it
became clear that platform 1 trains goes to Johannesburg
and not
Thembisa. The Plaintiff and other commuters proceeded to board the
train. The train was not full, as testified by the Plaintiff
that
there were seats available where he could seat. The train pulled off
with the doors closed. But later under cross examination
the
plaintiff changed his version to say that the doors of the train were
open when the train took off.
[4]
The
Plaintiff, despite the availability of seats and or other places
where he could be seated, took a conscious decision to stand
near the
door of the train holding a belt on the hand rail of the train. Then
the train started moving. The Plaintiff was allegedly
pushed by other
commuters and fell at the platform. However during cross examination
the plaintiff was confronted with his hospital
records which show
that he was pushed and fell while getting off the train, again on
cross examination he alleged that he was pushed
while getting into
the train. Plaintiff also alleged during his evidence that he fell on
the platform but his legs were on the
gap between the train and the
platform. The plaintiff during his evidence insisted that he fell at
platform 1 but the evidence
of the security was that plaintiff was
found fallen at the end of platform 4. Mr. Payi's evidence was not
challenged by the Plaintiff.
[5]
The
security personal, by the name of Andile Payi "Mr Payi",
was called by a commuter and told that there is a male person
who has
been injured on his legs and is on the end of Platform 4, Mr. Payi
went to the scene and discovered that the injured person
was not
actually on the Platform but on the floor next to Platform 4. Mr.
Payi further testified that it is not possible for a
person to fall
in a gap between the platform and the train as there is no gap when
the train at the platform.
[6]
Mr
Payi spoke to the injured person who, from the evidence, identified
himself as the Plaintiff, this means that the Plaintiff was
conscious, and this can also be confirmed by the hospital records
submitted by Plaintiff that he was awake. The Paramedics were
called
and arrived at the scene. They searched the plaintiff and found a
R20.00 note in his possession only. Plaintiff was not
found with any
train ticket.
Issue
to be determined
[7]
The
court has to find whether the Plaintiff discharged his burden of
proof on a balance of probabilities, that he was pushed out
of a
moving train. Plaintiff should further prove that he did indeed board
the train and it moved without the doors closed. If
the plaintiff
boards the train, whether the defendant owed a duty of care to the
plaintiff and whether the defendant failed to
take steps to ensure
the safety of the plaintiff.
Legal
principles applicable
[8]
It
is trite principle that the onus can ordinarily be discharged by
adding credible evidence to support the case of the plaintiff
on whom
the onus rest. Where there are two mutually destructive stories, the
plaintiff can only succeed if he satisfies the court
on a
preponderance of probabilities that his version is true and accurate
and therefore acceptable and the version of the defence
is false or
mistaken and falls to be rejected (see
National
Employers' General Insurance v Jagers
1984
(4) SA 437(E)
at 440D-G).
[9]
In
Loveness
Mhlongo v Passenger Rail Agency of South Africa
(20594
/2014)[2016]ZAGPJHC353(15 December 2016) it was held that:
'
where it was found that the plaintiff was pushed out of the open
doors of the carriage while the train was in motion, negligence
was
readily found to have been established'
(see
also
Hlongwane
v Passenger rail agency of South Africa
(26582
/2016)[2018] ZAGPJHC 401 (29 May 2018) para 9 ).
Discussion
[10]
The Plaintiff has more than one version regarding the allegations
that he was pushed by other
commuters from an open moving train and
fell on platform 1. The Plaintiff himself was the only witness to his
case to prove the
allegation. The legal principle of cautionary rules
is applicable and has been trite to mean that the evidence of such a
witness
must be "clear and satisfactory in every material
respect", and such evidence must be approached with caution (see
R v Mokoena
1956 (3) SA 81
(A) at 85 H). In other words, the
evidence " must not only be credible but also reliable"
(see S
v Janse van Rensburg & Another
2009 (2) SACR 216
(C) at 220 G). There is no rule of thumb test or formula to apply
when it comes to a consideration of the credibility of the single
witness (see
S v Webber
1971 (3) SA 754
(A) at 758). The trial
Judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether
it is trustworthy and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is
satisfied that the truth has
been told (S
v Sauls & others
1981 (3) SA 172
(A) at 180 E
- F).
[11]
The
plaintiffs evidence is riddled with contradictions regarding material
issues of his boarding the train. There is uncertainty
as to which
platform was the plaintiff boarding the train, whether it was
platform 1 or 4. Plaintiff testified that he was on platform
1 but
the security found him lying injured at platform 4. Platform 1 at
which the plaintiff alleges that he was boarding, leads
to
Johannesburg yet he said that he was going to Thembisa. Plaintiff
could not be said to mean that he does not know Thembisa platforms
as
he had a monthly train ticket to Thembisa and had been travelling by
train to his home every day since the beginning of the
month. This
version of the plaintiff is not clear and is unreliable.
[12]
The
plaintiff in his testimony said that he was pushed out of a moving
train by the commuters while inside the train standing holding
a
belt, whereas his hospital records reflects that he was pushed out of
the train when he was getting off. On the other hand the
plaintiff
said on cross examination that he was pushed out of the train while
he was getting inside the train. On the evidence
of the plaintiff
getting in and out of the train it was not clear whether the train at
that time was stationery on not. It is clear
from the evidence of the
plaintiff that he was modifying his story as the questions were posed
to him. The evidence of the plaintiff
should be credible and
reliable. With so many versions given by the plaintiff it is
difficult for the court to rely on his evidence.
[13]
During
his evidence in chief the plaintiff was certain that the train doors
were closed when the train took off, but the following
day while
under cross examination the plaintiff changed his version and
said that the doors of the train were open as the
train took off.
[14]
These
contradictions are material to the case of the plaintiff. The
evidence of the plaintiff should have been clear and satisfactory
in
all material aspects in order to discharge the onus to prove his case
and to show to the court that the defendant had a duty
to protect him
and to guarantee a safe trip on train.
[15]
Another
important issue which the plaintiff should prove was the issue of a
ticket to board the train. The security testified that
plaintiff was
searched by the paramedics in his presents and plaintiff was found
without a train ticket. Plaintiff testified that
he had a ticket
which was bought for him by his employer. He produced a ticket as an
exhibit. This ticket did not have any identifying
feature to show
that it was his ticket, it could be anyone' s ticket. In this regard
it is the word of the security against the
word of the plaintiff.
However the plaintiff had a duty to prove his case that this was
indeed his ticket. He should have called
the employer to corroborate
his version.
[16]
The
reason(s) for such a failure was not mentioned to the court, and such
a failure has an adverse and detrimental effect towards
the
Plaintiffs case in the circumstances. Where there are two mutually
destructive stories, the plaintiff can only succeed if he
satisfies
the court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable and the
version of the
defence is false or mistaken and falls to be rejected (see
National
Employers' General Insurance v Jagers
1984
(4) SA 437(E)
at 440D-G). The Plaintiff could and should have done
more to prove his case and or allegations.
[17]
I
have found that the Plaintiff failed to prove through clear and
satisfactory evidence that he was pushed out of a moving train
while
the train doors were open. I have also found that the plaintiff
failed to prove that he had a ticket to board the train on
5 August
2016. The plaintiff failed to show on a balance of probabilities
through evidence that the defendant had a duty of care
to the
plaintiff and to take steps to ensure the safety of the plaintiff.
The plaintiffs version is false and stands to be rejected.
The
version of the defendant is on a preponderance of probabilities
reasonable in the circumstances.
[18]
In
the result the following order is made:
1.
The
plaintiffs claim is dismissed with costs.
M.M.
Munzhelele
Acting
Judge of the High Court
PRETORIA
Counsel
for the plaintiff: Advocate
N.R Shithlelana
Instructed
by:
Rapfumbedzani Attorneys
Counsel
for the defendant: Advocate F.F. Operrman
Instructed
by:
Jerry Nkeli & Associates Inc