Transnet Ltd. v Maela (39/07) [2008] ZASCA 26 (27 March 2008)

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[2008] ZASCA 26
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Transnet Ltd. v Maela (39/07) [2008] ZASCA 26 (27 March 2008)

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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not reportable
Case no: 39/07
In the
matter between:
TRANSNET
LIMITED
...
APPELLANT
and
ARLINDO
DE ASSIS JANUARIO MAELA
...
RESPONDENT
______________________________________________________________
Coram: SCOTT, NUGENT, HEHER, MAYA JJA
et
MHLANTLA AJA
Date of
hearing: 22 FEBRUARY 2008
Date of
delivery:
27 MARCH 2008
Summary: Two mutually destructive versions -
probabilities favouring version of the appellant’s witness.
Neutral citation:
Transnet
Ltd v Maela
(39/07)
[2008] ZASCA 26
(27 March 2008)
J U D G M E N T
________________________________________________________________
SCOTT JA/ ….
SCOTT JA:
[1] The respondent, who was the plaintiff in the court
a quo
,
sued the appellant in the High Court, Johannesburg, for damages
arising out of an incident that occurred while travelling as a
passenger
on a train operated by the appellant. The court was asked
to decide only the question of the appellant’s liability and to
order
the remaining issues to stand over for later determination. In
short, the respondent testified that he was robbed of his cell phone
and money and thrown out of the train by the robbers. He contended
that the appellant was liable for damages arising from the injuries
he sustained by reason of its failure to prevent the incident from
occurring. The respondent’s version of what happened was denied
by
the appellant. A security officer employed by the appellant testified
that the respondent had attempted to disembark from the
train after
it had commenced moving out of the station. Only the two witnesses
testified. The trial judge, Msimeki AJ, accepted the
version of the
respondent, rejected that of the security officer and found the
appellant liable for failing to prevent the incident
from occurring.
Leave to appeal was refused by the court
a quo
but was granted
by this court.
[2] Counsel for the appellant attacked the judgment on two grounds.
The first was that the court erred in rejecting the evidence
of the
appellant’s witness. The second was that even on the respondent’s
own version he had failed to establish that the appellant
was liable
in delict. As to the latter ground, it was conceded on behalf of the
appellant (as it was in
Shabalala v Metrorail
1
where a passenger was similarly robbed on a train) that the appellant
owed the respondent a legal duty to act without negligence.
The
inquiry into the existence or otherwise of such a duty is distinct
from and involves different considerations from the inquiry
into
whether there was negligence or not. What was placed in issue was
whether the appellant’s employees had acted negligently.
In this
regard, counsel for the appellant conceded, too, that harm to
passengers as a result of criminal activity on its trains was
foreseeable and that the appellant was accordingly obliged
2
to take such steps as were reasonable to provide for their safety.
Counsel submitted that on the respondent’s own version he had
failed to prove that the appellant had not taken such steps.
[3] Against this background I turn to the facts. On 23 June 2004,
sometime after 8 pm, the respondent, a forty two-year old man whose
home language is Portuguese, boarded a train at Angelo station with
the intention of travelling as far as Benoni station where he
proposed taking a taxi to his home in Daveyton. He said that when the
train arrived at Dunswart station, being the station immediately
before Benoni station, a number of passengers disembarked leaving him
and five other passengers alone in the coach. He said that
after the
train had pulled out of Dunswart station he received a call on his
cell phone. After speaking to the caller he put the
phone back in his
pocket. He said he was then approached by one of the other passengers
who addressed him in Sesotho. He replied
in isiZulu saying that he
did not understand, whereupon the other passenger spoke to him in
isiZulu and demanded that he be given
the cell phone. When he refused
he was punched and thrown to the floor of the coach. The respondent
described in some detail how
the other passengers then joined the
person who had first approached him, how he was robbed of his cell
phone and wallet and how
he was dragged to the sliding door of the
coach, which his assailants forcibly opened while the train was in
motion, and thrown out.
According to the respondent his head hit the
platform, which he believed to be at Benoni station but he said he
could not be sure.
[4] Mr Mzobanzi Ceba, a security officer employed by the appellant,
testified that on the night in question he was on duty with six
other
security guards on the ‘last train’ which left Park station,
Johannesburg, at 8.45pm bound for Springs. He said that as
the train
proceeded away from Johannesburg the stations at which it stopped
were, in order; Germiston, Delmore, Angelo, East Rand,
Boksburg,
Dunswart, Benoni, New Kleinfontein, Apex, (it missed out Anzac)
Brakpan and then on to Springs. He said he was in charge
of the other
six and their function was to patrol the train with the object of
curbing crime. None of them was in uniform. Ceba said
he was to go
off duty at Brakpan where he had arranged for a colleague to meet him
and give him a lift home. Many of the passengers
disembarked at
Benoni station. Ceba said that at that stage he and the other six
security officers were working their way down the
train from coach to
coach in the direction of the rear of the train. He said that when
they reached the second last coach he saw
that it was occupied by a
single passenger who appeared to be reading. Ceba sat down on a seat
about two seats behind the passenger
and instructed the other
security guards to begin working their way back in the direction from
which they had come.
[5] Ceba’s account of what happened when the train reached Apex
station was shortly as follows. He said that he noticed that when
the
sliding doors opened, the passenger did not immediately stand up.
After a while he did get up, at which stage the train was still
stationary, and asked in English if they were at Benoni. He spoke
with a foreign accent which Ceba recognised when the respondent
testified. Ceba replied that they had passed Benoni which was two
stations behind. The passenger moved towards the door. As he did
so
the sliding doors began to shut. He said to Ceba that he had intended
to get off at Benoni and using his left leg he stopped the
doors from
closing altogether. Ceba shouted at him not to jump and told him to
get a taxi from Brakpan, which was the next station
at which the
train stopped. While he was speaking the train had begun to move and
was already accelerating when the passenger squeezed
sideways through
the doors and jumped, with the doors closing behind him. Using his
cell phone, Ceba immediately telephoned his colleague
who was waiting
for him at Brakpan, telling him of the incident and asking him to go
to Apex station to find out what had happened
to the passenger whom
Ceba suspected had fallen down between the platform and the train.
[6] In the course of cross-examination Ceba was confronted with a
written report he had made to his superior officer which was undated
but which was received two days after the incident, ie on 25 June
2004. Counsel’s object, no doubt, was to draw attention to certain
discrepancies between the report and Ceba’s evidence. However, the
content of the report, made a day or two after the event, is
significant. It reads: (without corrections)
‘
On the 23
rd
June 2004 I was working crime
prevention with national force guards between Germiston and Springs.
In the evening at about 21:35 at Apex station on a third
coach from the train guard side I was with one male commuter on the
very
same coach and this commuter asked me if the station is Benoni
and I told him that we had already passed Benoni.
He then quickly went to open the door and I told him
that he ill get of at next station which is Brakpan he then said no I
am going
to Benoni and he jump out and by that time the train was
running faster.
When I look through out the window I could not see
anything like a human being and I shouted to the guards that there is
some body
fell between the train and the platform because they were
facing opposite direction and sow nothing, but they ignore that.
I decided to phone our shift member (LPO RAKGWADI) and
he found the victim on the lying railway line and was seriously
injured on
the head and right leg was broken and identified him as
Mike Mayela of 424 Sigalo street Daveyton with no other
documentation.
The paramedics were contacted and the victim was
transported to Johannesburg General Hospital. And other references
are reflecting
on an OB.’
Ceba testified that Rakgwadi had since died. He confirmed that the
latter had later that evening reported that he had found a person
with serious injuries on the railway line who was identified from the
documents he was carrying as Mike Maela of 421 Cigallo Street,
Daveyton. It was not in dispute that this person was the respondent.
[7] As previously indicated, the trial judge accepted the evidence of
the respondent and rejected that of Ceba whom he found to be
‘a
poor witness’. In this court counsel for the appellant attacked
this finding and submitted that the grounds upon which the
judge
criticised and rejected the evidence of Ceba were trifling and ill
founded. I am constrained to agree.
[8] First, Ceba was criticised for testifying that the incident had
occurred in the second last coach whereas in his report he had
said
it occurred in the third coach from the end of the train. This was
described by the trial judge as ‘an obvious contradiction’.
I
regard it as being of no significance, particularly as Ceba readily
conceded that what he had said in his report was to be preferred
as
he wrote it immediately after the event when the incident was fresh
in his memory. The trial judge further placed much emphasis
on the
discrepancy between Ceba’s report, on the one hand, and his
evidence, on the other, as to how the respondent jumped from
the
train. In his report (repeated in the plea) it was said that the
respondent ‘went to open the door’ whereas in his evidence
Ceba
described how the respondent had put his leg between the sliding
doors to prevent them from closing. Once again, in the context
of
Ceba’s evidence as a whole this criticism can carry little weight.
The report Ceba made after the event was short and cryptic.
To write
that the respondent ‘went to open the door’, although not
strictly accurate, is much easier than to write a description
of how
the respondent had stopped the doors from closing. In any event,
nothing turns on whether the doors were forced open or forcibly
prevented from closing. It is also worth noting that the respondent
said in an affidavit he made seven months after the event that
‘the
train left Angelo train station with its doors open until [he] was
thrown through it’. If anything, the discrepancy between
this
statement and the respondent’s evidence that the robbers forcibly
opened the doors is more significant.
[9] Ceba was subjected to a somewhat tedious cross-examination during
which he was questioned at length as to the precise sequence
of
events from the time the respondent stood up to the time he jumped
from the train and as to what was likely to have motivated
the
respondent to do what he did. This elicited some uncertainty on the
part of Ceba as to details such as whether he shouted at
the
respondent not to jump once or twice or whether the respondent
appeared nervous or not. For this he was heavily criticised. But
in
my view the criticism was unjustified. The events he was describing
took place in a matter of seconds; the uncertainty was
understandable.
Another criticism levelled at Ceba by the trial judge
was the former’s failure to tell the respondent that he was a
security guard
and that it would be unlawful for him to jump out of a
moving train. Here again the criticism is unfair. As I have said, the
whole
incident took place very quickly and Ceba was hardly afforded
the opportunity to advance every reason why the respondent should not
jump out of a moving train. In any event, his failure to warn the
respondent of the unlawfulness of his conduct was not something
that
reflected adversely on Ceba’s credibility. The same is true of the
criticism that Ceba failed to speak to the respondent or
‘see the
need to search the man’ on finding him alone in the coach.
[10] Turning to the probabilities, the trial judge found Ceba’s
version to be ‘highly improbable’. In support of this conclusion
the judge said:
‘
It would have been ludicrous of
the plaintiff to jump out of the moving train when he well knew that
he could disembark at the next
station. The plaintiff was well aware
of what would become of him if he jumped out of a moving train. That
would be too great a risk
to take.’
I am unable to agree. The conduct would admittedly be highly
irresponsible, but regretfully such conduct, ie boarding or alighting
from a train after it has commenced moving, is anything but uncommon.
It is a risk that is frequently taken by commuters either to
board a
train they would otherwise miss or to avoid being overcarried after
realising too late that they had reached their destination.
However,
what the judge failed to consider at all in his judgment was the
improbability of Ceba having fabricated his evidence. There
was
clearly no reason for him to have done so and the report he submitted
to his superiors the next day or the day thereafter contained
in
substance the account of the incident he described in evidence. His
evidence was no recent fabrication.
[11] Ceba stated in his report that the incident occurred at Apex
station. The respondent was unable to contradict that this was
so.
But it could hardly have
been false because had it been so the falsehood would not have gone
unnoticed, nor could Ceba have thought that it would, if indeed
he
could ever have had any reason to lie about the station at which the
incident occurred. But the respondent’s version is inconsistent
with him having been thrown out of the train at Apex station. It is
clear from his evidence that the whole incident culminating in
him
being thrown out of the train was of short duration, perhaps a minute
or two. It was also his evidence that he was first approached
by one
of the robbers after the train left Dunswart station, ie that the
robbery took place while the train travelled between Dunswart
and
Benoni stations. His evidence is wholly inconsistent with the train
having stopped at two stations, ie Benoni and New Kleinfontein,
and
thereafter having reached Apex, while the robbery was taking place.
[12] It follows that in my view not only was the trial judge’s
criticism of Ceba ill founded but the established facts are
consistent
with his version and inconsistent with that of the
respondent. It is true that the trial judge had the opportunity of
observing the
two witnesses and their demeanour in the witness box
but, as has been stressed both by this court and the Constitutional
Court, the
truthfulness or untruthfulness of a witness can rarely be
determined by demeanour alone. In my view, therefore, the court
a
quo
erred in rejecting the evidence of Ceba and the appeal must
succeed.
[13] The appellant was represented in this court by both senior and
junior counsel. However, I am unpersuaded that the case justified
the
employment of two counsel.
[14] The appeal is upheld with costs. The order of the court
a quo
is set aside and the following substituted in its place:
‘
The action is dismissed with costs.’
__________
D G SCOTT
JUDGE OF APPEAL
CONCUR:
NUGENT
JA
HEHER
JA
MAYA JA
MHLANTLA
AJA
1
157
[2007] SCA.
2
In
Shabalala v Metrorail
(in para 7) I used the expression
‘legal duty’ in relation to this obligation, ie the obligation
which may or may not arise
in response to the second leg of the
inquiry into the existence of negligence. Its use in this context is
unfortunate. The expression
is more appropriate to the inquiry
whether negligence should attract delictual liability.