About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 333
|
|
Muhanelwa v Passenger Rail Agency of South Africa and Others (21398/2013) [2016] ZAGPPHC 333 (12 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER: 21398/2013
DATE:
12 APRIL 2016
In
the matter between:
MUTHUPEI
PATRICK
MUHANELWA
...................................................................................
Plaintiff
And
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
................................................
First
Defendant
MEMBER
OF EXECUTIVE COUNCIL FOR HEALTH,
GAUTENG
PROVINCE
............................................................................................
Second
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The plaintiffs claim against the first defendant is in delict
and his claim against the second defendant is based on medical
negligence.
[2]
At a pre-trial conference held on 29 October 2015, the parties
agreed to a separation of the two claims. The parties further agreed
that the claim against the first defendant will proceed to trial and
that the claim against the second defendant will be postponed
sine
die.
[3]
The plaintiff and the first defendant also agreed that the
issues pertaining to merits and quantum will be separated and that
the
trial will only proceed in respect of the merits of the
plaintiffs claim against the first defendant.
PLEADINGS
[4]
The plaintiff avers that on 8 May 2010 at approximately 20:00,
he was a fare paying passenger on a train travelling between
Kaalfontein
and Leralle stations. During the journey he was robbed of
his cell phone and wallet by four of his co-passengers. The doors of
the train were open whilst the train was in motion and after being
robbed the plaintiff was thrown out of the moving train.
[5]
The aforesaid incident, so the plaintiff avers, was caused by
the sole negligence of the first defendant and/or the employees of
the first defendant acting within the cause and scope of their
employment with the first defendant.
[6]
The grounds of the alleged negligence are set out as follows:
The
sole cause of the Plaintiff’s falling from the train,
was
the negligence of the First
Defendant and or the First Defendant’s conductor who was acting
in the cause and scope of his
employment with the First Defendant ,
whose identity is to the Plaintiff unknown, who was negligent in one
or more or all of the
following respects:
5.1
He/she signalled to the
driver of the train that it
was
safe
for the latter to set the train in motion whilst the carriage’s
doors were open;
5.2
He/she signalled to the
driver of the train that it
was
safe
for the latter to set the rain in motion without ensuring that all
carriages’ doors were closed and/or adequately closed;
5.3
He/she failed to keep a
proper and/or adequate lookout;
5.4
He/she failed to pay due
regard to the safety of passengers on board of the train.
5.5
He/she failed to prevent the
said accident when by the exercise of due and reasonable care, he/she
could and should have done so.
5.6
The First Defendant failed to
ensure that there is the presence of the security guard at
Kaalfontein station and 1 (one) security
guard on each coach.
5.7
The First Defendant failed to
exercise its legal duty to ensure the safety of the passengers on the
train more specifically the
Plaintiff.
Alternatively
the sole cause of Plaintiffs falling from the rain was the negligence
of the driver of the said train, whose identity
is to the Plaintiff
is unknown, who
was
negligent
In one or more or all of the following respects:
6.1
He/she set the train in
motion whilst its carriage doors were opened;
6.2
He/she failed to close and/or
ensure that all carriage doors are closed and/or adequately closed
before setting the train in motion
and/or opened the doors of the
train whilst it
was
still in
motion;
6.3
He/she set the train in
motion without checking that all carriage doors
6.4
He/she failed to keep a
proper and/or adequate lookout;
6.5
He/she failed to prevent the
accident when by the exercise of duel and reasonable care, he/she
could and should have done so. ”
[7]
In response to the aforesaid averments, the first defendant
pleaded as follows:
The
Defendant denies that it or its employees were negligent in anyone of
the allegations in paragraph 5-5.6 (sic) of the Plaintiffs
Particulars of claim, and pleads that the Plaintiff was never
involved in a train accident. In the alternative and only in the
event that the Honourable Court finds that the Plaintiff was in fact
involved in such a train accident, Defendant further pleads
that the
accident
was
caused as a
result of the sole negligence of the Plaintiff who was negligent in
one or more of the following:-
5.1
He stood at the open door of
a moving train which posed danger to him at that moment.
5.2
He failed to take any or
adequate steps to prevent the accident, when by the exercise of a
reasonable care he could, and should
have done so.
5.3
He voluntarily got into an
overcrowded train where there was no space for anyone to get into the
train.
5.4
He got in or tried to alight
into a moving train before it came to a standstill, by so doing
causing injuries to him.
5.5
He forced the doors of the
train to open before the train could stop and the operator opening
the door, by so doing posing danger
to him and other members of the
public.
5.6. He failed
to take adequate steps to prevent the accident, when by the exercise
of a reasonable care he could and should have
done so.
5.7
Alternatively, and only in
the event of this Honourable Court finding that the Defendant was
negligent, which still denied, the
Defendant pleads that such
negligence did not contribute to the Plaintiff being pushed out the
train.
5.8
Further alternatively and
only in the event of this Honourable Court finding that the Defendant
was negligent and that such negligence
contributed to the Plaintiff
being pushed out of the train, which is still denied, then and in the
event, the Defendant pleads
that the Plaintiff was also guilty of
contributory negligence and damages suffered by the Plaintiff should
be reduced proportionate
to the degree of his own negligence in
accordance with the Apportionment of Damages ACT 34 OF 1956.”
EVIDENCE
[8]
The plaintiff testified that, on the day in question, he
boarded a train at Irene station. At Kaalfontein station he
disembarked
and got onto another train. When he got into the coach,
he noticed two passengers standing at the door facing each other.
Their
position at the door prevented the doors from closing. He took
a seat. On the seat opposite him there were four passengers.
[9]
The plaintiff took his Blackberry cell phone out of his pocket
whereupon one of the four passengers sitting opposite him stood up
and approached him. The person spoke Zulu and requested the plaintiff
to hand over his cell phone. The plaintiff refused and returned
his
cell phone to his pocket.
[10]
The next moment the
other three passengers also stood up and started searching through
his pockets. They took his cell phone, his
purse with some R 200 in
and his train ticket.
[11]
In the meantime the
train had started moving and after the plaintiff was robbed of his
belongings, he was thrown from the train.
The train had already left
the station and he fell on the ground next to the train.
[12]
The plaintiff
injured his right shoulder and arm and was eventually admitted to
hospital. He spent a month in hospital recovering
from his injuries.
When he returned to work, he was informed by his employer that he can
no longer, due to the injuries, do his
work properly and he was
dismissed. He thereafter returned to his home in Makhado. Upon his
return to Makhado he still had to undergo
physiotherapy.
[13]
The plaintiff was
referred to notes made by the hospital staff in Makhado, which notes
are dated 20 July 2010, some two months after
the incident. From the
notes it appear that the plaintiff informed the hospital staff that
his injuries emanate from an accident
that occurred on 8 May 2010 and
that he was initially treated at Thembisa hospital.
[14]
The plaintiff
testified that he endeavoured to obtain his hospital records from
Thembisa hospital, but was unsuccessful.
[15]
The plaintiff in
conclusion testified that there was no security guard in the coach he
was traveling in and that the doors remained
open until he was thrown
from the train.
[16]
During
cross-examination it was put to the plaintiff that the train driver
and a security guard will testify that the train doors
did work and
only opened once the train came to a standstill. In response, the
plaintiff testified that he saw some coaches with
open doors when the
train entered the station at Kaalfontein. The plaintiff agreed that
should the train operate properly, the
doors will remain closed
whilst the rain is in motion, but added that some passengers
prevented the doors form closing by standing
in front of the sensors.
He confirmed that it was the position when he entered the train at
Kaalfontein.
[17]
The plaintiff
admitted that he did not report the incident to the police or the
defendant. He could not give a satisfactory explanation
for his
failure to do so.
[18]
The plaintiff was
cross-examined at length in respect of the differences between the
averments contained in the initial particulars
of claim and the
amended particulars of claim. Initially it was not alleged that the
plaintiff was robbed and that he was thrown
from the train. The
initial averments read as follows:
“
Whilst
on board the train with the carriage’s door opened whilst the
train was in
-
motion,
Plaintiff was forced/ejected/dislodged/pushed out of the carriage by
other passengers, as a result of which Plaintiff lost
his balance and
fell out of the carriage.”
[19]
The plaintiff
testified that he only told his attorney after some time about the
robbery, because he was “confused”.
He strenuously denied
that he ever told his attorney that he merely lost his balance and
fell from the coach. There were, furthermore,
discrepancies in
respect of the time it took before the plaintiff was thrown from the
train. The plaintiff estimated approximately
seven minutes, whereas
it was put to him that the next station is only four minutes from
Kaalfontein station. The plaintiff answered
that it was an estimation
and that he did not have a watch.
[20]
The plaintiff could
not explain why the hospital notes did not indicate that he was in a
train accident. He testified that he did
inform the hospital staff of
the manner in which the accident occurred.
[21]
It was put to the
plaintiff that the defendant investigated the incident after summons
was received, but could not find any confirmation
of the plaintiffs
version and that Thembisa hospital did not have any record of the
plaintiffs admission or treatment.
[22]
It was stated that
an employee of the defendant, Ms Mashao will testify that she was in
the last coach and that she did not see
the plaintiff anywhere near
the train. The plaintiff responded that he was thrown into long
grass.
[23]
It was put to the
Plaintiff that Ms Mashao will always make sure that the doors are
closed before she signals the driver that it
is safe to depart. Ms
Mashao is aware that some commuters block the doors, but she will
reprimand them and make sure the doors
are closed. The plaintiff
testified that he has never seen this happen and added that even if
the doors are closed, some passengers
will force the doors open
whilst the train is in motion. It was put to the plaintiff that Ms
Mashao cannot do anything whilst the
train is in motion because her
duties are on the platform.
[24]
During
re-examination the plaintiff testified that he was not aware that he
had to report the incident to the police or the defendant.
[25]
On a question form
the court, the plaintiff indicated that his educational level is
grade seven.
[26]
The plaintiff closed
its case and the first witness to testify on behalf of the defendant
was Mr Shadung. He is employed by the
defendant as an investigator.
He confirmed that he could not find any record of the incident in the
official records of the defendant,
nor could he find any record of
the plaintiffs admission at Thembisa hospital.
[27]
He could locate the
relevant train from the records kept by the defendant. He established
that a certain Mr Kruger was the train
driver and that Ms Mashao was
the security guard on the train. During the train journey they sit at
opposite ends of the train.
[28]
He indicated that
the plaintiffs version is possible. He testified that it is possible
to open the doors of the train whilst the
train is in motion and
ascribed such behaviour to “bad elements” on the train.
[29]
Mr Shadung was of
the view that, having regard to the number of trains in operation, it
was not possible to post a security guard
in each coach.
[30]
During
cross-examination he stated that he did not know of any steps that
have been taken by the defendant to prevent the doors
from being
opened whilst the train is in motion.
[31]
Ms Mashao testified
next. Ms Mashao confirmed the version put to the plaintiff in respect
of her duties and added that she does
not have any duties between
train stations. She agreed that it will be of assistance if security
guards are placed inside coaches.
EVALUATION
[32]
The plaintiff never
deviated from his version of events. He was thoroughly cross-examined
by Mr Mataboge, counsel on behalf of the
defendant and gave detailed
explanations in respect of his movements prior to and after the
incident. The plaintiff did find it
difficult to answer questions
pertaining to steps he did not take, for example reporting the matter
to the police or the defendant.
[33]
He, furthermore,
could not explain why the version initially averred in the
particulars of claim differed from the later version
that supports
his evidence. I do not deem his inability to explain these issues
satisfactory, as an indication of untruthfulness.
[34]
The plaintiff is
neither well educated nor sophisticated. He was employed as a
labourer at the time and his level of education is
grade 7. One
should take these factors into account when evaluating his evidence.
[35]
The defendant argued
that the lack of documentary proof together with the plaintiffs
failure to report the incident suggests that
he fabricated the
incident.
[36]
The only documentary
evidence pertaining to the incident is to be found in the hospital
records kept at Memorial Hospital in Mhakado.
The notes confirm the
date of the incident. It is not uncommon for records to get lost in
Government institutions and I do not
believe that the lack of
hospital records at Thembisa hospital should count against the
plaintiff.
[37]
Having regard to the
probability of his version, both witnesses who testified on behalf of
the defendant conceded that the plaintiffs
version is probable.
[38]
The evidence of Mr
Shadung, furthermore, confirms the plaintiffs version in respect of
the train schedules and train stations. Both
Mr Shadung and Ms Mashao
confirmed that the doors of the train are sometimes kept open by “bad
elements”.
[39]
In the premises, I
accept the plaintiffs version of events.
LIABILITY
[40]
The question whether
the plaintiff succeeded in establishing that the defendant’s
conduct was wrongful and negligent and that
such negligence caused
the damages suffered by the plaintiff, remains to be answered.
[41]
The Constitutional
Court in the recent judgment of Mashongwa v PRASA
[2015] ZACC 36
examined the defendant’s responsibilities towards commuters in
circumstances similar to the facts under consideration. The
question
arose whether the defendant ought to be held liable in delict for
damages suffered as a result of a breach of the defendant’s
public law duty to provide safety and security measures for
commuters.
[42]
In respect of
wrongfulness, The Court reached the following conclusion at para
[27];
“
When
account is taken of all these factors, including the absence of
effective relief for individual commuters who are victims of
violence
on PRASA’s trains, one is driven to the conclusion that the
breach of public duty by PRASA must be transposed into
a private law
breach in delict. Consequently, the breach would amount to
wrongfulness.”
(footnote omitted)
[43]
In respect of the
failure to post security guards on trains as a ground for negligence,
the Court, however concluded at para [43]:
‘
Absent
information on all, if any, security measures explored or those put
in place in certain areas and why security-related resources
were
deployed in the manner in which they were, it is impossible to
contextualise the decisions taken and assess the reasonableness
of
the conduct complained of. We cannot conclude that negligence has
been established. ”
[44]
No evidence was led
by the plaintiff in the respect of the security measures in place at
the time of the incident and similarly,
I am not in a position to
access the reasonableness thereof. This ground for negligence must as
a result fail.
[45]
The further ground
for negligence, to wit the doors of the train were open whilst the
train was in motion, was also considered by
the Constitutional Court.
[46]
Emphasising the
inherent foreseeable danger of leaving doors open whilst a train is
in motion, the Constitutional Court came to
the following finding in
para [62]:
“
Open
doors evidently facilitated the ease with which Mr Mashongwa
was
thrown out of the train. Landing
out of a moving train as a result of an accidental fall at the risk
of limb or life is not materially
different from so landing as a
result of some criminal activity. Negligence has thus been
established. ”
[47]
The Constitutional
Court examined both the issue of factual causation and legal
causation and found that leaving the doors of a
train open whilst the
train is in motion, which enables criminals to throw a commuter out
of the train and which in turn results
in the commuter sustaining
injuries, establishes both factual and legal causation.
[48]
In the result, the
plaintiff did succeed in proving on a balance of probabilities all
the elements necessary to hold the defendant
liable for the damages
he sufferered and an order in his favour must follow.
ORDER
In the premises, I make the following order:
1.
The defendant is liable for the plaintiff’s proven or
agreed damages.
2.
The defendant is ordered to pay the costs of suit.
JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Appearances : Advocate S.O Ravele
Instructed by : S.O Ravele Attorneys
Appearances : Advocate L M Mataboge
Instructed by : Makhubela Attorneys