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[2016] ZAGPPHC 444
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Mkhabela and Others v Prasa (50819/2011) [2016] ZAGPPHC 444 (17 June 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 50819/2011
Date: 17/6/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
JOYCE
MKHABELA FIRST
PLAINTIFF
PRECIOUS TEBOGO
NDOU SECOND
PLAINITFF
PRECIOUS TEBOGO NDOU
obo
TSHWARELO HONOUR
NDOU THIRD
PLAINTIFF
AND
PRASA DEFENDANT
JUDGMENT
TOLMAY,
J:
[1] In this matter the
plaintiffs instituted action against the defendants after the death
of Simon Alfred Mabasa (the deceased)
on 10 August 2010 at the Eerste
Fabrieke Station.
[2] The first and second
plaintiffs withdrew their claim and only third plaintiff (the
plaintiff) proceeded in her capacity as guardian
of Tshwarela Honour
Ndou, the minor child of the deceased. Her
locus standi
was
admitted by the defendants.
[3] The plaintiff alleged
that the death of the deceased was caused by the negligence of the
defendant. The plaintiff amended her
particulars of claim on 3
occasions. The last amendment alleged that whilst the deceased was
trying to board the train, the doors
of the train closed, but the
passengers kept pushing the deceased forward thereby causing him to
fall in between the platform and
the train. The train departed and
caused serious injuries and ultimately the deceased’s death.
Previously the plaintiff alleged
on the pleadings that the train did
not allow sufficient time for the deceased to get off and the doors
of the train were not being
secured before departing.
[4] At the hearing
plaintiff relied on the evidence of Mr Salzhele Alfred Skakane. He
testified that he travelled with the deceased
on the fateful day from
Rissik Street Station to Mamelodi Station. The train stopped at
Eerste Fabrieke Station at platform 4 and
he and the deceased
disembarked from the train and went to platform 3. As there was no
train at platform 3 they returned to platform
4. The train was very
full and although they initially managed to board the train Mr
Shakane was pushed from the train and ended
up on the platform. The
train started to move with the doors still open and the deceased was
pushed from the train and fell on
the platform. He then said that the
deceased was “pulled from the platform by the wind of the
train”. The train did
not stop at all and proceeded on its
journey. He stated that passengers assisted the deceased and they
placed him on the platform.
According to him there were no platform
marshals, no security guard or any employees from the second
defendant on the platform
when the incident occurred. He contacted
the ambulance and the deceased‘s mother. The deceased died at
the hospital.
[5] This evidence
contradicts the version of this witness in a statement made by him
under oath. In that statement he stated that
the train arrived on
platform 4 of Eerste Fabrieke Station. The witness and the deceased
disembarked and went to platform 1. There
was a large crowd of people
at platform 1. When they approached the train in order to board the
train, the train was full and the
doors of the train were already
closed. The crowd of people pushed the deceased and the witness
forward and the deceased was pushed
from the platform onto the
tracks. The train began to move and the witness and the other
passengers banged on the doors to try
and stop the train. The train
however continued on its journey.
[6] When the witness was
asked about the different versions his explanation was that he was
under stress when he made the statement
and said that the version he
gave in Court was what actually happened. There was no indication
that he did not convey the facts
contained in the statement or that
he was not proficient in English and that there was a
misunderstanding about his version.
[7] The mother of the
deceased, Ms Joyce Mkhabela, testified that she was informed by a
neighbour about the accident and not by
Mr Shakane as he testified.
She said that the neighbour learned about the accident from a friend
of the deceased named ZAZA who
called her. No evidence was led that
Mr Shakane is known as Zaza. She said that she was never
contacted by anyone from the
defendants pertaining to the accident.
[8] The defendant asked
for absolution of the instance at the end of plaintiff’s case,
I refused the application and said
that I would give my reasons in my
judgment. The reasons are set out hereunder.
[9]
Despite the obvious contradictions in the evidence credibility should
usually not be considered at this point of the trial
[1]
.
There were allegations that could point to negligence on the part of
the second defendant, pertaining to especially crowd control.
I also
took into consideration that this is a case where plaintiff only
needed to prove 1% negligence on the side of defendant
and the claim
is for the benefit of a minor. In the light of the aforesaid I
exercised my discretion to dismiss the application
for absolution of
the instance.
[10] The defendant called
Mr Dippenaar who is a train driver with 47 years of experience. On
the day in question he was functioning
as a pilot at Eerste Fabrieke
Station. His duties included directing the operations of the train
between Eerste Fabrieke Station
and Pienaarspoort Station. He wore a
reflector jacket and a red armband. Train 9145 arrived at Eerste
Fabrieke Station at platform
4. This train was travelling from
Pretoria to Pienaarspoort Station. While train 9145 was still at the
platform, train 9343 from
Mabopane to Eerste Fabrieke arrived at
platform 3. As a result of this the platform was crowded. At the
appointed departure time
train 9145 was set in motion after the
signals were given that it was safe for the train to depart. When the
train reached an approximate
speed of between 15 – 20 kmph the
train driver received an emergency stop instruction, which he
immediately executed. The
train came to a complete stop. Mr Dippenaar
exited the driver’s cab and proceeded to where he found the
deceased who was
lying on the platform. He informed Central Train
Control (CTC) of the incident and they called an ambulance, as the
track was clear
he authorised the train to depart.
[11] Mr Mashiana
testified that he was a platform marshal in the employ of second
defendant on the day in question. His duties were
inter alia to
ensure that it was safe for the train to depart. He would raise a red
flag to indicate to the train guard if it was
not safe for the train
to depart. He would ensure that all passengers had embarked and
disembarked and that there were no passengers
between the yellow line
that runs along the length of the platform and the end of the
platform. He would wait for the doors of
the train to be closed
before raising a white flag to indicate that it was safe for the
train to depart. He wore a reflector jacket
and worked with 2 other
marshals. One was stationed at the head of the train, one in the
middle and one at the back of the train.
[12] He confirmed that on
the day in question train 9145 arrived at platform 4 and passengers
embarked and disembarked safely. While
this train was at platform 4
another train arrived at platform 3. He ensured that the passengers
embarked and disembarked safely
and all people were clear of the
yellow line. He waited for the train doors to be closed and when they
were safe he raised the
white flag to indicate that it was safe for
the train to leave.
[13] As the train was
pulling away with closed doors he saw a male person coming from the
direction of train 9335. He ran towards
train 9145 and attempted to
board the train between coaches. This person slipped and fell between
the coaches and onto the tracks.
He raised a red flag to bring the
train to an emergency stop, which was immediately done. He went to
the scene and found a man
lying on the tracks behind the motor coach.
Passengers removed him from the tracks and placed him on the
platform. He communicated
with the man who was seriously injured and
obtained his details. He reported the incident, and an ambulance was
dispatched.
[14] Mr Mashiana made a
statement on 10 August 2010. In that statement he said that the
incident occurred at platform 3 and not
platform 4 and involved train
number 9343 and not train 9145 as he testified. In that statement he
refers to “commuters”
who attempted to board the train
and not to a single male as was done in his evidence. This statement
furthermore avers that an
African male fell between the train set and
the platform, not between train coaches as he testified.
[15]
It is trite that the
onus
to prove negligence rests wholly on the plaintiff. It is also trite
that the defendant is under a public law duty to provide safe
public
rail transport
[2]
.In this
instance, as this claim is a claim for loss of support, the plaintiff
is only required to prove 1% negligence on the part
of the defendant.
[16] The plaintiff had a
single witness who testified about the incident. Mr Skakane’s
evidence in court was in contradiction
with the contents of his
statement as well as the pleadings. As he was the only witness
called by the plaintiff one must
accept that the version contained in
at least the latest amendment of the pleadings must also have been
obtained from him. The
plaintiff’s case is thus based on 3
different versions. This raises serious questions about the
credibility of Mr Skakane.
The explanation for the difference in the
evidence and the statement is not convincing. Mr Skakane, under these
circumstances,
can’t be regarded as a credible witness.
[17] Mr Skakane’s
evidence also contains further improbabilities. His evidence was that
the train did not stop at all after
the incident is improbable in the
light of the evidence of Mr Dippenaar and Mr Mashiana. The allegation
that the deceased was suck
beneath the train by the wind is also
improbable in the light of the fact that the train was just departing
and could not
have picked up enough speed to have caused such a
strong wind. Mr Dippenaar’s evidence was that the train was
moving between
15 – 20 kmph, and on Mr Shakane’s own
version the train had just started moving when the incident occurred.
[18] Although Mr
Mashiana’s evidence contradicted his statement in certain
aspects I am of the view that these contradictions
are not
significant, in any event the plaintiff carries the
onus
and
not the defendant.
[19] It is impossible to
find in favour of the plaintiff in the light of all these
contradictions and improbabilities. Consequently
the plaintiff did
not succeed in proving negligence on the part of the second
defendant. Therefore the claim must be dismissed.
[20] Defendant indicated
that irrespective of the outcome they will not seek a costs order
against the plaintiff.
[21] I make the following
order:
21.1
The plaintiff’s
claim is dismissed; and
21.2
Each party to pay
its own costs.
____________________
R G TOLMAY
JUDGE OF THE HIGH
COURT
DATE OF
HEARING:
23 MAY 2016
DATE OF
JUDGMENT:
17 JUNE 2016
ATTORNEYS FOR
APPLICANT:
SPRUYT INCORPORATED
ADVOCATE FOR
APPLICANT:
ADV R G EGAN
ATTORNEYS FOR
RESPONDENT: DIALE MOGASHOA
ATTORNEYS
ADVOCATE FOR
RESPONDENT: ADV
S M TISANI
[1]
Erasmus, Superior Court Practice, vol 2 D1 530-D1 533
[2]
Rail Commuters Action Group v Transnet Ltd T/a Metrorail 2005(2) SA
359 (CC); Mashangwa v Passenger Rail Agency of South Africa
2015 JDR
2582 (CC)