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[2016] ZAGPPHC 785
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Passenger Rail Agency of South Africa SOC Limited v Baloyi (69570/2013) [2016] ZAGPPHC 785 (2 August 2016)
IN
THE GAUTENG DIVISION OF THE HIGH COURT OF
SOUTH
AFRICA,
PRETORIA
Case
No.:
2013/69570
DATE:
2/8/2016
In
the matter between -
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
SOC LIMITED
…........................
APPLICANT
And
PHAPANO PATRICK BALOYI RESPONDENT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
TSATSAWANE
AJ
1
INTRODUCTION
1.1
This is an application for leave to appeal against my judgment
granted against the applicant in June 2016 pursuant to action
proceedings between the parties.
1.2
In the action proceedings, the respondent claims damages against the
applicant arising from injuries sustained as a result of
the
respondent having been pushed out of a moving train operated by the
defendant.
2
THE TRIAL
2.1
At the trial, it was common cause that the applicant owed the public,
including the respondent, a duty of care to ensure, amongst
others,
that its trains were safe for use by members of the public; that
safety regulations and pre-cautions would be implemented
to ensure
the safety of members of the public using the applicant's trains;
that the coaches of the trains would be safe for use
by members of
the public.
2.2
In
paragraph
2
of the judgment, I found that the applicant
is under
a public
duty to protect its commuters and that such duty
"together
with constitutional values,
have
mutated
to a
private
law duty t
o
prevent harm to commuters
[1]
".
The
applicant
does not
suggest
that this finding (based on the cases
cited
in the
footnote)
is wrong or that
there
are
reasonable
prospects
of another Court finding differently on this issue.
2.3
By agreement between the parties and in terms of Rule 33(4), I was
invited to determine the following three issues -
2.3.1
whether the train was in motion when the respondent was pushed out of
it;
2.3.2
whether the applicant was negligent; and
2.3.3
whether the injuries sustained by the respondent were consistent with
the manner in which the incident occurred.
2.4
The applicant
did not place in dispute the fact that the
respondent was pushed out of its train.
The applicant
disputed that the train was in motion when the respondent was
pushed out of i
t. The respondent led evidence to the effect that
the train started moving out of the station whilst the door that he
used to enter
the train was open. The applicant did not lead any
evidence to contradict this evidence.
2.5
I found in favour of the respondent in respect of the issues which I
was invited to determine. In particular and based on evidence
which
the applicant did not contradict, I made, amongst others, the
following findings against the applicant -
2.5.1
the respondent was pushed out of the defendant's moving train and
sustained injuries as a result thereof;
2.5.2
the applicant was negligent in that it failed to observe the basic
safety-critical practice of keeping the relevant door closed
whilst
the train was in motion;
2.5.3
the defendant should have foreseen that leaving the relevant door
open whilst the train was in motion posed a danger to the
respondent
and that it failed to take reasonable steps to prevent the respondent
from not only being pushed out of the door but
also falling out of
the door.
3
THE APPLICATION FOR LEAVE TO APPEAL
3.1
The applicant has filed an application for leave to appeal against my
judgement on the following two grounds -
"2.
The learned Judge erred in finding that it does not matter who pushed
the plaintiff for the purposes of establishing negligence
in this
action.
3.
The learned Judge erred in finding that the issue of negligence
against the Defendant was proven by the Plaintiff."
3.2
The applicant correctly abandoned the first ground of appeal, i.e.
that I erred in dismissing its application for absolution
from the
instance.
3.3
At the hearing of the application for leave to appeal, Mr. Gwala, who
appeared on behalf of the applicant, contended that I
ought to have
included in the issues submitted to me for determination, a fourth
issue, i.e. the question whether the applicant
was vicariously liable
to the respondent. This, so the argument went, is a law issue which I
should have raised due to the fact
that the parties were mistaken
about what, in law, was in fact in issue between them.
3.4
In developing his argument, Mr. Gwala contended that the applicant
was not vicariously liable to the respondent and that the
applicant
was not negligent due to the fact that it was not established as to
who actually pushed the respondent out of the moving
train and
without this having been established, it was wrong to conclude that
the applicant was negligent.
3.5
According to Mr. Gwala, the applicant could only be negligent if the
person responsible for the negligent act was one of its
employees and
that the evidence did not establish this. On this basis, Mr. Gwala
submitted that there are prospects of another
Court coming to a
different conclusion. Mr. Gwala's contention in this regard would
have been correct if the respondent's case
was based on vicarious
liability - it was not.
3.6
In support of his contentions, Mr. Gwala referred me to
Ouartermark
Investments (Pty) Ltd v Mkhwanazi And Another
2014 (3) SA 96
(SCA)
and
Cusa v Tao Ying Metal Industries And Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC)
in support of the contention that I should
have added the question of vicarious liability as one of the issues
that I had to determine
in terms of Rule 33(4) - in addition to what
the parties agreed were the issues to be determined. This, according
to Mr. Gwala,
I had to do due to the fact that this is a law point
and a Court is obliged to raise a law point if the parties are wrong
in their
approach to the matter. I disagree.
3.7
In this case, the respondent did not rely on vicarious liability. The
respondent relied on the applicant's breach of its duty
of care. The
applicant did not contest the relevant allegations at the trial. In
order to rely on vicarious liability, the applicant
would have had to
allege and prove the relevant elements of that liability. The
respondent chose not to rely on vicarious liability
and deliberately
relied on a breach of a legal duty, which he was in law entitled to
do. For this, the respondent was entitled
to allege and prove what is
contained in his particulars of claim and he did so.
3.8
The cases to which I was referred do not support the applicant's
contentions. The cases dealt with something different from
what was
before me. In
Cusa v Tao Ying Metal Industries And Others,
Ngcobo
J (as he then was) said the following in relation to the raising of
law points -
"[67]
Subject to what is stated in the following paragraph, the role of the
reviewing court is limited to deciding issues that
are raised in the
review proceedings. It may not, on its own, raise issues which were
not raised by the party who seeks to review
an arbitral award There
is much to be said for the submission by the workers that it is not
for the reviewing court to tell a litigant
what it should complain
about. In particular, the LRA specifies the ground upon which
arbitral awards may be reviewed. A party
who seeks to review an
arbitral award is bound by the grounds contained in the review
application. A litigant may not, on appeal,
raise a new ground of
review. To permit a party to do so may very well undermine the
objective of the LRA to have labour disputes
resolved as speedily as
possible.
[68]
These principles are, however, subject to one qualification. Where a
point of law
is
apparent on the papers, but
the
common approach of the parties proceeds on a wrong perception
of what the law is, a court is not only entitled, but
is
in fact also obliged, mero motu, to raise the point of law and
require the parties to deal therewith. Otherwise, the
result
would be
a
decision
premised
on
an
incorrect
application
of
the law. That
would infringe the
principle of
legality.
Accordingly,
the Supreme Court of Appeal was entitled mero motu to
raise
the issue of the commissioner's jurisdiction and to require argument
thereon. However, as will be shown below, on a proper
analysis of the
record, the arbitration proceedings,
in fact, did not
reach the stage where the question of
jurisdiction came
into
play."
3.9
The above clearly does not apply
in
this case. Ngcobo
J
was
concerned with a case where at issue was the raising of a law point
on appeal - not the raising of a whole new cause of action
by the
Court itself (at the trial}, which cause of action would have
required the parties to lead factual evidence which they did
not come
to Court to lead - and which cause of action the respondent as
plaintiff did not rely upon in the particulars of claim.
In this
case, it did not appear from the pleadings that the respondent wanted
to rely on or had to rely on vicarious liability
nor was the
applicant itself called upon to defend a case based on vicarious
liability. Even if the respondent may have had to
rely on vicarious
liability, the Court could not have amended the respondent's
particulars of claim to introduce a new claim based
on vicarious
liability. It is not clear from Mr. Gwala's contentions as to how the
pleadings would have had to be dealt with if
the Court itself raised
the issue of vicarious liability.
3.10
In
Quatermark,
the Supreme Court of Appeal relied on Ngcobo
J's
dictum
quoted above. It said the following -
"[20]
... The essential function of an appeal court is to determine whether
the court below came to a correct conclusion. For
this reason the
raising of a new point of law on appeal is not precluded, provided
the point is covered by the pleadings and its
consideration on appeal
involves no unfairness to the party against whom it is directed ...
[21]
... Lewis JA, in the recent judgment of Nedbank Ltd v Mendelow NO and
Another confirmed that the court could raise matters
mero motu 'where
the facts to which those principles apply are squarely raised in the
papers before the court (and that were before
the high court)' and
that 'a court should not allow the continuation of a wrong because
the legal representatives of the parties
did not appreciate the
correct legal principles. "
3.11
In the light of the fact that the respondent did not rely on
vicarious liability, the suggestion that the court ought to have
raised it on its own is clearly wrong in law.
3.12
The applicant has not attempted to show that my reliance on the
decisions of the Constitutional Court and the Supreme Court
of Appeal
referred to in the judgment was wrong or that my application of the
principles laid in such cases was wrong. Without
such an attempt
having been made, there are no reasonable prospect of success on
appeal.
3.13
In addition, no attempt has been made to demonstrate why it matters
as to who pushed the respondent out of a moving train in
circumstances where the applicant was found to be negligent in that
"it failed to observe
the basic safety-critical
practice of keeping the relevant door closed whilst the train was in
motion"
and when the respondent's evidence to the effect
that the applicant's train moved from the station whilst the relevant
door was
open was not contradicted.
3.14
In the light of the above, I am of the view that -
3.14.1
the appeal would not have a reasonable prospect of success; and
3.14.2
there is no other compelling reason why an appeal should be heard.
3.15
In the circumstances, the application for leave to appeal is
dismissed with costs.
KENNEDY
TSATSAWANE
Acting
Judge of the Gauteng Division of the High Court of South Africa
For
the applicant:
Adv. N. Gwala
…
........................................................
Instructed
by Ledwaba Mazwai Inc., Pretoria
For
the respondent:
............................
Adv.
Granova
…
........................................................
Instructed
by Mohalutsi Attorneys, Pretoria
[1]
1 See Mashongwa v Passenger Rail Agency of South Africa
2016 (3) SA
528
(CC) and Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC).