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[2007] ZASCA 157
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Shabalala v Metrorail (062/07) [2007] ZASCA 157; [2007] SCA 157 (RSA); 2008 (3) SA 142 (SCA) (28 November 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 062/07
In the matter between:
SIPHIWE ALTON SHABALALA
.......................
APPELLANT
and
METRORAIL
.......................
RESPONDENT
______________________________________________________________
Coram: SCOTT, HEHER, JAFTA, MAYA
et
COMBRINCK JJA
Date of
hearing: 20 November 2007
Date of
delivery: 28 November 2007
Summary: Commuter shot and robbed on train –
action for damages – Metrorail could not be expected to have
had a security
guard in each and every carriage.
Citation: This judgment may be referred to as
Shabalala v Metrorail
[2007] SCA 157 (RSA)
JUDGMENT
______________________________________________________________
SCOTT JA/….
SCOTT
JA
:
[1] The appellant, a 44 year-old man, was shot and
robbed while a passenger on a train operated by the respondent. He
subsequently
instituted action in the Johannesburg High Court
alleging negligence on the part of the respondent and claiming
damages arising from
gunshot wounds he sustained in the attack. The
court
a quo
(Horn
J) was asked to decide only the issue of the respondent’s
liability and to direct that the issue of the quantum of damages
stand over for later determination. The court decided the former
issue in the respondent’s favour and dismissed the action
with
costs. The judgment is reported as
Shabalala
v Metrorail
2007 (3) SA 167
(W). The
appeal is with the leave of this court.
[2] The appellant testified that at about 7 pm on
21 May 2004 at Dunswart railway station he boarded a train bound for
Springs with
the intention of travelling as far as Brakpan station.
Before boarding the train he observed about 11 commuters waiting on
the station.
He said there were no security guards on the platform
and there was no ticket examiner at the entrance to the station. When
the train
arrived he got on and sat down. The other 11 commuters got
into the same coach. As the train pulled away three men in the coach
stood
up. One of them confronted the appellant and demanded money.
When the appellant said he had none, the person produced a handgun
and
without further ado fired three shots. The appellant was hit
twice in the leg and once in the arm. He fell to the floor and his
assailant
searched his pockets, taking R130 in cash, a train ticket
and a wrist watch. In the meantime, the other two who had stood up
busied
themselves robbing other passengers in the coach. When the
train arrived at the next station, which was Benoni, the appellant
managed
to get off the train. Two security guards, one male and the
other female, came to his assistance. He pointed out the robbers to
them
but they attended to him rather than attempt to apprehend the
robbers. The train pulled off with the robbers still on board.
[3] The appellant testified that the 11 persons
who had waited on the platform at Dunswart station all gave the
appearance of being
normal passengers. There was similarly nothing
untoward about the appearance of the three robbers. The gunman wore a
leather jacket
which covered his hips. He drew his firearm from under
his jacket. The appellant could not say whether the robbers had
boarded the
train at Dunswart or whether they were already in the
coach when the train arrived at the station.
[4] In the course of cross-examination, the
appellant testified that there were usually security guards on the
trains on which he
travelled. He said this was the case ‘especially
during the day’ and ‘on occasions at night’. Some
of the
security guards, he said, were armed while others had ‘two-way
radios’. They all wore uniforms. The appellant inferred
that
there were no security guards in the other coaches at the time of the
robbery. But this inference, he said, was based on the
fact that he
‘banged on the coach
’
, while
being attacked and no one came to his assistance. Given the fact
there was no door linking the coach in which he travelled
to the next
one, and also the noise the train in motion would have made, the
inference was unjustified.
[5] The above was the sum total of the evidence
placed before the trial court. After the appellant had testified he
closed his case.
The respondent thereupon also closed its case.
[6] In his particulars of claim the appellant alleged that the
respondent (the defendant in the court below) had been negligent in
the following respects:
‘
1. The Defendant
failed to ensure the safety of members of the public in general and
the Plaintiff in particular on the coach of the
train in which the
Plaintiff travelled;
2. The Defendant failed to take any or
adequate steps to avoid the incident in which the Plaintiff was
injured when by the exercise
of reasonable care they could and should
have done so;
3. The Defendant failed to take any or
adequate precautions to prevent the Plaintiff from being injured on
the moving train;
4. The Defendant failed to employ
employees, alternatively, failed to employ an adequate number of
employees to prevent passengers
in general and the Plaintiff in
particular from being injured in the manner in which he was.
5. The Defendant failed to employ
employees; alternatively, failed to employ an adequate number of
employees to guarantee the safety
of passengers in general and the
Plaintiff in particular;
6. The
Defendant neglected to employ security staff alternatively sufficient
security staff on the platform and/or the coach in which
the
Plaintiff was travelling to ensure the safety of the public in
general and the Plaintiff.’
It will be observed, in passing, that the grounds
of negligence relied upon are all of a general nature and relate to a
systemic failure
on the part of the respondent. In other words, the
alleged failure did not relate to an omission on the part of an
individual employee
to act in a particular way in relation to the
specific incident in question, but rather to an omission of a general
nature on the
part of the respondent to put in place measures that
would ensure the safety of commuters travelling on the respondent’s
trains.
[7] It is now well-established that a negligent
omission, unless wrongful, will not give rise to delictual liability.
The failure
to take reasonable steps to prevent foreseeable harm to
another will result in liability only if the failure is wrongful. It
is the
reasonableness or otherwise of imposing liability for such a
negligent failure that will determine whether it is to be regarded as
wrongful. See eg
Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) para 11. If it is reasonable to do so, the defendant
will be said to have owed the injured party a legal duty to act
without
negligence; that is to say, to take such steps as may have
been reasonable to avert the harm. In
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005
(2) SA 359
(CC) it was held that
Metrorail
was
obliged to take reasonable measures to provide for the security of
commuters while making use of its rail transport. However,
the court
(in paras 79-81) emphasized that the obligation to which it referred
arose by virtue of the Legal Succession to the South
African
Transport Services Act 9 of 1989; it was a public law obligation and
did not automatically give rise to a legal duty for
the purpose of
the law of delict. In this court, counsel were agreed that the
respondent was indeed obliged to act without negligence.
In other
words, given the foreseeability of harm to commuters resulting from
criminal activity, it was agreed that the respondent
owed commuters a
legal duty to take such steps as were reasonable to provide for their
safety and that the failure to take such steps
would render it liable
in delict.
[8] It appears from the evidence of the appellant
that the respondent had indeed adopted measures to avert crime by
employing security
guards both on its trains and on railway
platforms. The question in issue is therefore whether the appellant
discharged the burden
of establishing on a balance of probabilities
that those measures were unreasonable in the circumstances and that
had reasonable
measures been taken the attack would not have
occurred. When considering this question it is important to bear in
mind that merely
because the harm which was foreseeable did eventuate
does not mean that the steps taken to avert it were necessarily
unreasonable.
See
Tsogo Sun Holdings
(Pty) Ltd v Qing-He Shan
2006 (6) SA
537
(SCA) para 14. To hold otherwise would be to impose on the
respondent a burden of providing an absolute guarantee against the
consequence
of criminal activity on its trains. There clearly is no
such burden and the appellant did not contend that there was.
[9] Whether there were security guards present in
any of the other coaches at the time of the attack is unclear. What
is clear is
that there was no security guard present in the coach in
which the appellant travelled from Dunswart station to Benoni
station. It
is also clear that to avert the attack on the appellant
there would have had to be, at the least, one security guard present
in that
coach. I say ‘at the least’ because given the
willingness of the assailant to
shoot the appellant in
response to no more than the latter’s statement that he had no
money, the presence of a single security
guard, even if suitably
armed, may well have made no difference. Indeed, attacks by armed
robbers on security guards, even when armed,
are sadly not uncommon.
But even assuming that the presence of a security guard in the coach
would have served as a deterrent sufficient
to thwart the attack, the
question remains whether it would be reasonable to require the
respondent to have a security guard, whether
armed or otherwise, in
each and every coach of every train. If regard is had to the large
number of railway coaches employed by the
respondent to convey
commuters many kilometres each day, such a requirement would, in my
view, exceed by far the precautionary measures
that could reasonably
be expected of an enterprise operating a commuter train service. No
doubt in particular circumstances it may
be reasonable to expect the
respondent, regardless of the cost, to place armed security guards in
each and every coach of a train
travelling on a particular line.
Typically, the need for such special precautions could arise if a
particular line had been identified
as being particularly dangerous
on account of repeated criminal activity. But there was no evidence
to suggest that this was so in
the case of the line from Dunswart to
Benoni.
[10] Counsel for the appellant sought to make something of the fact
that there were no security guards on Dunswart station. But whether
this was unreasonable or not need not be decided. It is clear from
the appellant’s own evidence that whether there were or
not,
would have made no difference. There was nothing about the appearance
of the commuters waiting on the station to indicate that
any of them
might be armed robbers; nor was it established that the robbers
boarded the train at Dunswart station. Counsel did not
suggest that
the respondent was required to take steps to ensure that each and
every commuter was searched before boarding a train,
nor was this
pleaded. It is conceivable that it might be reasonable in appropriate
circumstances for the respondent to adopt such
an extreme measure,
but once again, no evidence was tendered to suggest the existence of
such special circumstances.
[11] It was also emphasized on behalf of the appellant that the
nature and extent of the precautionary measures adopted by the
respondent
were peculiarly within its knowledge. This, of course, is
so. But it does not mean that the respondent bore the onus of
establishing
that it could not reasonably have prevented the robbery
from taking place. The onus of proof remained on the appellant
throughout.
Had, however, the appellant placed before the court at
least some evidence giving rise to an inference of negligence on the
part
of the respondent which was causally connected to the robbery,
the latter would have been obliged to adduce evidence to rebut that
inference or face the prospect of having judgment granted against it.
But, as I have indicated, the evidence of the appellant makes
it
clear that the attack could only have been averted by having an armed
security guard in that particular coach. In the absence
of further
evidence to justify the need for a security guard in each coach, the
failure on the part of the respondent to ensure that
there was such a
security guard present in each coach does not give rise to an
inference of negligence. It is true, as counsel argued,
that any such
further evidence that there may have been, would have been within the
knowledge of the respondent, but that did not
preclude the respondent
from ascertaining the existence of such evidence, whether by seeking
discovery of documents in the respondent’s
possession, or
requesting particulars for trial or otherwise.
[12] It follows that in my view the appellant failed to discharge the
burden of proving negligence on the part of the respondent
and to
this extent the appeal must fail. The court
a quo
granted
judgment against the appellant. In my view the correct order should
have been one of absolution from the instance. I propose
to amend the
order accordingly.
[13] The appeal is dismissed with costs, including the costs of two
counsel. The order of the court
a quo
is altered to read as
follows:
‘
(a) Absolution from the instance is
granted.
The plaintiff is ordered to pay the costs of the defendant.’
__________
D G SCOTT
JUDGE OF APPEAL
CONCUR:
HEHER JA
JAFTA JA
MAYA JA
COMBRINCK JA