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[2013] ZAGPPHC 227
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Moloi v Passenger Agency SA (6942/12) [2013] ZAGPPHC 227 (2 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 6942/12
DATE:02/08/2013
In
the matter between:
J
MOLOI
.........................................................................
PLAINTIFF
and
PASSENGER
AGENCY S.A
......................................
DEFENDANT
JUDGMENT
NKOSI
AJ:
INTRODUCTION
[1]
The plaintiff sued the defendant, a legal person established in terms
of Section 22 of the Legal Succession of the South African
Transport
Services Act. No.9 of 1989, initially known as the South African Rail
Commuter Corporation Limited until commencement
of Legal Succession
to the South African Transport Services Amendment Act No 38 of 2008.
[
2] The action is for damages suffered as a result of injuries
sustained in a train collision that occurred between Pholomong and
Mzimhlophe railway stations in Soweto on the 19 of May 2011.
[3]
The matter became defended and it proceeded to trial on 22 July 2013.
On the date of trial, the parties had agreed to separate
merits and
quantum. We had to determine the merits first.
ISSUE TO BE REGARDED AS COMMON CAUSE
[4]
The parties were ad idem that a train collision did take place on the
19th of May 2011 between Phomolong and Mzimhlophe railway
station in
Soweto. And further that the passenger train collided with a
stationery train causing some injuries to some passengers.
[5]
ISSUE TO BE DECIDED: is whether the plaintiff was a passenger of the
train which collided with the stationery train on the date
in
question.
[6]
The defendant denies that plaintiff was a passenger on the date in
question.
[7] EVIDENCE OF THE PARTIES AND
WITNESSES
[8]
The plaintiff Joseph Moloi testified under oath that the defendant,
at all relevant times
(a)
Owned, controlled and regulated trains travelling between
Braamfontein Station and Merafe Station;
(b)
Controlled regulated the Braamfontein Railway Station, the Merafe
Railway Station and the relevant platforms at the railway
stations.
[9]
It was plaintiffs evidence that he resides at 1245 Makapan Street
Mapetla in Soweto and works at Lancet Laboratories situated
at
Richmond next to Auckland Park in Johannesburg for the past 24 years.
He is employed as a driver.
[10]
He further testified that he used a train as his mode of transport
from home to work on daily basis except when not on duty.
He used the
same mode of transport to travel from work to his place of abode.
[11]
He used to buy a monthly ticket from the defendant's office to travel
from Merafe to Braamfontein. His departure station is
only a five
minutes' walk from his house and the destination is a fifteen to
twenty minutes' walk which he did every day of his
work days.
[12]
On the date in question he went to wrork as usual and made use of the
train service as provided by the defendant as he often
does. He
states that on his return from work he boarded a train, as usual for
his way back home, from Braamfontein Station.
[13]
Plaintiff was a standing passenger as the train was packed to its
capacity. While on board travelling to Soweto there was a
stationery
train at Phomolong Station which he described as an Express Train,
which they collided with.
[
14] On a question as to what made him aware that there was a
collision he indicated that a big impact and caused him to hit the
standing pole by his chest and he fell down. He found himself lying
on the floor of the train. The time was about 17H45.
[15]
It was his further testimony that medical personnel arrived sooner to
assist those were seriously injured and some of them
were transported
to Baragwaneth Hospital for further medical attention and treatment.
[16]
He, himself and a few others, did not receive medical treatment at
the scene. He got a lift from an unknown person whom he
referred to
as a sympathiser for helping to transport a few passengers who were
not seriously injured. There were seriously injured
people. The lift
dropped him at his place and went on to deliver other passengers.
[17]
The collision happened on a Thursday and stated that he started
feeling pains on Saturday complaining of chest pains and headache.
He
said that he experienced these pains for the first time after the
accident.
[18]
He went to consult a medical practitioner on Monday 24 May 2011 who
attended to him medically and booked him off from work
on 24-25 May
2011. This was his first consultation after the accident and was
given a medical certificate to that effect.
[19]
The next day he went to PRASA offices to hand over his train ticket
and medical certificate as it was announced that there
would be a
R7500.00 compensation for the passengers who were involved in the
train accident. He state’s that there was a
closing date hence
he had to expedite the claim by completing the claim forms. All was
done but he was never contacted and decided
to approach his lawyers
to assist him.
[20]
He was confronted in cross-examination, that he was never a passenger
on the date of the accident and only heard about a rumour
that there
is a compensation of R7500.00 to be paid to some passengers who were
involved in the train accident and decided to claim
as well hence he
only went to consult a doctor four days later faking to have been
part of those who got injured. He denied all
these emphasising that
he was a passenger on that day of the accident though he did not
experience pains immediately like those
who were seriously injured.
[21]
It was further put to him that the train ticket he submitted was for
a trip between Ikwezi Station and Germiston according
to the PRSA
Final Report. A copy of this train ticket was not shown in court or
to the plaintiff. Plaintiff denied this averment
that he only used to
buy a train ticket to travel between Merafe Station and Braamfontein
enabling him to go to work and had nothing
to do with Ikwezi Station
and Germiston Station.
[22]
It was put to him that the particulars of claim on paragraph 8 lists:
(a)
Blunt force to the chest;
(b)
Blunt force trauma to the stomach;
(c)
Soft tissue injury to the body;
(d)
Various cuts and bruises.
Plaintiff
confirmed the chest pain only and not the last three diagnoses. He
denied that he was not a passenger and stuck to his
version that he
was injured during the accident after he collided with the pillar
where he was standing.
[23]
It was further put to him that PRASA investigated the claim based on
the injuries as indicated in the particulars of claim
and the medical
certificate. He remained adamant that the pains were from the chest.
[24]
Plaintiffs statement made with the South African Police Service
referred to pain from ribcage. He denied that he is the one
who wrote
this word “ribcage,: and denied ever putting words into
doctor’s mouth.
[25]
Plaintiff further confirmed that he had never used a train since the
train accident occurred. It was again put to him that
he was not a
passenger of the train that was involved in an accident as he was not
at work on that day of 19 May 2011. He refused
this as untrue.
[26]
Lydia Moleko testified under oath as plaintiffs witness. It was her
evidence that she came to know plaintiff as they used to
travel
together on the same train almost daily commuting from Merafe Station
to Braamfontein, where plaintiff alights, and to Park
Station for
her. On the date of the accident they boarded the same train. She
explains how' it collided with a stationery train
called Business
Express. She was a standing passenger like the plaintiff according to
her.
[27]
Her evidence was that they left the Park Station by 17H10 via
Braamfontein where the .plaintiff boarded. She did not check
the
exact time of the accident as she fell after the collision and was
transported to Baragwaneth hospital for treatment.
[28]
She was asked if she knew the plaintiff other than being a
co-passenger. Her response was positive to the effect that four
years
prior to the accident he delivered a cake at her birthday party. His
wife bakes birthday cakes. She denied ever having another
relationship with plaintiff and further denied ever talking to him
about the accident except when he requested her to be a witness.
She
only saw him at the Merafe Station but did not ever see him in a
train after the accident. She further confirmed that he told
her that
he is no longer using a train but a bus.
[29]
It was put to her that plaintiff was not at work on the date of the
accident and she said that they are not working together
and could
not know that, but he was co-passenger in the train.
Plaintiff
closed his case without calling further witnesses.
[30]
Defendant called Mr Steven Moshabane as a witness. He testified under
oath that he is currently the plaintiff s supervisor
at work. He
testified on his responsibilities as a supervisor and to keep a
watchful eye 011 those drivers who came to work or
not, amongst other
things. He confirmed that he was not plaintiffs supervisor on the
date of accident. He only became his supervisor
in January 2013.
[31]
He was subponoed to bring a certain document marked as exhibit “A”
purporting to be a print-out from a computer
indicating access to
work by employees. The document indicates a “0" which the
witness testified that it meant that
he was not at work on the 19th
of May 2011.
[32]
He conceded during cross-examination that he could not admit or deny
that plaintiff was not or was present at work as he was
not his
supervisor in the year 2011. He testified that he only obtained this
print-out and that plaintiff was not reporting to
him at the date of
the accident.
The
defence closed case without calling further witnesses.
WEIGHING OF EVIDENCE AND ARGUMENTS
[33]
Plaintiff led evidence of himself as claimant that on the 19th of May
2011, he was a passenger of train travelling between
Braamfontein to
Merafe Station. That the train was involved in an accident where he
suffered injuries which started feeling pains
a few days after the
collision. He consulted a doctor who gave him a medical certificate
which
he used to lodge a claim for compensation with PRASA and also handed
over his monthly train ticket. His claim was not acknowledged
nor
repudiated in writing hence he engaged services of his attorneys of
record to lodge the present court action.
[34]
Plaintiffs evidence was supported by a witness who was also involved
in the same accident where she testified that she knows
the
.plaintiff and were usually travelling on the same train including on
19 May 2011 when an accident occurred between Phomolong
and
Umzimhlophe Station in Soweto. She confirmed that they were
co-passengers and were both standing as the train was packed.
[35]
No evidence was led to rebut that this witness was not a passenger on
that day.
[36]
No evidence of the narrator of the PRASA Final Report was led to
disprove that plaintiff was not a passenger on the date of
accident
or the production of the ticket allegedly written Khwezi Station to
Germiston.
[37]
The defence witness could not assist whether he knew that plaintiff
was at work or not on the 19th of May 2011. No attendance
register
was presented except for a computer print-out which he himself had
difficulty to explain. This witness could not link
being absent from
work could automatically prove that plaintiff was not a passenger of
a train where, himself, was there.
[38]
Plaintiffs claim based on pains from chest and headache was not
confronted with any medical disproof except to say that he
contradicted himself with the medical certificate or a written
statement of which he was not the narrator.
[39]
The plaintiff and his witness evidence corroborated each other on
material terms:
(i)
they were on the same train when it collided with a stationery train;
(ii)
they both suffered injuries differing in degrees and had to be
treated differently;
(ii)
confirmed the arrival of Metro Rail medical personnel .and ambulance;
(iv)
the Business Express train collided with;
(v)
the witness, with demeanor, related the whole story without being
led.
[40]
No contributor}7 negligence was alleged except the denial that
plaintiff wras a passenger on the date in question.
[41]
Plaintiff argued and submitted that he has proven his case on a
balance of probabilities that he was a passenger on the train
that
was involved in a collision with a stationery train*on the date in
question. Further argued that defendant's denial was unsupported
by
any evidence.
[42]
Defendant prayed that an absolution from the instance be considered
against plaintiffs claim.
FACTS FOUND TO HAVE BEEN PROVEN
[43]
Having heard both parties to the action it became clear as testimony
unfolded that plaintiff was a passenger in the train that
was
involved in a collision on 19 May 2011 as supported by direct
evidence and witness testimony. Both plaintiff and his witness
were
impressive witnesses whose testimony stood and their evidence is
accepted as reasonably possibly true on a preponderance of
probabilities.
[44]
Defendant's denial that plaintiff was a passenger could not be
supported by direct or indirect evidence and the witness could
not
assist in this denial that he was not a passenger. Defendant's
evidence is therefore rejected as not probable at all.
CASE LAW
(a)
The parties did not refer me to any case law to support their
submissions, . except a referral to Hoffman and Zeffert: Law of
Evidence 5th Edition at page 124 by plaintiffs counsel: in short that
plaintiff had made out a prima facie case calling defendant
to rebut
it.
MERITS OF A CASE/LIABILITY
In
this matter the plaintiff had to prove that he was a de facto
passenger in the train which collided with another train on 19
May
2011. All what he need to do was to
establish
aprima facie case that he was indeed a passenger on that date. Above
all he had to show' that he had the necessary train
ticket.
According
to the SA Law of Evidence by Zeffert and Paizes 2nd Edition at page
136:
"‘A!o
such inference can be drawn against a party merely because he fails
to testify or call (relevant) evidence in refutation
of a weak or
improbable case against him, ” as enunciated by Colman AJ in
Putter v Provincial Assurance Co Ltd
1963 (3) SA 145
w at 150 c.
According
to Keocon v Ned Equity Versekeringmaafskappy Bpk
1984 (1) SA 656
(A)
at 664 C-H: ''where the plaintiffs evidence is "so vaag en
ontoerekend ten opsigte van die basiese feite is dat die enigste
fetebepalings of afleidings wat gemaak kan word as biote bespiel'mg
bestempel mo el word."
In
this matter the plaintiff had testified and had a witness whose
testimony remains unshaken. The defendant called a witness who
could
not be of assistance to court in proving that plaintiff was never a
passenger in the train which was involved in a accident.
The
defendant had ample of time to subpoena the compiler of its Final
Report and to show' to the court (positively) that plaintiff
had no
train ticket or the one he referred to (Merafe Station to
Braamfontein Station) as per his testimony. The defendant could
have
caused plaintiff to be examined by an independent doctor regarding
the claimed injuries.
The
court is entitled in the absence of relevant evidence from the
defendant, to accept that one which favours the plaintiff as
opposed
to the defendant.
One
should not lose sight of the fundamental consideration that this is
not an invariable rule that an adverse inference can be
drawn and in
the final result the decision must depend in large measure upon “the
particular circumstances of the litigation
in which the question
arises''.
The
plaintiff had made a prima facie case which the defendant had to
rebut not only by denial but leading of relevant evidence.
On
the question of a witness being labelled as lacking independence it
is for the court to make observation upon the correct approach
to
various facts which may tend to show whether the witness was truthful
during the trial or during his or her testimony. This
only helps in
question of facts. The plaintiffs witness was straight to the point
on all questions put to her and her demeanor
could not be questioned.
The defendant's witness was honest in relation to his inability to
say that he could not say anything
about the train as he was not a
passenger and could not assist the court.
The
Appellate Division decision of Galante v Dickson 1950 (2) &4 460
A finds its application in this matter as it was subsequently
applied
in the Jordan v Bloemfontein Transitional Local Authority
2004 (3) SA
371:
in essence that plaintiff leads evidence supported by a witness
with relevant testimony making a prima facie case calls for the
defendant to rebut by leading relevant evidence and not merely
crusading on a denial of facts. The court is entitled to find for
the
plaintiff.
MY
FINDING
[45]
It is therefore my finding that plaintiff succeeded to prove that he
was a passenger of the train which collided with a stationery
train
between Phomolong and Umzimhlophe Station in Soweto on 19 May 2013.
[46]
Defendant’s defence is dismissed.
Consequent
upon the above the Court orders as follows:
(i)
Plaintiffs case succeeds with costs.
VRSN
NKOSl
Acting
Judge of the High Court, Pretoria
DATE
OF HEARING: 22 JULY 2013 JUDGMENT
DELIVERED:
APPEARANCES:
FOR
THE APPELLANTS: ADV G. SCHEEPERS
INSTRUCTED
BY: VAN ZYL LE ROUX HUNTER ATTORNEYS
FOR
THE RESPONDENTS: ADV T. C. MAPHELELA
INSTRUCTED
BY: MAKHUBELA ATTORNEYS