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[2013] ZAGPPHC 275
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Mashongwa v Passenger Rail Agency of South Africa (Prasa) t/a Metro Rail (29906/2011) [2013] ZAGPPHC 275 (1 October 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 29906/2011
Date:
1 October 2013
In
the matter between:
IRVINE
VAN SAM
MASHONGWA …
......................................................................
Plaintiff
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA (PRASA)
…....................
Defendant
T/A
METRO RAIL
JUDGMENT
PRETORIUS
J.
[1]
The plaintiff has instituted action against the defendant for damages
suffered as a result of personal injuries sustained when
the
plaintiff was pushed or thrown from a moving train on 1 January 2011
at or near Rissik station, Pretoria.
[2]
The parties had reached an agreement that the issues of quantum and
merits of the case should be separated in terms of Rule
33(4) of the
Uniform Rules of Court which the court ordered. The present case
deals with the merits of the case only.
[3]
According to the plaintiffs evidence he boarded the train at the
Walker Street station on 1 January 2011. It is common cause
that
there were no security guards on the train. The plaintiff was the
only person in the coach and according to him the doors
did not close
when the train pulled away. Three men entered the coach from an
adjoining coach and demanded his wallet and his cellphone
from the
plaintiff. He complied and gave them his wallet and his cellphone.
Thereafter they hit the plaintiff, he fell to the ground
and they
kicked him. They threw the plaintiff out of the moving train as it
was approaching Rissik Street station. He landed just
before the
platform at Rissik Street station where his cries for help remained
unanswered. He crawled onto the platform and was
assisted by two
security guards.
[4]
The plaintiff was the only witness for the plaintiff. The defence
called Ms Mathotsi who gave evidence that she had been on
duty on 1
Janaury 2011 when this incident occurred. She was doing duty as a
security guard at Rissik Street Metro Station on 1
Janaury 2011
between 11 hOO and 11h30. Her evidence was at first that she had
heard a scream and as the train, M10, was departing
she saw four men
opening the train’s door and throwing the plaintiff out. It was
never suggested to the plaintiff that he
was wrong when he mentioned
that it was three men who had attacked him and threw him from the
train, contrary to Ms Mathotsi’s
evidence.
[5]
According to Ms Mathotsi the train entered the station from her right
hand side as it was travelling from right to left. This
fact is
strange as her evidence was that when she first saw the men opening
the train door the train was moving and the door where
the incident
took place, was right in front of her. Her evidence that the
plaintiff was lying on her right can thus not be correct,
as he was
thrown from the train whilst it was moving and should have landed to
her left. The only inference the court can make
from these facts is
that the plaintiff must have been lying on her left hand side. Her
further evidence under cross- examination
was that the first time she
had heard the plaintiff screaming was when he was already outside the
coach- contradicting her previous
evidence that she had heard him
screaming and then she saw the incident.
[6]
She had completed a report on 2 January 2011 regarding this incident.
She did not state that she had witnessed the incident
in this
statement. Her evidence is also at variance with the pleadings of the
defendant as it was expressly denied that the plaintiff
was a
passenger on 1 January 2011. It is further expressly denied that he
was thrown from the train.
[7]
On 5 September 2013 a pre-trial meeting was held and the question was
asked:
Does
the Defendant admit that the Plaintiff was pushed / thrown out of the
train on 1 January 2011;
Does
the Defendant admit that the Plaintiff was injured as a result of the
incident as set out supra on or about 1 January 2011.”
[8]
The answers to both questions were “no”, which is
directly in contrast to the defendant’s own witness’s
evidence.
[9]
Mr Vermaak’s evidence was that he had been employed by the
defendant from 1993 to 2007. He was an expert as to safety
on trains
and stations. His evidence was that he was aware of passengers being
thrown from trains. He testified that the method
of raiding stations
and trains at various times randomly is the most effective to combat
crime. Police and security guards swoop
on a train or a station, and
search everybody for illegal dangerous weapons, which are then
confiscated. This does not prevent
criminals without weapons boarding
the train.
[10]
He conceded that even if there was only one security guard on a train
it would serve as a deterrent. His opinion was that to
prevent all
crime on the trains it would be necessary to have three armed
security guards in each coach of the train. Each train
has 12 to 14
coaches. At the time he worked for the defendant there were less than
a 1000 security guards for all the stations
and trains in North
Gauteng.
[11]
Mr Vermaak conceded that he could not give an opinion on the
financial implications of employing security guards on the trains.
[12]
Mr Raphudu’s evidence was that he was employed by Metro Rolling
Stock as an electrical fitter. His duties were to inspect
the coaches
of the trains. He inspected train M10 on 21 December 2010 and there
were no malfunctioning doors. On 18 January 2011
he did the same
inspection regarding train M10 and found ail the doors to be in
order. His further evidence was that there were
vehicles that went
out to a particular station or place should a train have a problem.
He did not know whether such a problem with
the doors of train M10
developed between 21 December 2010 and 18 January 2011 which could
have been attended to by a team who was
sent out.
[13]
Mr Khumalo, the provincial security manager of the defendant, gave
evidence that he was involved in the preparation of the
budget for
security, although he had not compiled it. According to him there
were 100 security guards in the employ of the defendant
and 600
security guards on contract in the North Gauteng Region. Later in his
evidence he maintained that he had prepared the budget,
contrary to
his earlier evidence.
[14]His
evidence was that there were approximately five incidents of crime on
the trains per month, although he could not confirm
it with any
information which was documented. He furthermore testified that crime
increases during the festive season and that
there is normally less
crime on trains that are full.
[15]In
this matter there are two versions before court which are mutually
destructive. The court has to implement the technique
as set out in
Stellenbosch Farmers’ Winery Group and Another v Martel I et
Cle and Others 2003 (1) SA (11) SCA at paragraph
5:
..
To come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (Hi)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As
to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the
disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the
party burdened with the
onus of proof has succeeded in discharging it" (Court’s
emphasis)
[16]The
plaintiff made a favourable impression as a witness. He gave evidence
in a calm and collected manner, without exaggerating
the incident. He
conceded where it was necessary and the court finds that he was
truthful and accepts his evidence. His evidence
that the train doors
were open when the train departed from Walker Street station was
unchallenged. The witness for the defendant,
Ms Mathotsi, did not
give evidence as to the state of the train doors when the train
entered Rissik Street Station. According to
the plaintiff there were
no security guards on Walker Street station, a fact that could not
be denied by the defendant. In these
circumstances the court has to
accept the evidence of the plaintiff that the train doors were open
when the train left Walker Street
station. His evidence was never
challenged as being untruthful. He did not contradict himself or the
version set out in the particulars
of claim on his behalf.
[17]
The same cannot be said about Ms Mathotsi, the security guard, who
testified on behalf of the defendant. Her version was at
variance to
the plea, as well as to the fact that at the pre-trial meeting on the
eve of the trial, it was still denied that the
plaintiff had been
pushed or thrown from the train resulting in injuries.
[18]
Her incident report was patently incorrect in more than one instance.
Her evidence was that she was first alerted to the incidence
when she
heard a scream from inside the train, but she later changed this
version during her evidence that she only heard the plaintiff
shouting when he was pushed or thrown from the train.
[19]
Her evidence was that at that stage the train was moving fast and in
spite of her attention being on what was happening on
the platform
after the passengers had disembarked, she saw the four men forcing
the doors of the fast moving train open and throw
the plaintiff out.
Her evidence that he fell to her right hand side has already been
dealt with by the court as an impossibility.
The court cannot find
her evidence to be probable if the court takes into consideration all
the discrepancies in her evidence,
the plea and the minutes of the
pre-trial meeting.
[20]
The plaintiff alleged in the particulars of claim that the defendant
was negligent due to the following:
“
8.1
Hy het versuim om enige stappe, alternatiewelik voldoende stappe te
neem om die insident te voorkom, waar deur die uitoefening
van
redelike sorg en aandag gemelde insident wel voorkom kon word.
8.2
Hy het versuim om spoorpendeiaars in die aigemeen, en spesifiek die
Eiser, se reg op veiligheid in ag te neem en/ of te beskerm.
8.3
Hy het versuim om enige, alternatiewelik genoegsame, personeel aan te
wend ten einde die veiligheid van spoorpendeiaars in die
aigemeen, en
spesifiek die Eiser, te verseker.
8.4
Hy het versuim om enige, alternatiewelik genoegsame, personeel aan te
wend, hetsy op die trein, hetsy op die stasie, ten einde
te voorkom
dat lede van die publiek, en spesifiek die Eiser, beseer word op die
wyse soos gemeld.
8.7
Hy het versuim om te verseker dat al die deure van die passasienA/a
behoorlik toe was. ”
[21]
The question this court has to answer is whether the harm to the
plaintiff in these particular circumstances was foreseeable
and
whether the defendant had acted negligently in not foreseeing the
harm and acting to prevent it. The test is what a reasonable
person
would have done under these circumstances.
[22]
In Minister of Safety and Security v van Duivenboden
2002
(6)
SA 431
SCA Nugent JA held at paragraph 21:
"[21]
When determining whether the law should recognise the existence of a
legal duty in any particular circumstances what
is called for is not
an intuitive reaction to a collection of arbitrary factors but rather
a balancing against one another of identifiable
norms. Where the
conduct of the State, as represented by the persons who perform
functions on its behalf, is in conflict with its
constitutional duty
to protect rights in the Bill of Rights, in my view, the norm of
accountability must necessarily assume an
important role in
determining whether a legal duty ought to be recognised in any
particular case. ’ (Court’s emphasis)
and
p446 and 447:
“
However,
where the State's failure occurs in circumstances that offer no
effective remedy other than an action for damages the norm
of
accountability will, in my view, ordinarily demand
the
recognition of a legal duty unless there are other considerations
affecting the public interest that outweigh that norm.’’
(Court’s emphasis)
[23]
In Rail Commuters Action Group v Transnet Ltd t/a Metro rail
[2004] ZACC 20
;
2005 (2)
SA 359
(CC) the Court found at paragraph 88:
“
Factors
that would ordinarily be relevant would include the nature of the
duty, the social and economic context in which it arises,
the range
of factors that are relevant to the performance of the duty, the
extent to which the duty is closely related to the core
activities of
the duty-bearer - the closer they are, the greater the obligation on
the duty-bearer, and the extent of any threat
to fundamental rights
should the duty not be met as well as the intensity of any harm that
may result. The more grave is the threat
to fundamental rights, the
greater is the responsibility on the duty-bearer. Thus, an obligation
to take measures to discourage
pickpocketing may not be as intense as
an obligation to take measures to provide protection against serious
threats to life and
limb. A final consideration will be the relevant
human and financial resource constraints that may hamper the organ of
State in
meeting its obligation. This last criterion will require
careful consideration when raised/’ (Court’s emphasis)
[24]
If these principles are applied to the present case the court has to
determine whether a reasonable person who could foresee
the harm
should have taken steps to prevent it. In this instance the harm was
to the plaintiffs life and limbs, which involved
great risks. A
heavier burden is placed on a defendant in circumstances where great
risks exist.
[25] In Ngubane v South African
Transport Services
[1990] ZASCA 148
;
1991 (1) SA
756
AD Kumleben JA held at G - J:
“
As
regards the requirement in para (a) (ii) above in this judgment, it
is acknowledged that reasonable steps are not necessarily
those which
would ensure that foreseeable harm of any kind does not in any
circumstances eventuate. The contributor (Prof J C van
der Walt) in
Joubert (ed) The Law of South Africa vol 8 sv 'Delict' para 43 at 78
comments in this regard that:
'Once
it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would
have taken
measures to prevent the occurrence of the foreseeable harm. The
answer depends on the circumstances of the case. There
are, however,
four basic considerations in each case which influence the reaction
of the reasonable man in a situation posing a
foreseeable risk of
harm to others: (a) the degree or extent of the risk created by the
actor's conduct; (b) the gravity of the
possible consequences if the
risk of harm materialises; (c) the utility of the actor's conduct;
and (d) the burden of eliminating
the risk of harm.'”
[20]
In Shabalala v Metrorail
2008 (3) SA 142
(SCA) Scott JA found at
paragraph 9:
“
But
even assuming that the presence of a security guard in the coach
would have sen/ed 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”
(Court’s emphasis)
[21]Both
counsel referred the court to the Shabalala matter. The plaintiffs
counsel argued that this case should be distinguished
from the
Shabalala case as the plaintiff was attacked by three unarmed men who
approached him from another coach as he had been
the only passenger
in his coach. It is thus clear that a security guard on this
particular train would have been able to move between
coaches.
[22]If
the court applies the principles as set out by O’Regan J in the
Rail Commuters case, it is clear, that the defendant
knows that these
incidents of throwing people from the trains are not isolated
incidents. Therefor there is an obligation to take
measures to
provide some form of protection on trains. The defendant’s own
witness conceded that if there had been one armed
security guard on
the train, it may have prevented these actions. The test is not
whether all incidents may be avoided by putting
armed security guards
in each coach, but whether the defendant should have foreseen that
harm would come to the plaintiff, knowing
that these incidents take
place on trains, even more so during the festive season and where
train doors did not close.
[23]This
incident took place during the festive season, which according to the
defendant’s own witnesses posed a greater risk
of incidents of
this nature taking place. There was no evidence before court that the
defendant could not afford one armed security
guard per train,
although it was conceded by Mr Vermaak, for the defendant that it
would have had a deterrent effect on unarmed
criminals. The
uncontested evidence was that the altercation had lasted several
minutes and if there had been a security guard
on the train, he could
have intervened. Due to the fact that the court accepts that the
train doors were open it stands to reason
that it would have been
much easier to push or throw a person from the train.
[24]
Although Mr Khumalo conceded that more crime occurred during the
festive season, there was no evidence that the defendant had
deployed
more security guards to prevent such incidents. The presence of
security guards at Walker Street station could have prevented
the
train leaving the station while some train doors were still open and
causing a greater risk to the plaintiff.
[25]
The court has taken into account that the grave harm the plaintiff
had sustained was reasonably foreseeable and placed a heavier
burden
on the defendant to prevent such an incident. No reasonable steps
were taken to prevent the harm, even with the knowledge
that
incidents of crime were higher during the festive season and open
doors on trains could increase the risk of having the plaintiff
thrown from the train.
[26]
The defendant did not explain or rely on the cost implications if
only one armed security guard was present on each train,
but only
dealt with the huge costs involved should there be three armed guards
per coach on each train consisting of 12 to 14 coaches.
The court
accepts that it would not be economically viable to have three armed
guards in each coach. However it was not explained
why there was not
even one guard on train M10.
[33]
In these circumstances I find that the defendant was negligent by not
ensuring that the train doors were closed when the train
left Walker
Street station, by not deploying at least one armed guard per train
during the festive season as a deterrent to potential
criminals and
by not having security guards at Walker station to ensure that the
train doors closed before departure. There is
a duty on the defendant
to ensure passengers on trains safety, although it must be accepted
that crime can never be totally prevented.
The defendant is held
liable for the incident where the plaintiff was apprehended, robbed
and thrown from the moving train whilst
the doors were open.
[34]
The following order is made:
1.
The defendant is liable for 100% of the plaintiffs proven or agreed
damages;
2.
The defendant to pay the plaintiffs costs relating to the merits of
the action;
3.
The question of quantum is postponed sine die.
Judge
Pretorius
Case
number Heard on For the Plaintiff Instructed by For the Defendant
Instructed by Date of Judgment : 29906/2011 : 10 September
2013 : Adv
SG Maritz : CP van Zyl Ing : Adv JG Ciltiers SC : Stone
:
1 October 2013