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[2012] ZAGPPHC 60
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Malatjie v Passenger Rail Agency of South Africa (2377/11) [2012] ZAGPPHC 60 (20 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 2377/11
DATE:
20 April 2012
IN
THE MATTER BETWEEN:
T
MALATJIE
..............................................................................................................
PLAINTIFF
and
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
..............................................
DEFENDANT
JUDGMENT
LEDWABAJ:
[1]
The plaintiff, a 32 year old male who is now on a wheelchair was
seriously injured on 30 April 2010 when he was attacked whilst
he was
a passenger in a train between Mabopane Station and Soshanguve
Station, in the district of Gauteng.
[2]
He is suing the defendant, for the injuries he sustained. The
defendant is defending the action. At the commencement of the
trial,
as agreed between the plaintiff and the defendant's counsel, I
ordered that there should be a separation between the issue
of
liability and quantum and the trial proceeded on the issue of
liability only.
[3]
The plaintiff testified and called one witness before closing his
case. Two witnesses Mr S C Vermaak and Mr Bronkhorst testified
on
behalf of the defendant. The plaintiff testified that he boarded a
train at Mabopane Station and he had a valid train ticket.
He found
four men in the carriage he went into. After sitting down, in less
than 5 minutes, after the train moved from the station
one of the
four men approached him and requested a R 2.00 coin from him. When he
told him that he did not have money the second
man approached him
grabbed him with his clothes, pulled and pushed him around. The other
two men joined in the attack and he was
searched. An amount of R350
(three hundred and fifty rand) was taken from him.
[4]
He specifically said he was tossed around next to the wide door of
the train and one of the four attackers also slapped him.
As the
attack continued he lost his consciousness and regained same at Dr
George Mukhare Hospital. He further said if the train
driver had
closed all the train doors he would not be thrown out of the train.
During cross examination he said he could not explain
how he moved
out of the train which was in motion.
[5]
He also confirmed that he made two affidavits in respect of the
incident of the 30th of April 2010. In paragraph 5 of his first
affidavit that he made at the Metro Rail offices he said the
following:
"I
don't know what happened as they pulled , pushing(sic) me around
within the Metro Rail Train (?), I realised myself in Dr
George
Mukhare Hospital in Garankuwa."
[6]
In the second affidavit that he made to his legal representatives (a
copy of the said statement that was not commissioned was
handed to
the court by agreement and was labeled exhibit C. But the plaintiffs
counsel said that exhibit C was properly commissioned
and the
original thereof was sent to the defendant). Paragraph three of
exhibit C reads as follows:
"On
the 30th of April 2010 at approximately 13h30 I was a passenger in a
Metro Rail Train from Mabopane to Pretoria. Whilst
in the train
between Mabopane and Soshanguve three male persons approached me and
demanded money. I did not comply with their demand
and they mugged me
and threw me out of a moving train. I was unconscious after the
incident.,T
[7]
The plaintiff could not explain, during cross examination why in both
statements he did not mention that the doors of the trains
when the
train was in motion were open, although when he testified he insisted
that the train doors were open. He at one stage
during cross
examination also conceded that he infers that the train doors were
open because ultimately he landed outside the train.
[8]
The plaintiff denied that the issue of the open train doors was an
after-thought and that this aspect was suggested to him by
someone.
He also specifically denied that he consulted with anybody, including
his attorney and counsel, before he testified in
court. In my view,
his denial is ridiculous because it is clear that he did consult with
the Metro Rail Officer and his legal representatives.
[9]
He further said he used to commute by a train to seek for employment
and has never seen the train doors being open whilst the
train is in
motion. When it was put to him that the train doors were operating
properly and that they were all closed when the
train left the
Mabopane station he denied same.
[10]
The plaintiff's witness other than stating that on 30 April 2010 he
went to the scene where the plaintiff was found at a point
marked
with a 'X' on exhibit 1 he did not say anything material to support
the plaintiffs case.
[11]
In paragraph 5 - 7 of the plaintiffs particulars of claim the
following allegations are made:
"10.1
On or about 30 April 2010, between Mabopane Station and Soshanguve
Station, within the jurisdiction of this Honourable
Court, Plaintiff
was on board a train for which he had a valid ticket, whilst on board
the train with the carriage doors opened
whilst the train was in
motion plaintiff was forced/ejected/pushed out of the carriage by
other passengers, as a result of which
Plaintiff lost his balance and
fell out of the carriage.
10.2
The sole cause of the Plaintiff falling from the train, was the
negligence of the conductor, whose identity is to the plaintiff
unknown, who was negligent in one or more or all of the following
respects:
10.2.1
He/she signaled to the driver of the train that it was safe for the
latter to set the train in motion whilst the carriage
doors were
open:
10.2.2
He/she signaled to the driver of the train that it was safe for the
latter to set the train in motion without ensuring that
all the
carriage doors were closed and/or adequately closed;
10.2.3
He/she failed to keep a proper and adequate lookout;
10.2.4
He/she failed to pay due regard to the safety of passengers on board
the train;
10.2.5 He/she failed to
prevent the said accident when by exercise of due and responsible
care he/she could and should have done
so.
10.3
ALTERNATIVELY, the sole cause of the plaintiff's falling from the
train was the negligence of the driver of the said train,
whose
identity is unknown to the plaintiff, who was negligent in one or
more or all of the following respects:
10.3.1
He/she set the train in motion whilst the carriage doors were open;
10.3.2
He/she failed to close and/ or ensure that all the carriage doors
were closed and/or adequately closed before setting the
train in
motion;
10.3.3
He/she set the train in motion without ensuring that all the carriage
doors were closed and/or adequately closed;
10.3.4
He/she failed to keep a proper and adequate lookout;
10.3.5
He/she failed to prevent the accident when by the exercise of due and
reasonable care, he/she could and should have done
so."
[12]
In the plaintiffs reply to the defendant's request for further
particulars dated 5 January 2012 in paragraph 4 the response
is the
following:
"
The plaintiff was intentionally pushed out of the carriage and he
resisted but eventually lost his balance and fell out of
the
carriage."
[13]
The defendant's first witness Mr Vermaak who worked for Transnet
between 1993 - 2007 testified that the train doors operate
mechanically with air-pressure to open and close. The mechanism is
controlled by the train guard.
[14]
Importantly, in my view, he said when the doors have been closed a
strong person can manage to open them, furthermore to prevent
harm to
commuters when a door which is about to close gets into contact with
part of the body of a person it would not squeeze
same but the door
would re-open. Also in case of emergency the door is made in such a
manner that it can be forced to open.
[15]
Mr Bronkhorst testified that on 30 April 2010 he was the guard
responsible for commuter safety and was responsible to close
the
train doors and to signal the train driver to move when it was safe
to do so. He was also responsible to open the doors when
the train
stopped at a station.
[16]
He said on the day of the incident when he took over from the guard
who knocked off, the train doors were functioning properly.
He
further explained that any of the doors when a door malfunctions, it
is manually locked and notice's put on the said door and
a written
report is made regarding the said malfunctioning.
[17]
He further said when the train stopped at Soshanguve Station he was
informed that a passenger fell from the train and he checked
the
doors to check if they were still in order and there was no fault
with the doors.
[18]
During cross examination he was asked why in his report on page 14 of
exhibit B did he only say ".../ didn't witness the
said incident
at Mabopane / Soshanguve Station on the 3&h of April 2010"
and not mention that the doors were closed and
were in a good working
order. His response was then he was asked if he witnessed the
incident and was not asked about the doors.
[19]
On the evidence presented I should now determine if the defendant is
delictually liable for the damage suffered by the plaintiff.
That is,
was there any negligence or omission on the part of the defendant?
The onus is on the plaintiff. The plaintiff must adduce
sufficiant
evidence to prove negligence or an omission.
[20]
In casu the plaintiff alleged the doors were open. Mr Bronkhorst said
when the train left Mabopane Station all the doors were
closed. On
proper and careful analysis of the evidence, I think Mr Bronkhorst's
version that the doors were closed when the train
left the station is
more probable and accepted because:
19.1
Mr Bronkhorst was a credible witness, his evidence was straight
forward and he responded clearly and logically to the questions
put
to him.
19.2
On the contrary the plaintiffs evidence in court differed with the
contents of the two affidavits he made in that when he testified
in
court he added that the doors were open.
19.3
In the two affidavit's he said he was attacked by three men but in
court he mentioned that he was attacked by four men.
19.4
The plaintiff said the doors on both sides of the train were open and
Mr Bronkhorst clearly testified that on the day in question
only
doors on the one side were open.
[21]
It is clear that the plaintiff was unexpectedly attacked just after
the train left the station, in my view, he did not have
ample
opportunity to observe whether the doors were opened whilst the train
was in motion.
[22]
It should also be kept in mind that Mr Vermaak said the train doors
for the safety of the passengers can be opened even after
being
closed by the guard. There is a possibility that the doors could have
been opened by the four thugs after the train left
the station.
[23]
The plaintiffs counsel referred me to Transnet Ltd v Witter
(517/2007)
[2008] ZASCA 95
(517/2007) (16 September 2008) when it was
held that a train
leaving a station with
open doors constitutes negligence. On the facts of this case the
principle in the Witter case is not applicable.
[24]
Having regard to the evidence that the doors may be forced to open
and the fact that it is clear that the plaintiff was attacked
by
three or four thugs, it would be unreasonable to impute liability on
the defendant.
[25]
Realistic and sensible judicial approach to the facts and
circumstances of this case forces me to conclude that the plaintiff
failed, on the balance of probabilities to prove any negligence on
the part of the defendant.
[26]
1 therefore make the following order:
The
plaintiff's case is dismissed with costs.
AP
LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 17 April 2012
FOR
THE PLAINTIFF: Adv K K Kekana
INSTRUCTED
BY: Ntabeni Attorneys, Pretoria
FOR
THE DEFENDANT: Adv J G Cilliers SC
INSTRUCTED
BY: Stone Attorneys, Pretoria