3. were not close d while the train was in motion or trans it.
BACKGROUND
4. The matter was heard on 5 and 6 August 2024 after the parties agreed that the
issue of quantum should be postponed sine die .
5. The d efendant is the Passenger Ra il Agency of South Africa, a state -owned
enterprise responsible for providi ng metro rail services and long -distance rail across
South Africa. The plaintiff was a fare-paying passenger or commuter in the Metrorail
train.
6. The plaintiff proposed that the defendant should be held 100% li able to compensate
him for such damages that he may prove, or be agre ed upon between the parties
because the me mber s of the d efendant were negligent in one or more or all of the
following conducts:
6.1 by failing to ensure that the train doors were closed and remained closed
when the train was in transit.
6.2 The failure to provide sufficient security officers to control the influx of
commuters onto the train.
7. In the particulars of the claim the plaintiff averred that the accident was caused by
the wrongful and negligent conduct of the defendant and its employees, acting
within the course and scope of employment, in breach of their legal duty towards
the plaintiff in one or more of the following respect:
7.1 defendant failed t o close the doors of the train whilst the train was in motion;
7.2 defendant failed to implement safety and/or s ecurity measures to ensure that
the doors of the train closed whilst the train was in transit;
7.3 The defendant failed to take steps to prevent the incident when by the
exercise of reasonable care, they could and should have done so;
7.4 The defendant failed to take steps to prevent t he incident when by exercise
of reasonable care, it could and should have done so.
8. The plaintiff further pleaded that a reasonable person in the position of the
defendant should have foreseen the reasonable possibility that failure to take steps
to guard against the occurrence of an accident could cause members of the public
and the plaintiff in particular, to sustain serious bodily injuries causing such member
of the public and the plaintiff to suffer both patrim onial and non - patrimonial loss.
9. The defendant defended the a ction and denied liability on the basis that the accident
was caused as a result of the sole negligence of the plaintiff in one or more of the
following:
9.1 He voluntarily boarded an overcrowded train where there was no space;
9.2 He failed to take any or ad equate steps to prevent the accident when he could
and should have exercised reasonable care ;
9.3 He stood at the open door of a moving train which posed danger to himself at
that moment.
10. The defendant pleaded in the alternative that should the court find that the
defendant was negligent, such negligence did not contribute to the plaintiff’s being
pushed out of the train and in the event the court finds that the court finds that such
neglig ence contributed to th e plaintiff being pushed out of the train , the plaintiff was
also guilty of contributory negligence and the damages suffered by the plaintiff
should be reduced proportionate to the degree of his negligence.
BRIEF SUMMARY OF FACTS
Plaintiff’s case
11. The p laintiff testified that he was with his friend by the name of Tumisho Ratshidi
when he boarded the train from Bosman Station to Saulsville Station between
14:00 and 16:00. After boarding the train he realized there was no vacant seat for
him to occupy so he stood on the aisle holding a steel bar and gradually moved
back towards the opposite door while the train was moving . The doors of the
carriage in which he was traveling did not close and continued to stay open
throughout the journey.
12. The plaintiff testified that the train made stops at four or five stations between
Pretoria (Bosman) station and Kalafong station. Each time the train stopped at a
platform, passengers pushed him toward the opposite door. Because all the seats
in the coach were already taken, he was forced to hang onto the straps attached
to the middle steel bar. As the train approached Kala fong station with its doors still
open, a hawker approached the door next to the plaintiff and pushed him out of
the train. As a result, the plaintiff’s feet were flung into the air, and he fell onto the
concrete platform below, with his head striking the ground due to the force of the
moving train. The accident caused a head injury and scarring on the lower part of
his back. A security officer at the platform called an ambulance after being unable
to stop the bleeding from the plaintiff’s back.
13. The plaint iff’s uncle, Reuben Rathihaya’s testimony does add value to the
plaintiff’s case because he did not witness the accident.
Defendant’s case
14. Gezani Justice Manganye testified that he starte d working for the defendant in
December 2013 and h is duties among others include d observing the safety of
people embarking and disembarking the train when the train is stationed at the
platform s and assisting the train driver by opening and closing the doors when the
train stops at th e station. H e alerts the driver not to depart by ringing three (3) bells
If he notices anything that is not in order including the open doors.
15. The witness testified that on the day in question , the train approa ched the station
and once it stopped he opened the d oors. As he was observing the platform he
noticed the plaintiff who at the time was wearing a whi te t-shirt, was lying on the
floor. He then rang 3 bells alerting the driver of the train not to depart. He
approached the plaintiff to find out what was happening and the plaintiff just said
sorry. He left the plaintiff to go and find a friend who was traveling with the plaintiff.
He further testified that he informed the security guards at the station and ha nded
the plaintiff to them, then he got into the train and depart ed.
ISSUES FOR DETERMINATION
16. The court will determine whether the plaintiff was ejected from the train due to the
defendant’s failure to close the doors or if the plaintiff’s actions (surfing the train)
were the primary cause of the injury.
ANALYSIS OF EVIDENCE
17. The plaintiff’s claim for damages can only succeed if he proves that his injury
directly resulted from the defendant's actions or inactions, as the burden of proof
rests with him. This principle is grounded in the legal maxim he who alleges must
prove .
18. Our law of delict requires the plaintiff to establish four key elements to succeed in a
claim for damages: wrongful conduct (negligence), fault, causation, and damages.
In assessing negligence, it is helpful to first recognize the defendant’s duty to ensu re
safe and secure passenger rail services, which includes the responsibility to prevent
accidents and harm to passengers through the exercise of reasonable care. In this
case, the plaintiff must demonstrate that the defendant failed in its legal duty to
provide such care. Specifically, the plaintiff contends that the defendant’s failure to
close the train doors created a hazardous situation that ultimately led to his injury.
Conversely, the defendant argues that the plaintiff’s injuries were the result of his
reckless behaviour.
19. The plaintiff must prove that he was pushed out of the train because the doors were
not closed and demonstrate that this failure directly led to the incident. The key
question is whether the accident would have occurred if the train had not been
moving with its doors open. This is typically assessed using the “but -for” test: but
for the defendant’s failure to close the door while the train was moving, would the
harm have occurred? Additionally, the plaintiff must show that the harm r esulting
from this failure was a reasonably foreseeable consequence of the defendant’s
conduct.
20. The court has carefully considered the plaintiff's testimony that the train was full
when he boarded at Bosman station and he stood next to the open door because
the door of the courage in which he commuted was not closed. He was standing
close to the open door throughout the journey until a hawker suddenly emerged and
pushed the pla intiff from a moving train. The defendant pleaded that the plaintiff
was engaging in dangerous behaviour by attempting to "surf" the train by boarding
an already full train and standing on an open door while it was moving . This
evidence was not challenged by the defendant safe to state that the defence
pleaded that the plaintiff was harmed because he was surfing by standing next to
the open door . I will deal with this allegation or defence that the plaintiff was surfing
the train later.
21. I will first d eal with the plaintiff's account of events on the train and at the platform
after he was injured. The plaintiff’s evidence was not impressive because he
exaggerated the circumstances surrounding the incident by suggesting that the
open doors of the moving train solely caused the accident. This claim is speculative
and inconsistent with the factual evidence available. There is no objective basis for
this claim, and it appears to be an attempt to amplify the perceived danger of the
situation
22. The plaintiff wa s the only witness who testified about the events on the train and his
evidence was not satisfactory. He mentioned that he was with his friend when he
boarded the train but he made no mention thereafter until the court enquired about
this friend that the p laintiff’s counsel mentioned in court that the plaintiff’s friend
could not be traced. The plaintiff’s testimony was that he went to the toilet to wash
the blood coming from the back of his head, and came back to lay in the same spot
where he fell is rathe r peculiar. This was not disputed by the defendant, in fact , the
defendant witness confirmed the plaintiff’s testimony that he was accompanied by
a friend who he interviewed after the accident. The plaintiff’s version that he stood
next to the open door fr om the first platform to the fifth platform where he had an
accident because the train was full because people were only embarking on the
train is not only improbable but supports the defendant's claim that the plaintiff’s
action contributed to the acciden t.
23. The evidence of Gezani Justice Manganye who testified on behalf of the defendant
did not assist the defendant's case because he could not see what was happening
in the other couches or wheth er the doors were closed or not as the only metro rail
guard on the train was at the tail of the train and his view was obscured . The defence
version that on the day in question, the train was not full because it was the weekend
and he closed the doors contradicts the defendant's plea wherein it was conceded
that th e train was full and the door was open when the train was in motion.
24. From the pleadings, the plaintiff based her cause of action on the allegation that the
employees of the defendant breached their duty of care to him as a result he
suffered harm. The plaintiff has set out the legal duty impressed on the defendant
and how the defendant breached its legal duty to care as discussed in paragraph 5
of this judgment . Consequently , the plaintiff has detailed the grounds of n egligence
in line with the court’s finding in finding in SA Fish Oil Producers’ Association
(Pty)Ltd v Shipwrights & Engineers Holdings Ltd1 the court announced that the
particular grounds of negligence must be detailed and in Beurain h/a Toptrans
Transport v Regering van die RSA2 the plaintiff is was required to set out the facts
that could or should have been foreseen by the defendant.
25. The plaintiff’s argument that the defendant has a duty to provide transport that is
safe and secure for commuters and a legal duty to prevent harm to commuters was
confirmed in Shabalala v Metro Rail3 in para [7]) where it was said that PRASA is
duty-bound to take all such steps as are reasonably necessary to put proper and
adequate safety and security measures in place PRASA is duty -bound to take all
1 See :SA Fish Oil Producers’ Association (Pty)Ltd v Shipwrights & Engineers Holdings Ltd 1958 (1) SA
687.
2 Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O).
3 Shabalala v Metro Rail [2007] ZASCA 157 .
such steps as are reasonably necessary to put proper and adequate safety and
security measures in place, these would include, but n ot limited to, steps to properly
control access to and egress from all trains and facilities used by rail commuters
wherever PRASA provides such services. This requires PRASA to take reasonable
steps to ensure the safe passage of commuters (including the p laintiff) and any
failure to take such steps may render it liable in delict.
26. The court must accept that the plaintiff has discharged his onus on the balance of
probabilities that the Defendant was negligent, and further that there is a causal link
between the plaintiff’s injuries and the Defendant's despite the above -mentioned
destructive evidence of the plaintiff. The concession by the defendant that the train
doors were open while the train was in motion plays a crucial role in establishing a
breach of duty.
27. The defendant's admission acknowledges that the train was being operated in a
manner that posed a clear safety risk to passengers. This admissio n is sufficient to
support the argument that the defendant breached the legal duty of care, which
requires train operators to ensure the safety of passengers, particularly by ensuring
that train doors are secure when the train is in motion . In National Emp loyers'
General v Jagers4‘ the court held that ‘ where the onus rests on the plaintiff as in the
present case and where there are two mutually destructive stories, he can only
succeed if he satisfied the Court on a preponderance of probabilities that his version
is true and accurate and therefore acceptable and that t he other version advanced
by the defendant is therefore false or mistaken and falls to be rejected.
28. Moreover, the failure to secure the doors of a moving train is a clear deviation from
the standard of care expected from a train operator. Operating a tra in with open
doors, especially when the train is already full of passengers, is not only reckless
but also grossly unreasonable. This situation creates an environment where harm
is not just likely but almost inevitable, as evidenced by the plaintiff's inju ry. The
failure to close the doors of the train represents a known safety hazard. This failure
disregards the fundamental responsibility of ensuring passenger safety and, by
.4 See National Employers' General v Jagers 1984 (4) SA 437 (E) at 440D. See also Stellenbosch Farmers' Winery
Group Ltd v Martell et cie 2003 (1) SA 1 (SCA) para 5 and Dreyer v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA)
at 558E -G.
extension, the human dignity of those passengers. Such conduct cannot be
condoned, as it demonstrates a blatant disregard for both human life and safety.
29. The plaintiff also contributed to the accident by surfing the train however t he
plaintiff's actions do not absolve the defendant of responsibility, as the critical issue
is the defendant’s failure to operate the train safely, which directly contributed to the
plaintiff's harm. The plaintiff's recount of how and where he stood on the train
throughout the jo urney supports the defendant's version that the accident happened
because the plaintiff was engaging in a dangerous maneuver .
30. The train is made of several carriages and a passenger can maneuver from one
carriage to the other even when the train is moving. The plaintiff boarded a train
that was full and stood next to the open door the whole trip when he had an
opportunity to move to the other couches or look for a safe space to occupy. Despite
the realization that the train was “full” the plaintiff assumed risk by remaining
standing in the full carriage with the open doors. The fact that the plaintiff was
surfing the train is however an intervening factor that does not absolve the
defendant from responsibility or le gal duty to act accordingly.
29. In conclusion, the defendant's failure to secure the train doors is a breach of the
duty of care owed to the plaintiff and this breach directly caused the plaintiff's injury.
Thhe defendant was negligent and such negligence did contribute to the plaintiff’s
being pushed out of the train. The plaintiff is also guilty of contributory negligence
and the damages suffered by the plaintiff should be reduced proportionate to the
degree of his negligence.
30. There are no fast and hard rules for determining or calculating contributory
negligence in our system. The apportion ment of liability between the parties based
on their respective levels of fault. Consequently, the plaint iff is found to be 40% at
fault. T he plai ntiff would recover 60% of the total damages .
COSTS
30. The only submission made in respect of the costs by the plaintiff was that costs
should not follow the results and the Plaintiff’s costs of suit, incl uding the full costs
Counsel Adv N.C M uleya
Contacts 068 094 3944
Cedric@advocatemuleya.co.za
For the Defendant : State Attorney
Contacts 012 309 1674
Email IMakhubela @justice.gov.za
Counsel: Adv Thangwana