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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG )
Case No: 2017 /43129
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED
DATE : 7 March 2025
SIGNATURE
IN THE MATTER BETWEEN:
IVANE ESENGO PLAINTIFF
And
PASSENGER RAIL AGENCY
OF SOUTH AFRICA DEFENDANT
JUDGMENT
SIWENDU J
Introduction
[1] The court is asked to determine a separated issue of negligence in action
proceedings instituted by the plaintiff against the defendant following an incident at
Benoni train station on 19 August 2017 . The plaintiff sustained an injury to the knee
of his right leg when disembarking a train . If negligence is proved, quantum will be
determined at a later stage.
[2] The plaintiff Mr Esengo Ivane (Mr Esengo), is from the Democratic Republic
of Congo (DRC) . He is in South Africa as an Asylum Seeker. He is self -employed. At
the time of the incident , Mr Esengo lived at […] Street, Corner 4th Avenue, A […]
H[…] Building, First, Room No 1 […], Springs, Gauteng.
[3] By agreement between the parties, Mr Esengo’s p articulars of claim were
amended in January 2020. At the hearing of the trial, he sought leave to make a
further amendment to paragraph 1 of the particulars , to reflect the correct Asylum
Number : J[…]. The defendant, Pass enger Rail Agency of South Africa (Prasa) , did
not oppose the application, and the amendment was granted by agreement .
[4] Prasa is a State Owned Enterprise (SOE) established under Section 22 of the
Legal Succession to the South African Transport Services Act 38 of 2008 . Prasa
provid es Commuter rail services within metropolitan areas .
[5] Mr Esengo alleges that on 19 August 2017, he boarded a train operated by
Prasa at Springs train s tation to Benoni . The train was overcrowded and travelled
between Springs and Benoni with the doors open. When it reached the vicinity of
Benoni train station , “commuters started to push and shove each other around inside
while the train was in motion with its doors open and as a result [the] Plaintiff was
pushed through the open doors and fell out of the aforesaid moving train. ”
[6] He alleges that Prasa was negligent and was the sole cause of the incident in
which he was injured because it “failed to take any or any adequate steps to prevent
overcrowding ” and “failed to take any adequate steps to prevent that the train does
not move with its doors open posing danger to the commuters in particular the
Plaintiff .”
[7] Further grounds pleaded for negligen ce are that Prasa failed to exercise
reasonable care “to maintain the that train doors to ensure that it cl oses and open at
an appropriate time ” “remained closed while the train was in motion ” …and “ensure
that the train did not move before commuters have embarked and/or disembarked .”
[8] Prasa does not dispute the duty of care it owes to commuters. However , it
disputed liability and sought a dismissal of the claim with costs. Its defence is that Mr
Esengo disembarked the train while it was already motion and subjected himself to
the risk of injury . Prasa averred that Mr Esengo failed to exercise reasonable care to
avoid the accident. He was negligent and its sole cause .
[9] Mr Esengo testified in support of his case. He was a single witness. On the
other hand, Prasa called two witnesses in employ , Ms Mnguni , a train guard on duty
on the day and Mr Nkwanyana , a protection official in charge o f security .
[10] It was common cause that on 19 August 2017, Mr Esengo bought a single
way ticket N o:11730 , Operator No 20023385 from Springs to Benoni . He was a
passenger on the train No 0018 at 08:21 . After the incident he was taken by an
ambulance called by Prasa officials to Far East Rand Hospital where he was treated
and discharged the same day .
Trial Evidence
Plaintiff’s evidence
[11] Mr E sengo gave evidence in Lingala, a dialect of one of the indigenous
languages in the DRC . His attorneys had secured the services of a sworn translator ,
proficient in French Lingala and English.
[12] Mr Esengo testified in chief that he was a regular commuter on the train. As a
self-employed trader in appliances and other good s, he would purchase a one-way
ticket to the destination to collect the goods but use a taxi for the return trip becau se
it is convenient and can accommodate his stock.
[13] The morning of the incident , the train was overcrowded. He found a seat not
too far from the door . Some passengers were seated , while others were standing.
The train doors were wide open ed. As the train approached Benoni station , it slowed
down. He stood up preparing to exit but was surprised by other passengers . They
did not wait fo r the train to stop but instead pushed to exit the wagon. Passengers
behind pushed him as they exited the train. He lost “a bit of control and fell.” The
knee of his right leg hit the floor . He felt pain and screamed.
[14] A security guard approached him while he was lying on the f loor. Mr Esengo
explained to the security guard what had transpired. He showed his train ticket . The
security guard took notes of the incident . An ambulance was called, and he was
taken to the Far East Rand Hospital. He had no recollection of speaking to any other
person from Prasa other than the security guard. Although he testified that he recalls
speaking to one person, when questioned by his counsel he stated that “I was on the
ground, and they asked me what happened, and I informed them what I told the
court.” He disputed that he jumped from a moving train.
[15] During cross examination, he confirmed his personal details were correctly
recorded by Prasa personnel who attended at the scene. On entering the train, he
found a seat next to the door and could see the doors from where he was seated. He
disputed he was standing in the middle of the coach shortly before the accident. The
only time he stood was when the train was about to stop. When pressed about the
precise position relative to the train door s shortly before the accident , he s tated that
his seat was “a bit away” but not “right next” to the door. On a pointing out in court,
the parties agreed the distance was approximately 2.2meters away from the doors .
[16] He confirmed there are 7 stations between Springs and Benoni and it had
stopped at each of the station . Passengers were able to find seats as s ome
passengers embarked while others disembarked. He agreed t he train ma de
provision for standing passengers.
[17] He was challenged about the overcrowd ing claim. Although his evidence in
chief was that there were “many people on the train” he could not tell the number but
testified that the train was “fuller and fuller and overcrowded .” It was pointed his
evidence indicates there was sufficient space for commuters, and th is was
inconsistent with an o vercrowd ed train. The only basis he could offer was that all
seats were occupied, people squeezed with others, and it was difficult to pass
through .
[18] Questioned on how the accident occurred, he stated that the passengers did
not wait for the train to stop completely but disembarked while it was in motion. He
did not push through to exit f rom where he was . The passengers close to the door
were pushed out of the moving train . He did not land on platform on his feet. His
knee hit the concrete platform first. Although he did not try to break the f all, h is hands
were next to follow , he felt pain but there were no bruise s on his hands . He did not
sustain any other bruises other than to the knee.
[19] His evidence was challenged as a fabrication. He was the only passenger
injured during the incident . There were other passengers who were close r to the
door than he was . He could not say if other passengers fell because he was focused
on himself. It was suggested that i f he was pushed out of a moving train by other
commuters, it woul d have been with force . He would have sustained other injuries
other than to the knee . Mr Esengo stood by his account of the incident .
[20] Mr Esengo confirmed , he gave a report of the incident to a security guard at
the scene . He later conceded that there were two security guards. The version of the
statement recorded in the Liability Report was put to Mr Esengo during cross
examination t hat:
i. When the train arrived in Benoni, he tried to disembark. The train doors could
not open
ii. He went to the next coach and still, the doors would not open
iii. He went to the third coach and managed to open the doors
iv. By this time, the train was already in motion.
v. He disembarked b ut lost balance and fell on the platform
[21] He denied Prasa’s version of the incident recorded in the statement and
liability report. He did not read what they wrote but accepted th at his personal details
obtained from him were correctly recorded . Although he later accepted that he saw
two security personnel, he denied he saw Mr Nkwanyana. He confi rmed he d id not
go back to the station or think it necessary to identify the security guard after the
accident to assist him corroborate his account of th e incident . He denied t he version
by Prasa’s witnesses put to him, which I turn to below.
Prasa’s evidence
[22] Ms Tembani Mnguni (Ms Mnguni) , a train guard employed by Prasa was on
duty on the day. It was a Saturday . She took over Train 0018 in which Mr Esengo
was travelling . This was confirmed by an entry in the Daily Journal.
[23] Her duties are to ensure the safety of passengers by (a) checking the station
platform is clear to ensure that the train can depart after commuters have embarked
or disembarked , (b) communicating with the train driver using bells , (c) releasing the
train door operating button so the door can open and clos e, (d) investigate and
report train faults like low vacuum between pipes to ensure there is no loose pipe
between coaches .
[24] Her evidence was that b eing a Saturday , outside of the usual week peak
hours , the train was not overcrowded. She denied the train doors were open
throughout the journey. She would have known this at the time of handover . The
previous train driver and the team which she took over from would have info rmed her
if there was a fault. The fault would have been recorded by the train driver during the
hand over. S he would have reported the problem between Springs and Polla Park
stations for a technician to resolve it . Furthermore , open train doors pose a risk, and
passengers themselves would have been aggressive and shouted about the danger
posed by the doors .
[25] The procedure is that o nce the train stops, her duty is to releases the open
door buttons . The commuters open the doors from inside , manually. She would wait
a while to allow passengers to embark and disembark . Thereafter, s he would press
the close button . Once the close button has engaged, the train doors slide
automatically and cannot open manually once they are closed .
[26] The m echanism for opening and closing the doors differs in this manner: after
releas ing the button to open the doors for passengers to embark or disembark,
passengers inside the train can manually open the doors. But once the doors c losed
for the train to leave the station, passengers cannot open them manually unless they
use force . After checking the platform is clear, she would signal t o the train driver
using the whistle that the train can depart but keep a close observation of the
platform as the train would be in slow motion until it leaves the platform .
[27] At Benoni station, the rail and the platform curves slightly to the left. The curve
obstructs a complete view of the whole platform. On the day, a s the train left the
Benoni Station platform , she saw a male lying on the platform screaming “the doors,
the d oors.” She was puzzled and ask ed him “what about the doors ?” Their exchange
was in English, the train was already in motion albeit slow . A security officer was
approaching the screaming man.
[28] When the train reached Dunswart Station , she walked between the coaches
to inspect the t rain doors . She found some of the does did not release when she
pressed the open door button. What the screaming man at Benoni Station meant to
convey to her made sense . She understood this to be that he could not get out of the
train bec ause after the release of the “open doors” button, the train doors could not
open manually.
[29] Asked what option a passenger has if train doors do not open. She informed
the court that the passenger will either move to t he next coach to find a door that
opens or disembark at the next station and catch the next train back to the ir original
destination. This is what Mr Esengo could have done. She assume d this is what
other commuters did as the coach w as empty when she got t o Dunswart Station .
She put a door lock sticker on the coach doors so that they were not open for use by
commuters. She informed the train driver about the problem and the train was taken
for repair s once it arrived in Johannesburg. The Wits Metrorail : Faults Report dated
Monday, 21 August 2017 refers to the incident and records “ repaired .”
[30] Ms Mnguni testified she was not aware that Mr Esengo was injured . He was
sitting down during their exchange, and the train was already in motion. There were
no other passengers in sight. She could not have reported the incident because all
she saw was “a guy screaming the doors the doors.” Hence, s he investigated the
doors when she reached Dunswart. She did not inform the train driver about the
incident involving the man . The re was no need to ask the train driver to stop the
train. The man she saw was not within the yellow line which is recognised as a
dangerous zone of the platform.
[31] She accepted that when a commuter is injured, she is required to inform the
train driver to stop the train and hand over the issue to the train security guard at the
relevant station. In this instance , since a station security guard from Sinqobile was
movi ng towards Mr Esengo after their exchange , she did not report the incident .
[32] She did not speak to the security guard . She did not consider whether what
had occurred , was an “incident or an accident.” Her evidence was that often,
commuters open the doors illegally. Since the doors are automated, one must use
force to do so. It was only on 26 February 2018, six months after the incident, during
the investigation of the claim, when called to make a statement that she became
aware Mr Esengo was injured.
[33] Mr Nkwanyana, a protection official within Prasa’s Protection Services
Department in Brak pan was the next witness called . He is responsible for Asset
Protection, escorting and dealing with personnel and contract manage ment. He
attends t o incidents at Pras a’s premises and compile liability reports in respect of
train related accidents.
[34] Prasa contracted Sinqobile Security Services (Sinqobile ) to provide it with
security personnel at its stations . The Brakpan Segment Occurrence Book
(“Segment OB ”) recorded at 9:56am that:
“Injured Person: Sinqobile Controller [ phone number] reported that at Benoni
Station at about 9:45 am an African male person fell from a moving train at
platform 2 …PO Nkwanyana informed and ASS Khumalo informed. Awaiting
feedback ...”
[35] Mr Nkwanyana received a call about the incident and attended the scene at
Benoni Station. He met with Mr Esengo and Mr L. Cingo , a security guard employed
by in terms of the contract was placed at Benoni Station on the day. He introduced
himself to M r Esengo and completed the Protection and Security Services Liability
Report (Daily Report) based on information obtained from Mr Esengo . The incident is
recorded as :
“fell while disembarking from a moving train .”
The Daily Report goes further to state:
“According to the Injured male person he was inside train no 0018 and it
arrived at station he disembarked on moving train because doors were not
opening and fell on the platform injuries and sustained painful right knee and
no visible injuries.”
[36] Mr N kwanyana confirmed the contents of the Railway Occurrence Reporting
(Liability Report) he compiled on the date and within an hour of the incident at
Benoni Station. The Liability Report recorded Mr Esengo’s personal details . It had a
statement about the incident, recorded to have occurred at 9:45 am. The statement
also recorded that Mr Esengo sustained a painful right knee with no other visible
injuries .
[37] Mr Nkwanyana testified the Liability Report was based on information
obtained from Mr Esengo . After recording the incident, he called the Ambulance
Services to take Mr Esengo to Far East Rand Hospital . The ambulance driven by Mr
Buthelezi arrived at 10:40 am and departed at 10:48am. The Liability Report records
Mr Cingo as the security guard present at the scene and was later joined by this
Supervisor Mr Kubheka who arrived at the scene at 10:15am.
[38] Mr Nkwanyana was challenged about inconsistencies recorded as the time of
the accident. T he Daily Report seemingly placed the time of the inci dent at 10.09 am
while Mr Nkwanyana’s hand -written report stated it was at 9:45am. The incident was
reported by the security guard who had called his controller who in turn called Prasa.
He clarified that the time of the incident differed from his time of his arrival which was
at 10:17 am. He left at 10:55 am.
[39] Mr Nkwanyana tes tified that t he security guard would have also spoken to Mr
Esengo and recorded the information in their Occurrence Book (OB). He disputed
that he did not speak to Mr Esengo in addition to the security personnel. He had
personally attended at the scene.
[40] A question posed to Mr Nkwanyana concerned a n entry about negligence .
The Liability Report has a series of questions which required Mr Nkwanyana to mark
the answers . In section 10 deals with the behaviour of the injured or deceased
person. One of these question s was whether the injury or fatality was “due to own
negligence.” Mr Nkwanyana marked this as a “n o”. It was suggested this must be
interpreted to mean the injury was not due to Mr Esengo’s negligence . Mr
Nkwanyana ’s answer was that he could not comment about negligence since he did
not see the accident . He wrote what was told to him.
Issue for Determination
[41] The question for determination is that of negligence, based on the time-
honoured test stated in Kruger v Coetzee.1 The case turns on how the accident
occurred, and whether Prasa caused or contributed to the accident. It is whether:
i. Prasa allowed an overcrowded train to travel between Springs Train Station
and Benoni Train with its doors open .
ii. That c onduct result ed in Mr Esengo being pushed out of the moving train by
other commuters .
1 1962 (2) SA 428 (A) at 430 E
iii. Prasa should have foreseen the reasonable possibility that an overcrowded
train travel ling with open doors would result in Mr Esengo being pushed out
by other passengers causing him injury to his right knee and,
iv. Should have taken reasonable steps to guard against the occurrence of the
incident but failed to take reasonable steps to prevent it.
[42] The questions must be objectively assessed , and the onus to prove
negligence on the balance of probabilities that the incident was due to Prasa’s
negligence rests with Mr Esengo .
Applicable Principles
[43] The account of how the accident occurred differs. Th roughout the trial and
during argument , parties advanced diametrically opposed versions .
[44] Mr Esengo was unwavering and maintained that the train was overcrowded
when he boarded at Springs Station. The train doors were wide open as it travelled
to Benoni. He was steadfast that he was pushed out of the train by other
passengers before it came to a complete standstill. Counsel for Mr Esengo contends
that open door speaks to Prasa’s negligence as found in Maduna v Passenger Rail
Agency of South Africa .2
[45] There is no quarrel with this principle, but Prasa denies the allegation. It
persists that Mr Esengo was negligent, alleges he voluntary assumed the risk,
alternatively, contributed to his injuries by disembarking a moving train. Where the
versions advance d are mutually destructive, Coetzee J in African Eagle Life
Assurance Co Ltd v Cainer ,3 stated that:
2 2017 JDR 1039 (CJ) at para [28]
3 African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) at 237D –H [also reported at [1980] 1 All
SA 122 (W) – Ed]. applied the principle set out in National Employers ' General Insurance Association v
Gany 1931 AD 187
"Where there are two stories mutually destructive, before the onus is
discharged the Court must be satisfied that the story of the litigant upon whom
the onus rests is true and the other false. It is not enough to say that the story
told by Clarke is not satisfactory in every respect, it must be clear to the Court
of first instance that the version of the litigant upon whom the onus rests is the
true ve rsion …”
[46] The court in National Employers’ General Insurance v Jagers4 stated that:
“In deciding whether that evidence is true or not the Court will weigh up and
test the plaintiff’s allegations against the general probabilities. The estimate of
the credibility of a witness will therefore be inextricably bound up with a
consideration of the probabilities of the case and, if the balance of
probabilities favours the plaintiff, then the Court will accept his version as
being probably true . If however the probabilities are evenly balanced in the
sense that they do not favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can only succeed if the Court nevertheless believes
him and is satisfied that his evidence is true and that the defendant’s version
is false.’
[47] These principles mean , Mr Esengo “ 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 the version advanced by Prasa is therefore false or
mistaken and falls to be rejected.”
[48] However, the court in Koster Kooperatiewe Landboumaatskappy v SA
Spoorwee en Hawens5 read together with African Eagle Life Assurance C o Ltd v
Cainer 6 held that such an approach can only apply in cases where there are no
probabilities one way or the other, and that where there are probabilities, inherent or
otherwise, there is no room for this approach.
4 1984 (4) 437 (E) at 440D -G,
5 1974(4) SA 420
6 [1980] (1) ALL SA 122 (W)
[49] In assessing probabilities, the court make s a finding on the credibility of the
factual witnesses, their reliability, and the probabilities . The Court in Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others7 guides the
assessment to include impressions about “ the veracity of the witness ,” based on
“subsidiary factors” such as (i) the witness' candour and demeanour in the witness -
box, (ii) his bias, latent and blatant, (ii) 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.
[50] The whole evidence must be considered to determine the probabilities or
improbability each version of the disputed facts . Thereafter, decided whether Mr
Esengo discharged the onus to prove negligence.
Analysis
[51] The condition s before the accident , the journey between stations and his
arrival at Benoni Station are a material starting point . His evidence was that the
incident occurred on a weekday, and he boarded an overcrowded train. An
examination of the train ticket shows it was purchased on a Saturday . The denial is
at odds with objective facts.
[52] Then there is the claim that the train doors were open. It was common cause
that there are approximately 7 stations between Springs and Benoni Stations. There
was no evidence of incidents reported between stations or a record of complaint
about open doors by passengers. Ms Mnguni whose evidence I accept would have
been informed.
[53] As to the claim that the train was overcrow ded, there were inherent
contradictions between the reply to further particulars delivered on his behalf, which
7 2003 (1) SA 11 at 141 -15D
placed the time of the incident at 13h00 , and the evidence by Prasa that the incident
occurred at 09h45. Ms Mnguni ’s evidence that , it being a Saturday and the time of
the incident fell outside of the peak hours when trains are full aligns common cause
facts at the trial, of the time when he pur chased the ticket and record of the incident
that it occurred at 09h45 .
[54] I am prepared to give Mr Esengo the benefit of doubt, that the time provided
in the reply to further particulars was attributable to an error by his attorneys.
However, his persistence that the incident occurred on a Saturday and the train was
overcrowded is not supported by the objective facts and probabilities . Mr Esengo
was able to find a seat in an overcrowded train. He admitted other passengers were
able to find seats as they embarked and disembarked at various stations. This has a
bearing on Mr Esengo ’s version of how the accident occurred.
[55] Mr Esengo plea is he fell and was pushed “ when commuters started to push
and shove each other around inside this overcrowded train.” His account is that he
fell forward on his right knee. He did not use his hands to balance the fall. His hands
were not injured or bruised . Mr Esengo was the only passenger injured or who fell
that day . He was unable to provide an explanation why his hands were not injured or
why he did not fall over other passengers given where he was seated inside the train
and his account that commuters were squeezed next to each other.
[56] His Counsel contended on the strength of the decision in Mokoena v Gert
Swart Transport CC8 that it is preposterous to argue that he must have been the
author of his own misfortune because he was the only person who was injured
during jostling to get off the train.
[57] When examined in relation to where he was situat ed in side the train in
relation to the open doors , there were conflicting answers . In the reply to the request
for further particulars it is said h e was “s eated in the middle of the coach ” but later,
said he was “standing in the middle of the coach .” At the trial hearing he agreed he
was seated 2.2m away fr om the door.
8 2014 JDR 0286 (DSJ)
[58] If his evidence that he was seated 2.2m away from the train doors in an
overcrowded train and everyone was rushing as alleged, Mr Esengo would have
been surrounded by other passengers at the time he was pushed f rom the train . He
would not have been the only passenger amidst the pushing and shoving since on
his own account, passengers were rushing. There is no evidence that he fell over
any other passenger . He was the only passenger seen lying on the floor.
[59] When Mr Esengo’s version is juxtaposed with Ms Mnguni’s evidence , that
she saw a passenger on the platform screaming “the doors the doors ,” and there
was a security official approaching this man, that evidence is supported by
contemporaneous reports compiled by amongst others Mr Nkwanyana who attended
at the scene . The section of the Liability Report with s everal descriptors and options
of how the accident occurred records: “Disembark from a moving train” crossed as
“yes” . Ms Mnguni’s evidence that she inspected the doors at Dunswart Station , found
fault in the train doors read with the reports was not challenged in cross examination.
Prasa’s v ersion that Mr Esengo could not open the doors is consistent with the
factual account in the reports. It is in dissonance with the claim that the train travelled
with doors open .
[60] The probab ilities are that Mr Esengo moved to the next coaches and forcefully
opened the doors to disembarked while the train was in motion. This is consistent
with the evidence that Mr Esengo was heard screaming “the doors -the doors.” It is
also consistent with the reports referred to above.
[61] Prasa kept meticulous re cord of the incident which were discovered during the
trial. All these contemporaneous reports of the incident are of material with probative
value. It bears emphasising that the J oint Operations Centre Occurrence Book (JOC-
OB), and the Brakpan Segment occurrence Book recorded the same facts reflected
in Mr Nkwanya na’s report.
[62] Although Mr Esengo denied speaking to Mr Nkwanyana, he accepted that two
Prasa security officers came to talk to him. Records confirm that Mr L Congo and Mr
Nkwanyana were at the scene. The information about the incident could not have
been obtained from any other source other than from Mr Esengo.
[63] Mr Esengo attempted to suggest that his evidence is supported by the
evidence of Mr. Nkwanyana who recorded that the accident was “not on Plaintiff's
own negligence. ” The entry has a dual meaning and could refer either to Prasa or Mr
Esengo . It was not probed further. Mr Nkwanyana’s answer was it is to the court to
determine negligence. He also attempted to challenge Ms Mnguni’s about initiating
the conversation with Mr Esengo as a fabrication. The criticism is not justified . Her
statement must be seen in the context of her responding to past events. The
challenge s do not tip the probabilities.
[64] Another material record which cannot be ignored, and which could have only
emanated from Mr Esengo , independently of Prasa is hospital record s. The entry
states that:
“A male patient came to the triage with a history of he fell in a train when he
was getting out and injured his right leg by the knee its painful as he hit on the
ground by the knee. To be seen by casualty doctor …
[65] Confronted with these challenges, Mr Esengo’s Counsel tactically sought to
impeach Mr Nkwanyana and Ms Mnguni as credible witnesses , suggest ing there
was a possibility they had discussed each other’s evidence , and Mr Nkwanyana
listened to Mr Esengo’s cross examination. The difficulty with this is that it was not
raised immediately with the court or counsel for Prasa who was taken by surprise.
The tactic is without substance. Demonstra bly, Ms Mnguni and Mr Nkwanyana got
involve d at differ ent stages of the incident , thus testified on different facts , coalescing
to the asse ssment of the incident . That left room for tailoring the evidence to favour
Prasa .
[66] Mr Esengo was not a credible witness. He refused to make concessions even
when objective facts pointed to the contrary. The refusal was designed to bolster his
claim about the overcrowded train, leading to a highly improbable unsatisfactory
account . He was evasive when challenged about how the incident occurred and his
location in side the train. He could not offer a cogent explanation why his personal
details, obtained from him where correctly recorded while according to him the
balance of the information in the same reports was false. His evidence at all levels
lacked credibility, was improbable, at odds with the objective evidence and wholly
unreliable. I find it not to be true.
[67] On the other hand, Ms Mnguni and Mr Nkwanyana were credible and reliable
witnesses , with proba ble account of what occurred, corroborated by
contemporaneous records as said .
Conclusion
[70] Accordingly, the probabilities do not support Mr Esengo’s version and his
account of the incident. He has failed to discharge the onus to prove the required
elements of negligence which rest on him. He also failed to establish any
contribu tory negligence by Prasa. For the reasons stated, h is claim stands to be
dismissed with costs.
[71] The costs of the action must follow the result. Mr Esengo’s claim was
unmeritorious and there is no reason to relax the rule. He is liable for Prasa’s co st
which are to be determined based on Scale B.
[72] In the result, I make the following order:
a. The action is dismissed .
b. The plaintiff is liable for the costs, determined based on Scale B
________________________
NTY SIWENDU
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHA NNESBURG
This Judgment is handed down electronically by circulation to the Plaintiff ’s Legal
Representative and the Defenda nt by email, publication on Case Lines. The date for
the handing down is deemed 7 March 2025
Date of appearance: 21, 22, 23 and 24 January 2025
Date Judgment delivered: 7 March 2025
Appearances:
For the Plaintiff : Advocate T. L. Matimbi
Instructed by: Ramunasi Attorneys
For the Defendant : Advocate Opperman
Instructed by: Padi Attorneys