SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG .
Case Number: 2024- 14477
In the matter between:
In the matter between:
AYANDA BIYELA -MBEKIZELI Plaintiff
And
PASSENGER RAIL AGENCY OF S OUTH AFRICA (SOC ) LTD Defendant
JUDGMENT
Noko J
Introduction.
[1] The plaintiff instituted a civil claim against the defendant for damages (1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
2
sustained as a result of injuries he suffered from an accident which occurred on 2
February 2015. The quantum for the claim is the amount of R4 500 000.00. The
defendant is defending the suit and has delivered the pl ea in which it denies
liability for the damages o n the basis , inter alia , that no negligence could be
attributed to any of its employees .
Parties
[2] The plaintiff is Ayanda Biyela Mbekezeli an adult male resident at 2 […]
M[…], Zone 1[ …], S[…], Johannesburg.
[3] The defendant is Passenger Rail Agency of South Africa (Soc) Limited
(PRASA) a transport utility established in terms of section 2 of the Legal
Succession to the South African Transport Services Act 9 of 1989, trading as Metrorail. PRASA’s business address is situated at 3[ …] W[…] street, U […]
H[…], Johannesburg.
Background
[4] The background of the lis is generally common cause between the parties .
The plaintiff , an adult male person aged 34, alleged that he fell and suffered
injuries whilst attempting to board a train operated by PRASA. The parties are in
agreement about the age of the plaintiff, date, time , place of the accident and
further that the plaintiff was in possession of a valid train ticket.
[5] The plaintiff subsequently caused a letter of demand to be issued against
the defendant in terms of the Institution of Legal Proceedings Against Certain
Organs of State Act .
1 Pursuant to the defendant failing to react positively to the
demand the plaintiff suit out summons for damages suffered as a result of the
injuries on his back, left foot , left side of the face, left arm and left finger . This suit
is continuing only in respect of merits, the parties having agreed to separate
1 Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
3
merits and quantum as contemplated in Rule 33 of the Uniform Rules of Court. I
accordingly granted an order of s eparation.
Plaintiff’s evidence.
[6] The plaintiff stated under oath that on 2 February 2015 he bought a train
ticket and boarded a train (“first train”) at about 7am to trave l from Naledi station
en route to work in Long Dale. He was working for a company which carries its
business near the Long Dale train station. He would disembark and walk for a
short distance to his place of work . He was employed to cut potatoes to make
chips and also doing deliveries . His shift starts at 9:00 . The train stopped at New
Canada where passengers were directed to exchange into another train (“second
train”) which was travelling to Johannesburg. He disembarked and went up the
stairs to go over the pedestrian overpass bridge to board a train which was at
that time stationary with its doors opened.
[7] All passengers in the first train had to disembark and as such there w as a
stampede on the way to board the train heading to Johannesburg. Due to the
high number of people (others boarding and others disembarking) he had to try to
push and force his way into the second train. He had his first foot on the doorstep
of the train with his left hand on the wall of the train. He then tried to lift the next foot to get inside but was pushed by other commuters and lost balance, slipped
and got stuck between the train and the platform. He then fell and landed with his
right hand on the platform. He moved both his hands and hold onto the steel bar at the centre of the door . In the meantime, the whistle was blown signalling to the
driver that the train should move. At that time there were still other people
embarking and other alighting from the train.
[8] When the train started moving, he had to let go of the steel bar and was
dragged and spun. The members of the public started screaming and after a short while the train stopped. At that time, he was already at the end of the coach
and he then started crawling out. He was assisted by someone who was wearing
the uniform who l ooked like a ticket examiner.
4
[9] He believed that the signalling of the train to move was premature , as due
to high number of the passenger s, it was clear that there was still pushing by
those alighting and at the same time those who were trying to board the train.
There were no security officials nor marshals on the horizon unlike it was the
case at Naledi train station.
[10] Since he was still on time for his work , he could have waited for the next
train which usually come after a 15 minute interval. In this instance, the second
train was stationary and there was no reason to wait for the next train.
[11] The plaintiff stated during cross examination that usually there will be
metro rail officials who will check the tickets at a check point before crossing over
into the other part of the railway station. On this specific day there were no
officials providing such service.
[12] He restated his position that when trying to step back due to the pushing
force he missed the platform and then fell. The train doors were still open but the
train had started moving. He then rolled between the train and the platform and
was released at the end of the platform. He persisted that he w as not late for
work and just opted to embark on this train as it was stationery with its doors
open.
[13] The plaintiff disputed that he was trying to board a train which was already
in motion and further that since he was not in a hurry, he could have waited for
the train which would have followed soon thereafter. In addition, had he been
aware that the train was full, which is normally an afternoon occurrence, he could
have opted to take a taxi to work . He further put in dispute the version by the
defendant that he attempted to board a train which had already started moving and tried to climb onto the cables in between the coaches.
[14] He further disputes that he was negligent as he did not foresee the train
moving whilst others were alighting and others boarding the train. He also did not
5
foresee the possibility of the whistle being blown whilst there were still jostling to
get in and others getting out of the second train.
[15] The plaintiff stated under the re- examination that maybe if there were
security officials close by it could have been discovered early that the time was not opportune for the tr ain to move in view of the fact that there were many
passengers trying to board whilst others were alighting.
[16] The plaintiff did not have another witness and he then closed his case.
Defendant’s evidence.
[17] The defence first witness was M lambele Promise Jili (“Mr Jili”) who
testified that as at the time of the incident he was employed by Vus a Isizwe
Security Company which was contracted to the defendant . He was posted at
New Canada train station. His responsibilities included, inter alia , to ensure that
passengers only board the train when it is safe to do so ; to assist the passengers
to alight from the train and to monitor that the passengers do not go over the
yellow line safety zone. He is further required to ensure that the passengers and
all users of the train service at the station are safe and not attacked by criminals.
[18] He stated that the plaintiff came running towards the train whose doors
were already closed and started moving. He attempted to instruct him not to
approach the t rain but he rebuffed the instructions. Mr Jili testified that the p laintiff
first went st raight to the door and on realising that it is closed he then r an towards
the end of the coach and attempted to jump onto the cables between the
coaches.
[19] Counsel referred the witness to the report he compiled after the incident
and confronted the witness on c ontradictions since the report states that the
plaintiff attempted to open the doors and the evidence during trial is that the plaintiff went straight to the end of the coach. Further in one instance the witness
stated that the plaintiff was alone but at the same time stating that he was not
6
alone. In retort , the witness stated that t he plaintiff was the only person who
crossed the yellow line with the intention of boarding a moving train.
[20] Mr Jili stated further that the plaintiff ignored the instructions and then tried
to reach the cables in between the coaches and fell. He then raised his hands
and expeditiously gave instructions to train guard to stop the train. He contacted
the control office from where the ambulance services was summoned and came
to the si te where the plaintiff was assisted.
[21] Mr Jili re -stated under cross examination that the plaintiff was alone when
he attempted to board a t rain which was already in motion with its doors already
closed. Further that ordinarily his duties would be to ensure that passengers do
not cross the yel low lin e when not safe to do so. In this instance he was a few
coaches from the plaintiff and could not physically stop him but he screamed to
him that he should not attempt to board the train but he opted not to heed to the instructions.
[22] The next witness was Mr Gift Tshitavhadula who stated he was in the
employ of the defendant as the segment security commander. His duties included management of contracts and attending to all complaints at railway
stations within his scheduled area. He testified that he received a call from the Joint Operation Centre in the morning on 2 February 2015 and was informed that
there was an accident which took place where a passenger was injured. He
drove to the c entre and reached t he area around 8:30 where he found the plaintiff
who was with Mr Jili. He took his personal details . The plaintiff also showed him
his ticket which was still valid. Shortly thereafter the ambulance arrived and the paramedics assessed the plaintiff and provided him with the nature and details of
the injuries before leaving the scene with the plaintiff.
[23] He then spoke to Mr Jili who gave him the background as to how the
accident occurred. That the plaintiff tried to board a train that had its doors
closed and in motion. He then tried to get into between the coaches and fell. In
terms of the company protocol once the accident has been reported, he will,
7
amongst others, compile report and complete a liability form. This process was
undertaken on the same day, within a period of three hours after he arrived at the
scene. The s aid liability form was completed based on the information made
available to him by Mr Jili.
[24] The witness read the contents of t he report and stated that the injuries
were not serious . He was also referred to the details of the person who prepared
the report and the copy of the occurrence book . He denies the accusation by the
plaintiff that the defendant was negligent as there were not enough s ecurity
personnel to warn people not to approach the train which wa s in motion, and this
was accordingly done. He finally stated that the plaintiff is the person who was
negligent in trying to embark on a train that was in motion and the doors having been closed.
[25] The witness stated under c ross examination that since he was not present
at the time when the acci dent occurred, he cannot give personal knowledge. He
is further unable to give an indication as to what is the detailed job description for
the security guards at the railway station. He has been with the defendant for the
past 16 years and he was also required to comply with the policy of defendant
with regard to occurrence of accidents on site. He stated that he is the one who
called the ambulance after being notified about the accident.
[26] The defence next witness was Ms Hermina Fikile Nkabinde (“Ms
Nkabinde”) . She testified that she was a Metro guard on the day in question and
was guarding train number 9347. She is an assistant train driver who occupies the last coach while the driver is occupying the first coach. Her responsibilities
include making sure that the whole body (including the last coach) of the train
has arrived at the platform before the doors are opened. And to give a cue to the
driver to leave the station when it is opportune to do so. If the whole train has not
reached the platform, she will then not open the doors and communicate with the
driver to move forward until she is satisfied that the last coach has reached the
platform. She will then open the door for the passengers to disembark and others
to embark the train and when that has been completed, she will then press the
8
bell to indicate to the passengers that they are not allowed to go over the yellow
line and the door s of the train would be closed. As at the time when the train
doors were getting closed, there were no passengers beyond the yellow line.
After closing the doors, then she would press the button so as to give the driver a
cue that the train may leave the station.
[27] After giving an indication to the driver to start more moving forward, she
then saw a passenger rushing towards the train. As the doors were closed, he
proceeded and tried to jump onto the cables between the coaches and she saw
him falling between the coaches . She immediately pressed the button for the
train to stop as it was already in motion. She further insisted that she has done all
what she could have done under the circumstances. She testified that the plaintiff
is the person who was negligent by attempting to board a train that was moving and its doors closed. She further confirmed that the version that was put up by
the plaintiff is incorrect. She made it a point that the doors were closed after she
peeped through the window and managed to see that there was no passenger beyond the yellow line.
[28] The witness stated under cross -examination that as at the time of the
accident she was working as a guard and was promoted in 2005 to become a
train driver. Further tha t her prime responsibility is to make sure that the yellow
line is clear before the train could start moving.
[29] She testified that the trai n from which the plaintiff could have alight ed from
would have been separated from platform 5 and 6 by another platform. She
disputed the version that the plaintiff was descending from the stairs, as was stated by Mr Jilli, especially because there are no rails between platform 5 and 6. Once confronted with the v ersion from Mr J ili who may have been very closer to
where the incident or oc curred, she persisted that plaintiff fell between the
coaches and not between the train and the platform.
[30] The counsel for the plaintiff confronted the witness and put it to her t hat
had she indicated to the driver not to move the train while seeing the passenger
9
running, she could have saved the passenger. She responded that ordinarily
passengers do come running towards the train, but once they become aware that
the train’s doors a re closed and it had started moving, they would immediately
stop. In this instance she assumed that seeing that the door was closed, the
passenger would not have proceeded towards the train. She further disputed the
version of the plaintiff as was presented to her by the plaintiff ’s counsel and
vociferously contended that if the accident occurred as stated by the plaintiff he
would have probably died.
[31] She mentioned whilst still under c ross examination that the space between
the edge of the train and the platform is so small that no one could fit in. She
stated that she is not sure as to where the plaintiff was coming from and that
would ordinarily not be part of her job which was , as stated above, specifically to
make sure that there is no passenger beyond the yellow line before the train can
move.
[32] The witness was confronted with regard to the disparity of her evidence in
contrast to the evidence in the statement that was presented to the court. T he
statement indicated that he went to the door and then towards the space in between the coaches and the evidence presented at Court suggest that he went straight to the end of the coach. The counsel further inquired from the witness
that if they were enough guar ds maybe the accident would not have occurred to
which the witness stated that she is not sure about that but still persisted that she
was able to see the plaintiff as he was crossing the yellow line which is normally cleared once the doors are closed and the train is starting to leave the station.
[33] The witness also persisted that according to her they were adequately
staffed and not as insinuated by the plaintiff ’s counsel who stated that if they
were adequately staffed maybe one of the employees would have manage d to
physically stop the plaintiff from crossing the yellow lane as it is being alleged.
[34] The witness was also confronted of the inconsistency is her evidence as
she stated that all was recorded in the occurrence book in the morning whereas
10
the book itself referred to 13:30 in the afternoon. In retort she stated that the
correct time is 7:45 in the morning.
[35] She continued and stated that she raised her hands and screamed at the
plaintiff to dissuade him from approaching the train when she saw him approaching in a r ush but he rebuffed the instructions.
Submissions by the counsels .
[36] The counsel for the plaintiff submitted that the plaintiff has presented a
watertight case of what transpired and the basis for alleging that the accident occurred as a result of negligence of the defendant and or its employees.
[37] The counsel for plaintiff submitted that where there are contradicting
versions from the witness the court need to have regard to the credibility of witnesses, reliability of the evidence presented and thereafter then the balance of probabilities , as set out in the locus classicus judgment in Stellenbosch Farmers’
Winery Grou p Limited
2 The important witness of the defendant was Ms Nkabinde
whose evidence was unreliable due to the inconsistencies in her evidence. First
saying that the train cam e on platform 5 and 6 and later changing that it was
probably platform 7. Secondly stating that train 9347 came after she had left at
the same time saying that she saw the plaintiff who came with first train and
attempted to embark on her train. In addition, she should have first made sure
that the platform was clear of passengers before closing the doors and getting the train into a movement.
[38] There were no adequate security personnel deployed at the station to
ensure safety of the passenger s. Further that it was not disputed by the
defendant’s witnesses that it was inadequate. In addition, the train guard
2 Stellenbosch Farmers’ Winery Grou p Limited and Another v Martell & Cie SA and Others 2003
(1) SA 11 (SCA).
11
conceded that had she stopped the train swiftly when realising the attempt by the
plaintiff to board that could have saved the plaintiff form the injuries.
[39] The defendant ’s counsel on the other hand submitted that the plaintiff was
outside of the train and not on board. Further that the plaintiff has failed to prove
that the defendant’s conduct was wrongful. If anything, the defendant has
demonstrated that it complied with it s legal obligations and also acted with the
requisite degree of care and skill in discharging its obligations .
[40] Ordinarily once the passenger s have disembarked and others having
boarded the guard would blow the whistle to warn all that the doors are closing
and thereafter rings the bell after which the train will start moving. This is what Ms
Nkabinde did on this day. If the plaintiff was within sight at the time the train was
about to set in motion, then the plaintiff would have heard the sound and stay ed
off the soon to be moving train.
[41] Counsel further submitted that there are t wo report s which supports the
stance of the defendant. In this regard, he referred to Wits metro faults report
which stated that unknown person tried to board a train whilst in motion. Secondly, the liability report which also confirms that someone tried to board a
train which was already in motion.
[42] The evidence of the security guard and the train guard corroborates each
other in the sense that the plaintiff fell after attempting to board a train which was in motion. The security guard having testified that the plaintiff attempted to latch
onto the steel structures between the coaches and the train guard stating that plaintiff just latched onto the steel bars between the coaches. To this end, it is
contended that the defendant discharged its legal duty and there was a security
guard on duty for this purpose.
[43] The second requirement , counsel for defendant continued, is that of
negligence and the test thereof is whether a reasonable person in the position of the defendant would have reasonably foreseen harm befalling the plaintiff as a
12
result of boarding the train in motion and the counsel for defendant retorted that
‘no’ since it was not foreseen that one would attem pt to board a train in motion
with its doors closed. The plaintiff confirmed that he could see that the train was
overcrow ded and he should have awaited the train which would come after (i.e.
the 9643 train) . Even if this injury was not foreseen, the defendant took
immediate steps by stopping the train.
[44] The next question is of factual causation being whether there is causal link
between the conduct of the defendant and the attendant injuries. The injuries
occurred as a result of an attempt to board a moving train with its doors closed.
No such conduct can in any way be attributed to the defendant, it was argued.
[45] The last question is on the legal causation ( the imputation of liability ) being
the determination whether the wrongful conduct is remotely connected to the
harm caused or closely connected to it. In this case, it is argued, the conduct of
the defendant of closing the doors and starting the movement of the train is far
removed from the alleged resultant harm suffered by the plaintiff.
Issues
[46] The issue for determination is whether the plaintiff has made out a case
for the relief sought.
Legal principles and analysis.
[47] The plaintiff is enjoined to present evidence for a delictual claim and
establish that there was a wrongful and negligent conduct on the part of the defendant which caused him harm for which he should be entitled to
compensation. The factual causation is established by determining whether the defendant’s conduct caused the harm. The question is whether the defendant’s conduct was the necessary condition for the harm. Whereas the legal causation
calls for the determination whether the defendant should be held liable for the harm. In essence, the plaintiff is required to demonstrate that the defendant has a
13
duty to ensure a safe usage of the passenger rail services which includes the
duty to prevent accidents and harm to the passenger by exercising reasonable care and that the defendant has failed to exercise the said duty .
3
[48] The defence has correctly submitted that where the version of the parties
are mutually destructive the court should r efer to the principles laid down in
Stellenbosch Farmers Winery Group Ltd
4 in terms of which the court is required
to make a finding on (a) the credibility of the various factual witnesses ; (b) their
reliability; and (c) the probabilities.
[49] The plaintiff’s counsel submitted that the SCA held in Rautini5 that
pleadings should foreshadow the parties case. It was stated that:
“The first difficulty facing the respondent is that it never pleaded the issues
raised above. It is also significant that it did not plead that the appellant had deliberately jumped from the train at Spier station. This Court in Minister of Safety and Security v Slabbert held as follows: ‘A party has a
duty to allege in the pleadings the material facts upon which it relies. It is
impermissible for a plaintiff to plead a particular case and seek to establish
a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case. ”
6
[50] In his particulars of claim the pl aintiff averred that the “… defendant failed
to employ employees, alternatively failed to employ an adequate number of employees to guarantee the safet y of passengers in general and the plaintiff in
particular on the coach in which plaintiff intended to travel; it took no steps to
3 See Shabalala v Metro Rail [2007] ZASCA 157 which confirms that the PRASA is enjoined to
take all reasonable steps to procure safe commuting of the passengers.
4 footnote 2 above.
5 Rautini v Passenger Raul Agency of South Africa [2021] ZASCA 58 .
6 Id at para 21.
14
prevent t he coach in which the plaintiff was travelling from becoming
overcrowded;7 the driver proceeded to drive the train away while it was clear that
not all commuters had completed their entry or exit. ”
[51] The gravamen of the plaintiff’s case is that the defendant should have
ensured that there was no overcrowding in the coach which the plaintiff was trying to board. T he plaintiff viewed this as the defendant failing to ensure that
commuting would be safe to the members of the public. As a result of this lapse the plaintiff was pushed, fell and sustained the injuries he identified.
[52] Whilst the aforegoing is reflective of the pleading set out , the evidence
demonstrated a different story all together. The plaintiff argued that he was not aware that the trai n was overcrowded when descending from the pedestrian
overbridge
8. He however became aware when at the door that there were many
commuters jostling , others boarding whilst others were disembarking.
[53] He further stated that had he been aware that there was a stampede he
would have caught a taxi to work more especially as he was not late for work ,
alternatively he could have waited for another train. It is still a mystery why he nevertheless wanted to push himself into the overcrowded train. This conduct
lend credence in the defen ce raised by the defendant that the plaintiff voluntarily
assumed the risk and i t was therefore his own negli gence which let to the
accident and attendant injuries suffered. Having failed to ascribe negligence to
the defendant there would not be legal basis to allege that the defendant’s
conduct led to the accident.
7 This aspect was curiously not dealt in the Plaintiff’s Heads of Argument, and it should lend
credence that it is acknow ledged that it obliterates the plaintiff’s case.
8 See para 4.1 of the Plaintiff’s Heads of Argument at CL 25- 4 where it is stated that “that the
Plaintiff was not late for work, if that train was full, he was going to wait for the other train”. Further
at 4.5. that “The he was able to see the train doors from the stairs and the train was not full.”
15
[54] From the evidence presented by the plaintiff , his version is improbable and
alternatively fail ed to advance his case that the defendant was not negligent and
not him. The plaintiff ’s credibility is questionable and undermined by inconsistent
version that he pushed to get in even though he had an option to wait. His
candour was not impressive when testifying and I found his testimony to have not
been reliable and is contradictory . The probability is that the plaintiff was late for
work and could not wait for the following train or he was not late for work but
opted to risk his life. The only reason he advances for his strange conduct, which
still make no sense, is that he was not late but opted to board as the train was stationery and the doors were opened. It is mindboggling for one to argue that
the plaintiff insisted on boarding an overcrowded train when there is no pressure
to do so at all . It’s a classical case on volenti non fit injuria.
[55] Noting that the plaintiff is endowed with the onus to prove all the elements
of the delict the version presented justify a dismissal of the claim.
[56] That notwithstanding the crux of the evidence as presented by the
defendant is that the plaintiff approached a train in motion with closed doors. Two
witnesses, Mr Jili and Ms Nkabinde’s evidence was generally above board that
the doors were closed and the train was in motion. The plaintiff’s counsel kept on hammering on the c ontradictions in their evidence that Ms Nkabinde stated that
the plaintiff was not descending from the pedestrian bridge as the train from
which he exited was separated by a platform and not rails from the train he was supposed to board. Further that the train which the plaintiff came from only
arrived after the second train had left the station.
[57] The contradictions may not be dispositive of the case and the court should
assess the materiality thereof, plausible explanation as presented. The passage of time at the time the incidence may also play a role and impact on the ability or impair recollections of events. The contention that the plaintiff went to the door before proceeding to the end of the coach does not tarnish the evidence either. The counsel for the plaintiff further strenuously argued that the defendant failed to state in the plea that t he plaintiff fell into between the coaches . This argument
16
is in contrast with the plea and fails to appreciate what was mentioned in the plea
that the doors were closed and also that the train was in motion. Further that he
made attempts to board the train when i t was inopportune to do so and also
having failed to exercise reasonable care when he could have done so.
[58] There is no evidence which was presented to gainsay the evidence that
the Ms Nkabinde was able to see through peeping that there was no passenger
who was beyond the yellow line safety zone at the ti me when the doors were
closed. In addition, the evidence presented is further that the whistle was blown
for the train to move after the doors were closed. Equally important is the
unchallenged evidence of Mr Jili who stated that he was close to the coach which was approached by the plaintiff and could also clearly see the yellow line.
[59] The contention by the plaintiff that had there been more security personnel
they would have been able to physically stop the plaintiff from attempting to
board a moving train is unsustai nable as it would imply that there should just be
as many security personnel as com muters as the defendant should always
expect that commuters would always try to board moving trains with doors
closed. This would be preposterous. It would not be unreasonable to assume that
the commuters would not attempt to be suicidal.
[60] The defence placed more emphasis on the importance of the evidence of
the defendant failing to appreciate that the onus still rest s with the plaintiff to
allege and prove elements of delict including alleged negligence on the part of
the PRASA and/ or its employees. .
9 The plaintiff’s case should either be as
pleaded that the train was overcrowded and this should have reasonably been
avoided by the defendant or its employee acting reasonable under the
circumstances alternatively that the train was not overloaded a s per evidence
9 See Passenger Rail Agency South Africa v Sithuse [2021] ZASCA 78 where the SCA held at
para 26 that the “… Full Court misdirected itself by impermissibly placing the onus on PRASA to
prove that Ms Sithuse had attempted to commit suic ide. Its decision to hold P RASA liable was
made on an incorrect legal basis, and for that reasons cannot be supported.”
17
presented which will derail the tenor of the case advanced by the plaintiff as he
fell from being pushed by those who were trying to disembark as against those who were trying to embark.
10 The plaintiff further referred to cases where the
defendant was considered to have been negligent for not ensuring that the d oors
were closed. It appears that those judgment are irrelevant to the issues which
serves before me.
Conclusion
[61] The plaintiff has failed to ascri be negligence to the defendant as such
other elements of the delict including causation and failure to exercise duty of
care could not be demonstrated . The defendant discharged its duties and no
negligent conduct on the part of the defendant or its employees which caused the injuries was proved. The ev idence supports the version of the defendant’s
defence of volenti non fit injuria. In the premises the suit is bound to fail.
10 Noting that in his evidence the plaintiff stated that he could see that the train was not
overcrowded when descending but later changed the version as stated that the train was
overcrowded.
18
Costs
[62] Costs ordinarily fall within the discretion of the court, which must be
exercised judicially, having regard to the relevant factors. It was held in Affordable Medicines Trust v Minister of Health
11 that “[t]he award of costs is a
matter which is within the discretion of the court considering the issue of costs. It is a discretion that must be exercised judicially having regard to all the relevant considerations.” In this instance it is axiomatic that the plaintiff was clutching at
straws . It is also trite that the costs follow the outcome and, in this case , no
persuasive argument was mounted warranting any deviation from the well -
trodden path.
Order
[63] In the premises I make the following order
The claim is dismissed with costs.
M V NOKO
Judge of the High Court,
Gauteng Division, Johannesburg.
This judgement was prepared and authored by Noko J and is handed down
electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 11 April 2025.
11 Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006
(3) SA 247 (CC) at para 138.
19
Date s:
Hearing: 22 October 2024.
Judgment: 11 April 2025.
Appearances:
For the Plaintiff : S Tshungu
Instructed by Maria Phefadu Attorneys
For the Defendant : M Muchenje.
Instructed by Mzamo Attorneys