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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 7024/20
In the matter between
SINDISIWE PATIENCE MKHIZE PLAINTIFF
AND
PASSENGER RAIL AGENCY OF SOUTH AFRICA DEFENDANT
Date of Hearing: 26 August 2024
Date of Judgment: 21 February 2025 (to be delivered via email to the respective
counsel)
JUDGMENT
THULARE J
[1] This was an action wherein the plaintiff sought damages arising out of injuries
allegedly sustained whilst she was travelling on the defendant's train on 17 October
2018 between Stikland and Bellville train stations. The defendant provides a rail
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commuter public transport service . The plaintiff sustained injuries. The partie s agreed to
separate the merits from the quantum. The issue to be determined was whether the
defendant was liable for the injuries.
[2] The plaintiff alleged that the defendant owed a duty of care. The plaintiff’s case was
that the defendant failed to im plement safety and or security measures to ensure that
the carriages of the train were not overcrowded; failed to provide or ensure that there
were adequate personnel in authority to control the passengers in the carri age in which
the plaintiff was travell ing; failed to ensure that the plaintiff was conveyed safely and
failed to take steps to prevent the incident when by exercise of reasonable care,
defendant could and should have done so. The defendant denied that the incident as
alleged by the plaintiff o ccurred as alleged or at all, and if it was found that the incident
occurred, denied that its employees were negligent and in the alternative pleaded
contributory negligence.
[3] The plaintiff and Gloria Mahusi (Mahusi) testified in her case whilst the defendant’s
five employees to wit Mbuyiselo Meyi (Meyi) , Magidigidi, Maseti, Ngxoli -Wellem and
Klaase testified in its case. The Plaintiff’s case was that she and Mahusi did not know
each other before the day of the incident. They met on that day at Stikland Hospital
where each of them had travelled separately and individually to renew their nursing
licences. They met whilst waiting in the queue at the hospital, and upon discovery that
they both travelled by train, waited for the other and walked together from the hospital to
the Stikland train station to board the same train at about 14H00 enroute to different
destinations. In their conversations, they also exchanged particulars including cellphone
numbers. Mahusi’s destination was the first, Bellville, whilst the plaintiff’s destination
was Vasco. Both were fare -paying passengers on defendant’s train . The plaintiff’s train
fare ticket for that trip was handed in and marked exhibit A2. At Stikland train station,
Mahusi saw two of defenda nts’ guards on the opposite ends of the platform whilst the
plaintiff did not see any guards at the platform. They both boarded the train in the same
carriage when it arrived and sat next to each other on the bench inside the train .
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[4] As the train was moving between Stikland station and Bellville station, the train made
a random , unfamiliar and unexpected stop in the middle of nowhere, between the
stations. From the experience of travelling by train, the plaintiff’s case was that this
occasionally happ ened when more than one train was using the same tracks, generally
in opposite directions, and one train was commanded to stop to allow the other to
change tracks at a nearby intersection. The train was stationary when p assengers from
the adjacent carriage came running and screaming into the carriage where the plaintiff
and Mahusi were sitting. Some of these passengers were screaming that robbers,
skollies in local parlance, entered the train and were robbing them . These passengers
came in running, pushing and shoving to get through the door to get into the plaintiff’s
carriage, and were running into the passage in between the benches. Even those who
were seated or standing in that carriage started running, pushing and shoving . Some of
the passengers climb ed onto the benches to move ahead and escape to the next
coach. The plaintiff and Mahusi also got a fright . Neither of them personally s aw the
alleged robbers . There was no security or officials of the defendant in sight in the
carriage . As they both tried to get up from the bench and ran in the direction the crowd
was fleeing to , they both fell from the running, pushing and shoving. The defendant in
cross -examination suggested that the plaintiff should have remained calm, collected
and seated on the bench to avoid falling and sustaining the subsequent injuries from
being stepped over and trampled on , more so because she did not see the skollies
herself . It was during the flight, falling, being stepped over and trampled on, that the
plaintiff sustained the i njuries. Mahusi did not sustain any serious injuries. In cross -
examination the defendant suggested that the plaintiff was injured because of her wrong
decision to stand up and attempt to flee. The plaintiff stood up and attempted to flee to
avoid harm , when she was pushed and fell whereupon she was stepped on and
trampled on.
[5] The train started moving, the report was that the skollies disembarked and calm was
returned. When the train reached the next statio n, Bellville, Mahusi alighted. All the
other passengers as well joined those who had reached their destination, and moved to
alight from the train, and reported their experience to a security officer of the defendant
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who was on the platform at Bellville sta tion. The plaintiff also joined the other
passengers whose destination was not Bellville but who also wanted to alight for safety
concerns. These passengers, together with the plaintiff, were addressed by a security
officer of the defendant, at Bellville s tation and at the door of the train, who assured
them that despite their reported concerns, there was now sufficient security to attend to
their safety and it was now safe for them to continue their trip on that train. The plaintiff
together with other pas sengers went back to their seats and continued with the trip on
that train. The train moved and the plaintiff alighted at her destination, Vasco train
station. She immediately went to the offices of the defendant to report her experience
and the injuries s he had sustained. A representative of the defendant in the office of the
defendant at the station advised her to go and report the incident and her injuries to the
station in Cape Town. The injuries sustained by the plaintiff included a broken arm. She
did not forthwith go to Cape Town to report the incident, but immediately sought medical
attention, and it was only on 31 October 2018, a few days later when she was in a
potion to do so, that she travelled to Cape Town to report the incident.
[6] Meyi was a protection services officer for the defendant who was on duty on the day
from 6H00 to 15H00 . He and another were the only two who escorted trains on the
northern line, which included the area between Kraaifontein and Cape Town . The
northern line had 19 st ations to cover. In other words, the security presence of the
defendant inside the trains on that day was only two protection officers of the defendant,
deployed to cover the trains that travelled between 19 stations. Meyi could not say
whether he and his partner were on the specific train used by the plaintiff and Mahusi,
as the two of them could not be on all the trains at once. He could not provide details of
his movements and could not even tell where he was at the time that the plaintiff and
Mahusi boa rded and travelled on t hat train. The northern line was a busy line used by
many commuters who traveled between the 19 stations. Meyi was aware that the
presence of protection services officers was a deterrent for crime as well as
unbecoming behaviour on t rains. Meyi had no knowledge of the incident involving the
plaintiff and the defendant on that day. The area around Stikland was not regarded as
crime ridden or notorious for crime.
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[7] Magidigidi was acting leading protection officer for the defendant at the time of the
incident. He deployed protection service officers and on that day had approximately 122
to 127 of them to deploy between 37 train stations . There were generally two protection
officers per station and some stations had more, like Belville because of their size. Not
every train had protection officers as escorts. The defendant did not provide enough
personnel to always cover every train and every station, and the reason was provided
as budgetary constraints. As a result, p rotection officers were deployed in preference of
trains and lines that had proven prevalence of incidents. The prevalence of incidents of
crime and unbecoming conduct led to lines or stations being declared hot spots
requiring special and specific attention. During the time of the incident, on the northern
line only Elsiesriver train station and surrounding area proved prevalent with crime
which led to re -enforcements by deploying more protection officers and members of the
SAPS. It was mostly robberies, and public drinking or smoking that were reported. The
incident involving the plaintiff was not recorded as it was not reported to him .
[8] Maseti was a protection officer who was on duty on the day, patrolling the railway
lines between Bellville and Strand. The patrols included looking for unauthorized
persons and suspicions persons along the railway lines and tracks, inspection for the
detection of faulty signals and the general safety of the defendant’s property, employees
and commuters. No faulty signal wa s reported to him which caused a train to randomly
stop on that day. He was aware that it happened for two trains to be on the same tracks,
which led to one train having to stop at a designated signal, generally a red robot before
an intersection, to ensur e the safe passage of both. Between Stikland and Bellville,
there were about 8 such signals, 4 on each side of the tracks travelling in opposite
directions. Generally, the patrol in that area, that is between Stikalnd and Bellville, was
conducted in a dual manner, both on foot and using a vehicle. He could not say where
he was at the time of the incident as alleged by the plaintiff. Maseti did not know about
another incident of robbery that happened at Parow station on the day. His explanation
was that he w ould only know about incidents that happened between stations.
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[9] Thando Kla as was a chief investigating officer of the defendant and was the acting
head of security for the Western cape in 2018. He investigated claims and drafted
reports. In the investi gation of the matter relating to the plaintiff, his sources would be
the incident register and occurrence books including the Control Room register. He
could not find any mention of the incident involving the plaintiff in any of the records of
the defendan t on the day of the incident. A train stopping for a signal was a regular
occurrence in the operations of the defendant and would not be recorded as an incident .
His basis for disputing the occurrence involving the plaintiff was because it was not
recorded . The alleged incident involving the plaintiff happened at the time when their
risk assessment motivated additional security measures and resources to their
principals. It was only in 2020 that security was beefed up. They now try to ensure that
every trai n has guards on it. He could not dispute that the plaintiff was a commuter on
the defendant’s train with a valid train ticket and that the plaintiff sustained injuries. His
investigation and report did not include material which the plaintiff had provided to the
defendant. He struggled to explain why the report was only completed in April 2022,
when the plaintiff submitted a claim to the defendant on 31 October 2018, that is after 3
years. It would not have been difficult, for instance, to locate the driver of the train. If the
train stopped for a valid reason, like as instructed by a signal, it would not be captured
as a fault and there would be no record of such a stop by protection services. However,
if it was for something like cable theft it would be re ported.
[10] Ngxoli -Wellem was employed by the defendant as an administration official and
amongst others sold tickets in the ticket office . She had no recollection of the day of the
alleged incident, and somebody told her that according to the system she was on duty
at Vasco that day. There was an incident book in which they noted incidents, and they
also had to report incidents to the protect ion services. If someone had reported an
incident to her, she would have recorded it. She would not have sent the person to
report to Cape Town. The incident book of Vasco station during that period had
disappeared and as a result, she could not consult th ose records.
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[11] It is probable, on the preponderance, that the plaintiff sustained injuries in the
manner that she described whilst travelling on the defendant’s train on 17 October
2018. The defendant did not provide any evidence to gainsay the eviden ce of the
plaintiff that she was the holder of a valid train ticket and that she travelled on the
defendant’s train between Stikland and Vasco on that afternoon. The evidence of the
plaintiff about what happened on the train was supported by Mahusi, an ind ependent
witness who had nothing to gain. The defendant’s own witnesses indicated that where a
train stopped for a robot because another was using the same tracks and waited for its
path of travel to clear first at the intersection, the defendant’s securit y did not keep such
records. The investigation done by the defendant was not only late, but poor . The
defendant could not lead evidence as to whether in fact that train which the plaintiff
used, did or did not stop between Stikland and Bellville that after noon. The defendant
sought to rebut the direct evidence of the plaintiff through the speculative opinions of its
protection services, which speculative opinions were irrelevant. Would the driver of that
train or anyone in operations have records of the tra vel times including any unscheduled
stops? Were there available records rebutting a delay of the train because of having
stopped ? Was the train on the scheduled time especially after leaving Stikland station?
Did the defendant investigate these obvious que stions in the light of its attitude towards
the plaintiff’s claim and if it did what were the outcomes? If not, why not? The defendant
simply brought a poorly investigated, highly opinionated and factually emaciated denial
to court. I find that the plainti ff sustained her injuries inside the defendant's train in the
manner and under the circumstances that she described on 17 October 2018.
[12] The defendant bore a positive obligation to ensure that reasonable measures were
in place to provide for the security of the plaintiff.1 That duty, together with constitutional
values, has mutated to a private -law duty to prevent harm to commuters.2 The breach of
that duty is one of the factors underpinning wrongfulness.3 The evidence did not show
that the defendant had a security guard on the train used by the plaintiff. To the contrary,
1 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20; 2005 (2) SA
359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004) at para 84.
2 Mashongwa v PRASA 2016 (3) SA 528 (CC) at para 29.
3 Mashongwa at para 28.
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the evidence of Magidigid i and Klaas showed that the incident involving the plaintiff
happened at the time when th e risk assessment of the defendant’s employees
motivated for additional security measur es and resources including for the area where
the incident involving the plaintiff happened. Meyi, the security officer who se evidence
the defendant attempted to use to show some presence on the train, cannot tell where
he was at the time of the incident. This is also the position with Maseti, who the
defendant called to suggest that there were patrols on foot and by vehicle along the
railway line used by the train used by the plaintiff on that day. The failure by the
defendant to timeously answer the call of its protection services for additional security
measures and resources for the area where the incident happened, and the failure to
place available protection officers at the area which its own risk assessment showed a
demand, did not amount to reasonab le measures taken by the defendant.
[13] Opinions and arguments are simply not enough to meet plaintiff’s case. The
defendant simply did not present rebuttal evidence to show that it discharged its
obligations on the safety of the plaintiff as it was required to do. The level of violence on
commuters’ trains in the Western Cape is a matter of public record. It led to formations
of interest groups that approached courts for intervention , including up to the
Constitutional Court. The decision in Metrorai l is a classic example . The litigation in the
civil courts against the defendant, and the prevalent prosecution of Skollies who commit
crimes on trains in motion , including those who board trains when they stop at signals to
rob commuters in the carriages and alight either when the train start s moving or at the
next station , especially on the northern line , is notorious in the Western Cape. I am not
persuaded that the measures provided by the defendant were consonant with a proper
appreciation of its duty a gainst the background of the challenge from skollies to its
commuters in the Cape Metropolitan area but especially on the northern line. The
absence of protection services consistent with the levels of crime in the deployment of
resources on the northern line was negligent. In the light of the request by its own risk
assessment for more resources, the defendant should have explained its ch allenges,
especially its resource provisioning challenges if any, better for the court to understand
‘the budgetary constraints from above’ message that Klaas brought. On the evidence,
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the ‘budgetary constraints marching order’ is an empty tin famous for simply making
more noise with no content.
[13] On evidence , the defendant could not account for the whereabouts of its protection
officers whose duty it sought to present as preventative measures, at the most crucial
time. The defendant provided little to no evidence of the particularity of where its
protection officials were, at what time, on which trains or at which stations to enable the
court to make an assessment with reference to the incident. The protection services of
the defendant merely gave a ge neral overview of what they ordinarily do. The
information presented by the defendant was insufficient to gainsay the plaintiff’s case
that the defendant took no steps to safeguard commuters of the train she used when it
was in motion on that day . I am not persuaded that the defendant established that the
steps it took could reasonably have averted the skollies entering the train that day ,
causing the pandemonium that resulted in the plaintiff sustainin g the injuries. The
evidence in total including that of the defendant’s protection services officials, was that
the presence of protection services officers on the train deterred commission of crime.
The defendant failed to establish that it had its protection officers on that train or along
the tracks where the train was moving, especially around where there were between 4
and 8 intersections where unscheduled stops occurred.
[14] Having conclude d that the defendant’s negligence was established , I am persuaded
that the harm to the plaintiff which ensued was closely connected to the defendant’s
omission. Had the defendant deployed guards on the train, and there were known and
visible protection services patrolling the area where there were 4 to 8 stops of
intersections wh ere trains changed tracks, it is more probable than not that the skollies
would not have entered the stationary train waiting at the intersection, leading to the
pandemonium that occasioned injuries to the plaintiff. On a preponderance of
probabilities, the plaintiff would not have been injured had the defendant deployed
protection services on that train.4 In my view there is a legal connection between the
4 Passenger Rail Agency of South Africa v Mokoena (5038/2020;14289/2014) [2021] ZAGPJHC 650 (26
August 2021) at para 10.
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defendant’s failure to take preventative measures and the injuries to the plaintiff. The
suggestion t hat the plaintiff should have remained seated when people ran for safety is
simply inhuman . It suggests that those who instruct the defendant’s legal
representatives are sometimes simply bored, unoccupied or lack interest in the ir duties
and responsibiliti es. The suggestion that it was inconceivable that the incident would not
be reflected in the defendant’s books if it happened, must be considered together with
the fact that the plaintiff reported the incident at Cape Town on 31 October 2018 and
only after 3 years did the defendant conduct a clumsy investigation. The evidence did
not encourage a finding of competence and skill, especially where material presented
by the plaintiff was not dealt with. It suggests bias.
[15] For these reasons I find that the defendant is solely liable for the plaintiff’s proven
or agreed damages suffered because of the incident on the defendant’s train. I make
the following order:
(a) The defendant is to pay the costs on scale B.
(b) The issue of quantum is postponed sine die.
_______________________________
DM THULARE
JUDGE OF THE HIGH COURT