REP BLI OF U l A~RI
A E umber: 2 147/20 I
( l} REPORT ABLE: NO
(2) OF INTER ST TO OTHER~J~'llf?"-"'
13) REVISED: NO
Dote: 26 May 2025
ln th matter b tw n: -
Makhubela ydn Plaintiff
And
PRA
BOTHA,AJ
Introducti n Defi ndant
JUDG E T
2
l. l This i an action for damage that aro e from the alleged negligence of the
Defendant causing phy ical harm and bodily injurie to the Plaintiff.
1.2 According to the Pa1iicular of laim I the Plaintiff wa a passenger on train
no 0506 at 6:30 on the morning of 232 February 2018 en route from Tembi a
to I ando tation for which he had a valid ticket to ride.
1.3 Whil t the train wa in motion and approaching I ando tation other
passengers on the overcrowded train the door of which were open at that
tage pushed the Plaintiff out and he fell on the track and a a result u tained
erious injuries for which he had been ho pitalised. He was di abled and
disfigured, uffered pain and a Jo s of amenities of life.2
1.4 Ther Plaintiff aver that the sole cause of him falling off the moving train wa
the negligence of the Defendant. 3
1.5 The Plaintiff al o pleaded that the driver or conductor of the train, whil t
executing their duties to the Defendant , were negligent on a number of
ground which ranged from opening the door on the wrong side of the train
(non platform ide) to driving at an excessive peed.4
1.6 In it ammended plea, the Defendant denied any negligence on it part and
al o denied that the incident occu1i-ed at all.5
1 CL 02-6
2 CL 02-8
3 CL 02-6 par 4.1
4 CL 02-7paras 4.2-4.3
5 Cl 02-30 para 1
3
1.7 Alternatively-if found that the incident did occur, then, and in that event the
Plaintiff wilfully jumped of the moving train,and the Defendant al o Ii t a
plethora ofwillfull action whereby the Plaintiff put him elf in danger which
constitute the defence of 1 olen; non fit iniuria. 6
1.8 As a la t alternativ , the Defendant pleaded contributory negligence m
accordance with the Appo11ionment of Damage Act 34 of 1956.7
1.9 At the on et of the trial the issue of merit and the quantum of damages were
eperated in tenns of Rule 33 and the trial proceeded on the determination of
liability only.
1. 1 0 The Plaintiff bear the onu in proving his ea e and therefor had to begin.
2
The evidence presented in the Plaintiff s case
2.1 Sydney Makhubela
2.1. l He t tified that he tay in Ternbi a. On 23 February 2018 he woke up at
4:30 in the mo111ing and went to the train tation at Tembisa in order to go to
work. He had a monthly ticket to ride on the train which was accepted into
evidence as Exhibit "B"
6 CL 2-30 par 2.1 -2-33 par 3.5
7 CL 2-33 par 3.5
4
2.1.2 He testified that the train was full even before he boarded, but he got a seat
next to the door. While the train was in motion, the doors were closed.
2.1.3 At Kempton Park station it seemed as if the train had a problem as it had
difficulty of pulling out of the station. Lots of people had boarded the train
and the doors remained open as it eventually pulled out of the station.
2.1.4 The train did not stop at Rhodesfield as it was supposed to and therefor the
passenger s that wanted to disembark there sta1ied pushing and shoving each
other.
2.1.5 Chaos reigned as the train approached Isando. The Plaintiff stood up, left
his seat and took a step towards the open door while the train was still moving
and some of the passengers pushed him out of the train.
2. 1 .6 He fell between the tracks at approximately 50 meters from the platform.
Later it was established that the distance was actually 500 meters. A bundle
of photographs was handed in and accepted as Exhibit: "A" Photos 12-1 and
12-2 indicate the place where the Plaintiff allegedly fell off the train. On photo
12-17 it was agreed between the parties that the place where the Plaintiff fell
was 500 meters from the station.
2.1.7 He testified that he was injured and bleeding. He thought that his leg was
fractured as he could not walk. He phoned a friend who is also a colleague of
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his who was commuting on another train behind him. His friend disembarked
at Isando and walked along the railway lines to come to his assistance .
2.1.8 His employer sent a driver to pick them up. He was treated at his workplace
and later taken to hospital. He was on sick leave for a month.
2.1.9 He did not call emergency services. He testified that he reported the incident
to PRASA about a week later.
2.2Abraham Ndobeni
2.2. l The Plaintiff is hi co-worker. The witness also stayed in Tembisa, and he
also commutes to work with the train to Isando station.
2.2.2 He boarded his train a little later than the Plaintiff and as the train
approached Rhodesfield station, the Plaintiff phoned him and reported that he
was pushed off the train and that he fell on the railway lines and was still
laying there between the tracks.
2.21.3 The witness disembarked at lsando station and walked backwards on the
platform. He looked for security officers but found none.
2.2.4 He climbed off the platform and walked on the tracks backwards until he
saw the Plaintiff laying on the tracks. He assisted the Plaintiff to get off the
6
line , through an opening in the pali ade fencing. 8 They waited on the ide of
the road for the driver who then took them to their workplace. He then
proceeded with hi work dutie and be did not see when the Plaintiff wa
taken to hospital.
2.2.5 He te tified that he started commuting with the train in 2012. At Isando
tation there i no ecurity per onnel stationed. There are also no ecurity
people on the train itself.
3
Both the witnes e were cro examined and the following came to the fore:
3.1 The Plaintiff
3.1. I He wa aware that any incident that occurred on the train must be reported
to the ecurity.
3.1.2 He did not a k hi friend to a i t him in reporting the matter.
3.1.3 He admitted that if he had remained seated, he would have been afe.
3.1.4 He willingly stood up, did not hold on to anything and stood in a dangerous
place on a crowded moving train.
8 See Ex "A" photo 12-4
7
3.1.5 He agreed that he got injured because of his own negligence.
3.1.6 It was put to him that his injuries did not emanate from an incident that
occurred on PRASA 's premises; and
3.1.7 It was also put to him that his version is improbable, and that the incident
did not happen at all, hence the reason for the absence of a report.
3.2 A Ndobeni
3.2.1 The plaintiff is his friend, and they know each other since 2012.
3 .2.2 He knows that there is a train guard on every train and that the guard sits in
the last coach of the train.
3.2.3 He said although he walked backwards on the platform and passed the last
coach of his train, he did not inform the train guard about his friend laying on
the tracks because the train does not stop for a long time.
3 .2.4 lt was put to him that the ticket examiners sit in a kiosk at the exit of the
station, and he could have reported the incident. He stated that there were no
examiners in the kiosk or any security officers on the platform.
3.2.5 He then to the testified that he actually looked around for any security
personnel for I O minutes and it took him 25 minutes to reach the Plaintiff.
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3.2.6 The witness indicated on photo 12-12 of Ex "A" the platform on which he
disembarked. The importance of this testimony will be highlighted later on.
3.2.7 He testified that it did not cross his mind to ask other commuters for help
with the plaintiff but contradicted himself later by saying he did ask for help,
but no one was willing to help.
3.2.8 It was put to him that the train from Tembisa does not stop at the platfonn
he indicated he disembarked and that his testimony cannot be true. Also, that
Isando is a very busy station and very profitable for the Defendant and
therefore there is always security and ticket examiners present at the station.
He nevertheless stood by his testimony.
4
The witnesses for the Defendant
4.1 Jonas Chabalala
4.1.1 He is a Chief Protection Officer and is employed at PRASA since 1997.
4.1.2 One of his duties is to protect the property and employees of PRASA and
the passengers on the trains and station.
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4.1.3 Security officers are posted at all stations, and the quantity depends on the
size of the station. At Isando on the dayshift there are two officers, and, on the
nightshi ft, there are four officers.
4.1.4 [n the instant case he is the investigating officer. He explained the process
when a claim is received. Claims are referred to the risk department who in turn
allocate them to a specific investigator. This claim was refe1i-ed to him.
4.1.5 At PRASA there are systems in place to record incidents and accidents. At
the Joint Operations Centre (JOC)the re is an occu1i-ence book similar to the OB
used by the SAPS, wherein all incidents are recorded. He checked the book and
found nothing with regard to this incident. Each segment of the stations also has
their own occurrence book for anything out of the ordinary that happened in that
particular segment. Excerpts of both books were handed in as exhibits "D" and
"E". Nothing relating to this case was recorded .
4.1.6 Thereafter he went to the "Train Ops" department where all faults and all
incidents are reported-Ex "F" He perused the whole document and found nothing
pertaining to this case.
4.1.7 He also handed in a daily posting sheet which indicates which security
guards were posted where and when as Ex "G". Ex "G" shows that two guards
were on duty at lsando station on 23 February 2018 on the day shift.
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4.1.8 As the train was identified in the summons , he consulted with the train
guard, Me LM Khomolo. She repo1ted that she did not see anyone laying on the
tracks that morning and no report was made to her. Her daily journal was handed
in as Ex "H''. This document also states that no such incident was repo1ted and
that there was no problem or fault with the train on the relevant date.
4.19 The witness was shown Ex "A" photo 12-12 and he stated that platform 2 is
only used by trains arriving from Pretoria and the evidence of Mr Ndobeni cannot
be possible.
4.2 Lon-aine Khomolo
4.2.1 She is a Metro guard at PRASA since 2007 to date. She confirmed Ex ·'H"
4.2.2 She described her duties as a train guard. On 23 February 2018 she was on
duty and there was no fault on train #0506. If there was a problem as alleged by
the Plaintiff, she would have known and reported the problem with a reference
number.
4.2.3 It is her duty to make sure the doors are closed before the train pulls away.
If there was an issue with the doors she would have reported it.
4.2.4 500 meters before a station the train moves very slow, and she would have
noticed somebody laying on the tracks. She is looking down on the railway lines.
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5
5.1 Both the witnesses were subjected to cross examination. It was put to Mr
Chabalala that his repo1t was incomplete which he denied. He believed the
incident did not occur.
5.2 Me Khumolo was tested on the visibility she had to see outside the train with
regard to her seat in the last coach of the train. She testified that she will
not fail to see if someone is sitting or laying on the tracks, and she did not
see the Plaintiff on the tracks that morning.
6
Legal P1inciples
6.1 Burden of Proof
It is trite that in civil cases the onus or burden of proof generally falls on the
plaintiff (the party initiating the lawsuit) to prove his or her case. This means the
Plaintiff must demonstrate to the court, on a balance of probabilities , that his
claim is true and probable, and that the Defendant is therefor liable. In the instant
case there can be no doubt that the Plaintiff bears the onus. He must convince the
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court that his version is the most probable and that the Defendant was negligent,
even to the extent of only l %.
6.2 Probabilities
During his evidence in chief the Plaintiff testified that the train experienced
problems resulting in panic when departing from Kempton Park station. He
testified:
6.2.1 The train could not pull out of the station.
6.2.2 Then the train moved a bit but stopped again.
6.2.3 When it started moving again it was much slower than before.
6.2.4 The doors did not close and remained open.
6.2.5 The train did not stop at Rhodesfield as it should have, and the passengers
started panicking and chaos ensued.
6.2.6 The people started pushing each other and Plaintiff was pushed off the train
as it approached Isando station.
6.3 The relevance regarding the testimony of Mr Ndobeni is the aspect of the
absence of security personnel , ticket examiners and what platform he
supposedly disembarked from.
6.4 All these allegations were refuted by the witnesses for the Defendant.
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6.4.1 Mr Chabalala proved t th court by way of documentary e id nee that
there were two ecurity guard on duty at I ando tation on 23 February
2018.9
6.4.2 He also handed in a Metro rail 'Faults Report" for 23 February 2018 which
howed that there wa no fault rep011ed with the train at either Kempton
Park tation or I ando tation. 10
6.4.3 It need to be mentioned that all the documentary evidence handed in by Mr
Chabalala wa not di puted in the lea t by the Plaintiff
6.5 The legal duty of PRASA
There can be no denying that a public caITier like the Defendant ha a legal
duty toward hi pa enger to protect them from any fo1m of harm while
they make use of their transport service . Thi include the duty that the
door of the train are properly clo ed when the train i in motion, no
overcrowding on the train and the list goes on.11
9 See Ex "G"
10 See Ex "F"
11 Mashongwa v PRASA (CCT 03/15) [2015] ZACC36; Rail Commute rs Action Group v Transnet Ltd t/a Metrorail
& Others 2016 {3) SA 528 CC
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7
7.1 The Plaintiff tated that he repo1ied the incident one week later. He did not
elaborate and informed the cou1t to whom the report wa made, where or at
which tation or office of the Defendant thi was done, was he given a reference
number or anything of the 1 ike.
7 .2 Mr Chabalala te tified, and the documentary evidence how that no such report
exi t . A a matter of fact, the Defendant came to learn about the alleged
incident when umrnon wa served.
7.3 Me Khumolo testified, and he was corroborated with the documentary evidence
that that there wa no problem with the train in que tion that day.
7.4 The Plaintiff also testified that he laid on the tracks with a broken leg for more
or les 30 minute before help arrived. In that time many train pa ed him a
it wa the morning ru h hour. If that was trne, somebody either one of the
many pa enger or a train driver or a train guard must have seen him laying
there in broad day! ight and made alarm.
7.5 Instead, the Defendant came to learn about the alleged incident more than a
year later when summon wa erved.
7 .6 It is in my opinion highly improbable that the incident could have happened as
per the te tirnony of the Plaintiff and hi witness. I therefor reject the evidence
15
of the Plaintiff as totally improbable, and it is the finding of the cou1i that the
Plaintiff did not discharge the burden of proof resting on him to convince the
court that his version is more probable.
7. 7 fn light of the above the plea of \10/anti 11011 fit iniuria and also the issue of
contributo1y negligence, became moot.
Order
1 therefor make the following order:
a) The action is dismissed.
b) The Plain~tiff to pay the costs of suit on High Court scale B.
G Botha Acting Judge of the
Gauteng Division of the High Court
Pretoria
16
Date of hearing: J 7 March 2025 to 20 March 2025
Date of judgment: 26 May 2025
For the Plaintiff: Adv Ramukhesa
Instructed by: Rapfumbedzani Attorneys
For the Defendant: Adv Sobekwa
Instructed by: State Attorney