REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 46963/2011
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
25 March 2025 Judge Dippenaar
In the matter between:
KHALIPHA BANJIWE ZIYANDA PLAINTIFF
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA) DEFENDANT
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JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail. The date and time for hand -down is deemed
to be 10h00 on the 25th of MARCH 2025.
DIPPENAAR J:
[1] This is a trial action in which the plaintiff seeks damages as a result of injuries
sustained by her on 13 May 2011 at Park Station in an incident involving one of the
defendant’s trains. At the commencement of the trial, an order was granted by agreement
between the parties se parating the issue of liability under r 33(4) and postponing the
quantum sine die.
[2] Three witnesses testified. The plaintiff, Ms Banjiwe , Mr Phakamile Ado lphes
Madziba, an eye witness who was at the time employed by the defendant as a security
officer at Pa rk Station and Mr Khuzwayo, a protection officer in the employ of the
defendant.
[3] In her particulars of clam, the plaintiff pleaded how the accident occurred as
follows:
‘On or about 13 May 2011, the plaintiff boarded one of Defendant’s trains (“The Train” ) of
which the train number is unknown to Plaintiff, at Oberholtzer station with a valid ticket en -
route to the Johannesburg station. Due to lack of crowd control by the Defendant, other
commuters pushed and trampled over the Plaintiff from behind and the train pulled and as
result (sic) the Plaintiff sustained multiple injuries as indicated below’ .
[4] The defendant on the other hand pleaded that the accident occurred as a result of
the plaintiff ’s negligence in various respects. It was pleaded inter alia that the plaintiff
attempt ed to board the train which was at the time already in motion with its doors closed
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after all the pre -departure safety measures or warnings had been complied with and that
the plaintiff interfered with the train doors when they were a lready released to close and
had closed and was thus the sole cause of the accident . In the alternative, th e defendant
pleaded that the re was contributo ry negligen ce on the part of the plaintiff in accordance
with the Apportionment of Damages Act 34 of 19 56.
[5] At the trial various fact were common cause. They are the following. The accident
occurred at approximately 14h00 on 13 May 2011 at Park Station, platform 3 and 4 , as a
result of which the plaintiff sustained injuries to her right ankle and left leg. A t the time,
the plaintiff was in possession of a valid monthly train ticket.
[6] In evidence, the plaintiff’s version as to how the accident occurred was somewhat
different to the case pleaded . She testified that the accident occurred at Park station. That
was common cause. Her version was that she boarded a stationary train with its doors
open. She was walking and was not in a rush. When she arrived at the platform, t he doors
were open on both sides of the train. She entered the train but could not find a seat . She
stood in the middle of the train next to the door from which she had just entered , facing
the door. She was holding on to a balancing loop and was surrounded by commuters.
She did not hear any warnings that the train was about to move. When the train started
moving , people started rushing to enter the train . Some people entered the open door on
the other side of the train behind her and pushed her, causing her to fall out o f the train
and land with the bottom part of her body between the railway tracks and the platform. At
that time, the train was in motion with its doors open. She sustained injuries to her left leg
and right ankle as a result. People started to shout for th e train to stop and it stopped.
She was assisted and ultimately taken by ambulance to the hospital.
[7] During cross examination she was emphatic that both doors on each side of the
train were open and that there were platforms on each side of the train. She was further
emphatic that she was walking to the train prior to the accident and was not rushing,
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despite it being put to her that evidence would be led that she was doing so . Despite
initially disputing that she was interviewed at the scene, she later con ceded that her as
her contact details were contained on the report provided by the protection officer, she
was interviewed. She further tailored her evidence pertaining to the fact that she was
surrounded by commuters in the train when confront ed with the probability that other
commuters would have been affected by the pushing she averred.
[8] The picture painted by the defendant’s witnesses is very different. Mr Madziba
testified that he was on duty at platform 3 and 4 on the day in question. He saw a lady,
referring to the plaintiff, rushing down the stairs to the platform and to the train. He was
some thirty paces away from her. She attempted to board the train, which had already
begun moving. She missed the step and fell with her legs trapped between the tr ain and
the platform. People started screaming and the train guard was alerted to signal that the
train be stopped. The train was stopped and the plaintiff moved to the side of the platform.
He notified control and Mr Khuzwayo was called, who took over the scene. He expl ained
to Mr Khyuzwayo what he had seen and was present when the plaintiff was carried via
stretcher to the ambulance.
[9] In cross examination Mr Madziba explained that when the plaintiff approached the
train, it was stationery with its doors open. The whistle had already been blown by the
train guard to warn commuters that the train was about to start moving. The whistle is so
loud that everyone on the platform would hear it. The train guard at the back of the train
blows the whistle to indicate the train is about to move , indicating to commuters that they
should not enter or exit the train as it was about to move . As the plaintiff put her foot on
the door to enter, the train pulled off and the doors started to close. The lost her balanc e
and fell.
[10] Mr Khuzwayo testified that he was called from the concourse to report to platform
3 and 4 as there was a commuter injured. He found the plaintiff on the side of the platform.
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He asked Mr Madziba what happened, who explained he witnessed the acc ident and that
plain tiff was attempting to board a moving train. She lost balance and fell. He asked
plaintiff what happened and got her details she explained she was attempting to board a
train which was in motion. He completed the liability form and call ed an ambulance after
interviewing the plaintiff. Paramedics arrived and used a stretcher to take the plaintiff to
an ambulance. In Mr Khuzway o’s statement he stated that the plaintiff reported that she
was running for the train and as she put her foot ins ide the coach, the train started to
move and she lost her balance and fell between the train and platform. The liability form
also indicated that the plaintiff was attempting to board a moving train.
[11] He was emphatic that the plaintiff’s version was not tru e that there were platforms
on both sides of the train and that the doors on both sides of the train were open. Doors
are only open on one side as on the other, there are railway tracks between the train and
the next platform. Despite cross examination he maintained that he interview ed the
plaintiff. That version was not disturbed. He completed the liability form and about a year
later made a statement on 18 April 2012 when asked to do so by the investigating officers
after the plaintiff had lodged a claim. He insisted that he saw Mr Madziba at work that day
and got information regarding the incident from him. Mr Madziba ’s name was on the
liability form and the occurrence book that recorded the incident on the day in question.
[12] The defendant called for an in spection in loco of where the accident occurred ,
which was conducted virtually with representatives of each of the parties present . A video
was produced by agreement between the parties, which was introduced into evidence .1
The contents of the video was common cause and illustrated that there were indeed no
platforms on both sides of the train as testified to by the plaintiff. There was only a platform
on one side of the train , with railway tracks on the other side of the train before the
following platfo rm. The video further contained a virtual tour of the station from the
concourse, down the stairs onto the relevant platform. The real evidence materially
1 As real evidence, Exhibit B.
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corroborated the evidence given by Mr Khuzwayo and showed the plaintiff’s version on
this issue to be unreliable .
[13] The documentary evidence2 also in material respects corroborated the evidence
of the defendant’s witnesses. T he incident report prepared by Mr Khuzwayo, contained
the statement : ‘The victim alleges that she was running for the train and as sh e puts her
foot on the coach floor the train pulls away and she fell .’
[14] The test pertaining to disputed issues is set out in Stellenbosch Farmers’ Winery
Group Ltd and Another v Martell et cie and Others thus: 3
‘To come to a conclusion in the disputed is sues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.’
[15] It is trite that a court must base its conclusion on a consideration of all the evidence.
The conclusion reached must account for all the evidence. 4 The drawing of an inference
requires properly established objective facts.5
[16] Considering the evidence as a whole, the probabilities favour the defendant’s
version. The plaintiff’s version is improbable in various respect s and is unreliable,
specifically pertaining to how the accident occurred with commuters entering through the
other side of the train and pushing her out. Although the passage of time and the impact
thereon on a witnesses’ memory must be accommodated, her version is unsatisfactory
and improbable. The discrepancies in her evidence and the tailor ing thereof in cross -
2 Exhibit A.
3 Stellenbosch Farmers’ Winery Group Ltd and Another v M artell et cie and Others 2003 (1) S A 11 (SCA).
4 S v van der Meyden 1999 (2) SA 79 (W); Seleke para22.
5 Seleke paras 24 -26 and the authorities cited therein.
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examination further taints her credibility. Her version at trial is also at odds with what she
reported to Mr Khuzwayo at the time.
[17] It was undis puted that the defendant has a legal duty to protect the plaintiff from
physical harm while she uses its transportation service s.6 That duty is well established
and was common cause . The plaintiff’s injuries resulting from the defendant’s transport
service s prima facie established wrongfulness7 and c ausation was also not in issue. The
only issue requiring consideration is negligence.
[18] The plaintiff ’s case in argument was centrally predicated on the evidence that just
before the plaintiff entered the train it was stationary with its doors open. Relying on
Mashongwa , it was submitted that leaving doors open presents a recognised risk to the
safety of passengers utilising the defendant’s services.8
[19] It is accepted that operating a train with open doors may result in reasonable
foreseeable harm. It is trite that the defendant had a legal duty to keep the doors closed
while the train was in motion.9
[20] On this basis, the plaintiff submitted that If the train was moving with open doors,
the plaintiff was negligent. She sought to overcome the difficulties with her evidence by
focusing on the common cause facts and relying on the version proffered by the
defendant’s witnesses. Counsel submitted that it was irrelevant whether the plaintiff was
entering or exiting the tr ain, based on common cause facts. Reliance was placed on the
defendant’s e vidence that the train was stationary with its doors open when the plaintiff
approached the train and that as the plaintiff was alighting the train, it started moving.
6 Mashongwa v Passenger Rail Agency of South Africa [2015 ] ZACC 36 .
7 Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC)
8 Paras 47 -48.
9 Mashonwa para 42.
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[21] The defendant on the other hand submitted that it did not breach its public law duty
to provide safety and security measures and that it was the plaintiff who breached th ose
measures and endangered herself by attempting to board a train which was already in
motion. It was submitted that the plaintiff was 100% negligent as the evidence established
she was trying to board a moving train and it was not even necessary to go to the
alternative of contributory negligence. Reliance was placed on Kangola10 and the Full
Court decis ion of Seleke11, which defendant contended was all fours with the present
matter.
[22] In Kangola , the plaintiff could not explain why no other passenger fell off the
overcrowded train when passengers were showing and jostling. In Seleke there was no
evidence the defendant did not discharge its constitutional duty and no onus on it to do
so. In both instances, the plaintiff’s claim was dismissed.
[23] It is well established that the defendant has a constitutional duty to ensure that
reasonable measures are in place to provide for the safety of rail commuters. The
question is whether there is evidence to indicate defendant did not discharge its duty and
there is no onus on defendant to do so.12
[24] Each case must be determined on its own facts. The f acts in the present instance
established as a probability that as the train started moving the doors started closing. The
doors were thus not completely closed before the train started moving , but
simultaneously, the train did not simply depart with open d oors.
10 David Kangola v Passenger Rail Agency of South Africa (19806/2021) [2023] ZAGPJHC 436 (8 May
2023)
11 Passenger Rail Agency of South Africa v Seleke (A5016/2022) [2023] ZAGPJHC 51 (25 January 2023)
(Seleke ).
12 Ibid para 33.
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[25] The defendant could have reasonably foreseen that passengers might be injured
if the train departed without the doors being closed. It could have taken steps to prevent
harm by simply ensuring that the doors were closed prior to the train being set in motion .
That is not however the end of the enquiry as the plaintiff’s contended and her own
conduct must also be examined.
[26] The evidence established that pre -departure safety measures had been complied
with. The whistle had been blown signifying to all commuters that the train was about to
move. On the probabilities, after the whistle was blown , the plaintiff should reasonably
have foreseen that the train would start moving shortly thereafter. Commuters had thus
been warned that it was unsafe thereafter to board the train. That notwithstanding, the
plaintiff attempted to do so. The evidence further established that the doors were already
closing when the plaintiff attempted to board the train a nd it had stated moving. She
should reasonably have foreseen that it was unsafe for het to attempt to do so at that
time. It would have been simple for her not to sustain any harm by simply not attempting
to board the train.
[27] On a conspectus of all the fact s, I conclude that the evidence on the probabilities
established contributory negligence on the part of the plaintiff in certain of the respects
pleaded by the defendant in its plea in attempting to board the train which had started to
move after the pre -departure warnings had been complied with.13 In those circumstances,
the plaintiff’s damages recoverable must be reduced by the degree in which the plaintiff
was negligent in accordance with s 1 of the Apportionment of Damages Act 34 of 1956. On
a conspectus of all the facts, I conclude that negligence is to be attributed 80% to the
plaintiff and 20% to the defendant as it was primarily the conduct of the plaintiff and her
own negligence, which resulted in her sustaining the injuries.
13 Para 7 of the plea.
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[28] There is no reason to dev iate from the normal principle that costs follow the result.
The plaintiff has been successful in establishing liability on the part of the defendant.
Considering the complexities involved, costs on scale B would be appropriate.
[29] In the result, the followi ng order is granted:
[1] The defendant is liable for 20% of the damages suffered by the plaintiff as proved
or agreed;
[2] The defendant is to pay the plaintiff’s costs on scale B.
_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING
DATE OF HEARING : 06 and 07 MARCH 2025
DATE OF JUDGMENT : 25 MARCH 2025
APPEARANCES
PLAINTIFF ’S COUNSEL : Adv J. Kilian
PLAINTIFF ’S ATTORNEYS : Lesetja Noko Inc.
DEFENDANT ’S COUNSEL : Adv T. Ramatsekisa
DEFENDANT ’S ATTORNEYS : Buthelezi Vilakazi Inc Attorneys