IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA
DELETE WHICHE VER IS N O T A PPLICA BLE
(1) REPOR TAB LE: N O
(2) O F INTEREST TO O TH ER JUDG ES: N O
(3) REVISED: N O
(4) Date : 18 Augus t 2025
Signature: _I ____ _ CASE NO: 29532/2010
In the m atter between:
KHO MOT JO CHARLES MAJA
An d
PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA)
1
Plaintiff
Defendant
2
JUDGMENT
NYATHI J
A. Introduction
[1] This is an action for damages against the defendant arising from an incident on
the 24 January 2009 at Kempton Park Station, when the plaintiff was allegedly
pushed by unknown persons, while standing near the door of a fully laden
moving passenger train and sustained injuries.
[2] In January 2009 the plaintiff was staying at Ivory Park in Tembisa. Though he
was not formally employed, he plied the trade of a hawker. He used to take a
local taxi to either Oakmoor or Olifantsfontein station. He would go to town where
he would buy stock and then walk around selling.
B.
[3] The plaintiff recounted that on Saturday 24 January 2009 he had gone to town
as usual and was a passenger in a train at Kempton Park for his trip home in the
afternoon. He had been standing in the train holding a steelbar at the door of the
train which was in motion.
[4] He was bumped by some person he cannot identify, who had rushed out of the
train, he lost his balance and fell out of the train. The next moment he found
himself in hospital. He was informed that he was brought to the hospital by
ambulance. He had sustained leg injuries, and his legs were amputated.
[5] The plaintiff displayed a copy of a ticket on file which he said he had bought at
Olifantsfontein station.
Plaintiff's case
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[6] Under cross-examination by Mr Hlongwane, who appeared for the defendant,
there was an accusation that the plaintiff did not have a ticket on that day. This
was vehemently denied by Mr Maja.
[7] A point that insistence that
commuters were boarding and alighting from the train while it was in motion.
[8] It is t version that on the day of the accident the plaintiff had no
ticket and was opening the doors as they were closing, got out of the moving
train and started staff-riding, slipped and fell between the platform and the train
and was amputated by the train, was put to and denied by the plaintiff.
[9] any further witnesses being
called.
C.
[10] On behalf of the defendant, Mr John Makgawo Khwinana was called to tesify
under oath. He stated that:
[11] On the 24 January 2009 he had been a guard on duty at the Kempton Park
station working for Afriguard. They were contracted to Metrorail. While he was
busy - , a certain
man appeared, who was later identified as the plaintiff.
[12] As the train stopped at the platform, the plaintiff opened the doors and entered
the train and set next to the door. He held onto an iron bar. As the train pulled
off, he started staff-riding, and the witness reprimanded him. The plaintiff got on
and off the moving train twice or three times, and ultimately, he slipped and fell
stands out from the questioning is Mr Maja's
he defendant's
The plaintiff's case was closed thereafter without
Defendant's case
at around "past seven" in the evening, at the time of the last train
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underneath between the train and the platform. When the plaintiff was pulled out
from the place he had fallen into at platform 4, his right leg had been amputated.
[13] The plaintiff was still conscious when the witness and a colleague pulled him out.
rticulars but later found that he
had nothing like a valid ticket or an identification document. The witness then
reported that fact to the control room. His supervisors, Metrorail photographers
and an ambulance arrived. The supervisors including one Mr Gatsheni then took
over the scene.
[14] Under cross-examination
someone had pushed him out of the train. He reiterated that he had observed
the plaintiff staff-riding.
[15] Mr Mphela put it to the witness that if the plaintiff had been staff-riding, then the
train guard would have seen him and stopped the train. Mr Khwinana denied this
saying that if and when a staff-rider gets into trouble, the train does not stop.
[16]
D. Discussion and Analysis
[17] The parties agreed that merits be separated from the quantum aspects of this
action, with the latter to be postponed sine die.1
[18] The contested issue in this matter is whether Mr Maja has established any
negligence on caused
his injuries. Furthermore, was the plaintiff a fare paying commuter with a train
ticket or whether he was staff-riding.
1 Uniform Rule of Court 33(4).
The witness wanted to establish the plaintiff's pa
, Mr Khwinana denied the plaintiffs version that
The defendant's case was closed at this stage.
PRASA's side, and whether such negligence (if proven)
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[19] As summarized above, there is a chasm between
defendant alleges that the plaintiff had been misbehaving by forcing the train
doors open and staff-riding, which led to him slipping and sustaining the injuries
on the evening of 24 January 2009.
[20] I have to deal with two irreconcilable versions of the incident at the core of this
action. In these circumstances, resort is had to the technique laid out in the
Supreme Court of Appeal decision of
and Another v Martell and Others.2 Nienaber JA explained that in order to resolve
factual disputes a court must make findings on:
(a) the credibility of the various factual witnesses;
(b) their reliability; and
(c) the probability or improbability
each of the disputed issues.
[21] The court concluded
court will then, as a final step, determine whether the party burdened with the
onus of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's credibility findings compel it in
one direction and its evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter. But when all factors
equipoised probabilities prev
2 2003 (1) SA 11 (SCA) at para 5.
parties' versions. The
Stellenbosch Farmers' Wine,y Group Ltd
of each party's version on
that, " ... In light of the assessment of (a), (b) and (c), the
ail."
6
[22] In Jager 3, the court expressed
itself as follows:
It seems to me, with respect, that in any civil case, as in any criminal case,
the onus can ordinarily only be discharged by adducing credible evidence
to support the case of the party on whom the onus rests. In a civil case the
onus is obviously not as heavy as it is in a criminal case, but nevertheless
where the onus rests on the plaintiff as in the present case, and where there
are two mutually destructive stories, he can only succeed if he satisfies the
court on a preponderance of probabilities that his version is true and
accurate and therefore acceptable, and that the other version advanced by
the defendant is therefore false or mistaken and falls to be rejected. 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.
[23] In a weighing exercise when faced with two mutually destructive versions, it
stands to reason that acceptance of the one means of necessity a rejection of
the other.4
3 1984 (4) SA 437 (ECD) at 440D-441A.
4 Adams J in Komako v PRASA [2022] ZAGPJHC 822 (21 October 2022).
National Employers' General Insurance Co Ltd v
"
"
7
[24] Having regard to the prob
vers
witness, Mr. Khwinana. The interaction between the Mr. Khwinana and the
plaintiff preceded the unfortunate events that followed. The plaintiff plainly
disregarded the reprimands from Khwinana to desist from unlawful conduct,
which ended up endangering
-being.
E. Conclusion
[25] The probabilities are not in favour of the plaintiff, his cause of action cannot
prevail in the outcome of the matter.
F. Costs
[26] When it concerns the issue of costs, the rule is well established. Even though
there were no submissions or argument on behalf of the plaintiff in that regard,
the facts are clear to me that the plaintiff is in no position to bear that burden
regard being had to his situation holistically, I will exercise my discretion in
accordance thereto.
G. Order
[27] d. There is no order as to costs.
abilities, there are many an inconsistency in Mr. Maja's
ion of events as contrasted with the version tendered by the defendant's
the plaintiff's well
The plaintiff's action is dismisse
Date of hearing: 13/03/2025.
Date of Judgment: 18 August 2025
On behalf of the Plaintiff: MR. RB Mphela
J.S . NYATHI
JUDGE O F THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Plaintiffs attorneys: MHP Ma lesa Attorneys, Pretoria
e-mail: malesa@mhpma lesa.co.za
On behalf of the Defendant: Mr. J. Hlongw ane
Defendant's attorneys: Diale Mogashoa Attorneys, Pretoria
e-mail: vumile@dm-inc.co.za
Delivery: This judgme nt w as handed dow n electronically by circulation to the parties' legal
representatives by ema il and uploaded on the Caselines electronic platform . The date for hand
dow n is deemed to be 18 Aug ust 2025.
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