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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no:5883/2020
In the matter between:
S[...] N[...] PLAINTIFF
and
PASSENGER RAIL AGENCY
OF SOUTH AFRICA DEFENDANT
Coram: BARENDSE AJ
Heard: 6 & 7 October 2025
Delivered: 14 October 2024
ORDER
1. The Defendant is ordered to compensate the Plaintiff for 100% of
such damages that the Plaintiff may prove.
2. The Defendant is liable to pay the Plaintiff's party-party costs as taxed
or agreed on scale A, including the costs of counsel.
JUDGMENT
BARENDSE AJ
[1] The Plaintiff instituted this damages action against the Defendant arising
from an incident that occurred while he was commuting on a train as a fa re-
paying passenger on 15 June 2017.
[2] The Plaintiff was born on 18 December 2003 and was thirteen years old
at the time of the incident. His mother initially instituted the action while he
was a minor, and he later substituted her as Plaintiff after reaching the age of
majority.
[3] By agreement between the parties , the issues of merit s (liability) and
quantum were separated, and the trial was set down on the merits only.
[4] In the Particulars of Claim ("POC") the Plaintiff pleaded that the
Defendant was established in terms of section 22 of the Legal Succession to
the South African Transport Services Act 9 of 1989 ("the Act").
[5] It was further alleged in the POC that by v irtue of the provisions of
sections 15 and 23(1) of the Act , it was a function of the Defendant to
provide transport within, to and from the Republic in the public interest.
[6] Plaintiff pleaded that the Defendant owed him the duty to take such steps
as are reasonably necessary to ensure his safety while travelling on one of its
trains.
[7] Plaintiff further averred that the Defendant's legal duty arose from the
statutory provisions referred to in paragraph 4 above, alternatively from the
legal convictions of society.
[8] In support of the alternative basis for the Defendant's legal duty ,
mentioned above, the Plaintiff averred that:
(a) Defendant was established in the public interest for the very purpose
of providing a rail commuter service , which in turn had to ensure the
safe travelling of its commuters;
(b) Defendant is maintained and operated by public money;
(c) The vast majority of passengers are compelled to make use of trains
because they cannot afford other transport;
(d) Defendant commands the resources, manpower, and/or security with
which to prevent any danger to its commuters; and/or
(e) Defendant is expected to operate carriages which are safe for the
purpose of conveying passengers.
[9] The Plaintiff gave evidence and was the only witness called at the trial.
In brief, his version was that at the time of the incident , he was a learner in
Grade 7 and used a train daily to commute to and from school. He would use
a train in the morning from Phillipi to Mitche lls Plain and on his retu rn
journey, a train from Mitchells Plain to Phillipi.
[10] On the day in question , he boarded a train in the afternoon in Mitchells
Plain, to return home. The train was full so he remained standing as there
were no vacant seats. He was positioned about tw o meters from the door of
the carriage. The door of the carriage was open , and some windows thereof
were broken. There were no security personnel on the train.
[11] The train moved off , but the door of the carriage remained open.
Commuters moved through the carriage to an adjoining carriage and in this
process, pushed him towards the open door. He was unable to grab onto one
of the rails in the centre of the carriage. Given his age at th e time, h e was
small in stature compared to the commuters around him , ended up being
pushed through the open door of the carriage and fell from the moving train.
He at no stage suggested that this resulted from deliberate or criminal acts by
other commuters.
[12] Plaintiff testified that his last memory was being pushed off the moving
train, and he only regained consciousness when in the Mitchells Plain day
hospital, where he learned from a nurse that a person brought him into the
hospital.
[13] In its Pl ea, the Defendant denied all the averments made in the POC.
Defendant did not, in the alternative plead, that there was any negligence on
the part of the Plaintiff.
[14] The POC reflected the date of the incident as 14 June 2017, during his
evidence in chief, the Plaintiff also testified that the incident occurred on 14
June 2017.
[15] During cross examination , it was put to the Plaintiff that the hospital
records forming part of the trial bundle reflected the date of admission to the
hospital as 15 June 2017. Plaintiff's counsel moved for an amendment of the
date in paragraph 3.1 of the POC from 14 June 2017 to 15 June 2017. The
amendment was allowed.
[16] Defendant's counsel called Plaintiff's reliability as a witness into
question because of the initial discrepancy around the date of the incident .
Plaintiff was also cross -examined on the contents of a page forming part of
the Mitchells Plain Hospital's records. This document reflected the
mechanism of the injury as a "Fall" and the location of the incident as a
"Street/Highway".
[17] Not much turn ed on the entries in the hospital records. No evidence
pertaining to the contents there of was produced by either party , and the
records were not admitted into evidence. In other parts of the hospital
records there were refe rences to "Thrown from train" (page 38 of the
bundle) and "fell from train" (page 41 of the bundle).
[18] The court fo und Plaintiff to be a reliable witness , and there was no
reason to reject his evidence. In accepting Plaintiff's evidence , the court
finds that he fell from a moving train in the circumstances as described by
him. This is however not the end of the matter. The further requirements for
a finding of liability on the part of the Defendant are considered and dealt
with below.
Legal Duty
[19] Plaintiff ha d the onus to establish a basis for the legal duty which
according to him, rested on the Defendant. Reference to this was made in
paragraphs 5, 6 and 7 above.
[20] In argument, Plaintiff's counsel referred the court to the judgment by
the Constitutional Court in Mashongwa,1 where it was he ld that public
carriers like Passenger Rail Agency of South Africa (“PRASA”) have
always been regarded as owing a legal duty to their passengers to protect
them from suffering physical harm while making use of their transport
between carrier and passenger, usually, but not always based on contract. It
also stems from its public law obligations, and this merely strengthens the
contention that a breach of those duties is wrongful in the delictual sense and
could attract liability for damages. The reference to "PRASA" in
Mashongwa was a reference to the same Defendant in this matter. services.
This duty, in the case of PRASA, arises from the existence of the
relationship
[21] Mashongwa also confirmed,2 that:
'Safeguarding the physical well-being of passengers must be a central obligation
of PRASA. It reflects the ordinary duty resting on public carriers and is
reinforced by the specific constitutional obligation to protect passengers’ bodily
integrity that rests on PRASA, as an organ of state.'
[22] There fore, there can be no doubt that the Defendant owe d the
passengers who made use of its services , including the Plaintiff, the legal
duty as contended for by the Plaintiff. Next, it has to be considered whether
there was a negligent breach of this duty.
1 Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) at para 20.
2 At [26].
Negligence and Causation
[23] The uncontroverted evidence by the Plaintiff was that the door of the
carriage in which he was a passenger remained open while the train was
moving. His evidence that there were no security perso nnel on the train was
also not rebutted.
[24] In the matter of Chauke v Passenger Rail Agency of South Africa,3 with
reference to Transnet Limited t/a Metrorail and Another v Witter ,4 the court
confirmed that a train moving with open doors constitutes negligence.
[25] A reasonable person in the position of the Defendant would have
foreseen that moving trains with open doors posed a risk of harm to its
commuters and would have taken reasonable steps to prevent such harm. On
the evidence in this matter the carriage in which Plaintiff was conveyed was
moving with an open door thereby exposing Plaintiff to risk of harm.
[26] While the Plaintiff also relied on the absence of security personnel as a
ground of negligence , there is no evidence on which the court can make a
finding that their mere absence amounted to negligence. Further, there is no
evidence on which it can be found that their presence would have pre vented
the incident.
3 (8394/13) [2015] ZAGPPHC 1075 (9/12/2015).
4 2008 (6) SA 549 (SCA).
[27] In the circumstances , a finding of negligence is made . The next
question that arises is whether causation was established between the
Defendant's negligence and the Plai ntiff being pushed or falling from the
moving train. The answer to this question is a very simple one. Had the
doors of the carri age in which the Plaintiff was conveyed been closed,
Plaintiff would , on the probabilities, not have been pushed from or would
not have fallen off the moving train.
Wrongfulness
[28] Having found that there was a negligent omission, it must be considered
whether this omission was wrongful. As a matter of legal policy, a n
omission is wrongful when the legal convictions of the community regard it
as wrongful. The convictions of the community must be determined with
reference to the norms and values embedded in our Constitution.5
[29] In Mashongwa, it was held that:
'The norms and values derived from the Constitution demand that a negligent
breach of those duties, even by way of omission, should, absent a suitable non -
judicial remedy, attract liability to compensate injured persons in damages'6
[30] The court accordingly finds that the omission by the Defendant was
wrongful. The Plaintiff has therefore discharged the onus of satisfying all the
elements of the delict on which his action is based.
5 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
6 Mashongwa at para 26.
[31] For the reason contained in paragraph [12] supra, this court cannot and
may not assess, on Plaintiff's own version, whether he was contributory
negligent. The provisions of the Apportionment of Damages Act 3 4 of 1956
were not triggered.
[32] The Defendant is therefor e liable for one hundred percent of such
damages that the Plaintiff may prove.
__________________________________
R BARENDSE
ACTING JUDGE OF THE HIGH COURT
Appearances
For Plaintiff: Adv R Liddell
Instructed by: Laubscher & Hattingh Attorneys
For Defendant: Adv R Maisela
Instructed by: Makhubela Attorneys