IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Case No.: 21189/2019

In the matter between:

JACOB COLIN BARNETT PLAINTIFF

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA DEFENDANT

Neutral citation: Jacob Colin Barnett (Case no 21189/2019) [2025]
ZAWCHC (01-12-2025)
Coram: PATHER AJ
Heard: 21 October 2025 and 19 October 2025
Delivered: 01 December 2025


JUDGMENT
___________________________________________________________________

PATHER AJ:

[1] The Plaintiff in this matter is a 72-year-old male retiree , who instituted this
action against the Defendant in November 2019. Th is is a delictual claim based on
damages that the Plaintiff suffered as a result of an incident that occurred whilst he
and his wife were traveling as passengers on a passenger train, operated by the
Defendant.

[2] The Plaintiff boarded a Metrorail train at Cape Town Station, en route to Retreat
Station. The train sto pped at Ha zeldene Station, and according to the Plaintiff and as
stated in his particulars of claim , 3 unknown males, together with a woman boarded
the train at this station.

[3] The Plaintiff further state d that whilst the train was travelling between Athlone
and Crawford Stations, the three unidentified males who had entered the train at
Hazeldene Station began to harass him and his wife. The Plaintiff stated that he and
his wife were scared and they both tried their best to avoid the unwarranted interaction
but their efforts were successful . The Plaintiff motioned to his wife to change seats as
well, to as avoid the interaction but this prompted the unidentified individuals to follow
them.

[4] The Plaintiff state d that the men tried to rob him and his wife of their
belongings, and in doing so, one of them pulled out a knife, a scuffle broke out, and
this resulted in the Plaintiff sustaining a wound to his hand . In addition, one of the
men had tried to , and managed to pull at the Plaintiff’s wife’s handbag and made off
with it. As the train pulled into Crawford Station, the three males left the train, and the
Plaintiff out of fear and panic ran out of the train onto the platform to find a security
office or someone in change to get assistance. The Plaintiff stated that he was aware
that there was someone that was a security or in charge and he was described as the
one with the whistle. The perpetrators were then violently attacked by other passersby

one with the whistle. The perpetrators were then violently attacked by other passersby
on the platform at Crawford Station, and presumably, when they alighted the news that
they had attacked a passenger had sp read. The Plaintiff also informed the court that

he was able to find his wife’s bag, which was dropped in another section of the train,
and which he believed the perpetrators dropped whilst they were existing the train.
Before the train pulled out of Crawford Station, a woman, that was on the platform,
threw a brick toward the Plaintiff, into the open train doors, which hit him on his nasa l
bone, causing him immediate pain, followed by extensive bleeding.

[5] The Plaintiff alleged that the incident occurred solely as a result of the
negligence of the Defendant.

[6] Plaintiff stated on the pleadings and through argument from counsel that the
Defendant owed the Plaintiff a duty of care and protection, and that the Defendant had
failed to provide adequate, if not any security on the train. The Plaintiff contended that
the incident would not have occurred had there been sufficient supervision, or panic
buttons installed or some form of deterrence where passengers were protected .
There was also no video or c amera surveillance system that was installed. The
Plaintiff could not be certain that the perpetrators were fare paying pas sengers, as
there was no one on the train that was checking tickets. Even after the incident
happened, there was no presence of security to assist the Plaintiff or his wife.

[7] The Plaintiff stated that he suffered various injuries, inter alia; emotional shock,
trauma, soft tissue swelling in his face, head injury. The Plaintiff had to receive
hospital care, and he also suffered from pain and discomfort.

[8] The Plaintiff claimed R100 000 for his past and future medical expenses, and
an amount of R500 000 for general damages.

[9] The Defendant’s defence and Plea amounted to a bare denial. It even denied
that the Plaintiff was a fare paying passenger. The only aspects of the P laintiff’s claim
that was admitted was the identity of the Plaintiff, the fact that Defendant operated and
owned trains travelling from Cape Town to Retreat stations on the date of the incident.

owned trains travelling from Cape Town to Retreat stations on the date of the incident.
The Defendant specifically denied that its employees were negligent, denied that there

was any connection between th e brick being thrown through the train door as it was
about to close at the platform, and denied consequentially that any injuries sustained
by the Plaintiff was as a result of the brick being thrown . The Defendant denied that a
brick was in fact thrown at the Plaintiff.

[10] The Plaintiff relied on his own evidence, and the psychological assessment
report prepared by clinical psychologist Anton C Bohmer.

[11] The Plaintiff gave evidence, and he described how the incident occurred. He
recounted the sequence of events. The Plaintiff was confused at times, however, it
was hard not to see his honesty and truthfulness about the incident . It was clear that
the Plaintiff had left the litigation and proceedings to the attorney, and he displayed
honesty when questioned about the pleadings and whether he had perused same.

[12] The Plaintiff answered questions that were put to him simply and where he
could, he assisted the court to understand the layout of the coaches, the direction
doors of the train, the seating arrangements and the different categories of coaches.
The court was impressed with the Plaintiff and despite there being the confusion with
the number of perpetrators that were present, the discrepancies with the particulars of
claim and the events on the day, the court found that the Plaintiff gave an honest and
reliable account of what had happened. The Plaintiff could not be held responsible f or
the pleadings drafted by his attorney, and he did not make any excuses as far as that
was concerned. The Plaintiff maintain s a calm and clear disposition at all times and
despite cross-examination by the defendant’s attorney, the Plaintiff was resolute in his
version. He seemed to project being surprised that his integrity was being questioned.

[13] The Court was impressed with the evidence of the Plaintiff and can see no
reason why he would go to any elaborate lengths to make up a story.

reason why he would go to any elaborate lengths to make up a story.

[14] The Court had regard to the expert report of the clinical psychologist and notes
that there were differences in the allegations as set out in the particulars of claim, and

that as set out in the report. The court however accepted the evidence by the Plaintiff
and the court accepted that t he Plaintiff was not given the report to check ; and that he
cannot be held liable for the psychologist possibly recording the information down
inaccurately or based on her interpretation.

[15] The Plaintiff was the only witness who testified. The Plaintiff was criticized for
this, and it was suggested during argument that the Plaintiff could have called his wife
to give evidence as she was an eyewitness at the scene. The Defendant did not call
any witnesses to deal with its defence and argued that it need not have done so as the
onus of proof rests on the Plaintiff.

[16] It is the Defendant’s case that the Plaintiff was an unreliable witness, who
contradicted himself, and that the Court should see this as a failure to discharge the
onus on a balance of probabilities.

[17] The Defendant’s counsel emphasized that there was a significant discrepancies
in the pleaded case, the report given to the psychologist and the witness’s evidence.

[18] The Plaintiff was also criticized that on the one hand , he stated that the train
had no security, however, he had purchased a metro Plus ticket for the reason that this
provided “some sense of security”.

[19] The Defendant’s case was further that it was an unrealistic expectation to have
three security guards posted at every coach. It was an unrealistic requirement and one
that was not legally binding on the Defendant.

[20] The Defendant f ound fault with the fact that the Plaintiff did not pursue the
criminal case with the South African Police Services. It was stated that the Plaintiff did
go to report the incident , however, the police did not want to open a docket as the

Plaintiff was unable to identify the perpetrators. The Defendant is of the view that this
Court must take a dim view of the Plaintiff for this reason.

[21] The Defendant contended that the Plaintiff’s claim ought to be dismissed with
costs.

[22] The Court notes that the Plaintiff’s pleaded case differed from its argument at
trial. The defendant in its Plea denied that the Plaintiff and his wife were fare paying
passengers yet conceded this in argument. The Defendant also accept ed that there
were limited security patrolling the train and the stations , but states that this is not a
legal requirement. The Defendant wants this court to look at the fact that the pleadings
drafted by lawyers, the report of the psychologist and its respective contents to be
attributed to the Plaintiff. It is a known fact that litigants leave matters such as th ese in
the hands of the legal representatives. The Court does not take a nega tive view of the
Plaintiff because he admitted to reading the particulars of claim at court for the first
time. This is not unusual. Similarly, the Plaintiff cannot be called to be unreliable as a
witness due to inaccuracies in the psychologist’s report.

[23] The Court accepts the Plaintiff’s version that both he and his wife were
accosted on the train, and that they moved seats to avoid the perpetrators, and they
tried their best to protect themselves.

[24] The court also accepts that the Plaintiff was fearful of what may happen to him,
and his wife given their ages and the fact that they faced three men, one of whom was
armed with a knife.

[25] The court also accepts that it is not unrealistic to expect to have security on a
public train, and at the various stations. The fact that the Plaintiff paid a little extra for
a better train ticket and that he thought this would afford him greater security meant
that he expected to be safe. He was anything but safe. In fact, the defendant should

that he expected to be safe. He was anything but safe. In fact, the defendant should
not have sold tickets that are more expensive if it could not provide the benefits th at

accompany such a ticket. There was nobody checking tickets on the train, and this is
how the perpetrators were able to approach and harm the Plaintiff.

[26] The Defendant is critical of the fact that the Plaintiff went to the hospital to
nurse his injuries first instead of going to the police. This criticism is astonishing.

[27] There is no reason to doubt the Plaintiff when he says that the SAPS refused to
open a docket as Plaintiff could not identify the perpetrators. This is not an uncommon
occurrence on the part of the police. In fact, it was incumbent upon the police officer
to have opened a docket and investigate the matter. Also, clearly, the Defendant itself
could not investigate the matter as it has no surveillance footage or witnesses in the
form of security guards who could offer any assistance about the occurrence of the
incident. The Court would have thought that the Defendant would have made atte mpts
to get an investigation underway. Instead, the defendant criticizes the Plaintiff.

[28] The Defendant called no witnesses, and this is indicative of the fact that there is
no one to testify to the version that has been pleaded by the Defendant. This was
consistent with its plea being a bare denial, as realistically, the Defendant had not a
single shred of evidence to deal with any of the plaintiff’s allegations. If the Defendant
had cameras installed it may have had some information, if it had guard s, there may
have been a report, but this was all glaringly absent.

[29] This court has no reason to believe that the Plaintiff did not suffer injuries from
the incident that occurred on the train on 26 May 2019. The Court also accepts that
the incident left the Plaintiff feeling anxious, scared and traumatised. The Plaintiff
commented that he cannot take the train like he used to and he has to incur costs to
travel by car, whereas the train is a cheaper and more affordable mode of transport.

travel by car, whereas the train is a cheaper and more affordable mode of transport.
This is concerning as majority of the South African public rely on public transport as
the other modes are expensive . This fear will prevent people from using the train yet
their protection and the right to be safe whilst usi ng public transport is one that is
protected by our Constitution.

[30] As alluded to above, the Plaintiff’s expectation to be safe on a public train
operated by the Defendant was not unrealistic, and that the Defendant bore a duty to
ensure reasonable me asures were in place to provide security for the Plaintiff as set
out in the authority of RAILWAY COMMUTERS ACTION GROUP v TRANSNET LTD
t/a METRORAIL (CCT56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC).

[31] It cannot be overlooked that the duty to prevent harm to commuters is a
legitimate Constitutional right that the passenger must be able to rely on. It is a well-
known fact that the trains and buses are used by commuters who fall within the less
privileged economic sectors, and where they are reliant on the public transport system
given their financial circumstances. The Plaintiff states that he was aware of the risks
and this is the reason why he bought a metro plus ticket, which he kept safely in a
plastic sleeve that he paid R5 for . He also stated that this was not a once of ticket but
a monthly pass. In Mashongwa v PRASA 2016 (3) SA 528 (CC), the court stated at
paragraph 29:
“It is this context of legal duty that falls on PRASA’s shoulders must be
understood. That PRASA is under public law duty to protect its commuters
cannot be disputed. This much was declared by this Court in Metrorail. But here
this Court goes a step further to pronounce that the duty concerned together
with constitutional values, have mutated to a private law duty to prevent harm to
commuters”

[32] This cannot be ignored in the present matter and the minimum expectation by
the Plaintiff and his wife was that of being safe whilst going home. The Plaintiff was
emotional in his evidence ; he expressed that he felt helpless and that he was unable
to protect his wife and that she had to undergo the trauma of the incident. He went
further to say that as a man, he should have been able to look after his wife, and he
felt very sad that her bag was cut off by the perpetrators. This Court accepts that there

felt very sad that her bag was cut off by the perpetrators. This Court accepts that there
was a breach of duty by the defendant to the Plaintiff and that this breach of duty of
care constitutes wrongfulness on the part of the defendant

[33] This Court is assessing the evidence and is satisfied that the Defendant did not
have a security guard on the train that the Plaintiff was on, did not have security in the
Metro Plus coach, did not have secu rity at the platform in Crawford Station where the
brick was thrown at him, and also had no assistance available on the train to help with
the emergency with the brick being thrown at the Plaintiff. The Plaintiff and his wife, in
the state of fear, shock and trauma had to continue on their journey to Retreat Station,
make their way home, clean up the blood and then get to the hospital.

Thulare J sated in the authority of Mkhize v Passenger Rail Agency of South Africa
2025 JDR 2863 (WCC):
“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 co urts for
intervention including up to the Constitutional Court. The decision in Metrorail
is a classic example. The litigation in the civil courts against the defendant, and
the prevalent prosecution of Skollies who commit crime on the trains in motion,
including those who board trains when they stop at signals to rob commuters in
the carriages and alight e ither when the train starts 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 against the b ackground 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.”

[34] The Defendant has not shown that it had taken any steps to provide security, thus
exposing the Plaintiff and other commuters to harm. The Court has to consider what
the position would have been had there been security on the train and at the platform,

the position would have been had there been security on the train and at the platform,
and the Court cannot believe that this would not have been a deterrent. Had there
been visible security, there is every likelihood that the perpetrators would not have
entered the train or if they did, they would have been concerned to have interfered
with the Plaintiff. The Defendant made it easy for the perpetrators to enter the train as
it did not even check whether fare paying passengers were travelling on the train.

[35] I am satisfied that the Plaintiff has proven his case and that it was the defendant’s
failure to safeguard the Plaintiff whilst he was a passenger on the train, that ultimately
resulted in the injuries that he suffered from the incident where the brick was thrown at
him. I am unable to find that the Plaintiff could do anything to prevent the attack on
him, and he was an innocent passenger.

[36] Accordingly, this court makes the following finding:
Order

1. That the Defendant is liable for the Plaintiff’s proven or agreed damages;
2. That the Defendant pay the Plaintiff’s costs, with counsel’s costs to be on Scale
B;
3. The issue of quantum is adjourned sine die;
4. That the Plaintiff is afforded preference in regard to the setting down of the
issue of quant

_____________________________
PATHER AJ
ACTING JUDGE OF THE HIGH COURT

Appearances

For Applicant: D Filand (C Carolissen)
Instructed by: Erasmus Ronchad & Associates


For Respondent: C Crafford
Instructed by: Crafford Attorneys