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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 25787/21
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
08/12/2025
In the matters between: -
M[...] M[...] L[...]
APPLICANT
and
PASSANGER RAIL AGENCY OF SOUTH AFRICA
RESPONDENT
JUDGMENT
BAQWA, J
Introduction
[1] The Plaintiff, M[...] L[...] M[...] , brings this action in her representative capacity on
behalf of her daughter, A[...] M[...], wherein she claims for loss of support arising out
of the train accident which occurred between Mabopane station and Soshanguve
station, Pretoria, on 28 May 2018.
Separation of issues
[2] At the commencement of this hearing, the parties agreed in terms of Rule 33(4) of
the Uniform Rules of Court to separate the issues of liability and quantum, and the
trial proceeded on liability only.
Common Cause Facts
[3] 3.1 It is common cause that the accident occurred and that the relevant train was
operated by the Defendant.
3.2 It is also common cause that the deceased boarded the train on the day in
question and that he died as a result of the accident.
Disputes Facts
4.1 It is disputed whether the deceased was in possession of a valid train ticket.
4.2 It is also disputed whether the Plaintiff has proved the legal nexus between the
deceased and the child on behalf of which the claim was lodged.
4.3 It is also in dispute whether the deceased died as a result of his own negligence
or as a result of the conduct of the Defendant or its employees.
Pleadings
[5] The Plaintiff's contends in her particulars of claim that the deceased fell out of a
moving train and died as a result of the injuries sustained in the fall. She further
contends that the Defendant owed a duty of care to the public in general which
included the deceased.
[6] The Plaintiff further contends that the defendant breached the aforesaid duty of
care in that it failed to ensure the safety of the deceased or to take adequate steps to
avoid the incident by failing to employ sufficient employees to prevent commuters
from being injured.
[7] The defendant has defended the action and raised a special plea to the effect that
there is no nexus pleaded by the Plaintiff connecting the deceased with the Plaintiff,
and that, as a consequence, the Plaintiff does not have the requisite locus standi to
institute the action against the defendant.
[8] The defendant further pleads in the alternative that the minor child on behalf of
whom the Plaintiff claims was born almost three years after the date on which the
deceased died, and that there can therefore be no nexus between the deceased and
the minor child.
[9] The Plaintiff failed to re fuse, replicate or lead evidence to dis credit the special
plea and its alternative basis. No evidence, be it in the form of a unbridged birth
certificate or a paternity affidavit was led as per agreement at the pre-trial conference
held on 22 June 2022 between the parties.
[10] In the circumstances the averments in the special plea remain uncontested, and
on this basis alone the claim falls to be dismissed, AES obo LTS versus MEC for
Health and Social Development of the Free State1.
11. In Assets Management (Pty) Ltd and Others v Lazarus Estate Investment (Pty)
Ltd2, the court, dealing with an exception, held that:
"A founding pleading that does not set out the basis for the claimant's standing to
bring the claim and the court's jurisdiction to entertain it lacks averments which
are necessary to sustain an action and is susceptible to exception in terms of
Uniform Rule 23, just as it would have been under the rules of procedure that
were applied before the introduction of the Uniform Rule s. The fact that the
objection in issue could have been raised by way of a special plea rather than an
exception is no bar to it being advanced by way of an exception, if it is
demonstrated ex facie the pleadings that it lacks averments to sustain a cause of
action."
Loss of Support
[12] It is trite that in a claim for loss of support, the Plaintiff ought to prove, in addition
to the other ordinary requirements for delict, prove that:
a) the deceased had a legal duty to support the Plaintiff; b) the defendant is
liable for the loss suffered.
1 (1094/2024) [2025] ZAFSHC 37 (13 February 2025).
2 (2102/2020) ZAWCHC 136; [2023] 3 ALL SA 589 (WCC) (9 June 2023).
[13] Further, compensation for loss of support can only arise from the unlawful killing
or injuring of the breadwinner by the defendant. In circumstances, therefore, where
the breadwinner died because of his or her own negligence, the defendant does not
have a claim.
[14] The above proposition was confirmed in C Septoo obo JM Septoo & Another vs
Road Accident Fund3, where the SCA held as follows:
"The reasoning adopted by this court, as illustrated above, is consistent with
the common law position. In my view, the Act codifies the common law
position, which recognises that compensation for loss of support can only
arise from the unlawful killing of the breadwinner by another person. Section
19, subsection A, especially states that liability is excluded in certain cases.
Therefore, the defendant in the case of the deceased who died as a result of
his own negligence does not have a cause of action for damages for loss of
support."
[15] The plaintiff has failed to furnish evidence to prove that the deceased was
indeed a breadwinner and to establish the legal nexus as requested by the pre -trial
minute referred to above and during the trial. On that ground alone, the claim ought
to be dismissed.
Analysis
[16] Two versions of evidence were presented before the court. On the one hand, the
plaintiff alleged that the deceased was pushed out of the moving train. This
contention was however not supported by evidence during the trial.
[17] The defendant contends that the deceased was part of a group of passengers
who unlawfully occupied and stood in between the train coaches.
[18] On the defendant's version, the defendant raises the defence of volenti non -fit
injuria, which implies that:
3 [2017] ZSAb164 para 14.
18.1 whilst knowing that it was dangerous to stand or occupy a position in
between coaches whilst the train was in motion, he nevertheless voluntarily
took that position.
18.2 whilst knowing that there was a risk that might result in fatal
consequences, he voluntarily assumed that risk.
18.3 he acquiesced to the risk of either getting injured or getting killed by
boarding the train and proceeding to stand in between the train coaches.
[19] The versions presented by the parties are mutually destructive and the approach
adopted by the Court in National Employers General Insurance Co LTD vs Jagers4 is
the approach that ought to be applied in deciding th is case as expressed by Mr
Justice Eksteen as follows:
"Where the onus rest 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 probabilit ies that his version is true and accurate
and therefore acceptable and that the other version advanced by the
defendant is therefore false or m istaken and false to be rejected ." This
approach to mutual ly destructive versions was approved and followed by the
Supreme Court of Appeal in 2003 in Stellenbosch Farmers Winery Group
Limited and Another vs Martell Et Cie and Others5.
[20] The two witnesses whose evidence was presented by the plaintiff both testified
to the effect that they were never at the scene of the incident.
[21] The first witness stated that he had last seen the deceased at the Hercules
Station and that some of the commuters were left by the train when it pulled off.
[22] The plaintiff, who was the second witness, testified that she last saw the
deceased in the morning of 28 May 2018. She could not testify regarding how the
incident that had led to the deceased's death had occurred.
4 1984 (4) 437 (E) 440 E-TG.
5 2023 (1) SA 11 SCA.
[23] The defendant also presented the evidence of two witnesses. Mr S ithole, who
worked as the defendant's investigating officer, confirmed the occurrence of the
incident from the relevant occurrence book and flimsy report.
[25] the second witness was Mr Mlangeni who is the only witnesses who was able to
shed light on how the incident occurred.
[26] Mlangeni testified that he was a qualified security guard who worked for the
defendant since 2007 as an employee of Mafoko Security company which was
contracted by the defendant.
[27] The incident occurred between Mabopane and Soshanguve stations. He was
performing duties patrolling and safeguarding defendant’s cables.
[28] Whilst patrolling he saw a group of commuters standing between train couches
and as the train changed lanes, one commuter fell onto the railway lines. He
proceeded to check and found a black male lying motionless on railway line. This
happened about 1.9 kilometres from Mabopane station. This was corroborated by an
entry in the Occurrence Book which was testified to by the witness Sithole.
[29] As alluded to above, the version presented by Mr Mlangeni is the only version of
an eye witness to the incident which is not contradicted by any other evidence.
Reasonable Foreseeability Test
[30] What the plaintiff is required to prove is conduct , that is negligent , unlawful and
wrongful as a probable cause of the death of the deceased. Put differently, the
plaintiff must present an account which is consistent with the objective evidence and
probabilities and one that is more likely than not Yende v Prasa.6
[31] It will be a misdirection to simply conclude or draw an inference that because the
deceased was on a train on the day in question, the defendant is ipso facto liable for
6 [2015] ZASCA 49 at [9-11].
causing his death. It is appropriate to be guided by the Supreme Court of Appeal on
the issue of inference, which held as follows:
In the matter of Ms Pasqualle Della Gatra MV Filippo Lembo Imperial Marine
Co vs Delulemar Campagnia di Navi gazione7, the Supreme Court of Appeal
held that the drawing of an inference must be carefully distinguished from
conjecture or speculation. As Lord Wright said in his speech in Caswell versus
Powell Duffryn Associated Collieries Ltd ; "Inference must be carefully
distinguished from conjecture or speculation. There can be no inference
unless there are objective facts from which to infer the other fact which it is
sought to establish. But if there are no positive proved facts from which the
inference can be made, the method of inference fails, and what is left is mere
speculation or conjecture." This court cannot engage in factual speculation
beyond what can be inferred from the common cause facts, especially where
such inference would run contrary to the plaintiff's testimony.
[32] The test for negligence is reasonable foreseeability by the defendant that the
deceased would wander into the space between the couches and expose himself to
the risk of falling from the train. Kruger v Coetzee.8
Conclusion
[33] Having considered all the above, I am of the view that the following order be
made:
33.1 The plaintiff claim is dismissed with costs.
SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 20 & 21 November 2025
Date of judgment:
Appearance
7 2012 (1) SA 58 (SCA) at para 24.
8 1966 (2) SA 428 Ad at 430.
On behalf of the Applicants Adv L Mashilane
mojapelo@mojapelolaw.co.za
Instructed by Mojapelo Attorneys Inc
behalf of the Respondents Adv M Matera
siyabonga@ngenomtetoinc.co.za
Instructed by Ngeno Mteto Attorneys Inc