IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
In the matter between:
MDUMISENI THEOLUS MXOLISI GUMEDE
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA
JUDGMENT
Olsen J:
CASE NO.: D5859/2021
Plaintiff
Defendant
[1] On Saturday 15th December 2018, at between 5.00 am and 5.30 am , the
plaintiff in this matter, Mr M T M Gumede, was severely injured in a train accident at
the Merebank station. The train concerned is one operated by the Passenger Rail
Agency of South Africa ("PRASA "), the defendant in this matter.
[2] Mr Gumede sued PRASA for some R4.75 million in compensation, alleging
that the injuries he suffered were caused by the negligence of the driver of the train.
(Counsel for the plaintiff made nothing of the fact that the evidence led on behalf of
the plaintiff concerned, ultimately, negligence on the part of the train guard rather than
the train driver.) An order was made separating the issues of the precise
particularisation of the injuries suffered by the defendant, and the quantification of
damages flowing from such injuries, for later determination. On the merits of the case,
which require adjudication at this stage, the accounts of the incident given by Mr
Gumede and PRASA are mutually destructive. Neither party argued at the end that
there was contributory negligence on either version. Counsel presented their cases
upon the basis that on the plaintiff's part, acceptance of Mr Gumede 's evidence results
in a conclusion that PRASA are entirely responsible for the incident; and in the case
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of the PRASA witnesses, if they are believed, the incident was Mr Gumede 's fault and
no responsibility can be attributed to PRASA and its employees or agents. I am not at
all certain that this is the correct approach if the court accepts Mr Gumede 's account
of events. But, as will be seen, I do not reach the point where that issue might arise.
[3] According to Mr Gumede he arrived at the Merebank station that morning
in order to catch the train home after a 12-hour shift as a security guard. He found the
train he intended to catch stationary on the platform with the coach doors open. He
stepped into the coach without having heard the normal whistle blown by the train
guard stationed on the platform adjacent to the rearmost coach in which the guard
rides. The whistle signifies a warning for passengers to either enter the train or to stand
back from it, as it is about to depart. The doors of the train then closed, but in his case
they closed onto his backpack which was protruding into the doorway. The train started
to move. Mr Gumede struggled to free his backpack. On his version the door which
trapped his backpack opened a little which resulted not only in the freeing of the
backpack, but in Mr Gumede falling out of the train and onto the platform. The train
was still moving. In some or other manner, after Mr Gumede fell onto the platform, he
fell into the gap between two passing coaches, and from there onto the ground
beneath the train, resulting in horrible injuries, in particular to his legs. (One of them
appears to have been separated from his body at the site of the incident, and the other
one suffered a crushing injury resulting ultimately in amputation.)
[4] Mr Gumede denied that he had observed any PRASA employees at the
station, and more particularly on the platform, when he arrived on the scene; and that
he had said anything to those who had attended on him after the accident to convey
that the incident happened in any way other than the one I have just described.
that the incident happened in any way other than the one I have just described.
[5] Under cross-examination Mr Gumede contradicted his evidence in chief by
alleging that in fact the closing door of the coach also trapped a portion of his body as
opposed to merely the backpack; and by giving an alternative description of his
posture when he fell onto the platform. His evidence in chief conveyed the image of a
man falling backwards through a partly open coach door onto his back on the platform,
and moving away , once down , to clear the train using his arms and hands on the
platform. In cross-examination he deviated from that saying that he fell onto his face
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(which suggests that he left the coach face first) and that his legs might have been
somewhat left behind. Mr Gumede's his version given in chief makes more sense. But
it is difficult on either version to see how Mr Gumede would have found himself falling
between two coaches onto the railway line. Photographs of a similar train with coaches
at the Merebank station were produced in evidence. It is not disputed that gap between
the sides of a coach and the platform is so narrow that no person could fall through
onto the railway line. To be fair to Mr Gumede, and to his version, although this train
was only just departing the station, (and in fact did not leave the station because it was
stopped promptly when the accident was noted, a subject dealt with hereunder), I think
that the motive force required to move a train is so high, and the weight of a man like
Mr Gumede relatively so insignificant, that the interplay between the two is difficult to
understand for the purpose of determining whether Mr Gumede's account of events is
a possible scenario.
[6] Mr Gumede was conscious after the accident. He heard some people
gathered around and raised his hand to indicate that he was still alive. Later on
persons he called "fire fighters" came and managed to get him clear of the position in
which found himself after the accident. He was lifted up to the platform, from where he
was taken to hospital by ambulance. He was conscious throughout the period before
medical assistance was given.
[7] The essential features of PRASA 's case (dealt with hereunder) were put to
Mr Gumede in cross-examination, and denied. He also denied having spoken to any
PRASA official at the Merebank station after the event.
[8] The second witness led in the plaintiffs case was Mr S Lembede . He was
an acquaintance of Mr Gumede who happened to be on the same train that morning.
He had boarded the train earlier and was sitting with his back to the platform and did
He had boarded the train earlier and was sitting with his back to the platform and did
not see any of the events which led to Mr Gumede's injuries. The main purpose of
calling him appears to have been to establish ·that the usual whistle, warning of the
impending departure of the train, was not sounded. Mr Lembede 's evidence was that
he did not see any PRASA officials around when he walked down the stairs onto the
platform in order to gain access to the train. He only saw PRASA officials after the
event. On the day in question the doors closed and then the train commenced moving.
It was still at the platform when he heard people saying someone was under the train.
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The train came to a standstill. He got out and followed people to the scene at which
they were congregating, where he saw that it was Mr Gumede under the train.
[9] Mr Lembede's evidence is a little confusing in some respects. He spoke
about the "driver" of the train walking up and down between the railway lines looking
to see what had happened, speaking to the plaintiff while he was lying prone on a
stretcher on the platform, saying that he would go and check the CCTV , and reporting
back that it was not in operation. The difficulty is that Mr Lembede described this
person as a white male. On PRASA 's version no white male was involved on that day.
In particular, the driver was a black female, who gave evidence.
[1 0] At the close of the plaintiffs case I was under the impression that the two
witnesses who had been called had, from the perspective of demeanour , performed
satisfactorily. I have already mentioned those respects in which Mr Gumede
contradicted himself. As far as the sounding of the whistle is concerned
(a) Mr Gumede said it might have occurred before he boarded the train, but
whilst he was still out of hearing; and
(b) I am not convinced that Mr Lembede is that certain about his claim that
the whistle was not sounded. He was already on board the train before
the doors closed. Being there already, the blowing of the whistle was
not of any significance to him, and, as was said during PRASA 's case,
it does not sound as loud inside the coaches as it does outside on the
platform. Mr Lembede's evidence that the whistle did not sound may be
a reconstn,1ction, perhaps an innocent one born of his reflections later
on as to what had happened that day, and why .
[11] The photographs of the train which were put in by consent depict, inter alia,
the front and the back of a coach and the manner in which the coaches are linked
together. There are what appear to be hydraulic pipes, and what appears to be at least
together. There are what appear to be hydraulic pipes, and what appears to be at least
one electrical connection, which have to be plugged into each of the two coaches
which are joined together in train. Judging from the photographs, making these
connections from ground level would be impossible because they are set too high.
Perhaps to address this problem, the coaches are fitted with a small foot plate outside
the front and rear ends, onto which, judging from the photographs, it might be difficult
to fit both ones feet; and an associated hand rail upon which a person standing on the
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foot plate might hold himself up whilst connecting, inter alia, the hydraulic pipes linking
the coaches. Perhaps the footplates are used by PRASA employees during shunting
operations. It is undisputed that at times persons who are supposed to be passengers
riding inside the coach choose for one reason or another to ride the train by standing
on the foot plate and holding onto the handle. The defendant's first witness, Ms N A
Sosibo, was at the time employed by a security company contracted to PRASA , with
the responsibility to patrol platforms and look to the safety of passengers. One of her
duties was to try and stop passengers mounting the outside of a coach in this manner .
Mr Gumede himself said that he had seen people doing that on many occasions. Tne
practice is apparently called "staff riding", a term perhaps derived from the purpose for
which the foot plate and the handle are installed on each coach.
(12] Ms Sosibo came on duty on the morning of the incident, and was walking
down the stairs to the platform when Mr Gumede came running past her, wanting to
catch the train which was already moving. She says that the doors were closed and
she admonished him to wait for the next train but he shouted out that he had been on
night shift and wanted to get home. According to her Mr Gumede tried to take hold of
the handle with a view to standing on the foot plate, but fell between the coaches. She
was at that stage running after him. The train stopped. She saw him lying injured on
the ground beneath the train. He was conscious. He was crying or crying out and said
to her words to the effect "my sister you have been warning me ", and he asked for
help. She noted how severely he was injured.
[13] The second defence witness was Mr L M Mvuna. He was the train guard
on duty on the day. Mr Mvuna described the duties of the guard, something with which
he was familiar both by virtue of his training and 17 year's service as a train guard.
he was familiar both by virtue of his training and 17 year's service as a train guard.
(14] The guard's station is at the back of the train. When a train arrives at the
station and stops the guard presses a button in order to release the passenger coach
doors. This system of controlling doors is directly under the control of the guard. The
guard must then alight and stand on the platform in order to observe the passengers
alighting and those boarding. When that is done , and all is clear, the guard blows his
whistle from the platform in order to indicate that the train is about to depart. The guard
enters his coach and presses the button which activates the closure of the doors.
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Having done that the guard presses another button which sends a signal to the driver
that the train may depart. As the train is departing the guard will put his head outside
the cabin window in order to continue to observe the platform. If, as was the case with
Mr Gumede , something goes wrong as the train is leaving, the guard presses another
button to signal to the driver to stop the train.
[15] According to Mr Mvuna the usual process was followed on the morning in
question. By virtue of the early hour, and perhaps also because this was a Saturday,
there were not a lot of passengers; that is to say the station was not busy. When he
saw that there were no more passengers to board Mr Mvuna entered his coach and
pressed the button to close the doors. When the doors were closed, a condition
signalled by a light, he sent the signal to the driver to leave the station, and the train
commenced moving.
[16] At this stage Mr Mvuna looked outside onto the platform once again whilst
the train was moving. He saw Mr Gumede attempting to take hold of the handle and
to "staff ride". Mr Gumede fell. Mr Mvuna gave the driver the signal to stop the train,
which was done whilst the coaches were still adjacent to the platform.
[17) Mr Mvuna did not go to attend to the plaintiff. He explained under cross
examination that he could not cope with the sight of blood. He said that Mr Gumede
was attended on the scene by a security officer (presumably Ms Sosibo) and the driver
of the train, a Ms Fakude. However he reported the incident to his base.
[18) After the cross-examination of Mr Mvuna had already commenced , I was
informed that the plaintiff's counsel wished to have access to statements which had
been made by the defendant's witnesses. As I understood it the request was to
address the question as to whether the evidence of PRASA witnesses was a recent
fabrication designed to enable PRASA to avoid liability. A bundle of papers was
fabrication designed to enable PRASA to avoid liability. A bundle of papers was
produced, including statements made respectively by Ms Sosibo and Mr Mvuna . The
parties agreed that they are what they purport to be. It was recorded that the plaintiff
made no admission as to the truth of the contents of the documents but required them
to be available for use in cross-exam ination of the defendant's witnesses. It was
recorded that the defendant consented to such use of the documents but specifically
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made the admission that PRASA 's insurers had repudiated the claim on the basis of
the reports contained in the bundle. Cross-examination of Mr Mvuna then proceeded.
[19] Mr Mvuna said that his statement was taken by his shop steward. He gave
an account of what had happened and the shop steward wrote out the statement. The
only conflict between the statement signed by Mr Mvuna and his evidence in chief was
a passage in the fifth paragraph of the statement which read as follows.
"I went to check where the male in question fell and saw him underneath the
train between the train and the platform with both his feet amputated ... "
Mr Mvuna 's response to this being put to him was that he had not said that to the shop
steward. He confirmed that his fear of the sight of blood prevailed on that day. He
relied on the shop steward to record what he said accurately.
[20] The next witness for the defence was the train driver, Ms E Fakude. She
was alone in the driver's cabin on the morning in question. After only about two
coaches had left the platform she received the signal to stop the train, which she did.
She waited for a while, and having not received the signal to proceed, she left the train
and got onto the platform. She was directed to the scene by the guard, Mr Mvuna .
There she found a man lying between the coaches. He was in shock. He asked to be
moved. She informed him that they had to wait for the people who would do that.
[21] Ms Fakude's evidence is that whilst talking to him he apologised and said
that he was in a rush and wanted to get home to sleep. She did not ask him how the
accident had happened, and eventually the paramedics arrived to extract him from his
position.
(22] Ms Fakude was challenged upon the basis that her somewhat brief
statement to the Depot Manager did not include an account of her talking to Mr
Gumede. Her response was that she did not think that her report required that
information. (I note that the report is only eight lines long.)
information. (I note that the report is only eight lines long.)
[23] Mr W P Mncwabe was the final witness for the defendant. He was employed
by PRASA as a protection official. He received a call on the morning of the incident
telling him that it had occurred. He got there quite promptly. He took over from the
security guard at the scene.
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(24] Mr Mncwabe introduced himself to Mr Gumede as a security officer there
to assist him. He asked Mr Gumede to furnish his personal details and Mr Gumede
was able to do that. Mr Gumede also said to Mr Mncwabe that he had tried to run after
the train when the accident occurred.
(25] Mr Mncwabe 's assessment of the mental condition of Mr Gumede at the
scene was sought in cross-examination. He said that Mr Gumede was in shock, but
not confused. He was challenged as to whether this was an opportune time to question
Mr Gumede. His answer was that Mr Gumede was in a bad condition. His duty was to
comfort Mr Gumede and try and calm him down. He said that at the time Mr Gumede
had not realised that his "feet had left his body", as he said that he felt something
pressing down on him. According to Mr Mncwabe "we had to move his mind away
from what was happening".
[26] In presenting her argument for the plaintiff counsel has argued that the
defendant's version is "improbable, unreliably corroborated, and internally
contradictory". In my view there is no merit in those contentions. Given their different
roles at different times there is hardly room for the witnesses to corroborate one
another in any material respect. Each of the defendant's witnesses was unmoved in
cross-examination, and answered the questions posed without any difficulty. Their
evidence was consistent throughout. All of them presented as honest witnesses giving
an account of what had occurred as best as they could.
(27] Counsel for the plaintiff also argued that an adverse inference should be
drawn against the defendant as a result of what she describes as a "failure to produce
operational records and footage peculiarly within PRASA's possession". The evidence
of the defendant's witnesses is that the CCTV camera system was out of order on the
day in question. I do not regard evidence to that effect as improbable; it is within the
realms of ordinary experience that equipment fails from time to time and that the repair
realms of ordinary experience that equipment fails from time to time and that the repair
of it is often delayed. The reports making up the "PRASA Joint Operation Centre
Report" were provided at the request of the plaintiff. They are consistent with the
account of events given by the defendant's witnesses.
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[28] I find that there are no grounds upon which to make a credibility finding
against the defendant's witnesses. Insofar as the evidence concerns what Mr Gumede
said whilst they attended to him after the accident, their version is not improbable. Mr
Gumede was in a state of shock, but nevertheless conscious and in a dire condition. I
do not regard it as improbable that he would have thought it necessary to explain
himself, that is to say to explain how he got to be where he was. It is unlikely that at a
time like that he would reason that he had best be silent lest he compromise a potential
claim against PRASA.
(29] I have already drawn attention to certain contradictions in Mr Gumede 's
evidence. I would imagine that if his account of how the accident happened is broadly
correct, those contradictions might very well be the product of confusion on his part as
to how he fell from the train. They are not decisive.
(30] This case turns on the probabilities. Mr Gumede was at the time a 33 year
old man. This was a train he caught regularly to get home after work. He had missed
it before. According to his evidence if you missed that train you would have to wa it 15
to 20 minutes for the next one on a weekday. But on weekends (which this was) the
wait would be about one hour. By his own admission he was aware of the phenomenon
of "staff riding". There is nothing inherently improbable in the defendant's contention
that Mr Gumede was trying to do just that on the day in question.
[31] It cannot be disputed that Mr Gumede was injured by falling between two
coaches. The difficulty with Mr Gumede 's description of the incident is that it offers no
explanation for how he came to fall between two coaches when , on his own account,
he fell out of the train onto the platform. Accepting that "anything is possible" lends
little support to the proposition that Mr Gumede 's version is probable. On the other
hand the defendant's version of the incident furnishes a clear and probable account of
hand the defendant's version of the incident furnishes a clear and probable account of
how Mr Gumede would have fallen between two coaches.
[32] In my view the probabilities favour the defendant's account of events. The
plaintiffs claim accordingly fails. I make the following order.
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The plaintiff's claim is dismissed with costs .
..
Olsen J
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Case Information:
Date of hearing:
Date of delivery of written submissions:
Da te of Judgment:
Counsel for the Plaintiff:
Instructed by:
Counsel for the Defendant:
Instructed by:
27 - 29 October 2025
5 November 2025
12 No vemb er 2025
P Shandu
Duma Attorneys
303 Anton Lembede Street
Durban Club Chambers Suite,
10th floor
Tel: 031 301 0678
Email:
info@dumaattorneysinc.co.za
Ref: DA/Prasa/PND/001/21
D Saks
Woodhead Bigby Inc
92 Armstrong Avenue , La Lucia
Tel: 031 360 9700
Email: Anul@woodhead .co.za
lavashnee@woodhead .co.za
Ref: AL/TB/MA T22190
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