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2026
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[2026] ZAGPJHC 70
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Kachidza v Passenger Rail Agency of South Africa (A2023/106898) [2026] ZAGPJHC 70 (3 February 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: A2023-106898
1. Reportable: No
2. Of interest to other
judges: No
3. Revised
WRIGHT
J
In
the matter between:
LETWEEN
KACHIDZA
APPELLANT
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
RESPONDENT
JUDGMENT –
WRIGHT J
1. The appellant,
Ms Kachidza issued summons against the respondent, Prasa. She claimed
only general damages, in an amount
of R850 000, arising out of
an accident when she fell while attempting to board a train. Prior to
trial, it was agreed that
the issue of damages be separated. The
trial proceeded only on the question of the merits.
2. In the original
particulars of claim, it was alleged that Ms Kachidza sustained
an “
injury to right and left hips
. “
3. Amended
particulars of claim alleged that Ms Kachidza attempted to board a
stationary train while its doors were open.
It was alleged that,
without warning, the trained jerked forward and Ms Kachiza fell and
was injured.
4. An amended plea,
dated 10 May 2023 alleged that Ms Kachidza tried to board a moving
train. Prasa, for the first time, expressly
pleaded the defence of
volenti non fit iniuria, it being alleged that in attempting to board
a moving train, Ms Kachidza, fully
aware of the dangers involved,
consented to the risk of injury.
5. On 10 July 2023,
the attorneys for both sides signed a pre-trial minute. It was
recorded that the issues to be determined
related to certain aspects
of negligence. No mention was made of the defence of volenti.
6.
The minute records that,
regarding documents in the trial bundle, discovered documents “
may be used without the
need to prove their authenticity
”
, documents are what they purport to be “
without
admitting the correctness of their contents
”
and “
a party
seeking reliance on the correctness of the contents of a document
shall be required to lead evidence of same.
“
7. A pre-trial
minute, dated earlier, on 11 October 2022, deals with, among other
things, the question of negligence. It makes
no mention of the
defence of volenti as an issue to be decided as the amendment to the
plea had not yet been effected.
8. Regarding the
status of documents in the bundle, it records that “
documents
may be used, and the documents are what they purport to be, without
admitting the correctness of the contents thereof
unless one party
notifies the other 10 days before the trial that such documents shall
be proven. “
9. A “
Joint
Special Practice Note
“ dated 10 July 2023, signed by both
attorneys, lists the issues to be decided. No reference is made to
the defence of volenti.
10. Regarding the status
of documents, the Note records agreement that “ discovered
documents “
may be used without the need to prove their
authenticity
” , “
that documents are what they
purport to be without admitting the correctness of their contents”
and that “ a party seeking
reliance on the correctness of the
contents of a document shall be required to lead evidence on same.”
11. At the appeal
hearing, Ms Mzizi for Prasa addressed us on the defence of volenti.
So did Mr Shepstone. He argued that the defence
could not be raised
on appeal as it had not been an issue at trial.
12. I am not sure that I
could find that the defence of volenti was meant to be waived as a
defence but the defence is not listed
as an issue needing
determination in the pre-trial minutes or Note. The trial proceeded
without obvious reference to the defence
of volenti except for the
following words of Ms Mzizi at the very end of closing argument, “
a man who consents to suffer an injury, can as a rule have no
right to complain. He who knowing and realising a danger agrees to
forgo it and has only himself to thank for the consequence.”
Fisher J did not deal with the defence of volenti in her
judgment.
13. In my view, the
defence of volenti was not before Fisher J and it can’t be
raised now.
14. That said, there was
really only one narrow issue. Either, the train was stationary when
Ms Kachidza attempted to board the
train, as she says, or it was
already moving when she tried to get on, as Prasa says.
15. The action was
dismissed by Fisher J and the present appeal is with her leave.
16. Ms Kachidza
testified. She walked to the station from work after nightshift with
a colleague, Ms Kaudikiza. Ms Kachidza had
a valid ticket. A guard
told them to hurry, so Ms Kachidza and Ms Kaudikiza jogged along. Ms
Kaudikiza, who was slightly ahead
of Ms Kachidza, got into the
stationary train. It was a step up from the platform to the floor of
the train. As Ms Kachidza put
one foot into the train it suddenly
moved without warning. Ms Kachidza was not holding onto any handle or
rail as tried to board.
Ms Kachidza heard no whistle as none was
blown.
17. Ms Kachidza slipped.
Her legs went under the train such that both legs were straight out
in front of her and going away from
her while her body was on the
platform. She twisted three times while the train was in motion. She
was thrown onto the platform.
18. Ms Kaudikiza
testified. As she made her way, fast, towards the train, Ms Kachidza
jogged behind. Ms Kaudikiza got into the train
ahead of Ms Kachidza.
Ms Kaudikiza did not “
notice the spot where she fell
“.
It seems that Ms Kaudukiza did not see Ms Kachidza fall.
19. Mr Mahlangu testified
for Prasa. He had worked for Prasa for fifteen years. He was on duty
that day as a train guard. He was
on the train in question. When it
stopped at the station he opened the doors. Some people got out and
some got in. Then it “
was clear outside
“ so he
blew the whistle. He closed the doors and then “
gave the
driver a bell, one bell, so that he could pull off.
“ The
train moved slowly and then picked up speed. There was no violent
movement on departure.
20. A group of four
or five ladies approached the moving train. One lady tried to board
the moving train but fell because
the doors were closed. She got up
and tried to enter the train again. Mr Mahlangu rang the bell three
times to tell the driver
to stop. The train stopped. There is a
yellow line drawn on the platform about one metre parallel to the
edge of the platform.
He went to Ms Kachidza and found her beyond the
yellow line, away from the edge of the platform. Mr Mahlangu said
that people force
the doors open to board a moving train.
21. Mr Xaba testified. He
was a security guard and had worked for Prasa for eleven years. He
saw that Ms Kachidza tried three times
to board the moving train. She
grabbed the door. Some commuters shouted to her to desist. Ms
Kachidza fell “
on the side of the yellow line
. “
22. It appears from the
evidence as a whole, although I make no finding thereon, that the
injuries to Ms Kachidza were slight indeed.
Ms Kaudikiza described Ms
Kachidza’s injuries as “
just some scratches
. “
23. A substantial part of
the trial was spent analysing hospital records and comparing them to
the pleaded injuries and to the evidence
of the four witnesses
referred to above. Mr Shepstone, for Ms Kachidza at the appeal
hearing, argued that, given the wording of
the pre-trial minutes and
Note dealt with above, the hospital records and other documents
should not have been used in the trial
absent their production and
proof by the maker of the document or at least a person who could
otherwise prove the document. I agree.
The wording of the pre-trial
minutes and Note is, in each minute and Note, self-contradictory and
leads one to the conclusion that
very little, if anything was
achieved by these pre-trial meetings. Absent clear wording to the
contrary, the ordinary rules of
evidence relating to the production
and proof of documents applies.
24. I have
canvassed the evidence in a concise manner as I am of the view that
Ms Kachidza’s own evidence is the weak
point in her case.
Fisher J described Ms Kachidza’s evidence about how she fell
under the train as “
strained
”. I agree. One
struggles to see how it is possible for a person, not of small
physical size, to attempt to board as she says
she did and then
somehow slip and land with both legs straight out under the train,
while she twisted three times and fell back.
In my view, Ms
Kachidza’s evidence is improbable.
25. It is probable that
Ms Kachidza attempted to board a moving train.
26. Mr Shepstone
argued at the appeal hearing that even if the train was moving as Ms
Kachidza tried to board it, Prasa was
still liable, although perhaps
subject to an apportionment against her, on the basis that Prasa or
its employees had failed to
ensure that the doors were closed when
the train departed.
27. The difficulty here
is that Ms Kachidza never pleaded a case based on her attempting to
board a moving train. A conspectus of
the evidence leads to the
finding that Ms Kachidza tried to board a moving train but that is
not her pleaded case. It would be
wrong to hold Prasa liable, on the
evidence, where the pleadings don’t foreshadow such a finding.
28. The appellant seeks
condonation for time delay and the reinstatement of the lapsed
appeal. The notice of appeal was delivered
nine weeks late.
Difficulties with getting busy counsel to finalise the notice of
appeal are blamed.
29. The test for
condonation is whether it is in the interests of justice to grant
condonation. We consider the nature of
the relief sought, the
extent and cause of the delay, the effect of the delay on the
administration of justice and other litigants,
the reasonableness of
the explanation for the delay, the importance of the issue to be
raised in the intended appeal and the prospects
of success.
Condonation is not there for the taking. See Director of Public
Prosecutions, Johannesburg and another v Schultz and
others, a
judgment of the Constitutional Court delivered on 23 January 2026 at
paragraphs 105 and 106.
30. In my view, the
case for condonation and re-instatement just passes muster. There is
no prejudice to Prasa in the appeal
being re-instated. Ms Kachidza is
successful in gaining re-instatement but the opposition to
re-instatement was reasonable. Each
party should carry their own
costs in this application.
31. At the hearing, Ms
Mzizi asked to hand up from the Bar a 24 page set of correspondence
relating to condonation and re-instatement.
We did not allow this as
the correspondence should have been in a supplementary affidavit
which would in any event have been very
late.
ORDER
1. The appeal is
reinstated. The parties are to carry their own costs relating to the
condonation and re-instatement application.
2. The appeal is
dismissed.
3. The appellant is
to pay the respondent’s costs relating to the appeal, excluding
those in the condonation and reinstatement
application. Scale B
applies.
WRIGHT
J
STRYDOM
J
I
agree
SENYATSI
J
I
agree
HEARD:
28 January 2026
DELIVERED:
3 February 2026
APPEARANCES
:
APPELLANT
Instructed
by
Adv
R Shepstone
Mngqibisa
Attorneys
tsoarello@
qibisaattorneys.co.za
m
ng
RESPONDENT
Instructed
by
Adv
Thuli Mzizi
Ngeno
and Mteto Inc
siyabonga@ngenomtetoinc.co.za