IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 11292/2018
In the matter between:
JODY PRETORIUS PLAINTIFF
and
PRASA DEFENDANT
Coram: BHOOPCHAND AJ
Heard: 08 October 2025, 6 February 2026
Delivered: 17 February 2026
Summary: Delictual claim against p ublic rail carrier . The issue of liability
requires proof of an act or omission, wrongfulness, negligence and causation.
Plaintiff, a solitary witness on events that occurred on Defendant’s train,
discharged the onus. Defendant closed its case without leading any evidence. As
an organ of state, the D efendant is required to present evidence to the Court
outlining the reasonable steps taken to avoid liability based on negligence. The
defendant did not fulfil this obligation. Defendant is liable for the Plaintiff’s yet
to be proven damages.
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ORDER
1. The Defendant is liable for the yet to be proven damages suffered by the Plaintiff
while travelling on the Defendant’s train on 28 September 2017.
2. The Defendant shall pay the Plaintiff’s party and party costs and Counsel’s fees on
scale B.
JUDGMENT
Bhoopchand AJ:
[1] The Passenger Rail Agency of South Africa (PRASA/ the Defendant)
operates the passenger trains on the Cape Peninsula. The Plaintiff, Jody
Pretorius (‘Pretorius/the Plaintiff) testified. He is a 28-year-old employee of a
software company. About eight years ago, he commuted to and from work
between Kuils River and Claremont on the Defendant’s trains. Pretorius
boarded the train at Claremont station on the southern line to Cape Town. He
then boarded another train from Cape Town to Bellville and from there a third
train from Bellville to Kuils River on his way back home. He was a fare-paying
passenger. The entire trip took about an hour.
[2] On 28 September 2017, Pretorius boarded the third train from Bellville to
Kuils River . The door closest to the platform closed after the train departed
Bellville station, but the doors on the opposite side of the carriage remained
open. He tried to exit the train at Kuils River station but could not as other
groups of commuters entered the train and prevented him from alighting.
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Pretorius, acting on the advice of another commuter, resolved to get off at
Blackheath station and board another train back to Kuils R iver. Whilst
conversing with the other commuter, he became aware of two persons and
commuters screaming. The two people exclaimed: ‘phone’. He ignored them.
He was standing about a metre from the open doors. He was forced out of the
train either by being pushed or kicked by the two assailants. He did not see who
pushed him. He lost consciousness.
[3] His following recollection was when someone ask ed him if he was okay.
He fell in and out of consciousness and eventually noted that he was in the
hospital. He sustained a skull and left shoulder injury. He spent about five days
in the hospital. Pretorius was taken through the content of the hospital notes,
which at first stated that he was on his way home in a train and did not
remember what happened. A later note stated that he was pushed out of a train.
After his discharge from the hospital, Pretorius went to report the incident at the
police station as a case of assault . He confirmed the police docket entry that
recorded the mode of injury as being kicked or pushed out of the moving train,
and the Defendant’s final incident report that referred to him saying that he was
pushed from the moving train. 1 He also confirmed that he suffered the injuries
depicted in the photographs in the trial bundle.
[4] Under cross-examination, Pretorius testified that he bought his ticket at
Kuils River station . He paid R120 for a monthly ticket and R80 for a weekly
ticket. The copies of the tickets he filed were for the period material to this
claim, but reflected travel from Kuils River- Century City- Claremont and
reflected the amounts of R90 and R280. He did not deny the difference in price
reflected on the tickets. He stated that he bought the tickets and explained that
he attended college at Century City and did his internship in Claremont. This
he attended college at Century City and did his internship in Claremont. This
1 The Plaintiff’s statement included in the police docket was deposed to on 4 October 2017. The
Defendant’s final incident report was dated 15 September 2025
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necessitated him having two tickets, the one a monthly ticket and the other a
weekly ticket.
[5] The Plaintiff testified further in cross-examination that he could not get
out at Kuils River and was forced back to the middle between the two doors.
There were people in front of him, but none between him and the open doors.
Although many people entered the train at Kuils River station, the train was not
overly crowded. The assailants approached him a few minutes after the train
departed Kuils River station. All he h eard was ‘phone’. Under further cross-
examination, he contended that the train was not overly overcrowded. He
moved from the centre closer to the bars by the door. He saw the assailants over
his shoulders. Two assailants were talking to him. All he hear d was 'phone'. He
ignored the two assailants. When he turned around, they were looking at him.
He did not know that they were talking to him. He was either kicked out or
pushed when they held his mid to lower back. A 'big force ' was applied, and he
lost his balance. He had no further recollection until he was taken home and
then to the hospital.
[6] Plaintiff was challenged about the discrepancies between his statement
made to the police and his testimony. The statement was taken under oath on 4
October 2017. Pretorius stated that the train was ‘very full’. The statement did
not refer to him being pushed from the train. It was put to the Plaintiff that he
may not have been injured in a train incident. The Plaintiff denied this assertion.
The Plaintiff contended that he did tell the police he was pushed out of the train.
On a question posed by the Court, Plaintiff acknowledged that he did not see the
assailants, and he could not say with certainty that he was pushed.
[7] The Plaintiff’s mother, Natalie Pretorius, testified. The Plaintiff was
brought home on the day of the accident by two men. They were working on a
house close to the railway line when they saw the Plaintiff ‘fly’ out of the train.
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They ran to his assistance and took him home . They were left to return to their
jobs without any opportunity to obtain their details. The Plaintiff was bleeding
from his head. Under cross-examination, the mother explained that the Plaintiff
could not remember anything after he was brought home. She called the
Plaintiff’s father, and they took him to the hospital.
[8] The Plaintiff’s father, Reginald Pretorius, a school principal , also
testified. The Plaintiff told him about a few days after the incident that he was
pushed or kicked out of the train. He confirmed that men working near the
railway line brought the Plaintiff home and that he took the Plaintiff to the
hospital. He was cross-examined on the train tickets, the condition he found the
Plaintiff in when he arrived at home, and the conveyance of the Plaintiff to the
hospital.
[9] The Plaintiff closed his case. The Defendant followed suit without calling
any witnesses.
[10] The Plaintiff’s claim , as particularised on 25 June 2018, states that the
doors of the coach in which he was travelling remained open after the train
departed Kuils River station. On the way to Blackheath station, the Plaintiff was
approached by assailants who demanded his cellphone. Plaintiff was thereafter
pushed off the moving train through the open doors of the coach. Plaintiff
alleged that the Defendant had a legal duty to him to take reasonable steps to
ensure his safety while travelling on one of the ir trains. The legal duty thus
imposed required the Defendant , among others, to provide security on the train
and to ensure that the carriage doors are closed when its trains depart from the
stations. Plaintiff contended that the Defendant was negligent as it failed to take
these steps.
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[11] Defendant denied, among others, that the Plaintiff was a fare-paying
passenger, that it failed to discharge its legal duty , or that it was negligent. In a
request for trial particulars, which is referred to solely to understand the issues
in this case, Defendant enquired about whether Plaintiff had a valid train ticket,
the open doors and Plaintiff’s proximity to them , the number of commuters on
the train, the number of assailants , and the manner of his exit from the train. In
his reply, Plaintiff indicated that there were two assailants, the train was
overcrowded, and he was pushed from the train. It suffices to say that the
Defendant did not raise a plea of contributory negligence or voluntary
assumption of risk or fully pursue the requirements, or raise them at all, during
cross-examination.
[12] In the opening paragraphs of its written submissions, the Defendant
argued that the Plaintiff’s version of events is untenable. Defendant speaks of
plausible alternative scenarios of how the Plaintiff was injured, e.g., that he fell
due to his own misfortune or was pushed in a criminal incident unrelated to any
omission on the part of the Defendant. The Defendant contend ed that it was not
obliged to call witnesses merely to confirm facts already evident from the
record when those facts were never credibly placed in doubt by the Plaintiff.
The Defendant asserts that the Plaintiff’s account of the incident has fluctuated
significantly over time, calling its reliability into question. The Defendant
questioned whether the Plaintiff had an accidental fall or whether assailants
pushed him , and whether the doors were open or closed. The Defendant
contended that the Plaintiff’s version of a violent ejection from the train was
embellished, the nature and timing of his injuries and his level of consciousness
were exaggerated to make it seem more serious, and that the Plaintiff presented
misleading photographic evidence relating to the interior of the train. The tenor
misleading photographic evidence relating to the interior of the train. The tenor
of the Defendant’s written argument followed the same pattern, i.e. it pursued
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arguments and raised contentions that were either never put to the Plaintiff or
raised superficially and not pursued with any vigour during cross-examination.
EVALUATION
[13] The Court is obliged to comment on the content of the Defendant’s
voluminous written argument , given the scale of the problem s evident in it.
Submissions are not evidence. A party may not introduce new factual
allegations in argument or rely upon ‘plausible’ scenarios that were never put to
the Plaintiff and his witnesses . The Defendant cannot attack the credibility of
the Plaintiff on grounds never canvassed in cross- examination or rely on
speculation unsupported by evidence. Advancing plausible scenarios in
argument is impermissible. The Defendant chose to close its case without
calling any of a range of witnesses at its disposal, including the train driver, the
station or train guard, a security officer, a medical expert , or any witness at all.
It cannot fill these gaps with conjecture. If a Defendant leads no evidence, the
Plaintiff’s version has to be accepted unless it is so improbable that it cannot be
believed. Defendant went to unacceptable lengths to rely upon the content of its
occurrence report and a non -existent J88 report . All these submissions ,
including the Defendant’s attempt to justify why it did not call any witnesses,
are improper and untenable. Given the limited scope of the Defendant’s cross -
examination, the Court will not detain itself unnecessarily in repeating t he
Defendant’s submissions that have no merit.
[14] The Defendant pleaded that the Plaintiff was not a fare -paying passenger.
The Plaintiff produced two valid tickets covering the period in question, and
testified that he used monthly and weekly tickets for his commute. Although the
Plaintiff was uncertain about the precise price and point of purchase, these
minor discrepancies do not outweigh the objective documentary evidence. The
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Defendant did suggest in cross -examination that these were not the tickets t he
Plaintiff used. The Plaintiff asserted that it was. The Defendant led no evidence
to challenge the authenticity or validity of the tickets. The Plaintiff alleged in
his particulars of claim that the Defendant’s legal duty towards him as a
commuter on a public rail carrier arose from statute and public law principles.
[15] The claim was founded in delict and not contract. This means that the
Defendant’s legal duty towards the Plaintiff does not depend on the existence of
a contractual relationship. Even if the Plaintiff had not been a fare‑paying
passenger, the Defendant would nonetheless owe him a duty to operate the train
safely and to take reasonable steps to prevent foreseeable harm. The issue of
fare payment, therefore, does not affect the Defendant’s liability in delict.
[16] The Plaintiff’s account of how he fell from the moving train is the core
enquiry as to whether the Defendant had a legal duty towards him, whether it
breached that duty when the train departed with open carriage doors, and
whether the breach caused the harm. The Defendant’s reliance upon the
secondary issues and purported inconsistencies in the Plaintiff’s level of
consciousness after the fall, how he got home, who bought his tickets, whether
he travelled daily to work by train, and his parents' recollection of events
relating to how he got to the hospital , do not bear on any of the delictual
enquiries relevant to this case. These are peripheral matters as the Plaintiff
correctly characterises them . Trauma and the efflux of time, among other
factors, often lead to imperfect recollection of secondary details. The incident
occurred eight years ago. Minor discrepancies are to be expected and do not
detract from the reliability of a witness on the central issue.
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[17] While the Plaintiff testified about assailants robbing passengers of their
2
[17] While the Plaintiff testified about assailants robbing passengers of their
cellphones, he did not present any evidence about the state of security on the
2 Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie SA 2003 (1) SA 11 (SCA)
9
train. The Court has no record of the Plaintiff even being asked whether there
was a security guard on the train or at the stations. The Court will therefore
regard the allegation that the doors were open as the sole ground of alleged
wrongfulness and negligence that can be attributable to the Defendant. The
Plaintiff stated that he was pushed or kicked from the train. He relied upon the
police docket , the hospital notes and his mother’s testimony to support his
account of how the incident occurred. The Defendant exposed at least one
inconsistency between the Plaintiff’s testimony and the content of the statement
he made to the police. The Defendant did not challenge the content of the
hospital notes.
[18] Although the Plaintiff’s statement, made six days after the incident, does
not refer to him being pushed or kicked off the train, the docket and hospital
notes do. The docket and hospital notes r ecord the mode of injury as being
kicked or pushed off the moving train. The Plaintiff contends that these records
corroborate the Plaintiff’s evidence as pleaded in his particulars of claim. The
entries are hearsay and do not constitute proof of how the Plaintiff fell. Its
probative value is limited. It is, however, consistent with the Plaintiff’s
testimony in that the incident was reported as a push or kick at an early stage
after the incident occurred. Consistency is relevant to credibility, but it is not
corroboration. It is not independent evidence supported by the testimony of the
person who made those entries.
[19] The Plaintiff’s mother testified that two unidentified men brought the
Plaintiff home after the incident and informed her that they had seen him ‘fly’
out of the train. This evidence is also hearsay and of limited probative value.
The men were not identified, were not called as witnesses , and their
observations were not tested in cross- examination. At most, it confirms that the
observations were not tested in cross- examination. At most, it confirms that the
Plaintiff fell from the moving train and was found injured near the railway line.
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It does not corroborate the Plaintiff’s account of being pushed or forced from
the train.
[20] The Defendant did not object to either piece of evidence , and their
admissibility is not in question. The Plaintiff referred to his account of how the
incident occurred in the incident report compiled by the Defendant eight years
after the incident. The content of the incident report cannot corroborate the
Plaintiff’s version, nor can it be relied upon to draw any factual inferences.
[21] The Plaintiff is the only direct witness to what occurred inside the train.
The Defendant, apart from suggesting that the Plaintiff may have sustained his
injuries in another manner, did not lead any evidence or put up an alternate
version. In response to a question from the Court, the Plaintiff testified that he
had neither seen the assailants nor seen them pushing him. The same enquiry
applies to the issue of the open doors while the train was in motion . The
Plaintiff was the only witness who was inside the train. The Defendant did not
lead any evidence to contradict this account or provide an alternate version. The
Plaintiff’s version that he was pushed out of the train by force is credible. It is
consistent with the docket entry and hospital notes made at an early stage after
the incident occurred and is inherently probable. There are many case reports of
persons being robbed and pushed out of trains in this country. The omission
from the police statement of how he fell off the train does not render his
testimony unreliable.
[22] The Defendant is a public carrier that owes a legal duty to its passengers
to ensure that reasonable measures are in place to provide for the safety of rail
commuters and protect them from suffering physical harm while using its
transport services.
3 The duty stems from the contract between itself and its
3 Rail Commuters Action Group v Transnet Ltd t/a Metrorail (CCT 56/03) [2004] ZACC 20; 2005 (2)
SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004) (‘Metrorail’)
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passengers or its public law obligations. A breach of that duty is wrongful in the
delictual sense and could attract liability for damages. 4 In Mashongwa, the
Constitutional Court clarified that PRASA’s public‑law duty to protect
commuters, as recognised in Metrorail, has evolved into a private‑law duty for
purposes of the delictual wrongfulness enquiry. Before Mashongwa, the
analysis of wrongfulness entailed an enquiry as to whether the Defendant owed
a legal duty to prevent harm and whether public policy and constitutional values
would support imposing liability. After Mashongwa , the enquiry in public rail
delictual cases is simplified. If the Defendant operates a public transport system
carrying commuters, it owes a private law duty to take reasonable steps to
protect commuters from foreseeable harm. Mashongwa constitutionalised the
duty but did not create a new cause of action or abolish the common law test.
[23] In this matter, once it is accepted that the train was operated with open
doors while in motion, the Defendant’s conduct falls within the scope of the
private‑law duty articulated in Mashongwa. The Court is satisfied that the
Plaintiff has discharged the onus of proving that he was pushed during a
robbery attempt from a carriage of a train travelling with open doors. Since the
Plaintiff has discharged the burden to prove that the carriage doors were open
when the train was moving, the Court finds that the Defendant acted wrongfully
in the circumstances.
[24] A train in motion with open doors exposes passengers to a foreseeable
and unreasonable risk of harm. A reasonable rail operator would have foreseen
the risk of passengers falling or being pushed from the train and would have
taken steps to prevent such harm by ensuring that the doors were closed. The
Defendant, as an organ of state, was obliged to present evidence to the Court to
4 Mashongwa v PRASA (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204 (CC); 2016 (3) SA 528 (CC)
4 Mashongwa v PRASA (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204 (CC); 2016 (3) SA 528 (CC)
(26 November 2015) (‘Mashongwa’) at paras 18 -20, Mketo v Passenger Rail Agency of South Africa
(Appeal) (‘Mketo’)(13636/2020) [2025] ZAWCHC 65 (24 February 2025) at paras 46-51
12
enable it to assess the reasonableness of the steps taken to ensure that the doors
of the carriage were closed once the train was in motion.5
[25] The Plaintiff testified that the doors of the carriage opposite those closest
to the platform remained open after the train had left Bellville station . Caselaw
dealing with alleged negligence on the part of the public rail carrier underscores
the need to keep coach doors closed. 6 Defendant’s Counsel merely confirmed
the Plaintiff’s evidence about the open train doors and provided no
countervailing evidence or suggestions as to how the Plaintiff could have
avoided being pushed out of the train. The Court finds that the Defendant , as an
organ of state, failed to take reasonable steps to keep the doors of the carriage
that the Plaintiff was travelling in closed, and was therefore negligent.
[26] But for the Defendant’s negligence, the Plaintiff would not have fallen
from the train when he was pushed. The harm he suffered is the kind of harm
that the legal duty imposed upon the Defendant is intended to prevent. Both
factual and legal causation are accordingly established.7
[27] In the premises, the Plaintiff has established that the Defendant is liable
for the damages that he has yet to prove. The Plaintiff sought party and party
costs and Counsel’s fees on scale C. The legal principles relating to public rail
carrier liability are now well established, and this case did not pose any unusual
5 Kruger v Coetzee 1966 (2) SA 428 at 430E-F: For the purposes of liability culpa arises if— (a) a
diligens paterfamilias in the position of the defendant— (i) would foresee the reasonable possibility of
his conduct injuring another in his person or property and causing him patrimonial loss; and (ii)would
take reasonable steps to guard against such occurrence; and (b) the defendant failed to take such
steps.”
6 Metrorail, supra, at paras 84,102,106, Mketo at para 54, Chauke v Passenger Rail Agency of South
Africa (8394/13) [2015] ZAGPPHC 1075 (9/12/2015)
7 The test for factual and legal causation. International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680
(A) at 700 E-H, Za v Smith and Another (20134/2014) [2015] ZASCA 75; 2015 (4) SA 574 (SCA);
[2015] 3 All SA 288 (SCA) (27 May 2015), As the apex Court reasoned in Mashongwa, the negligent
conduct of leaving the doors open is closely connected to the harm suffered. The apex Court found that
legal causation had been established, and it was reasonable, fair, and just that liability be imputed to the
Respondent.
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difficulties. The Court is not convinced that it should award Coun sel’s fees on
scale C.
ORDER
3. The Defendant is liable for the yet to be proven damages suffered by the Plaintiff
while travelling on the Defendant’s train on 28 September 2017.
4. The Defendant shall pay the Plaintiff’s party and party costs and Counsel’s fees on
scale B.
__________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e-mail on 17 February
2026
Plaintiff’s Counsel: Advocate R Liddell
Instructed by: DSC Attorneys
Respondent’s Counsel: Advocate T Ramatsekisa
Instructed by: Crafford Attorneys, Pretoria