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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 96220/16
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 17/2/2026
SIGNATURE
In the matter between:
DIMAKATSO RACHEL TSWAYI Plaintiff
and
THE PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PIENAAR M (AJ)
1. Ms Dimakatso Rachel Tswayi, claims delictual damages for harm she suffered after
being pushed out of the open door of a moving train. In respect of merits/liability the
parties conveyed to the Court at the commencement of proceedings that the
Defendant offered to pay the Plaintiff 90% of proven or agreed damages. The
Plaintiff, however, believes that the Defendant is 100% liable and therefore did not
accept the Defendant’s offer. Therefore, the issue of liability remains in dispute and
was argued between the parties. Both parties agreed that the matter may proceed
by way of affidavits in terms of Rule 38(2) of the Uniform Rules. The court
accordingly granted an application in terms of Rule 38(2).
2. When the matter commenced on the day of the hearing, 18 November 2025, the
court allowed the matter to stand down until 12:00 to enable the parties to
communicate. When proceedings resumed at 12:00, the defendant’s counsel submitted
that they had an offer of 90% with regard to merits, and provided instructions for
quantum as follows: General Damages R550,000, Loss of Earnings R2,000,000, and
the amount for future medical treatment as claimed in the particulars of claim. The
plaintiff’s counsel submitted that they accepted the amounts for General Damages and
Loss of Earnings, but that future medical treatment must be postponed sine die.
3. The issue of liability turns on the element of negligence. The negligence, as pleaded,
is that the defendant (“PRASA”) operated a train with its doors open or were forcibly
kept open when the train departed from the Devilish station, allowing the plaintiff to be
pushed out of the train. The sole controversy in this case is whether Ms Tswayi has
shown that PRASA acted negligently.
4. Ms Tswayi case is that she was pushed out of the open doors of a moving train.
5. The plaintiff’s statement to the SAPS reads as follows: “On 17 April 2015 at Devnish
train station I was from school to my resident place using a train. I was busy talking on
my phone when an unknown African male grab my phone and he manage to jump out
of the moving train with my phone. I stood up where I was sitting went to the door while
the other people was also standing then another African man pushed me from behind
from the train door and I fell on the platform”
from the train door and I fell on the platform”
6. PRASA submitted that they does not deny that it has a duty to keep coach doors
closed when a train is in motion. However, the plaintiff placed herself in harm’s way by
firstly trying to apprehend the robber secondly by standing up and placing herself in
front of an open door which was deliberately held not to close by an unknown person.
7. From the Plea, the Defendant pleads that in particular, denies that the cause of this
incident was due to the sole negligence of the Defendant nor was it caused due to the
negligence of its permanent or temporal employees or any of its agents, the Defendant
avers that the alleged duty of care owed to the Plaintiff as alleged in this particulars of
claims was never breached that the sole cause of the incident was the Plaintiff’s
exclusive negligence in one or more or all off the following:
7.1 she failed to avoid the incident where, by the exercise of reasonable care, she
could have done so; and
7.2 she failed to keep a proper look out.
8. The test to determine delictual liability is trite. It involves, depending on the particular
circumstances of each case, the questions whether (a) a reasonable person in the
defendant’s position would foresee a reasonable possibility of his or her conduct
causing harm resulting in patrimonial loss to another; (b) would take reasonable steps to
avert the risk of such harm and (c ) the defendant failed to take such steps.
9. I find that the defendant failed to take reasonable steps to avert the risk, in that it
failed to ensure that the train doors can close. The reasonable man will foreseen the
possibility of injury or death if a person fell out or were pushed out the door on the far
side and fell onto the ground, and this would be the case irrespective of whether the
train was in motion or not. There can be no doubt that leaving the train doors open is a
danger to commuters who board that train, as he/she could slip, be pushed, lose their
balance, fall from the train, and sustain injury.
10. The Constitutional Court found that PRASA’s failure to ensure the train doors were
closed gave rise to negligence due to the risk involved and PRASA’s duties to
closed gave rise to negligence due to the risk involved and PRASA’s duties to
commuters.
11. In the premises, I find that the defendant ought to have foreseen that allowing a train
to move with its doors open might lead to a commuter falling and getting injured.
Furthermore, the plaintiff falling off the train (after being pushed) and sustaining injuries
was due to the failure of the defendant to take steps to guard against this.
12. It was held in Transnet Ltd t/a Metro Rail v Tshabala [1] that:
“A reasonable man in the position of the defendant would not have allowed the
train to operate with the doors of the coaches open as he would have foreseen
that to leave the doors of the railway coaches open would constitute an invitation
to prospective passengers to board the train while moving that it would be
dangerous for them to do so”
13. In casu, the plaintiff was pushed by other commuters while she was already
standing inside the train securing herself. She did not attempt to board a moving train.
14. Having considered the relevant facts on this case as set out above, I find that the
defendant was negligent and that there was no contributory negligence from the
plaintiff. The plaintiff is entitled to recover from the defendant 100% of her proven
damages.
Quantum
15. At the hearing of the trial, both parties informed the court that the issue of past and
future loss of earnings had been settled in the amount of two million rand. The plaintiff
also accepted the offer of R550 000.00 for general damages. The issue of future
medical expenses or treatment was postponed sine die. The reason for the
postponement of this issue is that, according to the particulars of claim, an amount of
R50 000.00 was claimed, and the plaintiff must amend the claim accordingly.
As a result, the following order is granted:
1. The defendant is liable for 100% of the plaintiff’s proven or agreed damages.
2. The defendant shall pay the plaintiff R2 550 000,00, within 30 days from the date of
this court order, which amounts has been made up as follows:
2.1 R550 000,00 in respect of General Damages
2.2 R2 000 000,00 in respect of loss of earnings/earning capacity, as delictual
damages
3. In the event of the aforesaid amount not being paid timeously, the Defendant shall be
liable for interest on the amount at the rate of 11,25% per annum calculated from the
31st day to date of payment.
4. The defendant shall pay the Plaintiff’s taxed or agreed party and party costs on the
High Court scale, and the discretion of the taxing master, which includes the following:
4.1 Medico legal reports, addendum reports and radiological reports served on the
Defendant;
4.2 The costs of Adv J van der Merwe, on the Senior-Junior scale, and on scale B,
including preparation fees, heads of argument, day fee for 18 November 2025,
settlement proposals, consulting with the plaintiff, drafting of relevant documents.
4.3 The costs of all reasonable traveling expenses (if any);
4.4 The costs to compiling all minutes in respect of pre trial conferences, including
counsel’s charges;
4.5 the costs of preparing bundles (if any);
5. In the event that the costs are not agreed:
5.1 The Plaintiff shall serve a notice of taxation on the Defendant and/or the
Defendant’s attorney of record;
5.2 The Plaintiff shall allow the Defendant 14 (fourteen) days from the date of allocator
to make payment of the taxed costs;
5.3 Should payment not be affected timeously, the Plaintiff will be entitled to recover
interest at the prevailing rate of interest, from 31 days after date of the signed allocator,
on the taxed or agreed costs, to date of final payment.
6. The amounts referred to in the above paragraphs will be paid to the Plaintiff’s
Attorneys, Gert Nel Incorporated, by direct transfer into their trust account, details of
which are the following:
Name : Gert Nel Attorneys
Bank : ……Bank
Account number : ……………..
Branch code : 3[...]
Reference : G[...]
7. The issue of future medical expenses is postponed sine die
8. It is recorded that there is a contingency fee agreement.
M PIENAAR
Acting Judge of the High Court
Gauteng division, Pretoria
Date of hearing : 18 November 2025
Date of judgment : 18 February 2026
This judgment is handed down electronically by uploading it to the electronic file of this
matter on CaseLines.
Appearances
Counsel for the plaintiff : Adv J van der Merwe
Instructed by : Gert Nel Inc
Counsel for the defendant : Adv N Nharmuravate
[1] [2006] 2 ALL SA 583 (SCA) at para 9