HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPUCABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
, (3) REVISED
. ..L\..-..... J..:, ... w. '1,,~ .......... .
DATE SIGNAnJRE
In the matter between:
PAUL VAN DER BERG
and
PRASA
CASE NO: 96219/16
PLAINTIFF
DEFENDANT
This Judgment is herein duly stamped by the Regi strar of the Court and is submitted
electronically to the Parties/their legal representatives by e-mail. The Judgment is
further uploaded to the electronic file of this matter on Caselines. The date of this
Judgment is deemed to be Februa ry 2026.
JUDGMENT
BEFORE: MAKAMU J ·
Introduction
[ 1] This is an action for damages instituted by the plaintiff. Mr. Paul van der Berg, against
the defendant. the Passenger Rail Agency of South Africa (PRASA), arising from an incident
on 5 May 2016. The plaintiff claims that he was pushed from a moving train by other
commuters through open doors, resulting in bodily injuries. The plaintiff alleges negligence
and breach of legal duty by the defendant. The defendant disputes the claim, contending that
the plaintiffs version is improbable. contradictory, and not proven on a balance of probabilities.
l 2 J The trial proceeded with the plaintiff testifying and calling one witness, Ms. Precious
Tshite. The defendant applied for absolution from the instance at the close of the plaintiff s
case, which was dismissed. The defendant then led the evidence of one witness, Mr.
Bezuidcnho ut, an investigator.
The Parties and common cause fac ts
f3] It is common cause that:
3.1 On 5 May 2016, the plaintiff was a commuter on a Melrorail train operated by the
defendant. travelling from Braamfonte in to Krugersdorp.
3.2 The plaintiff held a valid monthly ticket (No. M052016) for such travel.
3.3 The defendant, as a public rail utility, owed commu ters a duty of care.
[he Plaintiffs version
L4] The plaintiff testified that on the day in question , he boarded a crowded train and the
doors were 70% open. As the train approached Krugersdorp Station, the doors of his coach
were still open. He was pushed by other commuters through the open doors while the train was
still moving, causing him to fall onto the platform. He sustained facial lacerations, dental
injuries, hand lacerations, a concussion. and a lower back injury. He lost consciousness briefly.
was assisted by strangers. and walked approximately one kilometre to a hospital.
[5] Ms. Precious Tshite. a regular commuter acquainted with the plaintiff, confirmed that
she saw him a week after the incident. She testified that he appeared injured and that they later
went to a police station to report the matter. The matter was reported to the police station on
the 18th of May 2016, where they both deposed of an affidavit pertaining to the incident.
The Defendants case
[6] The defendant's case, as presented in its heads of argument and through Mr.
Bezuidenhout, is that the plaintiff's account is riddled with improbabilities and inconsistencies.
The defendant highlights:
6.1 r nconsistencies in the plaintiff's description of the train· s occupancy.
6.2 The improbability of walking a kilometer to the hospital after an alleged loss of
consciousness and significant injury.
6.3 The failure of Ms. Tshite to inquire about the plaintiff's well-being immediately
upon set:ing him.
6.4 The plaintiff's failure to report the incident immediately to PRASA officials or via
the helpline number on his ticket.
6.5 The absence of any record of the incident in the Occurrence Book (OB) maintained
by security personnel at Krugersdorp Station.
6.6 The defendant disputes the admissibility of the hospital records as hearsay.
Absolution.from the instance
[7] The de[ense made an application for absolution from the instance based on the
plaintiff's evidence. They placed it on record that the evidence given by the plaintiff has
irreconcila ble differences and improbabilities. I maintain that the differences in the evidence
given by Ms.Thite and the plaintiff are immaterial as long as there is evidence to prove that the
plaintiff was indeed a passenger on the train with a monthly ticket. he was seen by Ms.Thite
on and outside the train, he has hospital records and a police affidavit. In Ndlovu v MEC for
Police, Ro(lds (llld Transport Free St(lfe Province and Otltersl, the court clarified the test of
absolution from the instance when it said:
"This test require, of"the presiding ojficer to consider the proven/acts and to determine
[fi t amounts to a prima .facie case. Ahso!ution from the instance will ordinarily be
gran ted sparingly and the court could drml' inferem:efor which the plaintiff contends '·
It is for these very reasons that defendants application for absolution from the instance was
dismissed.
Assessment of evidence and credibility
[7] I have carefully considered the evidence presented by both parties. While the defendant
has pointed to several discrepancies in the plaintiff's narrative, I am not persuaded that these
discrepancies are so fundamental as to render the plaintiff s entire version implausible or false.
7.1 On Contradictions: The plaintiffs minor variations in describ ing the train's
crowding are not unusual for a witness recalling a traumatic event years later. They do
not go to the heart of the claim- namely, whether he was pushed from a moving train.
It is also proves that the witness and the Plaintiff did not rehearse the events to tailor it
for the purpose but relied on their recollect ion of v.hat happened
7.2 On Failure to Report: The plaintiff s explanation that he was djsoriented, in pain.
and focused on seeking medical help is reasonable. The obligation to report is not a
prerequisite for a valid claim, and his failure to do so immediately does not prove that
the incident did not occur. It would not be expected that the Plaintiff in a state in which
he was would go around looking for the authorities at the station to report the matter
the first priority was to seek medical assistance.
7.3 On the Evidence of Ms.Tshite: Her conduct- greeting the plaintiff without
immediate inquiry- is not so improbable as to discredit her entire testimony. People
1 Ndlovu v MEC/or l'olice Roads and Tramport Free State and others 2024 JDR 3275, p3 at para 4
react different ly to situations, and her subsequent assistance in reporting the matter
lends support to the plaintiff's version. The Plaintiff and Ms. Tshite were not friends
and there is no evidence of them exchanging pleasantries other than greeting when they
saw one another in the train.
7.4 On the Defendant's Witness: Mr. Bezuidcnhout was an honest witness, but his
evidence was necessarily limited. He did not witness the incident. His testimony that
the 0B contained no record of the even1 is noted. but the absence of a record does not
conclusively prove that the incident did not occur. Incidents can go unreported,
especially in busy public transport environments. If the witness Mr. Bezuidenhout
relied on the Occurrence Book which be did not author, then it could be regarded as
hearsay evidence but the approach by both representatives to admit the records is
acceptable.
7.5 On Hearsay and Hospital Records: The defendant correctly points out that the
hospital records are hearsay. However. the plaintiffs own testimony. which I found
credible in material respects. is suflicient to establish that he sustained injuries
consistent with a fall. The hearsay objection does not negate the core of his viva voce
evidence. If this evidence should be considered to be hearsay. then Mr. Bezuidenhoufs
evidence on Occurrence Book should be rejected as hearsay.
Legal duty and negligence
f 13 J The defendant, as a public carrier, bears a legal duty to take reasonable steps to ensure
the safoty of its passengers. This includes taking measures to prevent harm from fellow
passengers and ensuring that train doors are not open while the train is in motion, creating a
foreseeable risk of exactly the kind of injury suffered by the plaintiff. In Saint v PRASA
[2025}2, Manamela AJ stated:
"'The question is. what is theref<Jr the plaintiff lo do when a train is running with open
doors and is overcrowded. I am of the view that flthere is anyone to rectify this it would
only he the defendant"
only he the defendant"
2 Saint v Passenger Rail Agency of Soutlt Africa /2025/ JOL 68841 (GP), p 9
[ 14] The evidence establishes, on a balance of probabilities, that the coach's doors were open
as the train approached the station. T he defendant led no evidence to rebut this specific
allegation or to show that it had implemented reasonable systems (e.g., functioning door
mechanisms, adequate sccmity patrols, or effective monitoring) to prevent such a dangerous
state of affairs. In Maphela v PRASA 3, Pangarker Al held:
"Jn my view, all that was required of the defendant was lo comply with its own
operating instructfrms. Yet, the de(endant.fctiled to do so and operated its trainji'om MuLual w
Nyanga stahons with Us carrh1Ke doors open, put another way, the defendant's employees
omitted to close the train doors. and such conduct is not acceptahle. In allowing the train doors
to be and remain open while the train was in motion, the defendant jaHed in its legal duty
tmvard"i the plaint[ff'as a commuter. The resultant.finding is that the defendant.failed to ensure
that the safety precaution (closinR the train door) was complied with and such failure amounts
to negligence on its part. A reasonable organ of slate in the defendant's position . which owes
a public law duty to commuters, would have ensured that the train doors were kept closed to
prevent the plaintiff<; fall or slip .fiwn the train onto the railway tracks. Thus. the reasonable
possibility of the plah1tUJ: a commuter. falling from the packet. moring train whilst the doors
were open, was.foreseeable. "
[15) T he defendant's negligence lies in its failure to take these reasonable steps. Its breach
of duty was a direct cause of the plaintiffs iI~juries, as it created hazardous conditions ( open
doors on a moving train), which enabled the push and the fall.
Contributory negligence
[16] The defendant pleaded contributory negligence, arguing that the plaintiff willfully
boarded an overcrowded train. The plaintiff did admit the train was full. In the circumstances,
I find that the plaintiffs decision to board a crowded train does constitute some contributory
fault, as it placed him in a more vulnerable position, however, the train he was set to board
3 Maphela v Passenger Rail Agency of South Africa /2023/ JOL 59612 (WCC) at para 55
came late and it was the last train. He had no alternative transport as he is a daily train
commuter.
Order
t 17 J In the result. l make the following order:
l. Judgment is granted in fa\ our of the plaintifI the delendant held to be l 00%
liable.
2. Costs in the cause.
MSMAKAMU
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Date of hearing : 02 February 2026
Judgment delivered: 11 February 2026
APPEARANCES:
For the Plaintiff: Adv JG Van Der Merwe
Instructed by: A Nortje
For the Defendant: Adv T Ramatsekisa
Instructed by: Mohala Moifo Attorenys Inc