IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETOR IA
CASE NO: 72080/2019
(l ) REPORTABLE: ~ /NO
(2) OF INTEREST TO OTHER JUDGES: ~ / NO
(3) REVISED.
'-' 03 MARCH 2026
SIGNATURE DATE
In the matter between:
VKTHOLE Plaintiff
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA) Defendant
JUDGMENT
LABUSC HAGNE J
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[1] In this matter only the issue of liability served before the trial court, quantum
having been separated in terms of rule 33(4) and postponed sine die.
[2] The plaintiff instituted action against PRASA for injuries sustained in an
incident on 29 September 2017 when he was ejected from a moving train
travelling between Bosman Street and Mabopane Station in the region of
Kopanong Station.
[3] The plaintiff pleaded that on or about 29 September 2017 at approximately
19:30, between Labeleng Metro Rail Station, on route to Soshanguve Station,
the plaintiff was a passenger on a moving train when co-passengers pushed
the plaintiff out of the coach onto the tracks.
[4] The plaintiff pleaded that the defendant breached its duty of care to ensure
the safety of its passengers by permitting the train to be operated with open
doors while being overcrowded.
[5] The plaintiff pleaded the following injuries:
5.1 A fracture to the right humerus.
5.2 Lacerations to hands and injuries to the hands.
5.3 A deep scalp laceration.
5.4 Four soft-tissue injuries.
5.5 Deep lacerations to both knees.
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5.6 Multiple facial bone fractures.
5.7 Injuries to his eyes.
5.8 Fractured patella.
[6] The defendant denied that the incident had occurred.
THE EVIDENCE
[7] The plaintiff testified that he resides in Mabopane and, at the time of the
incident in 2017, was employed at Vasco. That is in the Silverton area. To
get to work and back he would have to take a train from Mabopane Station to
Bosman Street Station, where he would change trains and disembark at
Eerste Fabrieke Station. It would then be a 45 minute walk to work. This was
his daily routine.
[8] On the day in question, he had been at work until 16:30. It was payday and
he travelled with a backpack in which he had placed his pay. He had a weekly
ticket to travel on the train. He walked to Eerste Fabrieke and took a train to
Bosman Street. At Bosman Street he took a train to Mabopane. The train
schedule of the service offered by PRASA indicates that the most probable
train that he took was the one that departed from Bosman Street at 19h12.
[9] It was a Friday and the train was fillin g up as it progressed. At Kopanong
Station, the train was full. He was standing, holding onto an overhead str ap.
After the train had departed, the doors remained open. He was standing at
the first door on the left of the carriage. A commotion started amongst
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passengers and pushing and shoving taking place. He had the impression
that he was going to be robbed. However, he was pushed from the train
without his backpack. He fell, ostensibly on his knees as both patellae were
fractured and he sustained a gash to his head and a severe injury to his eye.
He described having to get up but having to carry his eye in his hand. His
contention was that he would not have been ejected from the train had the
doors been closed.
[10] The cross-examination of the plaintiff focussed on discrepancies as to the time
and the location of the place where the alleged incident occurred. In the
particulars of claim he contended that the incident took place at 19h30. In a
statement to the Police, he contended that it was at 20h35.
[11] The evidence presented by the plaintiff, with use of photographs, as to where
the incident occurred was tested in cross -examination and through the
evidence of the defendant. The plaintiff contended that he, in his injured state,
walked to an area where shacks were- where someone phoned his brother to
come and collect him . Daylight photo’s of t he area in question showed no
visible shacks or habitation near the tracks. The train driver and the Metro
guard who travelled at the rear of the train were also called as witnesses.
According to them there was no habitation or township in the area identified
by the plaintiff. They testified that they were unaware of any incident that had
taken place.
[12] The discrepancies in the evidence of the plaintiff, coupled with the fact that
the defendant’s witnesses did not see someone being pushed from the train ,
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and did not receive reports of such an incident, resulted in the contention that
the incident did not occur at all.
[13] What was not disputed throughout the matter was the plaintiff’s contention that
the train was overcrowded and that the doors were open while the train was
in motion.
[14] If the plaintiff’s evidence is accepted (with which I deal below), then the fact
that the train was overcrowded, and in motion with open doors, would
establish negligence on the part of PRASA.
[15] The second witness for the plaintiff is the brother of the plaintiff. He testified
that he was busy studying at home when he received a call from a stranger,
advising that he had to come and fetch his brother who had been injured. He
was directed by tele phone to the settlement in question. He had not been
there before but, when he eventually found his brother, he testified that it was
within 400 metres of where the train tracks passed on the route between
Bosman Street and Mabopane.
[16] The evidence of the second plaintiff’s witness was not placed in dispute, other
than with reference to the place where the incident occurred.
[17] The first defence witness was the driver of the train that departed from Bosman
Steet on route to Mapobane at 19h12 on the day in question. He confirmed
that it is a 1 hour train journey and that Kopanong Station is approximately 40
to 45 minutes into the journey. He is unaware of any incident, and none was
reported to him.
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[18] The second defence witness was the Metro guard, whose duty was to ensure
the safety of the passengers. She was in a cabin at the rear of the train and
testified that she was unaware of anybody who had been pushed from the
train. Importantly, she did not testify that, once the train had left any of the
stations, that she had ensured that all train doors were closed before the train
departed.
[19] One must bear in mind that the incidents in question took place when it was
dark. While the train had a headlight facing forward, the train driver would not
have been in the best position to view such an incident. He was probably in
the worst position, facing the tracks going forward.
[20] The Metro guard ( in a cabin right at the rear of the train) also had limited
visibility and may very well have missed an incident as described by the
plaintiff. The fact that the train was in motion with open doors would have
imposed a more stringent duty on the Metro guard to be on the lookout,
particularly if the doors were not capable of being closed. However, no such
evidence was presented.
[21] The only issue arising from the defendant’s witnesses is whether the plaintiff
had identified the correct spo t where alleged he was pushed from the train.
There is reason to doubt that he had identified the right spot. This, to my mind,
is not destructive of his evidence as one must bear in mind that the incident
took place in the dark, that he had fallen on his knees and had sustained
serious injuries to his head, eyes, both knees and legs and that this may very
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well have affected the quality of his observations as to where the incident
occurred.
ANALYSIS
[22] The following considerations establish that the incident described by the
plaintiff in fact took place:
22.1 It was a normal workday for the plaintiff and his only means of travel
back home from work was by train. On the probabilities he was
therefore on the train between Bosman Street and Mabopane on the
day in question.
22.2 The fact that his brother was called to pick him up in an injured state
not far from the tracks confirms that the plaintiff had been ejected from
the train while being a passenger.
22.3 The fact that the plaintiff was ejected from the train is only possible if
the doors were open whilst the train was in motion. This was
uncontested.
[23] In the premises, despite having reservations as to the correctness of the spot
identified by the plaintiff as where the incident occurred, I am satisfied on the
probabilities that the incident did in fact take place and that he was injured in
the manner described by the plaintiff.
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[24] The question arises whether the discrepancies raised by the defence as to the
place of the incident at the time of the incident are destructive of the plaintiff’s
version.I don’t think they do.The discrepancies were in statements in English
while the plaintiff testified through an interpreter . His demeanour was
appropriate and he conceded differences pointed out. But I have concerns
regarding the plaintiff’s understanding of English. The statements in question
were all written in English without them having been read back to him.
Although the witness statements themselves state that he understood the
contents, this is not necessarily the truth. One of the statements referred to,
filled in by the plaintiff’s attorneys, alleged that he had been fatally injured. He
confirmed this evidence as correct, thinking that it merely described serious
injuries. This indicates to my mind that the accuracy of what is recorded in the
statements is t ainted by a language barrier. Despite the discrepancies I am
satisfied that the incident took place.
[25] In the premises, whilst the criticism of the plaintiff may have some validity, the
overarching probabilities of the incident having occurred have been
established. These arise not only from the plaintiff’s evidence, but by the
evidence of the second witness for the plaintiff and from the uncontested fact
that the train was overcrowded and in motion with open doors.
[26] PRASA is a public carrier with a duty to protect its passengers from physical
injury while using the trains ( Mahlongwa v Passenger Rail Agency of South
Africa 2016 (3) SA 528 (CC)).
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[27] Measures that must be taken to ensure the safety and security of passengers
include the duty to ensure that trains are not overcrowded and that all train
doors are closed when the train is in motion (see Motloung v PRASA
2019/13557) [2022] ZAGPJHC 331 (16 May 2022) per Strijdom AJ at
paragraph [37].
[28] Based on the above authorities I am satisfied that the plaintiff has established
negligence. The fact that the plaintiff sustained fractures of both patellae and
to the head confirm that he had fallen on his knees after being ejected from
the train. This is consistent with the manner in which he described the incident
in question.
[29] I am therefore satisfied that the plaintiff has also established causation In
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
the following was stated in paragraph [25]:
“The plaintiff is not required to establish the causal link with certainty, but
only to establish that the wrongful conduct was probably a cause of the
loss, which calls for a sensible retrospective analysis of what would
probably have occurred, based upon the evidence and what can be
expected to occur in the ordinary course of human affairs rather than an
exercise in metaphysics.”
CONCLUSION
[30] I am satisfied that the plaintiff has established liability on the part of PRASA
and make the following order:
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1. The issue of merits and quantum having been separated in terms of rule
33(4 ), the defendant is found to be liable to the plaintiff for 100 percent
of his proven or agreed damages sustained in the incident that occurred
on 29 September 2017.
2. The defendant is to pay the plaintiff's taxed or agreed party and party
costs, which costs shall include the costs of an interpreter and as far as
counsel is concerned, shall be on Scale C.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL FOR APPLICANT : ADV JORDAAN
INSTRUCTED BY : SPRUYT ATTORNEYS
COUNSEL FOR RESPONDENT: ADV MATIDZA
INSTRUCTED BY LEDWABA MAZWAI INC