IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2567/2024
In the matter between:
KEBUANABO CONSTANCE POPO PLAINTIFF
and
INTERCAPE FERREIRA MAINLINER (PTY) LTD DEFENDANT
Neutral citation: Popo v Intercape Ferreira Mainliner (Pty) Ltd (2567/2024) [2026]
ZAFSHC 223 (27 March 2026)
Coram: DAFFUE J
Heard: 18, 19 November 2025 and 5 December 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand -down is
deemed to be 16h00 on 27 March 2026.
Summary: Delict – compartment door of bus became detached and fell on plaintiff
during process of loading her bag into the luggage compartment – defendant admitted
that the compartment door became detached, but denied liability – defendant presented
no evidence to explain alleged reasons for detac hment – plaintiff proved the required
elements for delictual liability – defendant 100% liable for plaintiff’s damages to be proven.
2
ORDER
1 The defendant is 100% liable for the plaintiff’s damages to be proven.
2 The defendant shall pay the plaintiff’s costs of the merits trial, inclusive of the fees
relating to the drafting of heads of argument.
JUDGMENT
Daffue J
Introduction
[1] The issue to be investigated and adjudicated in this case is whether a female
pensioner of Bloemfontein presented sufficient evidence for the court to find a bus
company liable for the damages caused to her when the door of the luggage compartment
of the bus, referred to as a ‘flap’, became detached and fell on her. The question to be
answered is whether it is a case of res perit domino (damage rests where it falls ), or
whether the bus company must be held liable in delict as the lady avers.
The parties
[2] The plaintiff is Ms Kebuanabo Constance Popo, a 74-year-old female pensioner of
Bloemfontein who was injured prior to boarding a bus on route to Pretoria. The defendant
is Intercape Ferreira Mainliner (Pty) Ltd, a company in the business of delivering transport
services to its passengers all over the Republic of South Africa.
The incident as pleaded and the defence thereto
[3] It is common cause that on 27 February 2023 at Bloemfontein , the plaintiff was
about to board one of the defendant’s buses on route to Pretoria. It is appropriate to quote
paragraphs 5 and 6 of the particulars of claim and the defendant’s response thereto.
These two paragraphs read as follows:
‘5. Whilst the Plaintiff was waiting for the luggage to be put in the luggage compartment, the
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flap of th e luggage compartment got detached from its position and fell on her, as a result she
was struck on the back of her neck and shift area, thereby injuring her neck and shift area.
6. The fact that the flap got detached from its position was the direct result of the negligence
of the bus porter, who was the employee of the defendant acting within the course and scope of
his employment. He was negligent by failing to ensure that the flap was properly attached to its
position to prevent it from falling on the plaintiff.’
[4] The defendant pleaded a lack of knowledge of the injuries sustained by the plaintiff,
but admitted in paragraph 5.2 of the plea that the flap of the luggage compartment
became detached. In amplification of its denial of the allegations in parag raph 6 of the
particulars of claim, the defendant pleaded that ‘. . . the sole cause of the luggage
compartment becoming detached was as a result of the sole negligence of the Plaintiff in
that she grabbed the bar keeping the flap of the bus open, while standing under the flap,
causing the flap to become detached at a time when she should have foreseen that
holding on/grabbing the bar may have the effect of the support of the flap being taken
away.’ (Emphasis added.)
[5] In an alternative plea, the defendant pleaded that the plaintiff was aware of the
risks of standing under the flap and the danger of grabbing the bar ; consequently, she
consented to be subjected to the risk of injury and in the premises, the defendant could
not be held liable for any loss or damages suffered by her.
[6] I should mention that I requested clarity before the leading of evidence what the
parties meant by ‘detachment’ of the flap. Both parties agreed that the ‘flap’ did not
become completely detached and thus falling to the ground, but that it became unlatched
or detached from its usual position when open and fell from that position downwards. The
or detached from its usual position when open and fell from that position downwards. The
reference in the pleadings and evidence to a ‘flap’ is not proper English. The correct and
better description is either ‘luggage compartment door’ or ‘trunk lid’, being the hinged
opening covering a vehicle’s cargo area. I shall henceforth refer to ‘compartment door’.
Separation of issues
[7] Prior to the leading of evidence, I made an order by agreement in terms of rule
33(4) of the Uniform Rules of Court in terms whereof merits and quantum were separated
on the basis that the disputed issues in paragraphs 1, 5 and 6 of the particulars of claim,
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read with the corresponding paragraphs of the plea, be separated from the remainder of
the disputes and these were to be adjudicated during the trial. The further issues in
dispute pleaded in paragraph s 7 to 10 of the particulars of claim stood over for later
adjudication if required.
Evaluation of the evidence, the parties’ submissions and relevant authorities
[8] I referred to the principle, res perit domino, in the introduct ory paragraph . In
adjudicating the plaintiff’s claim I shall not ignore the warning of Harms, JA in Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA,1 stating that
the first principle of the law of delict is that everyone has to bear the loss they suffer and
that Aquilian liability provides an exception to that rule. Related thereto is always the
apprehension of boundless liability.
[9] A litigant who fails to adduce evidence about a fact in issue, whether by not giving
evidence or by failing to call witnesses, runs the risk of the opponent’s version being
believed.2 However, the fact that the one party fails to adduce evidence to contradict the
other party’s version does not necessarily mean that that version should be accepted. It
will always depend on the probative strength of such version, ie whether it was strong
enough to cast an evidentiary burden on the party failing to present evidence.
[10] Against this background, I shall weigh the probabilities as they arise from the
evidence and the evidential material as well as the circumstances of the case. As held
in Maitland and Kensington Bus Co (Pty) Ltd v Jennings ,3 for judgment to be given for a
plaintiff, the court must be satisfied that sufficient reliance can be placed on their story for
there to exist a strong probability that such version is correct. In Ocean Accident and
Guarantee Corporation Ltd J v Koch ,4 it was held that the evidence presented by the
burdened party must be such that the court can say that it is more probable than not, for
burdened party must be such that the court can say that it is more probable than not, for
the burden to be discharged.
[11] The five requisites for delictual liability are well-known. These are:
1 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) para12.
2 Brand v Minister of Justice and Another 1959 (4) SA 712 (A) at 715D -716H and the authorities referred
to by Schmidt and Rademeyer, The Law of Evidence para 3.2.4.1.
3 Maitland and Kensington Bus Co (Pty) Ltd v Jennings 1940 CPD 489 at 492.
4 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D.
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(a) conduct of the defendant which can be in the form of a commissio, e.g. a voluntary
human act, or an omissio, eg the failure to take a positive step to prevent damage to
another where there was a legal duty to act;
(b) wrongfulness of that conduct;
(c) fault in the form of negligence (or intent);
(d) harm suffered by the plaintiff; and
(e) a causal connection between the harm and the defendant’s conduct.
[12] The often-quoted dictum of Holmes JA in Kruger v Coetzee5 is worth repeating. I
quote:
‘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.
This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes
overlooked. Whether a diligens paterfamilias in the position of the person concerned would take
any guarding steps at all and, if so, what steps would be reasonable, must always depend upon
the particular circumstances of each case. No hard and fast basis ca n be laid down. Hence the
futility, in general, of seeking guidance from the facts and results of other cases.’
[13] I accept that undue demands should not be made on a public carrier such as the
defendant. In Le Roux and Others v Dey ,6 the Constitutional Court dealt with
wrongfulness as a requirement for delictual liability as follows:
‘In the more recent past our courts have come to recognise, however, that in the context of the
law of delict: (a) the criterion of wrongfulness ultimate ly depends on a judicial determination of
whether – assuming all the other elements of delictual liability to be present – it would be
reasonable to impose liability on a defendant for the damages flowing from specific conduct; and
(b) that the judicial determination of that reasonableness would in turn depend on considerations
of public and legal policy in accordance with constitutional norms. Incidentally, to avoid confusion
it should be borne in mind that, what is meant by reasonableness in the context o f wrongfulness
has nothing to do with the reasonableness of the defendant’s conduct, but it concerns the
reasonableness of imposing liability on the defendant for the harm resulting from that conduct.’
5 Kruger v Coetzee 1966 (2) SA 428 (AD) at 430E-G.
6 Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) para 122.
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[14] Before I deal with the viva voce evidence, I record th at the court was presented
with three photographs, marked exhibits A1, A2 and A3 respectively, in support of the
evidence as to the mechanism of the flap. Three videos were also presented into evidence
and the relevant memory stick was handed in as exhibit B. These videos assisted in
considering the mechanism of the compartment door.
[15] The plaintiff testified as the sole witness in her case. She bought a ticket to travel
with one of the defendant’s buses from Bloemfontein to Pretoria , which bus was
scheduled to depart from Bloemfontein at 03h00 on 27 February 2023 . Upon
announcement that the bus was ready to leave , she went to the bus. She took her bag
to the luggage compartment at the side of the bus . The compartment door thereof was
open at the time . At that stage , an employee of the defendant , referred to by her as a
gentleman, was inside the luggage compartment, assisting a passenger that had alighted
from the bus to obtain her luggage. Although she referred to the gentleman as the bus
porter, he was probably the co-driver of the bus. When it was her turn to be assisted, she
took her bag with both hands and put it inside the compartment for the co-driver to store
it at the correct place. At that stage, the compartment door fell from its upright posi tion
onto the back of her neck and shift area. She did not know what caused the door to fall
as she was at that stage leaning towards the inside of the luggage compartment and not
watching the door. She enquired about an occurrence book but was told that she could
report the matter in Pretoria on arrival. In Pretoria , she was merely provided with a
brochure containing contact details.
[16] The plaintiff referred to the other passenger, unknown to her, who was standing
relatively close to her at a stage. She could not explain why this person was not injured
as well. In my view, this should be seen in context. Much would depend on that person’s
as well. In my view, this should be seen in context. Much would depend on that person’s
height and distance from the plaintiff at the stage when the compartment door came down
and/or whether she had just left the scene before then.
[17] Detailed cross-examination occurred in respect of who purchased the plaintiff’s
bus ticket and when. Also, how she approached the bus . It was put to her in cross -
examination that the person referred to was not a porter, but a co -driver. She did not
dispute it. The three photos accepted as exhibits A1, A2 and A3 were shown to her. On
exhibit A3 a person’s hand is depicted on a bar on the inside of the compartment door.
7
When questioned, she denied that she ever grabbed that bar. She insisted that she was
hit by the compartment door and could not explain how this occurred. I reiterate that
defendant’s counsel expressly accepted during cross -examination that the plaintiff was
hit by the compart ment door and therefore, it was never denied that she was hit as
testified. Counsel referred to exhibit A 1 and mentioned that although two bars are
depicted, she did not have any instructions which bar was allegedly grabbed at. I find this
quite disturbing as I would have expected counsel to have consulted with the defendant’s
witness prior to cross-examination. On a question by the Court , the plaintiff presented a
clear version: the employee inside the luggage compartment picked up the flap
(compartment door) after she had been hit by it. The defendant failed to reject this version,
either by putting it to the plaintiff that she was lying , or by presenting the employee’s
evidence to contradict the version.
[18] The plaintiff was cross-examined about her evidence in chief that she reported her
injury to the bus driver who informed her to report the incident on arrival in Pretoria which
she did. She even referred to WhatsApp messages between her and the defendant that
were still on her phone. She was accused of failing to ensure that these were discovered.
I got the impression that the defendant’s counsel was on the verge of accusing her of
lying, but she eventually submitted that the plaintiff ’s evidence in this regard was
inadmissible. Again, counsel was not properly instructed, or the defendant tried to mislead
the Court. It eventually turned out during the evidence of its own witness that the
defendant was fully aware of the incident. I shall revert thereto.
[19] Once the plaintiff has closed her case, the defendant sought absolution from the
instance which was opposed. I dismissed the application whereafter the defendant
decided to call witnesses in defence.
decided to call witnesses in defence.
[20] The defendant called Mr Fletcher Smythe. He is the defendant’s inhouse tax and
legal counsel and has been in that position since March 2020, ie before the incident
occurred. He is responsible for all policies and litigation . In an endeavour to rely on the
defence of voluntary assumption of risk, Mr Smythe referred to the defendant’s alleged
policy, dictating that passengers are not allowed to loa d and offload their own luggage.
Clearly, there is absolutely no evidence that passengers were warned about this and/or
that the plaintiff was instructed to keep away from the luggage compartment, either by
8
way of a written notice or viva voce instructions at the scene.
[21] Mr Smythe was ignorant of the luggage compartment of the particular bus and
even stated that the door could only open to a height of 1.2 meters which according to
him would mean that passengers would have to crunch and crawl u nderneath it in order
to handle their luggage . During cross -examination he was referred to the three videos
presented by the defendant on a memory stick which I accepted as exhibit B. He was not
shown these videos before his evidence . Clearly , the video footage contradict s his
evidence. When the compartment door is fully opened, the bottom part thereof is higher
than the head of the male person depicted in the video. I shall revert to the video evidence
hereunder. Mr Smythe testified that accor ding to reports seen by him, the bus was
examined in Cape Town before departure and also in Pretoria on arrival. It appeared from
‘ticks’ on the reports that the unidentified people responsible therefore were satisfied that
the compartment door was in proper working condition . This hearsay evidence has no
value in my view.
[22] Mr Smythe also testified that if an incident such as in this case appears on a trip,
the driver has to report that. He confirmed that he came across the driver’s report which
stated that ‘the compartment door fell on a passenger’s shoulder, but that she was not
injured.’ The driver also reported that he was not able to say what happened as he was
in the process of getting luggage from inside the luggage compartment . When asked in
cross-examination about the availability of this report, he could not give any explanation
and merely said that he was not an attorney. On his version, they handed ‘everything’ to
the attorney and he could not explain why the report was not d iscovered. The more
appropriate enquiry should be why the employee responsible for the report was not called
to testify. I deal with negative inferences herein later.
to testify. I deal with negative inferences herein later.
[23] Mr George Michael de Lange was called as the defendant’s second witness. He is
employed by the defendant as a mechanic, stationed in Bloemfontein. He described the
mechanism of the flap/compartment door with reference to exhibits A and B. He testified
that the bar, referred to as an adjustment rod by him, is further from the ground when the
compartment door is open than a normal person standing upright. This is apparent from
the video footage.
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[24] Mr De Lange explained that the compartment door worked with a hydraulic system.
Two gas shocks are installed and because these are pressurised at eight bar per shock,
the compartment door will stay open after it has been opened. I may mention that it is
apparent from the video footage that the male person opening the compartment door
assisted the door in moving upwards. Mr De Lange testified that the compartment door
has to be pulled down manually with, in his words , ‘a lot of force as the gas shocks are
keeping it up.’ I must say that I did not get the impression from the demonstrations in the
video footage that a lot of force is needed to close the compartment door , although the
person used his hand to guide the door downwards.
[25] Mr De Lange explained with reference to the photographs and video footage the
positioning of the adjusting rod and gas shocks. He was ad amant that if any of these
items would be pulled or grabbed at, this would not cause the compartment door to come
down from its open and vertical position . I may note that it is apparent from the video
footage that when the compartment door is close d, a touch of the handle starts the
opening process although the compartment door needs to be assisted manually in order
to open completely . During the process of opening and closing, the compartment door
swings in a semi-circle away from the bus. When fully opened, it is in a vertical position
adjacent to the bus.
[26] No evidence was tendered that the plaintiff closed the door on top of her by
pressing the handle or pulling anything such as the adjustment rod or gas shocks. Mr De
Lange’s evidence did not take the defendant’s version any further insofar as he did not
inspect the specific compartment door at any stage and could not say anything about the
deficiency of the hydraulic system at the stage of the incident, save to advance his general
comments in evidence. In any event, it is common cause that the compartment door
comments in evidence. In any event, it is common cause that the compartment door
became detached as admitted by the defendant in its plea. The pleaded reason provided
was dealt a death blow by Mr De Lange, who categorically testified tha t nothing would
happen to the compartment door if a person grabbed either the adjustment rod (bar) or
gas shocks.
[27] The mere fact that the defendant failed to call a witness to deny that the plaintiff
was injured because of the detachment of the compartment door and to give an
explanation as to why it became detached, does not mean that the plaintiff’s version
10
should be accepted as the truth and credible. It still needs to be considered, but it is
unnecessary to try and find fault with her version in the absence of contradictory evidence.
[28] No reasons have been provided as to why the relevant employee, referred to as
bus porter, co-driver or bus driver , was not called upon to testify. Consequently, a
negative inference is justified against the defendant for f ailing to call the employee
responsible for loading and offloading passengers' baggage. Clearly, such person would
not deny that the compartment door fell on the plaintiff as this has been admitted . Such
person should have been called to present an explanation for the door becoming
detached as pleaded . The plaintiff did not have any reason to call such person and
therefore, a negative inference shall not be drawn from her failure to call the employee. I
refer to a not too dissimilar set of facts in Raliphaswa v Mugivhi and Other.7
[29] In the absence of evidence by the defendant as to what could have caused the
compartment door to become detached, the matter may be considered by relying on the
maxim, res ipsa loquitur . This Latin phrase is used to describe the proof of facts which
are sufficient to support an inference that a defendant was negligent and thereby to
establish a prima facie case against them. No presumption of law is created, but the court
is allowed to draw a permissible and justified inference upon all the facts presented to it.
The maxim is usually invoked in circumstances when the only known facts relating to
negligence consist of the occurrence itself as again recorded in Goliath v Member of the
Executive Council for Health, Eastern Cape .8 In Arthur v Bezuidenhout and Mieny 9 the
court reiterated that the maxim is no magic formula which does not alter the incidence of
the onus or the rules of pleading. Consequently, in casu the onus remained on the plaintiff
to prove her case.
to prove her case.
[30] The case may also be considered based on circumstantial evidence. Unlike in a
criminal case, the plaintiff does not have to prove that the inference she asks the court to
draw is the only reasonable inference. It suffices to convince the court that the inference
she relies upon is the most readily apparent and acceptable inference from several
7 Raliphaswa v Mugivhi and Other [2008] ZASCA 17; [2008] 3 All SA 92 (SCA); 2008 (4) SA 154 (SCA) ;
see footnote 2: Brand v Minister of Justice and Another 1959 (4) SA 712 (A) at 715D -716H and the
authorities referred to by Schmidt and Rademeyer, The Law of Evidence para 3.2.4.1; see also Ferreira v
Santam Insurance Co Ltd 1995 (3) SA 287 (SE) 290H-J.
8 Goliath v Member of the Executive Council for Health, Eastern Cape [2014] ZASCA 182; 2015 (2) SA 97
(SCA) para 19.
9 Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) at 573C-E.
11
possible inferences, as stated in AA Onderlinge Assuransie Assosiasie Bpk v De Beer. 10
More recently, the Supreme Court of Appeal considered circumstantial evidence in
Meyers v MEC Department of Health Eastern Cape 11 (Meyers) and concluded that ‘in a
civil case it is not necessary for a plaintiff to prove that the inference that she asks the
court to draw is the only reasonable inference; it suffices for her to convince the court that
the inference that she advocates is the most readily apparent and acceptable inference
from a number of possible inferences.’ To take Meyers to its logical conclusion , if
something goes wrong during a medical procedure as in that case, where there is prima
facie negligence, it is for the defendant to disturb this prima facie inference of negligence.
[31] I accept that negligence is not established by merely showing that the incident
occurred. As stated in S v Van As 12 the diligens paterfamilias does not have prophetic
foresight. There is no credible evidence that the gas shocks were properly pressurised. It
could not have been expected of the plaintiff to lead this evidence. The defendant was
fully aware of the incident and in failing to present evidence in respect of the occurrence,
it is a matter of res ipsa locquitur.
[32] The plaintiff’s testimony in respect of the fateful event stands uncontradicted and
it is also credible. There is no reason to reject it as false or improbable. The compartment
door came down on her when she stood underneath it while in the process of handing
her bag to the bus porter/ co-driver, an employee of the defendant, who was inside the
relevant luggage compartment. She denied grabbing the bar which allegedly kept the
compartment door open. This mere allegation in the plea has not been supported by any
viva voce evidence. Considering the plaintiff’s uncontested version, such pleaded version
should be rejected. The defendant admitted in its plea that the compartment door became
should be rejected. The defendant admitted in its plea that the compartment door became
detached as understood by the parties with reference to what I stated above . Its own
mechanic confirmed that the compartment door would not come down if someone would
be grabbing the specific bar pointed out and apparently relied upon in the plea.
[33] The plaintiff was injured when the compartment door of the defendant’s bus came
down from its open and vertical position and struck her on the back of her neck and shift.
10 AA Onderlinge Assuransie Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) 614G-615B.
11 Meyers v MEC Department of Health Eastern Cape [2020] ZASCA 3; [2020] 2 All SA 377 (SCA); 2020
(3) SA 337 (SCA) para 82.
12 S v Van As 1976 (4) SA 594 (A) at 879D.
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The question to be considered is whether her viva voce evidence is sufficient to establish
her cause of action, bearing in mind that causation and harm stand over for later
adjudication.
[34] I am satisfied that the defendant's employees were negligent in failing to ensure
that the compartment door was properly kept in its open position and/or they failed to take
reasonable steps to prevent the compartment door from falling onto the plaintiff. The
defendant owed a duty to the public making use of its bus service, and the plaintiff in
particular, to ensure their safety. It failed to do so. The plaintiff testified about her injuries
and although quantum and causation stand over for later adjudication, I am satisfied that
she has also shown that she had sustained injuries to her neck and shift. Having
mentioned that causation stands over for later adjudication, it is recorded that the
uncontested evidence shows that the 'but for' test in respect of factual causation has been
met.13 The relevant elements of the claim based on delict have been proven.
Conclusion
[35] I conclude that the plaintiff succeeds on the merits of her delictual claim. She has
proven the required requisites on a balance of probabilities. A costs order in her favour
should follow.
Order
[36] The following order is granted:
1 The defendant is 100% liable for the plaintiff's damages to be proven.
2 The defendant shall pay the plaintiff's costs of the merits trial, inclusive of the fees
relating to the drafting of heads of argument.
JP DAFFUE
JUDGE OF THE HIGH COURT
13 International Shipping Company (Pty) Ltd v Bentley [1 989] ZASCA 138; 1990 (1) SA 680 (A) at 700E
H.
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Appearances
For the Plaintiff: NW Phalatsi
Instructed by: NW Phalatsi & Partners, Bloemfontein.
For the Defendant: J Ferreira
Instructed by: Phatshoane Henney, Bloemfontein.