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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 36147/2020
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES
DATE 22 May 2026
SIGNATURE
In the matter between:
ADV P J VAN DER BERG N.O. PLAINTIFF
(Curator Ad Litem for and on behalf of
I[...] M[...] –
ID NO. 0[...])
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA DEFENDANT
JUDGMENT
VAN ROOYEN, AJ:
Introduction:
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[1] Plaintiff, in his capacity as the Curator ad Litem for I[...] M[...], a major person
with date of birth 24 February 2003 (“M[…]”) instituted an action for damages
relating to an incident which allegedly occurred on the 26 th of March 20 18.
According to Plaintiff’s latest pleaded version, M[…] suffered injuries when he
was allegedly pushed and/or bumped out of the open exit doors of a train
operated by the Defendant and hit by an approaching train1.
[2] Apart from admitting that an incident occurred on the 26 th of Mar ch 2018
concerning a young male at Millsite Station , the Defendant denied each and
every other allegation2.
[3] At the commencement of the trial and at the request of the parties I ordered a
separation of the issues of liability and quantum in terms of Rule 33(4) of the
Uniform Rules of Court. The trial proceeded on the issue of liability only.
[4] M[…] was the only witness to testify in the Plaintiff’s case, whilst the Defendant
called two witnesses to testify in its case, one Mr Marutla and Mr Mmulutsi.
[5] After being informed that M […] will be testifying, I enquired from counsel for
Plaintiff whether M[…] was in fact capable of testifying, since a curator ad litem
was appointed for him. I was assured that M[…] could testify.
[6] Before dealing with the evidence presented during the trial , it is necessary to
first deal with the pleadings filed in the action.
Pleadings:
[7] The Plaintiff pleaded in the initial particulars of claim 3 that M[…] boarded a train
departing from the Randfontein Station. Both the train and the platform were
overcrowded. The doors to the coach compartment were still open when it was
departing from Randfontein Station. The train entered Millsite Station and
came to a standstill. M […] was still seated when other commuters suddenly
and unexpectedly stood up and threw him out of the exit door on the track side.
and unexpectedly stood up and threw him out of the exit door on the track side.
1 Case Lines 0003-102 par 6 Plaintiff’s Fourth Amended Particulars of Claim dated 30 January 2026
2 Case Lines 0003-65 par 6 Defendant’s Amended Plea
3 Case Lines 0003-6 Particulars of Claim dated 3 August 2020 par 6
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When M[…] was thrown off the train, he was hit by an approaching train before
he hit the ground.
[8] Further particulars were requested by the Defendant on the 26 th of May 2021 4.
A question was inter alia posed whether M[…] “was thrown out by one specific
commuter or were more than one involved”. (my emphasis)
[9] The Plaintiff’s answer to this question (by way of Plaintiff’s Reply to Defendant’s
Request for Further Particulars for purposes of Trial, dated the 30 th of June
2021) was “one or more commuters”.5
[10] The Plaintiff subsequently caused a further amendment to the particulars of
claim on the 30 th of January 2026 (the fourth amendment) 6 and pleaded, in
summary, the following facts relating to how the incident occurred:
10.1. M[…] boarded a train at the Randfontein Station on the 26 th of March
2018.
10.2. The doors of the coach in which M […] travelled remained open when
the train departed from the Randfontein Station. The train switched
tracks and the doors on the righthand side of the coach through which
M[…] boarded the coach compartment became the trackside door.
10.3. The train entered Millsite station and came to a standstill. M […] was
still seated when other commuters in the coach in which he was
travelling, started arguing with each other. They became involved in a
physical altercation with each other and M […] felt uncomfortable and
intended to change coaches. When M […] passed the physical
altercation, he was pushed and/or bumped out of the open exit door on
the trackside which was still open.
10.4. M[…] was then hit by an approaching train.
4 Case Lines 0003-24 par 2.5 Defendant’s Request for Further Particulars
5 Case Lines 0003-29 Plaintiff’s Reply to Defendant’s Request for Further Particulars par 2.5
6 Case Lines 0003-102 Fourth Amended Particulars of Claim par 6
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Evidence presented by the Plaintiff
[11] M[…], with the assistance of an interpreter, Mr Royce Buda testified that an
incident occurred on the 26 th of March 2018 at Millsite Station. He confirmed
that he was residing in Homelake and that he was on his way to Westgate to
buy clothing. He was 15 years old at the time. He was in possession of a
monthly train ticket which he had shown upon entering the train.
[12] M[…] entered the train on the right -hand side where the platform was and sat
down on the left -hand side of the train . He mentioned that t here were two
gentlemen on the left side.
[13] As the train departed, it switched tracks from the right hand to the left-hand
track. The train doors remaine d open on the right -hand side where he entered
the train. When the train arrived at Homelake, the platform was on the left -
hand side. No commuters embarked or alighted from the train.
[14] The next station was Robinson Station, and the platform was still on the left -
hand side of the train. The next station was Millsite Station where M […]
testified he got injured. He stated that between Robinson and Millsite Stations,
the two gentlemen inside the train were having an altercation. Whilst the men
were having the altercation, M […] decided to rise with the intention to switch
coaches. Whilst he was walking past them, he was bumped by them and that is
how “I fell out of the train ”. He stated that he fell “on the right -hand side, the
side on which the door was open.”
[15] He got injured when a train coming from the opposite direction collided with his
head.
[16] In cross-examination, M[…] agreed that the initial version of how the incident
occurred was a detailed version and done on his instructions to the lawyers.
He also agreed that the version given in evidence was different to the initial
pleaded version and he admitted having reconstructed the version. His
explanation for this difference was that he only started recalling “quite clearly”
explanation for this difference was that he only started recalling “quite clearly”
after the inspection in loco took place and photo graphs were taken at the
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station. He then came to realise that the incident did not occur as initial ly
stated.
[17] M[…] also stated that he was “young and tender ” and it was only after visiting
the scene that his memory started to come back.
[18] In cross -examination, M[…] was confronted with a statement dated the 1 st of
June 2021.7 He confirmed that this statement was prepared after he visited the
scene with the assessor and after photo graphs were taken. The statement
inter alia reflects that M[…] boarded the train at Randfontein station. The doors
of the train were open – when he boarded the train it was around 10:00 in the
morning. The train was not full – there were plus minus 20 people in the
carriage. The statement continues with an explanation that two gentlemen
drank on the train, and they were having an argument – the one was standing
and the other one was seated. When the train came into Millsite Station the
man that was seated stood up. The statement continues: “ I also wanted to
stand up just before the train stopped because I wanted to board another coach
because the two men that were arguing the whole time scared me and I was
afraid they were going to hurt me. I walked in order to walk past them and they
were pushing each other while arguing. While I attempted to walk ed past them
and they were pushing each other and they argued and when I was across the
open door I lost my balance because they pushed me in the process of their
argument and I fell from the train while it was moving”. (sic) (my emphasis)
[19] When confronted with the statement that the train was moving in contrast with
the amended particulars of claim where it was stated that the train came to a
standstill, M[…] confirmed that the train was not in motion, it stopped. He stated
that the assessor misunderstood him. The misunderstanding by the assessor
apparently also relate d to the incorrect date of the incident reflected in his
apparently also relate d to the incorrect date of the incident reflected in his
statement and the confusion with regards to the photographs taken by the
assessor (0007-12 and 0007-13) during the inspection . M[…] testified that the
assessor “made a mistake” with reference to the direction in which he wanted
to exit the coach and the position of the so-called “drunk men”.
7 Case Lines 0007-5 Statement of M[…]
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[20] The statement referred to above contains a detailed explanation of the incident
and M[…] confirmed that he consulted with the assessor to provide information
contained therein. After being showed the report and photographs taken by the
assessor, M[…] confirmed that he indeed alerted his attorneys that it was not a
true reflection and that the assessor made a mistake.
[21] M[…] could however not provide an explanation as to why his mother would
depose to an affidavit on the 18 th of June 2021 (in support of an application for
the appointment of a curator ad litem ) confirming that he was suddenly and
unexpectantly pushed out of the train by other commuters. M[…]’s mother was
not called as a witness, despite her being present at court during the trial. The
affidavit by M […]’s mother dated the 18 th of June 2021 (after the inspection)
largely corresponds with the initial pleaded version.
[22] M[…] was confronted with the version of the train driver that he saw M […]
jumping from the stationary train. M […] denied jumping and stated that he was
pushed. He later clarified that he was bumped from the train by the two men.
[23] It was put to M […] that it was recorded that the incident occurred after 4pm
whereas in his statement he mentioned that he boarded the train at 10am. He
could not provide an explanation for this discrepancy.
[24] It was further put to M[…] that a witness, Mr Mmulutsi w ould be called to testify
on behalf of the Defendant. M[…] was referred to a statement by Mr Mmulutsi
(0007-29) who would confirm what is contained in the statement. Paragraph 2
of the statement reflects: “The brother B[...] K[...] alleged that they were playing
on the moving train hanging outside, when the train stop at Millsite Station
platform, I[...]’s cap fell on the opposite site between the rails and he jump to
get the cap and hit by another train come from Johanneburg, trian no 0244 to
Randfontein”. (sic)
Randfontein”. (sic)
[25] M[…] denied this version and stated that he does not have a brother, only
sisters.
Evaluation of M[…] as a witness
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[26] It appears that the initial version provided by M […] to his attorneys differed
materially from the later version after he visited the scene with the assessor
and after photographs were taken. He admitted having reconstructed the
version after visiting the train station with the assessor.
[27] The statement by M […] (taken after the inspection) also contained material
contradictions with the version testified to under oath. Despite having alerted
his attorneys that the statement was not a true reflection, the statement still
formed part of the merits documents.
[28] M[…] was a single witness who testified on behalf of Plaintiff. I unfortunately
have to say that M[…] did not impress me as a witness. He failed to
satisfactorily explain the discrepancies and contradictions in his evidence
referred to above.
Evidence presented on behalf of Defendant:
[29] The first witness on behalf of the Defendant was Mr Marutla. He testified that
he was the driver of a train on the 26 th of March 2018 operating from
Johannesburg to Randfontein. When he approached the Millsite Station and
preparing to stop at the platform , there was a stationary train facing the
opposite direction at the platform Randfontein to Johannesburg.
[30] As h e was preparing to stop, he saw a schoolboy appearing between the
coaches and in full control of his body jumping in front of his train. He applied
brakes and “released the bell” but could not stop in time to avoid a collision with
the boy. After his train came to a standstill he alighted and found the injured
boy between the tracks.
[31] The visibility was good and the trainlines were in a straight line. The incident
occurred between the platforms at Millsite Station between 16h00 and 16h15.
[32] In cross-examination it was put to Mr Marutla that he was hesitant to explain
how the incident occurred. He disagreed with counsel for Plaintiff and
answered that he recalled the incident quite clearly.
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[33] Mr Marutla was referred to his statement (0007 -44) and questioned why this
statement did not make mention of “a schoolboy in full control jumping between
the coaches”. Paragraph 3 of the statement reflects: “As I entered with train in
the platform, I saw a schoolboy jumping off the stationary train on the opeside
of the platform.” (sic)
[34] Mr Marutla could not explain why the statement omitted the reference to
“between the two coaches” and “in full control of his body” and again confirmed
that he saw the boy jumping from between the two coaches.
[35] The next witness who testified on behalf of the Defendant was Mr Mmulutsi.
He testified that he was a protection officer and was informed about an incident
that occurred at the Millsite Station at approximately 16h15.
[36] His evidence can be summarised as follows: he was on duty on the specific
day and received a call from JOC (Joint Operations Centre) that a boy was
injured at Millsite Station. On arrival, he found an injured boy and enquired as
to the identity of the victim. He spoke to another young man, B[...] K[...] who
was able to provide particulars of the victim. B[...] stated that he was the
victim’s brother. He further testified that he requested the emergency
personnel to search for a train ticket, but that none was found. Mr Mmulutsi
confirmed the contents of his statement (0007-29).
[37] The incident was reported and the detail referred to above was stated in the
relevant records corroborating his version of what he was told about the
incident.
[38] It can be mentioned that counsel on behalf of Plaintiff objected to the evidence
relating to the records and what was conveyed to Mr M mulutsi as being
hearsay evidence.
[39] It is noted that M […] denied this version during cross -examination when the
version of B[...] K[...] was put to him.
[40] B[...] K[...] was not called as a witness.
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Evaluation of Defendant’s witnesses:
[41] Despite counsel for Plaintiff’s criticism against Mr Marutla, he did not strike me
as an unreliable witness. Mr Marutla gave a clear and coherent version of how
the incident occurred and I find no contractions between his statement and his
evidence in court. The omission of the reference in his statement to “in full
control of his body” and “between the two coaches” is in my view not material
and not in contrast with his evidence. The crux is that he witnessed a
schoolboy jumping from a stationary train.
[42] I disagree with counsel for Plaintiff that Mr Marutla appeared to be hesitant or
nervous and that he asked for a water break during cross -examination. Mr
Marutla did not ask for a water break but merely accepted same when offered
by counsel for Plaintiff. Mr Marutla denied that he was nervous when it was put
to him that he appeared to be nervous.
[43] Mr Mmulutsi did not witness the incident and only arrived at the scene after the
incident. I do not place any reliance on the hearsay evidence ostensibly
obtained from one B[...] K[...].
[44] I find the witnesses who testified on behalf of the Defendant to be satisfactory
witnesses and there are no material contradictions and/or inherent
improbabilities in their versions.
[45] The criticism levelled by counsel for Plaintiff against the testimony by these
witnesses is also in my view not warranted.
Evaluation of the evidence: Mutual destructive versions:
[46] The c ourt is confronted in this case with what has been referred to as two
mutually destructive versio ns. On the one hand is the version of M[…] who
testified that he was bumped / pushed off the train by more than one commuter
(whether the train was moving or stationary is not clear) and on the other hand
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the version of Mr Marutla who testified that he witnessed a young boy jumping
off a stationary train.
[47] The approach that a court should follow in instances where it must deal with
mutually destructive versions has been authoritatively stated in a number of
cases.8
[48] The approach can be summarised as follows:
48.1 The court will first evaluate the credibility and reliability of witnesses;
48.2. Secondly the court will evaluate the probabilities in a specific case;
48.3. In the event that the court is unable to make a finding when applying
the above two principles the court will consider the question of onus.
The party who bears the onus in a particular case must persuade the
trial court that his or her version is the true version.
48.4. If a court is not in a position to choose a version based on the
abovementioned principles , the party who bears the onus in a
particular case cannot succeed.
[49] The following dictum by Wessels J A in National Employers Mutual General
Insurance Association v Gany9, is of some assistance in the above regard:
"Where there are two stories mutually destructive, before the onus is
discharged, the Court must be satisfied that the story of the litigant
upon whom the onus rests is true and the other false . It is not enough
to say that the story told by Clark is not satisfactory in every respect. It
must be clear to the Court of first instance that the version of the litigant
8 See: National Employers Mutual General Insurance Association v Gany, 1931 AD 187;
Stellenbosch Farmer's Winery Group Ltd & Another v Martell et cie & Others 2003 (1) SA 11
(SCA), par 5;
National Employer's General Insurance Company Ltd v Jagers 1984 (4) SA 437 (E) at 440 D;
African Eagle Life Assurance Company Ltd v Cainer 1980 (2) SA 234 (W) at 237;
Oosthuizen v Van Heerden t/a Bush Africa Safaris 2014 (6) SA 423 (GP) at 430, par 31 - 32
9 Fn 8 ibid
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upon whom the onus rests is the true version and that in this case
absolute reliance can be placed upon the story as told by A."
(My emphasis)
[50] It is further significant that the discrepancies relating to the initial version
pleaded in Plaintiff’s particulars of claim , the version in the later statement by
M[…], the version in the fourth amended particulars of claim and the version by
M[…] on trial under oath were not satisfactorily explained. The mother of M […]
was further not called to explain where she obtained the facts , set out in her
affidavit deposed to for purposes of the application to appoint a Curator ad
Litem.
[51] When considering the evidence, it is material to keep in mind that the Plaintiff
bore the onus to prove the case on a balance of probabilities against the
Defendant. In the event of doubt in the above regard, it should be found that
the Plaintiff failed to discharge his onus.
[52] When applying the principles applicable when dealing with two mutually
destructive versions referred to above, I can come to no other conclusion than
that the Plaintiff failed to discharge the onus and that the claim should be
dismissed.
[53] I therefore need not deal with the other defences of contributory negligence or
volenti non fit iniuria.
[54] I make the following order:
54.1 The Plaintiff’s claim against the Defendant is dismissed.
54.2 The Plaintiff is ordered to pay the costs of the action on a party and
party scale, Counsel on scale B.
____________________________
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M VAN ROOYEN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be 22 May 2026.
APPEARANCES:
For the Plaintiff : Adv PM van Ryneveld SC
Instructed by : Snyman Lotz Inc. c/o
S Roux Attorneys
For the Defendant : Adv B Lukhele
Instructed by : Stone Attorneys
Matter heard on : 9,10 and 11 February 2026
Judgment date : 22 May 2026