2
[2] On 13 May 2011, the respondent, then a 24-year-old auxiliary nursing student,
was at Johannesburg Park Station intending to board a train operated by the appellant
to return to her residence in Carletonville with a valid monthly train ticket. She alleged
that after boarding a stationary train with its doors open, she stood in the middle of a
crowded coach because no seats were available. As the train began to move, she
claimed that other commuters rushed in through a door behind her and pushed her
from the train, causing her to fall onto the platform.
[3] Her legs became trapped between the train and the platform edge, resulting in
a fracture to her right ankle and a laceration to her left thigh. She was taken to Helen
Joseph Hospital, where she was admitted for approximately four days. Subsequently,
she di scontinued her nursing studies and later obtained a National Certificate in
Marketing, eventually securing employment as an administrative clerk at the South
African Police Service.
[4] The respondent instituted an action against the appellant, claiming damages
totaling R7 952 000.00. The appellant defended the action, pleading that the sole
cause of the accident was the respondent’s own negligence. In particular, the appellant
alleged that she had attempted to board the train after it was already in motion , with
its doors closed, having followed all pre-departure safety warnings. In the alternative,
the appellant pleaded contributory negligence. The matter proceeded to trial on the
issue of liability only, following a separation of merits and quantum in terms of Rule
33(4).
[5] The trial was heard on 6 and 7 March 2025 before Dippenaar J. The respondent
testified in support of her case . T he appellant called two witnesses , namely, Mr.
Aqhamile Adolphus Mashiba (“Mr. Mashiba”), a security officer who claimed to have
witnessed the incident, and Mr. Vusimuzi Khuzwayo, a protection officer who attended
witnessed the incident, and Mr. Vusimuzi Khuzwayo, a protection officer who attended
the scene. An inspection in loco and video evidence from the station were also
admitted into evidence.
[6] Mr. Mashiba testified that he saw the respondent coming down the stairs
towards the platform "walking fast" in an attempt to board a train that was about to
depart, with the guard's whistle already blown. He said the train was stationary when
she reached it, and the doors were already closing as it began to move away when
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she attempted to board. Mr. Mashiba emphasised that it was improper for her to try to
board a moving train, confirming that only the platform -side doors were open for
boarding. After the incident, he and others alerted the train guard, leading to the train's
stop. Mr. Khuzwayo testified that he attended the scene after the incident and was
informed by the respondent that she was running for the train and fell as she put her
foot on the coach floor while the train pulled away. He also stated that he saw the
respondent on the upper level running towards the platform, but did not witness the
incident itself.
[7] On 25 March 2025, the trial court delivered a judgment in which it made several
adverse findings against the respondent, including that her version differed from her
pleadings, that she had tailored her evidence, and that the probabilities favoured the
appellant’s version. The court also found that the inspection in loco proved the
respondent’s account of a platform on both sides of the train to be false. Despite these
findings, the trial court did not dismiss the claim. Instead, it found the appellant 20%
liable and the respondent 80% contributorily negligent, apportioning liability
accordingly. It further ordered the appellant to pay the respondent’s costs on Scale B.
The appellant sought leave to appeal, which the trial court granted on 1 September
2025.
[8] The grounds of appeal are that the trial court misdirected itself by finding the
appellant 20% liable for the respondent’s damages despite having made a series of
contradictory factual findings that should have led to a complete dismissal of the claim.
Specifically, the appellant contends that the trial court erred in not dismissing the claim
when it found that the respondent’s evidence differed from her pleadings, that she had
tailored her evidence, that the inspection in loco proved her version , that she w as
pushed from behind by passengers entering from a platform on the other side , to be
pushed from behind by passengers entering from a platform on the other side , to be
physically impossible, and that the probabilities favoured the appellant’s version.
[9] The appellant contends that the trial court’s 20% liability finding is unsupported
by the evidence and wrong, as the proper order ought to have been dismissal of the
claim with costs. In essence, the appellant appeals against the trial court’s failure to
apply its own findings of fact to the legal standard of proof, thereby erroneously
imposing partial liability on the appellant where none should exist.
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[10] The principles governing appeals against factual findings are well-established.
An appellate court will not readily interfere with the factual findings of a trial court,
which had the advantage of seeing and hearing the witnesses. However, interference
is warranted where the trial court’ s findings are clearly wrong, or where it has
misdirected itself on the facts or the law.1 This is such a case.
[11] It is trite that in a civil case, the onus is on the party claiming relief to prove their
case on the balance of probabilities.2 The respondent was the dominus litis. She bore
the burden of proving that the appellant was negligent and that its negligence caused
her injuries. Her own evidence, found to be tailored and improbable on a material
aspect, the existence of a second platform, fatally undermined her claim. In addition,
the inspection in loco proved her version physically impossible.
[12] In Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and
Others 3, the Supreme Court of Appeal summarised the technique generally employed
by courts in resolving factual disputes as follows.
“To come to a conclusion on the disputed issues a court must make findings
on (a) the credibility of the various factual witnesses; (b) their reliability;
and (c) the probabilities. As to (a), the court's finding on the credibility of a
particular witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness' candour and
demeanour in the witness -box, (ii) his bias, latent a nd blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with what was
pleaded or put on his behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability of particul ar aspects
of his version, (vi) the calibre and cogency of his performance compared to that
of his version, (vi) the calibre and cogency of his performance compared to that
of other witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend, apart from the factors mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or observe the
event in question and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and evaluation of the probability
1 See Bee v Road Accident Fund 2018 (4) SA 366 (SCA), at para 46
2 See National Employers' General Insurance Co Ltd v Jagers 1984 (4) 437 (E), at 440D.
3 2003 (1) SA 11 (SCA), at para 5.
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or improbability of each party's version on each of the disputed issues. In the
light of its assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one, occurs
when a court's credibility findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised probabilities
prevail.”
[13] In the current matter, the trial court’s judgment is internally contradictory. A court
cannot find that a plaintiff’s version is improbable, tailored, and unreliable; that the
probabilities favour the defendant’s version; and then proceed to find the defendant
partially liable. These findings are mutually destructive. Once the court found that the
probabilities favoured the appellant and that the respondent’s case lacked credibility,
the only logical conclusion was that the respondent had failed to dis charge the onus
of proof resting on her.
[14] The finding of 20% liability against a defendant whose version the court has
accepted and whose witnesses it has found credible is a non-sequitur and, therefore,
a clear misdirection. There is no rational basis for it in the trial court’s own findings of
fact.
[15] The trial court effectively penalised the appellant for an incident that, on its own
findings of probability, was solely the respondent ’s fault. The appellant’s submission
that the court ought to have dismissed the claim is , thus, unanswerable. Accordingly,
the appeal must be upheld.
[16] The appellant seeks costs on Scale B. However, considering that the appeal is
unopposed and the matter is not complex, there should be no order as to costs.
Order
[17] Accordingly, the following order is made:
1. The appeal against the judgment and order of Dippenaar J, handed
1. The appeal against the judgment and order of Dippenaar J, handed
down on 25 March 2025 under Case No. 46963/2011, is upheld.
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Appearances
For the appellant: Advocate T. Ramatsekisa
Instructed by: Buthelezi Vilakazi Incorporated Attorneys
For the respondent: Unopposed