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[2015] ZACC 36
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Mashongwa v PRASA (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204 (CC); 2016 (3) SA 528 (CC) (26 November 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 03/15
In
the matter between:
IRVINE
VAN SAM
MASHONGWA
Applicant
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
Respondent
Neutral
citation:
Mashongwa
v PRASA
[2015] ZACC 36
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen
J, Wallis AJ and
Zondo J
Judgment:
Mogoeng CJ (unanimous)
Heard
on:
6 August 2015
Decided
on:
26 November 2015
Summary:
Delict — transposition —
public law duty — private law claim — damages
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
North Gauteng Division High Court, Pretoria):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is
set aside.
4.
The respondent is liable for the damages
the applicant may prove.
5.
The respondent is to pay costs of the
applicant in the High Court, the Supreme Court of Appeal and in this
Court including costs
of two counsel, where applicable.
JUDGMENT
MOGOENG CJ
(Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane
AJ, Nkabinde J, Van der Westhuizen J, Wallis
AJ and Zondo J
concurring):
Introduction
[1]
This case raises an important
question of law. And that is whether a transport utility ought
to be held delictually liable
for damages that flow from a breach of
its public law duty to provide safety and security measures for its
rail commuters.
[2]
More specifically, when no security
guards were deployed on a train or coach in which a passenger was
attacked and severely injured
by criminals, should this failure
result in the responsible transport utility being held delictually
liable for the ensuing damages?
Additionally, when the doors of
a coach were left open while the train was in motion and a passenger
was thrown out of it and sustained
injuries and damages, should that
omission alone, or only when coupled with the non-deployment of
security guards, lead to the
imputation of delictual liability for
the harm?
[3]
To answer these questions, it must
first be determined whether wrongfulness, negligence and causation,
necessary for delictual liability
to be imputed, have been proved.
Parties
[4]
The applicant is Mr Irvine
V
an
Sam Mashongwa. He resides in Mamelodi East. The
respondent is the Passenger Rail Agency of South Africa (PRASA).
It is a transport utility established in terms of section 2 of the
Legal Succession to the South African Transport Services Act
[1]
(SATS Act) and trades as Metrorail. PRASA is an “organ of
state”.
[2]
Background
[5]
On 1 January 2011, Mr Mashongwa
boarded a train operated by PRASA at Walker Street station in
Pretoria. He was the only passenger
in the coach when the train
left the station, but passengers could move from one coach to
another. And there were no security
guards at Walker Street
train station or on the train.
[6]
Approximately two minutes into the
journey three unarmed men entered the coach in which Mr Mashongwa was
traveling, from an adjoining
coach. They demanded his money,
wallet and cellular phone. He readily obliged. Despite
his cooperation, they
hit him with fists and kicked him even after he
had fallen. That part of the incident lasted for about two
minutes.
He called for help to no avail. In spite of his
resistance, his assailants threw him out of the moving train shortly
before
it reached Rissik Street station. He landed
approximately 30 metres from the station platform and sustained
serious injuries
to his left leg. That leg was subsequently
amputated.
Litigation history
[7]
Mr Mashongwa instituted action
against PRASA in the Gauteng Division of the High Court, Pretoria
(High Court).
[3]
[8]
His case was that PRASA did not
adopt reasonable measures for his safety. Also that PRASA, as
an organ of state, had a duty
to respect, protect, promote and fulfil
his constitutional rights
[4]
by reason of its responsibilities in terms of the SATS Act.
[5]
His main contention was that his constitutional right to be free from
all forms of violence from either public or private
sources was
infringed.
[6]
[9]
PRASA was found to have been
negligent because it did not ensure that the train doors were closed
when the train left Walker Street
station and that at least one armed
guard was deployed on each train during the festive season so as to
deter potential criminals.
[7]
The High Court also held that PRASA had a duty to secure its rail
passengers, although crime can never be completely prevented.
PRASA was held liable for 100% of Mr Mashongwa’s proven or
agreed damages with costs.
[8]
Aggrieved by this outcome, PRASA lodged an appeal to the Supreme
Court of Appeal.
[9]
[10]
The Supreme Court of Appeal disposed
of both grounds of negligence on the basis that neither was causative
of Mr Mashongwa’s
loss. It invoked the traditional “but
for” test as set out in
International
Shipping Co (Pty) Ltd v Bentley
in
support of this finding.
[10]
It took the position that leaving the doors open was not dispositive
of the causation issue, because the assailants could
just as well
have forced the doors open in order to throw Mr Mashongwa out.
[11]
It held that at least one security guard was required in Mr
Mashongwa’s coach to have averted the attack and expressed
reservations whether one security guard in the train would in any
event have made a difference.
[12]
It then concluded that it was unreasonable to require PRASA to have a
security guard in every coach because that requirement
would far
exceed the precautionary measures reasonably to be expected of
PRASA.
[13]
The judgment records that this was accepted by counsel for Mr
Mashongwa. Dissatisfied with the unfavourable outcome,
Mr
Mashongwa escalated the matter to this Court.
Jurisdiction
[11]
The engagement with counsel during
the hearing necessitated a reflection on whether this Court has
jurisdiction to entertain this
application.
[12]
On the face of it, the determination
of the issues does not seem to hinge on any constitutional issue.
The case appears to
be purely factual in nature with the result that
once the requirements of wrongfulness, negligence and causation are
met that should
be the end of the matter. As I understood the
concern in relation to this Court’s jurisdiction, it was that
no constitutional
matter appeared to be implicated.
[13]
Although it may not look like the
outcome turns on the meaning or vindication of any constitutional
provision or right, sections
7(2) and 12(1)(c) of the Constitution
are the pillars on which the superstructure of this case rests.
Mr Mashongwa’s
claim owes its origin largely to the obligations
imposed on PRASA, an organ of state, by these provisions.
[14]
In addition, an enquiry into wrongfulness “focuses on the
conduct and goes to whether the policy and legal convictions
of the
community, constitutionally understood, regard it as
acceptable”.
[15]
On these bases this Court does have jurisdiction in terms of section
167(3)(b)(i) of the Constitution.
[14]
This Court also derives jurisdiction
from the realisation that this matter raises an arguable point of law
of general public importance,
which deserves the attention of this
Court.
[16]
In this country, trains are generally used by the overwhelming
majority of people who fall within the low income bracket.
These are the proverbially voiceless and in reality vulnerable
members of our society. Furthermore, incidents of crime on
trains and related issues have in the past been sufficiently raised
before our courts to warrant a pronouncement by this Court.
[17]
The safety and security of the poor people who rely on our train
network to go to work or move from one place to another
does raise an
arguable point of law of general public importanc
e.
[18]
Leave
to appeal
[15]
Leave to appeal must be granted.
As indicated above,
[19]
this application raises a constitutional issue.
It
also raises an arguable point of law of general public importance
relating to PRASA’s legal obligations to protect its
rail
commuters from harm. And Mr Mashongwa has reasonable prospects
of success. That this is so will become apparent
in the ensuing
discussion. It is thus in the interests of justice that leave
be granted.
Wrongfulness
[16]
Many rail commuters are constrained
by the long distances they have to travel and limited financial
resources, to use trains as
their primary mode of transport.
Understandably so, because this well-subsidised public transport
system is affordable.
Presumably, passengers enter these trains
reasonably believing that the transport utility is alive to the
dangers to which train
users are exposed in the course of their
journeys and has taken such steps as are necessary to avert the
reasonably foreseeable
harm that could otherwise befall them.
[17]
When acts of violence are
perpetrated while a train is in motion, commuters are virtually
trapped. Confinement to compartments
places passengers almost
entirely under the control and mercy of PRASA. So does the fact
of the train being in motion limit
the ability to simply alight at
will. Passengers jump out of a moving train to escape an attack
by violent criminals, at
the risk of breaking their limbs or losing
their lives. And the reality is that violent crime is not a
rarity on our trains.
[18]
The vulnerability of rail commuters
and the precarious situation in which they often find themselves
ought, by now, to be self-evident.
It is 10 years since
Metrorail
in effect highlighted the need to keep coach doors closed to secure
rail commuters and the significance of failing to provide safety
and
security measures for them when a train is in motion
.
[20]
Even then it was not a new problem as there were
reported decisions in other courts that dealt with it
.
[21]
This underpins the utmost importance of PRASA’s duty “to
ensure that reasonable measures are in place to provide
for the
safety of rail commuters”.
[22]
[19]
What then is this case about?
It concerns physical harm suffered by a passenger when attacked and
later thrown off a moving
train as well as the sufficiency of the
safety and security measures employed by PRASA. And the
question is whether PRASA’s
conduct was wrongful.
Khampepe J pointed out in
Country Cloud
that:
“
Wrongfulness
is generally uncontentious in cases of positive conduct that harms
the person or property of another. Conduct
of this kind is
prima facie wrongful.”
[23]
In
my view, that principle remains true whether one is dealing with
positive conduct, such as an assault or the negligent driving
of a
motor vehicle, or negative conduct where there is a pre-existing
duty, such as the failure to provide safety equipment in
a factory or
to protect a vulnerable person from harm.
[24]
It is also applicable here.
[20]
Public carriers like PRASA have
always been regarded as owing a legal duty to their passengers to
protect them from suffering physical
harm while making use of their
transport services. That is true of taxi operators, bus
services and the railways, as attested
to by numerous cases in our
courts. That duty arises, in the case of PRASA, from the
existence of the relationship between
carrier and passenger, usually,
but not always, based on a contract. It also stems from its
public law obligations.
This merely strengthens the contention
that a breach of those duties is wrongful in the delictual sense and
could attract liability
for damages.
[21]
The criticism levelled at PRASA by
Mr Mashongwa is that it omitted to do two things. First, to
ensure that there were security
guards on the train. Second, it
permitted the train to travel between Walker Street and Rissik Street
stations with the coach
doors open. Whether a reasonable train
operator would have foreseen the risk of harm to passengers arising
from this, and
taken steps to guard against that risk, are questions
that fall to be answered in the enquiry into negligence. But in
addressing
wrongfulness the question is whether omissions of that
type, in breach of PRASA’s public law obligations, are to be
treated
as wrongful for the purposes not only of public law remedies,
but also for the purpose of attracting delictual liability sounding
in damages. For the reasons that follow, even if one treats
both of those as an omission, it makes no difference to the analysis
of wrongfulness.
[22]
To conclude that an incident of
omission, particularly in relation to public law duties, is wrongful
and impute delictual liability
is an exacting exercise that requires
a reflection on a number of important factors.
[25]
Some of them are: whether the operating statute provides for a
delictual claim for damages; whether the legislation’s
scheme
is primarily about protecting individuals or advancing public good;
whether the public power conferred is discretionary;
whether the
imposition of liability for damages is likely to have a “chilling
effect” on the performance of government
functions; whether the
loss was foreseeable; and whether alternative remedies such as an
interdict, review or appeal are available
to the claimant.
[26]
[23]
An omission will be regarded as
wrongful when it also “evokes moral indignation and the legal
convictions of the community
require that the omission be regarded as
wrongful”.
[27]
This leads to a legal policy question that must of necessity be
answered with reference to the norms and values, embedded
in our
Constitution, which apply to the South African society.
[28]
And every other norm or value thought to be relevant to the
determination of this issue would find application only if it
is
consistent with the Constitution.
[29]
As Moseneke DCJ put it: “the ultimate question is whether on a
conspectus of all reasonable facts and considerations,
public policy
and public interest favour holding the conduct unlawful and
susceptible to a remedy in damages”.
[30]
(Footnote omitted.)
[24]
Where a constitutional duty has been
breached the value of accountability assumes a prominent role in the
determination of the appropriateness
of transposing that breach into
a private law breach leading to an award of damages. That
transposition will however become
an option only if there are no
other appropriate non-judicial remedies available to enforce
accountability. For, where a
political process is best suited
to facilitate the observance of the constitutional value of
accountability, then separation of
powers dictate that courts allow
the political arms of state or organs of state the leeway to fully
occupy their operational space.
This would be so, for example,
where issues of state policy arise or the effective and efficient
functioning of the affected public
authority would otherwise be
undermined or the award of damages could have a “chilling
effect” on the performance of
government functions or more
resources would be required if courts were to grant a remedy.
The prospects of recognising a
private law remedy following upon a
breach of a public law duty would be enhanced where no other
effective remedy exists.
[31]
This is in line with the remarks by O’Regan J:
“
In
determining whether a legal duty exists whether in private law or
public law, careful analysis of the relevant constitutional
provisions, any relevant statutory duties and the relevant context
will be required. It will be necessary too to take account
of
other constitutional norms, important and relevant ones being the
principles of effectiveness and the need to be responsive
to people’s
needs.”
[32]
(Footnote omitted.)
[25]
The State and its organs exist to
give practical expression to the constitutional rights of citizens.
They bear the obligation
to ensure that the aspirations held out by
the Bill of Rights are realised. That is an immense
responsibility that must be
matched by the seriousness with which
endeavours to discharge them are undertaken. To this end, the
State, its organs and
functionaries cannot be allowed to adopt a
lackadaisical attitude, at the expense of the interests of the
public, without consequences.
For this reason, exceptions are
at times made to the general rule that a breach of public law
obligations will not necessarily
give rise to a delictual claim for
damages. Absent that flexibility public authorities and
functionaries might be tempted
and emboldened to disregard their
duties to the public. And that could create fertile ground for
a culture of impunity.
These obligations cannot therefore be
ignored without any repercussions, particularly where there is no
other effective remedy.
This would be especially so in
circumstances where an organ of state would have been properly
apprised of its constitutional duties
many years prior to the
incident, as in this case.
[33]
[26]
Safeguarding the physical well-being
of passengers must be a central obligation of PRASA. It
reflects the ordinary duty resting
on public carriers and is
reinforced by the specific constitutional obligation to protect
passengers’ bodily integrity that
rests on PRASA, as an organ
of state. The norms and values derived from the Constitution
demand that a negligent breach of
those duties, even by way of
omission, should, absent a suitable non-judicial remedy, attract
liability to compensate injured persons
in damages.
[34]
[27]
When account is taken of these
factors, including the absence of effective relief for individual
commuters who are victims of violence
on PRASA’s trains, one is
driven to the conclusion that the breach of public duty by PRASA must
be transposed into a private
law breach in delict.
Consequently, the breach would amount to wrongfulness.
[35]
[28]
What needs to be stressed though is
that in these circumstances wrongfulness does not flow directly from
the breach of the public
duty. The fact that a public duty has
been breached is but one of the factors underpinning the development
of the private
law of delict to recognise a new form of
wrongfulness. What we are concerned with here is the
development of private law,
taking into account public law.
[29]
It is in this context that the legal
duty that falls on PRASA’s shoulders must be understood.
That PRASA is under a
public law duty to protect its commuters cannot
be disputed. This much was declared by this Court in
Metrorail
.
But here this Court goes a step further to pronounce that the duty
concerned, together with constitutional values, have
mutated to a
private law duty to prevent harm to commuters.
[30]
Now that the existence of a private
law duty has been established, what remains for consideration is
whether Mr Mashongwa has proved
its breach. This leads us to
the question whether there was negligence on the part of PRASA.
Negligence
[31]
Would a reasonable person in PRASA’s position have
reasonably foreseen harm befalling Mr Mashongwa as a result of the
absence
of security guards or the open doors?
[36]
If so, would she have taken reasonable steps to prevent harm to
Mr Mashongwa?
[37]
If she would, did PRASA take reasonable steps to avert the
foreseeable harm that ultimately occurred?
[38]
(i)
Deployment of security guards
[32]
Mr Mashongwa’s claim for
damages is grounded on the failure to take reasonable steps to
prevent the harm he suffered.
He contended that had there been
security guards deployed on the train, the attack on him would have
been averted. The evidence
led, which was accepted by the trial
Court, was to the effect that the posting of a single armed guard on
the train in question
could have deterred the assault. This was
the opinion of PRASA’s own expert witness on safety on trains
and stations.
But according to him the most effective security
measure for preventing crime, that was implemented, was the random
raids on trains
and stations whereby searches for dangerous weapons
and illegal substances were conducted.
[33]
As I understand PRASA’s
position, it is that it took all measures reasonably required of it
to secure its rail commuters.
Apart from employing security
guards in the Northern region where Mr Mashongwa was injured, it also
assessed security risks on
a regular basis, conducted special search
operations on trains and developed a security plan which provided for
the deployment
of security guards where necessary. Beyond this,
budgetary constraints simply did not allow it to go.
[34]
PRASA is not required to provide
measures that will guarantee its rail commuters absolute freedom from
crimes of violence. The
measures it provided must be understood
against this background.
[39]
It is only obliged to provide measures consonant with a proper
appreciation of the constitutional and statutory responsibilities
it
bears. That acts of violence are perpetrated on our trains is a
reality. It is also known that the levels of crime
vary from
area to area, from season to season and from one time of day to
another. An individualisation of solutions to regions,
routes,
seasons and time of day would thus be an appropriate response to this
challenge.
[35]
Consistent with the different levels
of crime on trains countrywide, there should be a differentiation in
the deployment of the
limited resources at the command of PRASA for
security. The resources allocated to Johannesburg or Cape Town
may, for example,
have to be significantly different in nature or
greater in comparison with those set aside for a city like Kimberly.
And
this differential treatment extends to the kind of safety and
security measures deemed appropriate for areas whose trains are
affected
more by violent crime than others. That security
guards are deployed to trains in one area would thus not necessarily
mean
that trains in all other areas have to be provided with the same
security detail. Security measures must be crime-level and
area-specific. A one-size-fits-all approach would be rather too
robotic and insensitive to the priorities that compete for
the meagre
resources that all state subsidised institutions have to contend
with.
[36]
Some lines or trains probably
require more security attention than others. It would thus not
necessarily be negligent of the
transport utility to have not
deployed security guards to a particular route at a time a commuter
was attacked, if that route were
known to be in a low risk or low
crime area. To determine the reasonableness of the measures
taken by PRASA, in conformity
with the value of accountability,
reasons for the position taken must be provided.
[40]
Some of the explanations proffered by PRASA in support for its
position follow below.
[37]
PRASA put in place some security
measures. It enlisted the services of 600 security guards
in the Northern region.
None of them were ever posted on
trains. As a practice, complaints were received through
customer surveys and meetings of
the rail focus group comprising
PRASA officials and interested parties. Hotspots were
identified. Thereafter, crime
patterns were analysed.
Based on that analysis a security and deployment plan was developed
to address identified criminal
activities at stations. Meetings
were also held with frequent regularity by PRASA’s senior
security officials and the
South African Police Service management to
assess security. Since incidents of crime were reportedly
higher during the festive
season, PRASA had to and did reinforce its
pre-existing all-year-round security measures as a special
dispensation for the festive
season. That reinforcement
entailed the deployment of security guards for routine operations on
a daily basis. Sting
stop, search and seizure operations were
conducted on trains during the festive season.
[38]
The essence of what PRASA said about
its budgetary constraints is that at the time of the attack on Mr
Mashongwa, its annual budget
for security in the Northern region
stood at about R80 million. In argument before this Court,
several possibilities
were raised about the deployment of security
guards on each coach or train in the region and the cost implications
thereof, excluding
leave and other benefits. The cost of
deploying security guards on trains, depending on their number, could
according to
PRASA easily rise to well over R200 million per annum
for the Northern region alone. This was all speculation in the
absence
of a proper explanation based on a pre existing safety
and security plan for the region. It would thus be a fruitless
exercise for a court to seek to attempt to make sense of PRASA’s
somewhat ill considered thoughts on security.
[39]
Mr Mashongwa was thrown out of a
train that operated in a region that had very few incidents of
violent crime. So low was
the risk, that the highest incidence
reported in the entire region was five per month. This is the
context within which PRASA
asks that its explanation in relation to
the provision of safety and security measures, however lean, be
understood. Information
in relation to PRASA’s financial
constraints arguably amounts to bald assertions. Added to this
is a paucity of information
on a range of reasonable security
measures potentially available, such as panic buttons or alarms, and
whether they were in fact
necessary for the line on which Mr
Mashongwa was travelling. Even if they were considered
necessary to implement, it would
still not be possible to assess the
reasonableness of implementing them in the absence of clear
information on their affordability.
[40]
The real issue on this aspect of the
case is not whether the posting of a single guard, or three guards,
could have prevented the
attack. It is whether the steps taken
by PRASA could reasonably have averted the assault. Crucial to
this inquiry is
the reasonableness of the steps taken. However,
it must be emphasised that owing to the fact that PRASA is an organ
of state,
the standard is not that of a reasonable person but a
reasonable organ of state. Organs of state are in a position
that is
markedly different from that of an individual.
Therefore, it does not follow that what is seen to be reasonable from
an individual’s
point of view must also be reasonable in the
context of organs of state. That approach would be overlooking
the fundamental
differences between the State and an individual.
It would also be losing sight of the fact that the standard of a
reasonable
person was developed in the context of private
persons.
[41]
[41]
The standard of a reasonable organ
of state is sourced from the Constitution. The Constitution is
replete with the phrase
that the State must take reasonable measures
to advance the realisation of rights in the Bill of Rights. In
the context of
socio-economic rights the availability of resources
plays a major part in an enquiry whether reasonable steps have been
taken.
I can think of no reason in principle or logic why that
standard is inappropriate for present purposes. Here, as in the
case
of socio-economic rights, the choice of steps taken depends
mainly on the available resources. That is why an organ of
state
must present information to the court to enable it to assess
the reasonableness of the steps taken.
[42]
[42]
The reasonableness of the steps
taken here must be evaluated in the light of the available evidence.
What PRASA put forward
as a step to prevent crime on trains was the
random raids. But at the hearing the ineffectiveness of this
method became apparent.
During those raids, the body search
conducted on commuters depended entirely on the commuter’s
consent. Naturally
a commuter who carries a dangerous weapon
would not consent to be searched. Therefore he would not be
discouraged from carrying
a dangerous weapon into the train. There
was also no evidence on how often these raids were, if ever, done on
the route Mr
Mashongwa was travelling on. Nor was there
evidence that a raid was done on the train in which Mr Mashongwa was
attacked,
on the day of the assault. Apart from the raids,
there were no steps taken to safeguard commuters when the trains were
in
motion. This failure to deploy security guards on the train,
to disarm criminals, is highly neutralised by the fact that none
of
Mr Mashongwa’s attackers was armed.
[43]
Absent information on all, if any,
security measures explored or those put in place in certain areas and
why the security-related
resources were deployed in the manner in
which they were, it is impossible to contextualise the decisions
taken and assess the
reasonableness
[43]
of the conduct complained of. We cannot conclude that
negligence has been established.
(ii)
Open doors
[44]
Mr Mashongwa testified that the
doors of the coach,
out of which he was thrown,
were
left open from Walker Street to Rissik Street stations. To
rebut this evidence, Ms Beauty Mothotsi, a former
security
guard who was on the Rissik station platform at the time of the
incident, testified on behalf of PRASA. She said
that the coach
doors had been closed, but were forced open
by the attackers
at the time when
they threw Mr Mashongwa
out of the train. PRASA’s technician,
Mr Godfrey Raphadu, told the High Court that he had checked
the doors
10 days prior to and 17 days after the incident.
On both occasions they were fully functional.
Because
the High Court rejected PRASA’s versions and made a finding
favourable to Mr Mashongwa, PRASA has urged us to
revisit those
findings.
[45]
It is undesirable for this Court to
second-guess the well-reasoned factual findings of the trial court.
Only under certain
circumstances may an appellate court interfere
with the factual findings of a trial court. What constitutes
those circumstances
are a demonstrable and material misdirection and
a finding that is clearly wrong.
[44]
Otherwise trial courts are best placed to make such findings.
[45]
The
discussion
will thus
proceed
on
the basis that the
coach
doors were left
open from the time Mr Mashongwa boarded the train until he was thrown
out of it.
[46]
It bears yet another repetition that
there is a high demand for the use of trains since they are arguably
the most affordable mode
of transportation
for the poorest
members of our society
. For this reason,
trains
are often packed to the point where
some passengers have to stand very close to or even lean against the
doors
. L
eaving doors of a moving
train open therefore poses a potential danger to passengers on board.
[47]
Any passenger could deliberately or
accidentally be pushed out of a moving train. Several scenarios
that could result in a
passenger falling out of a train come to
mind. Slipping or losing one’s balance before the train
comes to a standstill
or as it takes off or after it has taken off,
falling out of the already open door and sustaining serious injuries
are some of
the potential risks of harm. Open doors are just as
dangerous for the elderly, the infirm and small children,
as
they are for those who might be preoccupied with one thing or another
and thus not paying adequate attention to the danger they
are exposed
to.
[48]
Doors exist not merely to facilitate
entry and exit of passengers, but also to secure those inside from
danger. PRASA appreciated
the importance of keeping the doors
of a moving train closed as a necessary safety and security feature.
This is borne out
by a provision in its operating procedures
requiring that doors be closed whenever the train is in motion.
Leaving them open
is thus an obvious and well known potential danger
to passengers.
[49]
PRASA’s general operating
instructions have rules “prohibiting trains traveling with open
doors”.
[46]
The very existence of these instructions and the fact that they were
an issue of note whose importance was explained in
Metrorail
,
[47]
ought to have fuelled PRASA’s zeal to ensure that all doors
were closed when the train took off. Keeping them open
rendered
throwing Mr Mashongwa out of a moving train a virtually irresistible
temptation to criminals. It thus facilitated
his being thrown
out. Importantly, it must have been known to PRASA that
criminals at times throw their victims out of its
moving trains.
[48]
[50]
It is telling that in
Witter
,
a case decided after
Metrorail
,
witnesses led by the plaintiff and PRASA’s predecessor were at
one that allowing a train to operate with open doors was
fundamentally unacceptable. This is recorded in the judgment as
follows:
“
All
of the experts were agreed. Mr Myatt, an electrical engineer
and specialist in train door-control systems, who testified
on behalf
of the plaintiff, expressed the view that it was a basic fundamental
requirement for the safe operation of a passenger
train in any
country that a train should not depart with a door open. Mr
Taute, a mechanical engineer and retired General
Manager (Operations
and Technical) of the second defendant, who had gained experience
over many years on inter alia the safe running
of trains and commuter
safety and who was also called as an expert on behalf of the
plaintiff, said:
‘
As
an operator you must have clear guidelines and
proper staff to make sure that you safely convey your passengers.
One of the
prime issues, prime things to do, is to make sure that the
doors are closed. In other words you must lay down proper
procedures,
have staff to do it. . . . I’ll never accept
the fact that you can accept running a train with doors open. I
can’t accept that that is an acceptable situation to operate a
suburban service on.’
The
evidence of the defendants’ expert, Mr Carver, a mechanical
engineer previously employed by the second defendant, was
that a
responsible train operator should do ‘everything in his power’
to prevent trains departing with doors open.”
[49]
[51]
No additional resources were required for PRASA to do the
obvious. And that mundane task was simply to comply with its
own
general operating instructions and ensure that the doors of all
coaches, including the coach occupied by Mr Mashongwa, were closed.
It is something so easy to accomplish and yet so necessary that any
attempt to provide an “acceptable” excuse for not
doing
it would inevitably be met with resistance and likely rejection.
[50]
[52]
It must be emphasised that harm was reasonably foreseeable and
PRASA had an actionable legal duty to keep the doors closed while
the
train was in motion. Not only has it expressly imposed this
duty on itself, its importance was also alluded to in
Metrorail
.
[51]
It is also commonsensical that keeping the doors of a moving train
closed is an essential safety procedure. Mr Mashongwa
would probably not have sustained the injuries that culminated in the
amputation of his leg had PRASA ensured that the doors of
the coach
in which he was, were closed while the train was in motion. It
was thus negligent of PRASA not to observe a basic
safety-critical
practice of keeping the coach doors closed while the train was in
motion and therefore reasonable to impose liability
for damages on
it, if other elements were proved.
[53]
It may be argued that what was reasonably foreseeable and
preventable was an accidental falling from the coach, and not a
deliberate
throwing out of a passenger by criminals. This would
be the case in a relatively quiet or crime-free route, like the one
Mr Mashongwa was travelling on.
Counsel
for PRASA argued that preventing the doors from being open was not
required for the purpose of stopping passengers being
thrown from
trains by criminals. But this renders
Hughes
v Lord Advocate
[52]
relevant.
[54]
In that case, Post Office employees left a manhole open and
unattended. They had erected a small tent over it and left
paraffin
lamps next to it. This caught the attention of two
boys who climbed down into the manhole using the ladder that was
already
there and climbed back again. One of them took one of
the paraffin lamps. He tripped while climbing out of the
manhole,
the lamp fell and spilled the paraffin into the manhole.
The paraffin vaporised and exploded. The boy was thrown down
the manhole and sustained serious burn injuries.
[55]
The Court held that it was foreseeable that left unattended,
the tent and manhole might attract curious children who would take
one of the lamps to see what was down the manhole and might suffer
burns if the lamp fell over or was carelessly handled.
The
explosion was however not foreseeable. Although the manner in
which the harm arose was unexpected, the Post Office was
held liable
because the harm that materialised was of the same general nature as
the harm that was reasonably foreseen.
[56]
Lord Reid reasoned as follows:
“This
accident was caused by a known source of danger, but caused in a way
which could not have been foreseen, and, in my
judgment, that affords
no defence.”
[53]
[57]
Lord Guest said:
“[I]t is
sufficient if the accident which occurred is of a type which should
have been foreseeable by a reasonably careful
person.”
[54]
(Reference omitted.)
[58]
And Lord Pearce explained:
“When an
accident is of a different type and kind from anything that a
defender could have foreseen he is not liable for it.
But to
demand too great precision in the test of foreseeability would be
unfair to the pursuer since the facets of misadventure
are
innumerable.”
[55]
(Footnote and reference omitted.)
[59]
The essence of this ratio found endorsement, albeit
indirectly, in
Kruger v Van der Merwe
in these words:
“The doctrine
of foreseeability in relation to the remoteness of damage does not
require foresight as to the exact nature
and extent of the damage.
It is sufficient if the person sought to be held liable therefor
should reasonably have foreseen
the general nature of the harm that
might, as a result of his conduct, befall some person exposed to a
risk of harm by such conduct.”
[56]
(Reference omitted.)
[60]
PRASA’s duty to keep the coach doors closed while the
train was in motion did not owe its existence to the need to stop
criminals
from throwing passengers out of the trains. That duty
existed to prevent passengers falling out of a train when the doors
were left open. It was an accidental fall that would be within
the contemplation of a reasonable person in the position of
PRASA.
The foreseeable harm sought to be averted was thus not linked to
criminal activity as such. It was the harm
caused by slipping
out of a moving train, being accidentally thrown out one way or
another or being deliberately thrown out, say
during a scuffle
triggered by an ordinary misunderstanding, that was reasonably
foreseeable. It was that harm that would
ordinarily be
prevented from occurring by keeping the doors closed while the train
is in motion. Being thrown out of a moving
train by criminal
elements falls outside the realm of reasonably foreseeable incidents
of harm alluded to above. How then
can PRASA be held liable for
injuries caused by a criminal activity taken to its logical
conclusion?
[61]
Mr Mashongwa fell from a moving train whose doors were left
open. The precise mechanism by which he fell and the injury was
sustained did not have to be foreseen. In my view, the criminal
act of throwing Mr Mashongwa from the train is the equivalent
of the
paraffin that vaporised, exploded, burnt the boy and threw him down
into the manhole. Unforeseeable as was the mechanism
by which
Mr Mashongwa came to fall from the train, it was most certainly
harm of the same general nature as the harm that
was foreseen.
Besides, open doors temptingly beckon to criminals, desirous of
disposing of evidence, to take advantage of
them in pursuit of that
objective. It must be much easier to throw out a heavy object
through an already open door,
than first having to force the
door open, before that mission could be accomplished under tight time
constraints. It ought
to be all the more difficult when it is a
resisting mature man that is sought to be disposed of. The open
door by far lightens
the burden and allows an outcome that is
substantively similar to the result of someone falling by whatever
mechanism through the
same open door.
[62]
Open doors evidently facilitated the ease with which Mr
Mashongwa was thrown out of the train. Landing out of a moving
train
as a result of an accidental fall at the risk of limb or life
is not materially different from so landing as a result of some
criminal
activity. Negligence has thus been established.
Factual
causation
[63]
That PRASA’s conduct was
wrongful and negligent, does not quite resolve the question whether
liability should be imputed to
it. Its concern in the Supreme
Court of Appeal was that the element of causation was not
established. The question
is whether there was a causal link
between PRASA’s negligent conduct or omission and Mr
Mashongwa’s injuries.
[57]
It must also be determined whether there is a close enough connection
between PRASA’s negligence and Mr Mashongwa’s
injuries.
Before these questions are answered, it must first be determined
whether the
Lee
[58]
test or a different approach to causation applies.
[64]
Mr Mashongwa relied on this Court’s
approach to causation in
Lee.
His analysis of wrongfulness and how he sought to rely on
Lee’s
approach to causation, conflated wrongfulness and causation. In
Lee
, this
Court explained how the wrongfulness element – the normative
consideration based on social and policy considerations
–
should not be used to contaminate the factual dimension of the
causation enquiry.
[59]
If Mr Mashongwa’s approach were to be accepted notwithstanding
its deleterious effect on factual causation, then the
net of
liability would be cast too wide. That approach is wrong and
cannot be followed.
[65]
Lee
never
sought to replace the pre-existing approach to factual
causation.
[60]
It
adopted an approach to causation
premised on the flexibility that has always been recognised in the
traditional approach.
It is
particularly apt where the harm that has ensued is closely connected
to an omission of a defendant that carries the duty to
prevent the
harm. Regard being had to all the facts, the question is
whether the harm would nevertheless have ensued, even
if the omission
had not occurred. However, where the traditional but-for test
is adequate to establish a causal link it may
not be necessary, as in
the present case, to resort to the
Lee
test.
[66]
It is on the basis of the
traditional test that causation will be determined. Had the
doors of the coach in which Mr Mashongwa
was travelling been closed,
it is more probable than not that he would not have been thrown out
of the train. The distance
to be traversed by the train between
the station where he boarded and the station where he was thrown out
of the train takes about
six minutes to cover. To beat him up
and throw him out of a moving train is a mission that would probably
have required more
than six minutes to accomplish, if the doors were
closed.
[67]
In all likelihood, he would not have
been thrown out of the train had the strict safety regime of closing
coach doors, when the
train is in motion, been observed.
Contrary to what the Supreme Court of Appeal held, it strikes me as
highly unlikely, based
on the evidence tendered, that the three
attackers would have found it easy to force the doors open and throw
out Mr Mashongwa,
who was resisting, as quickly as they did taking
advantage of the already open doors. On a preponderance of
probabilities
Mr Mashongwa would not have sustained the injuries that
led to the amputation of his leg had PRASA kept the doors closed.
Legal
causation
[68]
No legal system permits liability
without bounds. It is universally accepted that a way must be
found to impose limitations
on the wrongdoer’s liability.
[61]
The imputation of liability to the wrongdoer depends on whether the
harmful conduct is too remotely connected to the harm
caused or
closely connected to it.
[62]
When proximity has been established, then liability ought to be
imputed to the wrongdoer provided policy considerations based
on
the
norms and values of
our Constitution and justice
also point to the
reasonableness of imputing liability to the
defendant
.
[63]
[69]
That the incident happened inside
PRASA’s
moving
train whose doors were
left open reinforces the legal connection between PRASA’s
failure to take preventative measures and
the amputation of Mr
Mashongwa’s leg. PRASA’s failure to keep the doors
closed while the train was in motion
is the kind of conduct that
ought to attract liability. This is so not only because of the
constitutional rights at stake
but also because PRASA has imposed the
duty to secure commuters on itself through its operating procedures.
More importantly,
that preventative step could have been carried out
at no extra cost. It is inexcusable that its passenger had to
lose his
leg owing to its failure to do the ordinary. This
dereliction of duty certainly arouses the moral indignation of
society.
And this negligent conduct is closely connected to the
harm suffered by Mr Mashongwa. It is thus reasonable, fair and
just
that liability be imputed to PRASA.
[70]
PRASA is thus liable for the damages
suffered by Mr Mashongwa.
Order
[71]
In the result the following order is
made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is
set aside.
4.
The respondent is liable for the damages
the applicant may prove.
5.
The respondent is to pay costs of the
applicant in the High Court, the Supreme Court of Appeal and in this
Court including costs
of two counsel, where applicable.
For the Applicant: G Marcus
SC and S G Maritz instructed by C P van Zyl Inc.
For the Respondent: J
G Cilliers SC instructed by Stone Attorneys.
[1]
9 of 1989.
[2]
As defined in section 239 of the Constitution.
[3]
Irvine van Sam Mashongwa v Passenger Rail
Agency of South Africa (PRASA) t/a Metro Rail
(case number 29906/2011) (High Court judgment).
[4]
Section 7(2) of the Constitution.
[5]
See for example sections 2(1) and 23(1) of the
SATS Act above n 1.
[6]
Section 12 of the Constitution.
[7]
High Court judgment above n 3 at para 33.
[8]
Id at para 34.
[9]
Passenger Rail Agency of South Africa v
Mashongwa
[2014] ZASCA 202
(Supreme
Court of Appeal judgment).
[10]
Id at para 8. See
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) (
International
Shipping
).
[11]
Id at para 10.
[12]
Id at para 9.
[13]
Id.
[14]
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005 (2) SA
359
(CC);
2005 (4) BCLR 301
(CC) (
Metrorail
)
at para 82.
[15]
Van der Westhuizen J in
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
[2014] ZACC 4
;
2014 (3) SA 394
(CC);
2014 (5) BCLR 511
(CC)
(
Loureiro
)
at para 53 and
Country Cloud Trading CC
v MEC, Department of Infrastructure Development, Gauteng
[2014] ZACC 28
;
2015 (1) SA 1
(CC);
2014 (12) BCLR 1397
(CC)
(
Country Cloud
)
at para 21.
[16]
See section 167(3)(b)(ii) of the Constitution.
Although this point is not novel in that it was dealt with in
Minister of Safety and Security v Van
Duivenboden
[2002] ZASCA 79
;
[2002] 3
All SA 741
(SCA) (
Van Duivenboden
)
and
Van Eeden v Minister of Safety and
Security
[2002] ZASCA 132
;
2003 (1) SA
389
(SCA) (
Van Eeden
),
it is still necessary to address it because it does raise an
arguable point of law of general public importance. The
public
needs a pronouncement by this Court on whether PRASA can be held
delictually liable for its failure to provide safety
and security
measures.
[17]
See
Metrorail
above
n 14. For pronouncements in the lower courts, see
Shabalala
v Metrorail
[2007] ZASCA 157
;
2008 (3)
SA 142
(SCA) (
Shabalala
).
[18]
Paulsen and Another v Slip Knot Investments
777 (Pty) Limited
[2015] ZACC 5
;
2015
(3) SA 479
(CC) (
Paulsen
)
at paras 20-4.
[19]
At [13].
[20]
Metrorail
above
n 14 at paras 84, 102 and 106.
[21]
Transnet Ltd t/a Metrorail and Another v
Witter
[2008] ZASCA 95
;
2008 (6) SA
549
(SCA) (
Witter
);
Ngubane v South African Transport
Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A)
(
Ngubane
);
and
Khupa v South African Transport
Services
1990 (2) SA 627
(W) (
Khupa
).
[22]
See
Metrorail
above
n 14 at para 86.
[23]
Country Cloud
above
n 15 at para 22.
[24]
As was the case in
K v Minister of Safety and
Security
[2005] ZACC 8
;
2005 (6) SA
419
(CC);
2005 (9) BCLR 835
(CC) and
Carmichele
v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4)
SA 938
(CC);
2001 (10) BCLR 995
(CC) (
Carmichele
).
[25]
Steenkamp N.O. v Provincial Tender Board of the Eastern Cape
[2006] ZACC 16
;
2007 (3) SA 12
(CC);
2007 (3) BCLR 300
(CC)
(
Steenkamp
) at para 37. See also
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
[2011]
ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC).
[26]
Steenkamp
id at para 42.
[27]
See
Van Duivenboden
above n 16 at para 13;
Carmichele
above
n 24 at para 56; and
Minister van
Polisie
v
Ewels
1975 (3) SA 590
(A) at 597A-B.
[28]
Van Duivenboden
above n 16 at para 16.
[29]
Id at para 17.
[30]
Steenkamp
above n 25 at para 42.
[31]
Van Duivenboden
above n 16 at paras 21-2 per Nugent JA. See also
Minister
of Safety and Security and Another v Carmichele
[2003] ZASCA 117
;
[2003] 4 All SA 565
(SCA) (
Carmichele
SCA judgment
) at paras 37 44 per
Harms JA.
[32]
Metrorail
above
n 14 at para 78.
[33]
Shabalala
above
n 17 at paras 7-10. See also
Metrorail
above n 14 at paras 78, 81-2, 95 and 109.
[34]
See
Van Duivenboden
above n 16 at paras 12-3 and
Shabalala
above n 17 at paras 6-7.
[35]
Van Duivenboden
above n 16;
Carmichele SCA judgment
above n 31 and
Van
Eeden
above n 16.
[36]
See
Kruger v Coetzee
1966 (2) SA 428
at 430E-F where the
proper approach for establishing the existence, or otherwise, of
negligence was formulated by Holmes JA as
follows:
“
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.”
[37]
Id.
[38]
Id.
[39]
Shabalala
above
n 17 at para 8.
[40]
This was explained further in
Metrorail
above n 14 at para 88 in these terms:
“
Factors that
would ordinarily be relevant would include the nature of the duty,
the social and economic context in which it arises,
the range of
factors that are relevant to the performance of the duty, the extent
to which the duty is closely related to the
core activities of the
duty bearer – the closer they are, the greater the
obligation on the duty-bearer, and the extent
of any threat to
fundamental rights should the duty not be met as well as the
intensity of any harm that may result. The
more grave is the
threat to fundamental rights, the greater is the responsibility on
the duty-bearer. Thus, an obligation
to take measures to
discourage pickpocketing may not be as intense as an obligation to
take measures to provide protection against
serious threats to life
and limb. A final consideration will be the relevant human and
financial resource constraints that
may hamper the organ of state in
meeting its obligation. This last criterion will require
careful consideration when raised.
In particular, an organ of
state will not be held to have reasonably performed a duty simply on
the basis of a bald assertion
of resource constraints. Details
of the precise character of the resource constraints, whether human
or financial, in the
context of the overall resourcing of the organ
of state will need to be provided. The standard of
reasonableness so understood
conforms to the constitutional
principles of accountability, on the one hand, in that it requires
decision-makers to disclose
their reasons for their conduct, and the
principle of effectiveness on the other, for it does not unduly
hamper the decision-maker’s
authority to determine what are
reasonable and appropriate measures in the overall context of their
activities.”
[41]
Kruger
v
Coetzee
above n 36.
[42]
See
Metrorail
above
n 14 at para 88.
[43]
This, in a way, is what the standard of
reasonableness required of PRASA in the execution of its legal duty
entails. See
also
Metrorail
above n 14 at para 86:
“
The standard
of reasonableness requires the conduct of Metrorail and the Commuter
Corporation to fall within the range of possible
conduct that a
reasonable decision-maker in the circumstances would have adopted.
In assessing the reasonableness of conduct,
therefore, the context
within which decisions are made is of fundamental importance.
Furthermore, a court must be careful
not to usurp the proper role of
the decision-maker. The Court held that the standard would
need to be assessed in the light
of the ‘social, historical
and economic context’ of housing and in the light of
institutional capacity.”
(Footnotes omitted.)
[44]
S v Hadebe and Others
[1997] ZASCA 86
at 11-2;
1998 (1) SACR 422
at 426 and
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 705-6.
[45]
Bernert v Absa Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92
(CC);
2011 (4) BCLR 329
(CC) at paras 105-6 and
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10)
BCLR 1059
(CC) at paras 58-65 and 78-80.
[46]
Metrorail
above
n 14 at para 102.
[47]
Id.
[48]
As testified by Mr Vermaak
in High Court
judgment above n 3 at para 9.
[49]
Witter
above n
21 at
para 5.
[50]
Id at paras 8-9;
Ngubane
above n 21 at 779B-E; and
Khupa
above n 21 at 637E-H.
[51]
Metrorail
above n 14 at para 82.
[52]
Hughes v Lord Advocate
[1963]
AC 837 (HL); 1 ALL ER 705 (HL).
[53]
Id at 847.
[54]
Id at 846.
[55]
Id at 848.
[56]
Kruger v Van der Merwe and Another
1966 (2) SA 266
(A) at 272F. Also see
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Another
[1999] ZASCA 87
;
[2000] 1 All SA 128
(SCA) at para 22 and Neethling and Potgieter
Law
of Delict
7 ed (LexisNexis, Durban
2015) at 150 fn 152 (Neethling).
[57]
International Shipping
above
n 10 at 700E-H. See also
Minister
of Police v Skosana
1977 (1) SA 31
(A)
at 35B.
[58]
Lee v Minister for Correctional Services
[2012] ZACC 30
;
2013 (2) SA 144
(CC);
2013 (2) BCLR 129
(CC) (
Lee
).
[59]
Id at para 53.
[60]
Id at para 72 where the Court held that it was
not necessary to develop the test for causation. The
pre-existing test for
determining factual
causation is the
conditio sine qua non
theory or but-for test.
[61]
Neethling
above
n 56 at 197.
[62]
Carmichele SCA judgment
above
n 31 at para 72.
[63]
Minister for Safety and Security v Scott and
Another
[2014] ZASCA 84
;
2014 (6) SA 1
(SCA) at paras 37-8 and
S v Mokgethi en
Andere
1990 (1) SA 32
(A).