IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not reportable
Case no: 12528/2016
In the matter between:
YOLANDA BAMBI Plaintiff
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant
Coram: LOUW AJ
Heard: 16 April 2026 (hearing of testimony) and 20 May 2026 (hearing
of argument)
Delivered: 10 September 2026
Summary: Delict - Rail commuter injury - Plaintiff falling from a train
through an open door while the train was in motion - Failure to produce a
train ticket not decisive - Probabilities favouring plaintiff ’s version - Prasa
liable for plaintiff’s proven damages.
ORDER
1 The defendant is liable for all the plaintiff’s proven damages
resulting from the incident of falling from a train on 25 September
2014.
2 The defendant is ordered to pay the plaintiff’s costs on a party and
party scale, including the cost of Counsel to be taxed on a Scale B.
JUDGMENT
Louw AJ:
Introduction
[1] The plaintiff, Mr . Yolanda Bambi (‘the plaintiff’), instituted a
delictual claim against the Passenger Rail Agency of South Africa
(‘PRASA’) for damages arising from injuries allegedly sustained on 25
September 2014 at Esplanade Station in the Western Cape. Mr . Bambi
alleges that he fell from a moving train onto the platform while travelling as
a passenger from Heideveld Station to Esplanade Station and that, after his
fall, he was trampled by disembarking commuters.
[2] As a consequence of the incident, the plaintiff allegedly sustained,
inter alia, severe abdominal and kidney injuries necessitating hospitalisation
and medical intervention. He claims that the injuries have resulted in various
forms of loss and damages, for which he seeks compensation from PRASA.
[3] The plaintiff contends that the incident was caused by the negligence
of PRASA and its employees, particularly in permitting the train to travel
with open coach doors and in failing to prevent the incident when they could
and should have done so. PRASA, in its plea, denied the material allegations
made by the plaintiff, including that the incident occurred as alleged and that
the plaintiff was a fare-paying passenger on the train on the day in question.
[4] It is common cause that, as a public rail carrier, PRASA owes a legal
duty to take reasonable steps to protect its passengers from physical harm
while making use of its transport services. 1 PRASA does not deny this duty,
but disputes whether it breached that duty and, if so, whether such breach
caused the plaintiff’s injuries.
[5] The matter proceeded to trial on 16 April 2026 in respect of liability
(merits) only, the parties having agreed during the case management process
that the issues of liability and quantum be separated in terms of Uniform rule
33(4). The plaintiff testified in support of his claim and called no other
witnesses before closing his case. PRASA, in turn, called a single witness,
Mr. Thando Klaas, an investigating officer in its employ, after which it
1 Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528 (CC) at para 20.
closed its case. The matter was subsequently postponed to 20 May 2026 for
argument.
Testimony before court
Plaintiff’s case
[6] The plaintiff testified that, on 25 September 2014, he boarded a train
at Heideveld station in Cape Town. At the time, he resided in Nyanga and
relied on PRASA’s rail service as hi s primary means of transport to and
from work. He explained that he boarded the train at Heideveld Station
because it was the station situated closest to his home. He testified that he
had been employed by HF Plumbing since January 2014 and had travelled
by train to his workplace on a daily basis from the commencement of his
employment until the date of the incident. According to the plaintiff, he had
purchased a monthly train ticket at Heideveld Station, which was valid and
authorised his travel on the day of the incident.
[7] The plaintiff boarded the rear coach of the train, being the last
carriage. Upon entering the coach, he took up a standing position and
observed that there were no PRASA personnel, including security officers or
train officials, present in the carriage. He testified that the train doors were
closed when the train departed from Heideveld Station and that the train
stopped at several stations along the route to allow passengers to embark and
disembark. According to the plaintiff, the train became progressively more
crowded at each station as additional commuters boarded.
[8] He further testified that after the train departed from Langa Station,
the doors of the coach in which he was travelling remained open while the
train was in motion. According to him, the doors were still open when the
train departed from Ysterplaat Station, being the final station before
Esplanade Station. The plaintiff stated that he did not observe any PRASA
security personnel either on the platform at Ysterplaat Station or inside the
train coach.
[9] As the train approached Esplanade Station and began slowing down
in preparation for stopping, commuters in the coach started making their
way towards the open doors in anticipation of disembarking. The plaintiff
described the passengers as jostling one another in an attempt to position
themselves closer to the exits. The plaintiff testified that, as the train entered
Esplanade Station, he was pushed by the crowd of commuters towards one
of the open doors and was forced out of the carriage onto the platform. After
falling, he was trampled by several commuters as they disembarked from the
train.
[10] He attempted to stand up, but immediately realised that something
was wrong. Nevertheless, he managed to leave Esplanade Station and walk
to his workplace in Woodstock, as he ordinarily did. Upon arriving at work,
the plaintiff felt unwell and reported the incident to his supervisor. His
employer initially provided him with Eno in an attempt to alleviate his
discomfort. When his condition failed to improve, he was instructed to
return home. His employer provided him with taxi fare for the journey
home. The plaintiff testified that, upon arriving at his residence in Nyanga,
he went straight to bed. He was perspiring heavily and, when he later went
to the bathroom, he observed blood in his urine.
[11] The plaintiff ’s mother contacted his uncle, who transported him by
motor vehicle to the KTC Day Hospital in Gugulethu. He testified that he
was thereafter transferred to Groote Schuur Hospital, where he was
diagnosed with internal injuries and remained hospitalised for some time
before his discharge. The plaintiff further confirmed that the personal details
recorded on the hospital transfer documentation, as well as those reflected in
the medical records from Groote Schuur Hospital contained in the witness
bundle,2 were correctly recorded as his.
[12] During cross-examination, the plaintiff was mainly questioned about
the train ticket which he claimed to have used on the day of the incident. He
testified that he had purchased the ticket with cash at Heideveld Station and
did not receive a receipt when he had purchased the monthly ticket . When
asked what had become of the ticket, the plaintiff explained that he had left
it in the overalls he was wearing on the day of the incident. He testified that
the ticket was either lost or destroyed while he was hospitalised and that it
had probably disappeared during the cleaning of his home.
[13] The plaintiff was further questioned by counsel for PRASA as to why
he boarded a carriage that was allegedly overcrowded. He disputed that the
coach was overcrowded when he boarded, although he acknowledged that
no seats were available, which necessitated him standing for the journey. He
2 Marked as exhibit A.
explained that the train became progressively more crowded as passengers
boarded at the various stations along the route. When asked about the timing
of his journey, the plaintiff testified that he had boarded the train at
approximately 07h00. Although he was unable to recall the exact time at
which he disembarked, he indicated that it was still during the morning peak
commuter period.
[14] During cross-examination, the plaintiff was also questioned as to why
he had not reported the incident to PRASA personnel at the station. He
testified that, at the time, he believed that he was not seriously injured and
therefore left the station and proceeded to his place of employment. It was
only later, after arriving at work and experiencing worsening symptoms, that
he realised the seriousness of his injuries.
[15] The plaintiff was also questioned regarding the number of the train on
which he had travelled. He testified that he could not recall the train number
and had not observed it on the day of the incident. He was, however, able to
state that it was a train travelling on the Khayelitsha line. After cross -
examination, the plaintiff closed his case.
PRASA (defendant’s case)
[16] PRASA called Mr. Thando Klaas (‘Mr. Klaas’), its sole witness, who
testified that he is employed by PRASA in the capacity of an investigator.
He testified that he investigated the plaintiff’s claim after summons had been
served and, pursuant to that investigation, compiled a report which was
included in the witness bundle.
[17] Mr. Klaas explained the methodology he followed during his
investigation. According to him, he obtained and examined the occurrence
book maintained by the Cape Metrorail Operation Control Centre
(‘CMOCC’), which contained handwritten entries recording incidents
reported within the rail network. He testified that the information recorded in
the occurrence book was derived from reports received from, amongst
others, security personnel, train drivers and train guards. Having examined
the records for the relevant date, he found no entry relating to the incident
alleged by the plaintiff. He further testified that there was no record of any
train door malfunction being reported on the day in question.
[18] Mr. Klaas was critical of the plaintiff’s version in several respects. He
testified that the plaintiff had not provided the number of the train on which
he was allegedly travelling and regarded this omission as significant. He
further expressed the view that any person injured at a station would
ordinarily report the incident to railway personnel. In this regard, he stated
that ticket verifiers stationed on a bridge overlooking Esplanade Station
would have been able to observe an incident of the nature describ ed by the
plaintiff had it occurred.
[19] Mr. Klaas also testified regarding the operation of train doors. While
he accepted that commuters could, on occasion, prevent train doors from
closing by placing their feet or other objects in the doorway, he remained
adamant that PRASA trains would not travel whilst their doors were open.
He was adamant that any such occurrence would have been recorded and
stated that, throughout the period of his employment with PRASA, he had
never encountered a recorded instance of a train travelling with its doors
open. He further testified that it was not uncommon for commuters to travel
without tickets and that such persons, when detected, were generally issued
with a fine of R40.
[20] He further testified that PRASA personnel, including ticket verifiers
and security officers, were generally deployed on trains. However, he
explained that during peak commuting hours, approximately between 05h30
and 09h00, trains were often so crowded that it became difficult for staff to
move through the coaches. He also stated that not all trains were staffed by
security personnel. According to Mr . Klaas, the last coach of a train would
ordinarily have an operator on board whose responsibilities included
monitoring the functioning of the train and ensuring that the doors were
operating properly and closing as required.
[21] Mr. Klaas further testified that, if the plaintiff had indeed boarded the
train at Heideveld Station, the train would already have been heavily
occupied, as the route originated in Khayelitsha. He contrasted this with
Ysterplaat and Esplanade Stations, which he described as generally less
congested stations. According to him, trains travelling from Khayelitsha
would typically accumulate large numbers of commuters before reaching
Heideveld Station.
[22] Mr. Klaas further testified that PRASA experienced ongoing
difficulties with commuters travelling without valid tickets. He stated that,
notwithstanding PRASA’s access-control measures, some commuters were
able to gain entry to stations and board trains without being in possession of
a valid ticket.
[23] During cross-examination, Mr. Klaas conceded that not all commuters
would necessarily know or be able to identify the number of the train on
which they were travelling. He also acknowledged that he was not present at
Esplanade Station on the day of the incident and was therefore unable to
confirm how many PRASA employees were on duty at the station at the
relevant time. When pressed on his earlier assertion that the absence of a
record suggested that the incident was unlikely to have occurred, he
ultimately stated that he had no comment.
[24] Mr. Klaas further conceded that incidents may occur on trains
without being reported. He was also informed that the plaintiff’s evidence
regarding the purchase and possession of a train ticket had not been
challenged in any material respect. In response, Mr . Klaas accepted that, as
he had not seen the ticket, he was unable to dispute the plaintiff’s evidence
in that regard. He further confirmed that PRASA did not issue receipts for
train tickets, whether purchased for a single journey or as a monthly pass.
Although he maintained that there was no proof that the plaintiff had
purchased a ticket, he conceded that it was possible that the plaintiff ’s
explanation, namely that the ticket had been lost whilst he was hospitalised,
could be true.
[25] Significantly, Mr . Klaas ultimately conceded that he was not in a
position to dispute that the plaintiff had been travelling on the train on the
day in question, nor could he positively dispute that the plaintiff had fallen
through the open doors of a carriage. Mr. Klaas conceded that security
personnel were not always present on station platforms and that there were
occasions when no security officers were deployed at a particular platform.
His principal dispute related to whether the plaintiff had been in possession
of a valid ticket. In advancing that contention, he remarked that the plaintiff
was ‘stealing the train ’, by which he evidently meant that the plaintiff had
travelled without purchasing a ticket.
[26] Mr. Klaas nevertheless remained steadfast in his assertion that
PRASA trains do not travel with open doors. When it was put to him that
numerous courts in South Africa had dealt with cases involving commuters
falling from trains travelling with open doors, he rejected that proposition
and maintained that such incidents had never occurred.
[27] This Court posed a number of questions to Mr . Klaas concerning the
scope of his investigation and the conclusions he drew therefrom. He
confirmed that he had not interviewed any of the PRASA employees who
were on duty at Esplanade Station on the day of the alleged incident. His
evidence as to what those employees would or would not have observed was
therefore based on assumption rather than on information obtained directly
from them. He further testified that there were no reports from PRASA
personnel indicating that passengers had been travelling unlawfully on the
train or that any individuals had been found hiding between the coaches on
the day in question.
[28] In response to further questions from th is Court, Mr . Klaas testified
that it was difficult, if not impossible, for a commuter to gain access to a
train without a valid ticket. He explained that, in the case of the older train
fleet, persons travelling unlawfully would sometimes conceal themselves
between the coaches and were generally apprehended when attempting to
exit the station. According to Mr. Klaas, this was the reason why commuters
travelling without tickets would often jump from trains as they slowed down
before reaching a station, thereby avoiding detection by PRASA personnel at
station exits. On that basis, he expressed the view that the plaintiff had not
fallen from the train in the manner alleged but had probably jumped from it
before it reached the station. He accepted, however, that this was merely an
inference drawn from the circumstances as he understood them and was not
based on any direct observation of the incident or independent evidence
relating thereto.
[29] This Court also questioned Mr . Klaas regarding the possibility of the
older fleet of PRASA trains travelling with open doors. He testified that, on
the older trains, commuters were able to prevent doors from closing by
placing an object or even a foot in the doorway. He further explained that,
unlike the newer train models, the older fleet was not equipped with warning
lights or indicators to alert train personnel that doors remained open. As a
result, it was possible, at least in principle, for those trains to depart and
travel whilst doors remained open. Mr . Klaas also testified that the older
trains were not fitted with emergency mechanisms that could be activated in
the event of a train departing with open doors. By contrast, newer train
models are equipped with visible warning systems and safety mechanisms
designed to detect doors that have not properly closed and to prevent the
train from operating under such circumstances.
[30] Following the completion of cross -examination and the questions
posed by this Court, Mr. Klaas’s evidence came to an end. PRASA indicated
that it had no further questions for its witness and thereafter closed its case.
The matter was subsequently postponed to 20 May 2026 for the hearing of
argument.
Arguments before court
Plaintiff’s arguments
[31] Counsel for the plaintiff, Mr . Benade, pointed out that the plaintiff
was not cross-examined on the circumstances of the incident itself. Nor was
it put to him that the incident had not occurred, that he had not fallen from
the train in the manner described, or that the defendant disputed his version
of how the incident had taken place.
[32] Counsel for the plaintiff further submitted that the cross-examination
was directed largely at casting doubt on the plaintiff ’s credibility and
suggesting that his claim was fraudulent. Counsel argued, however, that
notwithstanding extensive and rigorous cross -examination, the plaintiff
remained consistent in all material respects. His evidence that he boarded the
train at Heideveld Station, travelled in the rear coach, and was pushed
through an open door as commuters jostled to disembark at Esplanade
Station was never materially shaken.
[33] Counsel further submitted that the plaintiff ’s version was both
coherent and probable. The plaintiff suffered injuries consistent with a fall
from the train and provided a plausible explanation as to how the incident
occurred. In the absence of any alternative credible explanation for how the
plaintiff came to sustain those injuries, the most probable inference was that
he fell from the train through an open door while it was entering Esplanade
Station.
[34] It was further argued that the plaintiff had established a prima facie
case of negligence, thereby placing an evidentiary burden on PRASA to
rebut that case. According to counsel, PRASA could have sought to do so by
leading evidence demonstrating that reasonable measures had been taken to
ensure that the train did not travel with open doors and that appropriate
safety and security measures were in place for commuters on the day in
question.
[35] Plaintiff’s c ounsel submitted that PRASA failed to discharge that
burden. The only witness called by the defendant was Mr . Klaas, an
investigator who was not present when the incident occurred. He had not
interviewed any PRASA employees who were on duty at Ysterplaat or
Esplanade Stations on the relevant day and was therefore unable to provide
direct evidence contradicting the plaintiff ’s account. In the result, counsel
contended that the plaintiff ’s version stood largely uncontested and should
be accepted.
[36] Plaintiff’s counsel argued that PRASA’s alleged liability arose from
an omission, namely its failure to take reasonable steps to ensure the safety
of commuters. In this regard, counsel relied on Hawekwa Youth Camp and
Another v Byrne ,3 where the Supreme Court of Appeal (‘ the SCA’)
explained that negligent omissions are actionable only where public and
legal policy considerations, informed by constitutional norms, give rise to a
legal duty to act.
[37] Counsel argued that the existence of such a legal duty on the part of
PRASA is no longer open to debate. Reliance was placed on Mashongwa,4
where the Constitutional Court reaffirmed that public carriers such as
PRASA owe a legal duty to protect passengers from physical harm whilst
making use of their transport services. That duty derives not only from the
relationship between carrier and passenger, but also from PRASA’s public
law and constitutional obligations.
[38] Further reliance was placed on Rail Commuters Action Group and
Others v Transnet Ltd t/a Metrorail and Others ,5 where the Constitutional
Court emphasised the vulnerability of rail commuters and held that Metrorail
3 Hawekwa Youth Camp and Another v Byrne [2009] ZASCA 156; 2010 (6) SA 83 (SCA) at 90I-91A.
4 Mashongwa above fn 1 at para 20.
5 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others [2004] ZACC 20;
2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) at paras 82 and 86.
was under a duty to ensure that reasonable measures were in place to provide
for their safety. Counsel submitted that the constitutional obligation resting
upon PRASA is therefore well established.
[39] Against that legal background, the plaintiff’s counsel contended that
the critical question was whether PRASA had adduced evidence of the
reasonable measures implemented to ensure the safety of commuters on the
train in question. Counsel submitted that no such evidence was forthcoming.
The defendant’s case was confined to the evidence of Mr . Klaas, who was
not a witness to the incident and was unable to testify regarding any safety
measures in place on the train or at the relevant stations on the day in
question. In those circumstances, counsel argued that PRASA had failed to
demonstrate that it had taken reasonable steps to discharge the legal duty
resting upon it. He further submitted that it was not incumbent upon the
plaintiff to lead evidence of what safety measures PRASA ought to have
implemented, particularly where the defendant itself adduced no evidence
regarding the measures that were in fact in place.6
[40] Plaintiff’s counsel submitted that the appropriate test for negligence
remains that formulated in Kruger v Coetzee,7 namely whether a reasonable
person in the position of the defendant would have foreseen the reasonable
possibility of harm occurring and would have taken reasonable steps to
guard against such harm, and whether the defendant failed to take those
steps.
6 Relying in this regard on Passenger Rail Agency of South Africa v Mokoena (5038/2020; 14289/2014)
[2021] ZAGPJHC 650 (26 August 2021).
7 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G.
[41] Counsel argued that, on the facts of this matter, the foreseeability of
harm was self-evident. The issue was whether PRASA had taken reasonable
measures to prevent commuters from being injured by trains travelling with
open doors. In this regard, counsel submitted that PRASA failed to adduce
any evidence regarding the safety or security measures in place on the train
in question or at the stations from which it departed. Reliance was placed on
Passenger Rail 8 for the proposition that a commuter who sustains injuries
while travelling on a train does not bear the burden of leading evidence
concerning the safety measures implemented by PRASA or their
reasonableness.
[42] Counsel for the plaintiff further submitted that the plaintiff had
discharged the onus of proving, on a balance of probabilities, that the
carriage from which he fell was travelling with its doors open. Once that
evidence was accepted, PRASA was required to place before th is Court
evidence demonstrating how it had complied with its constitutional and legal
obligations to ensure the safety of commuters. In support of this submission,
counsel relied on Mashongwa,9 where the Constitutional Court emphasised
that train doors perform a vital safety function and that the dangers
associated with trains travelling with open doors are obvious and well
known. The Court also noted that PRASA’s own operating procedures
prohibit trains from operating with open doors.
8 Passenger Rail above fn 6 at para 10.
9 Mashongwa above fn 1 at paras 48 and 49.
[43] Plaintiff’s counsel contended that PRASA failed to place any rebuttal
evidence before th is Court demonstrating what measures had been
implemented to prevent trains from operating with open doors or to
safeguard commuters on the day in question. The evidence of Mr . Klaas was
directed largely at incident reporting procedures and the absence of records
relating to the incident. Counsel submitted that such evidence did not
address the central issue, namely whether PRASA had taken reasonable
steps to prevent the occurrence of the harm suffered by the plaintiff. In those
circumstances, PRASA had failed to demonstrate that it had discharged the
legal and constitutional obligations resting upon it.
[44] On the issue of causation, the plaintiff’s counsel submitted that the
plaintiff had established the requisite causal nexus between PRASA’s
negligent conduct and the injuries he sustained. Counsel referred to ZA v
Smith,10 where the SCA restated the well -known ‘but-for’ test for factual
causation, namely whether, but for the defendant ’s wrongful and negligent
omission, the plaintiff ’s harm would probably not have occurred. The SCA
emphasised that the enquiry is a practical, common -sense one that is ‘more
likely than not’ and that a plaintiff is not required to establish causation with
absolute certainty.
[45] Counsel argued that factual causation was clearly established. The
plaintiff sustained his injuries when he fell from a moving train through an
open door. Had the door remained closed, the fall and resulting injuries
would probably not have occurred. A direct causal connection therefore
10 ZA v Smith [2015] ZASCA 75; 2015 (4) SA 574 (SCA) at 589D-G.
existed between the alleged negligence and the harm suffered by the
plaintiff. There was thus a sufficiently close causal connection between
PRASA’s negligence and the harm suffered by the plaintiff. PRASA should
therefore be held liable for the plaintiff’s damages.
Prasa’s arguments
[46] Counsel for PRASA, Ms . Masupye, submitted that the plaintiff had
failed to prove that he was a fare -paying passenger, having produced neither
a train ticket nor any documentary proof thereof. Counsel further relied on
the absence of the train number and the lack of any record of the incident in
PRASA’s official records. It was argued that, because no PRASA employee
witnessed the alleged incident, the defendant was only able to call its
investigating officer, Mr. Klaas, to testify.
[47] On behalf of PRASA, counsel relied on the evidence of Mr. Klaas that
PRASA trains do not travel with open doors and that any door malfunction
would ordinarily be reported by the train guard. Counsel further pointed out
that the plaintiff himself testified that the train doors were closed when he
initially boarded the train and departed from Heideveld Station.
[48] Counsel also referred to Mr . Klaas’s evidence that PRASA
experiences problems with commuters travelling without tickets and that
such commuters often disembark from trains before they come to a complete
stop in order to avoid detection at ticket control points. In this regard, it was
submitted that the plaintiff was probably an unlawful commuter and that his
version of the incident should therefore be viewed with caution.
[49] On behalf of PRASA, counsel submitted that the proper approach to
the resolution of the factual disputes was that articulated in Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others .11
In that matter, the SCA held that a court must evaluate the credibility and
reliability of the witnesses, together with the probabilities of the competing
versions, before determining whether the party bearing the onus has
discharged it. Counsel further relied on National Employers ’ General
Insurance Co Ltd v Jagers 12 for the proposition that, where mutually
destructive versions exist, a plaintiff can succeed only if the court is satisfied
on a balance of probabilities that his version is true and that the defendant’s
version falls to be rejected.
[50] Applying those principles, PRASA’s counsel argued that the plaintiff
had failed to discharge the onus resting upon him. In particular, it was
submitted that the absence of a train ticket, receipt, or other documentary
proof that the plaintiff was a fare -paying passenger undermined the
credibility and reliability of his version. Counsel therefore contended that the
plaintiff had failed to establish, on a balance of probabilities, that his version
should be preferred.
11 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others [2002] ZASCA
98; 2003 (1) SA 11 (SCA).
12 National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D-G.
[51] PRASA’s counsel submitted that the central issue was whether
PRASA owed the plaintiff a legal duty of care if he was not lawfully entitled
to be on the train. It was argued that, should this Court find that the plaintiff
was travelling without a valid ticket, he was not a lawful commuter and
could not rely on any duty owed by PRASA to fare-paying passengers. In
support of this contention, counsel relied on Bhiya v Passenger Rail Agency
of South Africa ,13 where the Gauteng Division, Pretoria, held that a
commuter travelling without a valid ticket was not entitled to rely on the
legal duty ordinarily owed by PRASA to its passengers. Counsel further
relied on Farmer v Robinson Gold Mining Co Ltd ,14 where the Appellate
Division considered the circumstances under which a landowner may be
held liable for injuries sustained by a trespasser. The court there held that
liability depends upon the existence of negligence and that, in determining
whether a duty of care exists, the relationship between the parties is an
important consideration. Counsel emphasised that the reason a landowner is
generally not liable to a trespasser is not because a trespasser forfeits all
legal protection, but because the landowner cannot ordinarily be expected to
anticipate the presence of a person who is unlawfully on the property.
[52] Counsel submitted that a commuter is obliged to purchase a ticket
before making use of PRASA’s services and that a carrier and passenger
consequently have reciprocal rights and obligations. It was argued that
public policy considerations militate against imposing liability on PRASA
where a person travels without paying the required fare and in breach of the
applicable statutory provisions. On that basis, counsel contended that, if the
13 Bhiya v Passenger Rail Agency of South Africa (72237/2019) [2023] ZAGPPHC 35 (26 January 2023).
14 Farmer v Robinson Gold Mining Co Ltd 1917 AD 501 at 522.
plaintiff failed to prove that he possessed a valid ticket, his claim ought to
fail.
Supplementary note requested by this Court
[53] As mentioned, d uring argument, PRASA relied on Bhiya15 in support
of its contention that the plaintiff ’s failure to prove possession of a valid
train ticket was fatal to his claim, as PRASA owed no legal duty to a person
who had no lawful right to be on the train. Given the significance of that
issue, and its potential dispositive effect on the matter, th is Court directed
the parties to file supplementary notes addressing whether, assuming all the
other elements of delictual liability had been established, the absence of
proof of a valid train ticket would nevertheless defeat the plaintiff’s claim.
[54] In his supplementary note, plaintiff’s counsel submitted that, although
Bhiya supported the defendant ’s argument, that decision should not be
followed. He pointed out that leave to appeal against the whole judgment
had subsequently been granted in Bhiya v Passengar Rail Agency of South
Africa16 to the SCA . Counsel further relied on MBM v Passenger Rail
Agency of South Afric a,17 where the court expressly rejected the proposition
that PRASA’s duty of care ceases merely because a commuter is unable to
produce a valid ticket. 18 Counsel also referred to the article by Boonzaier
15 Bhiya above fn 13.
16 Bhiya v Passengar Rail Agency of South Africa (72237/2019) [2023] ZAGPPHC 1873 (2 November
2023).
17 MBM v Passenger Rail Agency of South Africa (A2024/122198) [2026] ZAGPJHC 488 (12 May 2026) at
para 21.
18 MBM above fn 17 at para 21 Wilson J (with Wentzel J concurring) said:
and Le Roux 19 in which the authors criticised the reasoning in Bhiya20 and
argued that the presence of ticketless passengers on PRASA’s trains is
reasonably foreseeable and that the absence of a ticket should not, without
more, defeat a claim where the remaining requirements for delictual liability
have been established . Counsel accordingly submitted that, even if this
Court were to find that the plaintiff failed to prove possession of a valid
ticket, PRASA would not be absolved of its legal duty to take reasonable
measures to ensure the safety of commuters and the plaintiff ’s claim should
nevertheless succeed if the remaining elements of liability were proved.
Issues for determination
[55] The principal issues for determination are whether the plaintiff was a
lawful passenger on the train and, if not, whether the absence of proof of a
valid ticket is fatal to his claim; whether the train travelled with its doors
open while in motion, thereby giving rise to a prima facie inference of
negligence on the part of PRASA; and whether any such negligence was
causally connected to the plaintiff ’s alleged fall and resultant injuries. This
necessarily requires a determination of whether PRASA’s legal duty to
ensure the safety of commuters is dependent upon proof of a valid ticket.
‘Nevertheless, I am not prepared to accept that this meant that PRASA had no duty of care to NJL.
Decisions to the contrary (see Bhiya v Passenger Rail Agency of South Africa [2023] ZAGPPHC 35 (26
January 2023), see especially paragraph 78) are not binding on us, and are plainly wrong. The mere fact
that a person travels on a train without a ticket does not absolve PRASA of its duty to make the train safe.
Ms. Tshifhango was invited to submit that the mere fact that a passenger does not have a valid ticket
absolves PRASA from any duty to take such reasonable steps as are within its power to ensure that they
survive their journey. To her enduring credit, Ms. Tshifhango declined to make that submission.’
19 L Boonzaier and C Le Roux ‘Delictual liability and the stow -away plaintiff’ (2024) 141(3) Journal of
South African Law 600-611 while relying on their arguments set out specifically at 607-608 and 611.
20 Bhiya above fn 13.
Discussion and legal principles
Evaluation of the testimony
[56] Mr. Thando Klaas was the sole witness for PRASA. His evidence was
largely procedural in nature and did not materially assist in resolving the
central factual dispute. He was not a witness to the incident and his
testimony was based primarily on his subsequent investigation, the contents
of records consulted by him and PRASA’s standard operating procedures.
He candidly accepted that he was not present on the train or at Esplanade
Station on the day in question and could not dispute from personal
knowledge that the plaintiff was travelling on the train, that an incident
occurred, or that the plaintiff fell from the train.
[57] The plaintiff, by contrast, testified first -hand about the events giving
rise to his injuries. Having observed the plaintiff during his testimony and
under cross -examination, I found him to be a satisfactory witness. His
version remained consistent in all material respects. Despite cross -
examination, his evidence that he boarded the train at Heideveld Station,
travelled towards Esplanade Station, and fell from the train after being
pushed towards an open doorway by commuters was not materially shaken.
[58] Importantly, a number of critical aspects of the plaintiff ’s evidence
were never seriously challenged. It was not put to him that he was not on the
train. It was not put to him that no incident occurred. It was not put to him
that his injuries were sustained elsewhere. Nor was it put to him that he
fabricated the incident. The focus of the defendant ’s case was
overwhelmingly directed at whether the plaintiff possessed a valid train
ticket and whether he was therefore lawfully entitled to be on the train.
[59] The plaintiff’s explanation that he did not report the incident because
he initially believed he was uninjured is, in my view, entirely plausible. His
evidence that the seriousness of his injuries only became apparent later in
the day was not contested during cross -examination and provides a
reasonable explanation for his failure to make an immediate report.
[60] The documentary evidence also provides significant support for the
plaintiff’s version. The various medical records and hospital documentation
in the witness bundle consistently record that the plaintiff sustained injuries
arising from a fall from a moving train. While such records do not constitute
direct proof of the precise mechanism of the incident, the consistency with
which the incident is described across the documentation materially
strengthens the plaintiff ’s account and diminishes the likelihood that the
incident was subsequently fabricated.
[61] Notably, Mr. Klaas accepted that incidents can occur on trains without
being reported and that the absence of an entry in the occurrence book does
not necessarily establish that an incident never happened. He further
accepted that he had not interviewed the PRASA employees who were on
duty at Esplanade Station on the day concerned. The conclusions he sought
to draw from the absence of records were therefore based on inference rather
than direct evidence.
[62] Mr. Klaas also sought to attribute the incident to unlawful commuters
who allegedly jump from trains before reaching stations. However, he
ultimately accepted that this was merely speculation on his part. There was
no evidence that the plaintiff had been found hiding between train coaches,
no report that he had been observed travelling unlawfully, and no evidence
that any PRASA official encountered him attempting to evade ticket
controls.
[63] Of considerable importance was Mr . Klaas’s response to questions
posed by th is Court. He testified that it was generally more difficult to gain
entry to a station and train without a valid ticket than it was to exit a station
without one. That concession materially undermines the defendant ’s
suggestion that the plaintiff was probably an unlawful commuter. Indeed, if
unlawful entry was difficult and no evidence existed that the plaintiff had
evaded access controls, the probabilities support the inference that he
entered the station through the ordinary channels available to fare -paying
commuters.
[64] When the evidence is evaluated in accordance with the approach set
out in Stellenbosch Farmers,21 namely by considering credibility, reliability
and probabilities, the balance of probabilities favours the plaintiff. The
plaintiff presented a coherent, consistent and inherently probable account
which is supported by the contemporaneous medical records. By contrast,
PRASA’s defence rested substantially on generalised evidence concerning
21 Stellenbosch Farmers above fn 11.
procedures, the difficulties posed by ticketless commuters, and assumptions
drawn from the absence of records. Those considerations do not displace the
probabilities arising from the plaintiff ’s evidence. I accordingly accept the
plaintiff’s version where it conflicts with the speculative inferences
advanced by Mr. Klaas.
[65] The plaintiff explained that the monthly ticket had been left in the
overalls he was wearing on the day of the incident and was lost or discarded
while he was hospitalised. That explanation was not meaningfully
challenged in cross -examination, nor was it put to him that he had never
purchased a ticket. Mr . Klaas was likewise unable to dispute the plaintiff’s
evidence and conceded that his explanation could be true.
[66] In my view, the plaintiff’s explanation is a plausible one. The plaintiff
sustained serious injuries and was hospitalised for some time . In those
circumstances, it is entirely probable that a paper monthly ticket kept in
work clothing could have been lost or discarded. That probability is
enhanced by the undisputed evidence that PRASA did not issue receipts for
monthly train tickets, leaving a commuter who had misplaced such a ticket
without any independent documentary means of proving its purchase.
Valid train ticket
[67] A considerable portion of the defendant ’s case was devoted to the
contention that the plaintiff failed to prove that he was in possession of a
valid train ticket on the day of the incident. While the existence of a valid
ticket may constitute persuasive evidence that a person was a lawful
passenger, it is not, in my view, dispositive of the present enquiry. Guidance
in this regard is found in the recent decision of Barnabas v Passenger Rail
Agency of South Africa22 in this Division. In that matter, Yake AJ considered
the significance of a passenger ’s failure to produce a valid train ticket when
pursuing a claim against PRASA and stated the following:23
‘It is trite that the existence of a valid train ticket constitutes, at the very least,
prima facie proof that the plaintiff was a passenger and thus a lawful train user.
The onus accordingly rests upon the plaintiff to establish her lawful presence on
the train. This burden may be discharged through documentary evidence such as
the ticket itself, a receipt of purchase, or corroborating testimony. Ordinarily, such
proof suffices to establish contractual entitlement to conveyance and affirms the
contractual nexus between passenger and carrier, thereby strengthening the
plaintiff’s standing to claim. However, as correctly contended by the plaintiff’s
counsel, the absence of a ticket is not a sine qua non for liability. Liability does
not depend exclusively upon proof of contractual breach or possession of a valid
ticket. The Court must therefore weigh the credibility and reliability of the
evidence tendered against the probabilities, in order to determine the liability of
the defendant.’ (My emphasis.)
[68] I respectfully agree with that reasoning. The passage makes clear that
the possession of a valid ticket may serve as prima facie proof of lawful
travel and contractual entitlement, but it is not a prerequisite for a successful
22 Barnabas v Passenger Rail Agency of South Africa (2758/2014) [2026] ZAWCHC 450 (26 August
22 Barnabas v Passenger Rail Agency of South Africa (2758/2014) [2026] ZAWCHC 450 (26 August
2026).
23 Barnabas above fn 22 at para 18.
delictual claim against PRASA. The enquiry remains whether, on the totality
of the evidence and probabilities, the plaintiff has established the facts
necessary to sustain his cause of action. The absence of a ticket is therefore
but one factor to be weighed in the assessment of the evidence and cannot,
without more, be determinative of liability.
[69] The importance of that enquiry should not be understated. Were the
absence of a ticket to be regarded as irrelevant, or were liability to be
determined solely on the uncorroborated say -so of a claimant, courts and
public carriers such as PRASA would be vulnerable to unfounded and
opportunistic claims. Equally, to treat the absence of a ticket as an absolute
bar to recovery would undermine the constitutional and delictual duties
resting upon public carriers. The proper approach therefore lies in a careful
evaluation of the totality of the evidence, the credibility and reliability of the
witnesses, and the probabilities emerging from the facts of the particular
case. It is only through such an assessment that a c ourt can distinguish
between genuine claims and those lacking merit.
[70] In Barnabas,24 Yake AJ further recognised that South African law
imposes upon common carriers a duty of care which exists independently of
any contractual relationship between the carrier and the injured person. In
reaching that conclusion, she relied on Marbe NO v Passenger Rail Agency
of South Africa ,25 another decision of this Division, in which the court held
that the possession of a valid train ticket is not a prerequisite for the
24 Barnaba above fn 22.
25 Marbe NO v Passenger Rail Agency of South Africa (12062/2020) [2026] ZAWCHC 43 (29 January
2026) at paras 69-74.
imposition of liability on PRASA. Reliance was also placed on
Mashongwa26 in which the Constitutional Court emphasised that PRASA
bears a positive constitutional duty, arising from section 12 of the
Constitution, to take reasonable measures to protect passengers from
foreseeable harm while making use of its services. 27 Similar principles were
articulated in Rail Commuters,28 where the Constitutional Court underscored
the public law obligations resting upon rail operators to ensure the safety of
rail commuters.
[71] The duty imposed upon PRASA arises from the nature of its
functions as a public carrier entrusted with the safe conveyance of members
of the public. It is a duty grounded not only in the law of delict but also in
constitutional norms. As the SCA observed in Shabalala v Metrorail ,29
public carriers owe commuters a legal duty to take reasonable measures to
protect them from physical harm. Consequently, although proof of a valid
ticket may strengthen a plaintiff ’s case by demonstrating lawful travel, the
absence of such proof does not, without more, absolve PRASA of liability.
The true enquiry is whether PRASA breached the duty of care resting upon
it and whether that breach caused the plaintiff ’s injuries. To elevate the
absence of a ticket into a complete defence would be inconsistent with the
constitutional and delictual principles articulated in the authorities
referenced above.
26 Mashongwa above fn 1.
27 Barnabas above fn 22 at para 23 and 27.
28 Rail Commuters above fn 5 at paras 82-85.
29 Shabalala v Metrorail 2008 (3) SA 142 (SCA) at para 7.
[72] In the present matter, the plaintiff testified that he purchased a
monthly ticket at Heideveld Station and used that ticket to travel on the day
of the incident. His evidence in this regard was not materially challenged.
Mr. Klaas accepted that PRASA did not issue receipts for monthly tickets
and conceded that the plaintiff’s explanation that the ticket was lost while he
was hospitalised could be true. He was unable positively to dispute either the
purchase or possession of the ticket.
[73] Moreover, the probabilities do not favour the defendant ’s contention
that the plaintiff was unlawfully travelling on the train. As already indicated,
Mr. Klaas conceded that it was generally more difficult to enter a station and
gain access to a train unlawfully than it was to exit a station without a valid
ticket. There was further no evidence that the plaintiff had been
apprehended, observed evading access control measures, or found hiding
between train coaches. No report existed of any ticketless commuter being
detected on the train in question. These are important considerations when
assessing the probabilities.
[74] PRASA’s evidence further established that ticketless travel was
regarded as a significant problem within its rail network. However, beyond
identifying the existence of that problem, no evidence was placed before this
Court regarding what reasonable measures were implemented to address it
on the train and stations relevant to this matter. The existence of a systemic
problem cannot, without more, justify an inference that a particular
commuter was necessarily travelling unlawfully.
[75] I am mindful that PRASA relied heavily on Bhiya30 in support of its
argument that the absence of proof of a valid ticket is fatal to the plaintiff ’s
claim. I do not consider myself bound by that decision. Significantly, leave
to appeal to the SCA was granted in Bhiya.31 While the granting of leave to
appeal does not itself establish that the judgment is incorrect, it does indicate
that another court considered the issues raised therein sufficiently debatable
to warrant reconsideration. The academic criticism levelled against Bhiya32
by Boonzaier and Le Roux resonates with many of the concerns raised in the
present matter. Further support for that view is found in the judgment of
MBM,33 where the Gauteng Division, Johannesburg, rejected the proposition
that PRASA’s duty of care falls away merely because a commuter cannot
produce a valid ticket.
[76] I respectfully align myself with the reasoning in Barnabas and MBM.
PRASA’s constitutional and delictual duty to take reasonable measures to
safeguard commuters cannot depend solely on whether a ticket is
subsequently produced in litigation many years after an incident occurred. In
any event, on the facts of this case, I am satisfied that the probabilities
favour a finding that the plaintiff was a lawful passenger and that he was,
more probably than not, in possession of a valid ticket when he commenced
his journey.
30 Bhiya above fn 13.
31 Bhiya above fn 16.
32 Bhiya above fn 13.
33 MBM above fn 17.
Trains travelling with open doors
[77] In Barnabas,34 Yake AJ was confronted with evidence strikingly
similar to that presented in the matter before me . Coincidentally, Mr . Klaas
also testified on behalf of PRASA in that case. There, as here, he maintained
that PRASA trains do not operate with their doors open while in motion and
further contended that any defect or malfunction relating to a train door
would have been recorded in the relevant fault register. Yake AJ was,
however, not persuaded by this evidence. She observed that Mr . Klaas’s
testimony was based on a document which he had not authored and found
his contention to be far -fetched.35 Yake AJ took judicial notice of the fact
that trains do, from time to time, travel while commuters are standing at
open doors. She also held that Mr. Klaas’s assertions were not supported by
the evidence before her, nor by the numerous judgments delivered against
PRASA in which courts have considered similar incidents.36
[78] Yake AJ further referred to the following consistent body of authority
recognising the dangers associated with trains operating with open doors
whilst in motion. 37 In Chauke v Passenger Rail Agency of South Africa ,38
with reference to Transnet Ltd t/a Metrorail and Another v Witter ,39 the
court reaffirmed that the operation of a train with open doors while in
motion constitutes negligence. In Transnet v Witter, the SCA recognised the
34 Barnabas above fn 22.
35 Barnabas above fn 22 at para 37.
36 Ibid.
37 Barnabas above fn 22 at para 39.
38 Chauke v Passenger Rail Agency of South Africa (38743/2015) [2015] ZAGPPHC 1075 (9 December
2015).
39 Transnet Ltd t/a Metrorail and Another v Witter [2008] ZASCA 95; 2008 (6) SA 549 (SCA); [2009] 1
All SA 164 (SCA).
obvious danger posed to commuters when train doors remain open during
travel and affirmed the duty resting upon rail operators to take reasonable
measures to prevent foreseeable harm.40 Similarly, in Passenger Rail Agency
of South Africa v Moabelo ,41 the SCA held that an open train door
constitutes a source of potential danger whilst a train is in motion and that
the risk created thereby extends to every commuter travelling on the train.
[79] These authorities correctly demonstrate that courts have repeatedly
recognised both the foreseeability of harm arising from open train doors and
the corresponding duty resting upon PRASA to take reasonable measures to
prevent such harm. Against that backdrop, Mr . Klaas’s evidence that
PRASA trains simply do not operate with open doors whilst in motion must
be approached with caution. In my view, the position may differ depending
on the type and age of the train involved.
[80] Both Barnabas42 and the present matter concerned older train
carriages. The reasoning and findings in Barnabas lend support to the
conclusion reached in the present matter. During questioning by this Court,
Mr. Klaas accepted that the older fleet of trains differed materially from the
newer trains presently operated by PRASA. He explained that older trains
were not equipped with warning systems indicating that doors remained
open and were not fitted with safety mechanisms preventing operation when
doors failed to close. He further accepted that commuters were capable of
preventing the doors from closing by inserting an object or even a foot into
40 Transnet v Witter above fn 39.
41 Passenger Rail Agency of South Africa v Moabelo [2017] ZASCA 144; [2017] 4 All SA 648 (SCA).
42 Barnabas above fn 22.
the doorway. The newer models, by contrast, provide visible indications
when doors are not properly closed.
[81] In those circumstances, it is neither improbable nor far -fetched to
conclude that older trains could and did, from time to time, travel whilst
their doors remained open. Such a conclusion accords not only with the
evidence presented in this matter, but also with the factual findings made in
numerous reported judgments involving PRASA’s older train fleet. A court
must therefore be cautious of accepting a blanket proposition that PRASA
trains did not travel with open doors, particularly where the evidence
demonstrates that the older trains lacked the safeguards and warning systems
found in their newer counterparts.
[82] Those concessions are of considerable significance. They demonstrate
that the broad proposition advanced by PRASA, namely that its trains could
not travel with open doors, cannot be sustained in relation to the older fleet.
Indeed, Mr . Klaas ultimately accepted that such trains could, in principle,
depart and travel while doors remained open.
[83] The plaintiff ’s evidence that the doors remained open after Langa
Station and continued to be open as the train approached Esplanade Station
is therefore not only possible but entirely consistent with the evidence
ultimately given by PRASA’s own witness. Furthermore, no direct evidence
was led by PRASA from the train driver, train guard, coach operator or any
station official who could testify regarding the condition of the doors on the
train concerned.
[84] I therefore find, on a balance of probabilities, that the carriage doors
were open while the train was in motion and remained open as the train
entered Esplanade Station. The plaintiff ’s fall occurred when commuters
moving towards those open doors pushed and jostled one another in
preparation for disembarking. That risk was plainly foreseeable. Had the
doors remained closed while the train was moving, the plaintiff would not
have been exposed to the danger that ultimately materialised.
[85] The operation of a train with open doors while in motion constitutes
negligence for the reasons articulated in Mashongwa,43 Transnet v Witter,44
Moabelo45 and most recently Barnabas.46 Once it is accepted that the train
travelled with open doors and that the plaintiff fell through one of those
doors, the causal connection between PRASA’s omission and the plaintiff ’s
injuries is readily established.
Conclusion on the issues for determination
[86] Having regard to the totality of the evidence, I am satisfied that the
plaintiff has discharged the onus resting upon him for a few reasons . First,
the probabilities favour a finding that the plaintiff was a lawful passenger
travelling on the train on the morning of 25 September 2014 and that he was,
more probably than not, in possession of a valid train ticket. Second, even if
43 Mashongwa above fn 1.
44 Transnet v Witter above fn 39.
45 Moabelo above fn 41.
46 Barnabas above fn 22.
I am wrong in concluding that the plaintiff was probably in possession of a
valid ticket, that would not be determinative of the matter. I would
nevertheless follow the reasoning in Barnabas,47 Marbe48 and MBM49 and
find that the absence of proof of a valid ticket does not, in itself, absolve
PRASA of the constitutional and delictual duties resting upon it.
[87] Third, I find that the train travelled with its doors open whilst in
motion and that the plaintiff was pushed through an open doorway as the
train entered Esplanade Station. Fourth, the operation of the train with open
doors constituted negligent conduct on the part of PRASA. No evidence was
led demonstrating what reasonable measures were in place to prevent such
an occurrence or to address the well -known dangers associated with open
train doors.
[88] Finally, the plaintiff has established the requisite causal connection
between PRASA’s negligence and the injuries he sustained. But for the train
travelling with open doors, the plaintiff would not have fallen from the
carriage and suffered the injuries reflected in the medical records.
[89] Accordingly, when the principles articulated in Barnabas50 are applied
to the facts of this matter, the plaintiff has established his claim on a balance
of probabilities. It follows that PRASA is liable for the plaintiff ’s proven
damages arising from the incident of 25 September 2014.
47 Barnabas above fn 22.
48 Marbe above fn 25.
49 MBM above fn 11.
50 Barnabas above fn 22.
Costs
[90] Both parties sought a costs order in their favour on Scale B as
between party and party. It is a well -established principle that costs
ordinarily follow the result, absent circumstances warranting a departure
from that general rule. No such circumstances arise in the present matter. In
the exercise of my discretion, I am satisfied that the interests of justice and
fairness are best served by adhering to the ordinary rule. Costs should
therefore follow the result and be awarded on the Scale B party and party
scale.
Order
[91] The following order is made:
1 The defendant is liable for all the plaintiff’s proven damages
resulting from the incident of falling from a train on 25
September 2014.
2 The defendant is ordered to pay the plaintiff’s costs on a party
and party scale, including the cost of Counsel to be taxed on a
Scale B.
_____________________________
M LOUW
ACTING JUDGE OF THE HIGH COURT
Appearances
For plaintiff: Adv. E Benade
Instructed by: Adendorff Attorneys Inc, Cape Town
For respondent: Adv. K Masupye
Instructed by: José & Associates, Cape Town