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[2026] ZAGPPHC 1029
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Mncube v PRASA (53027/2019) [2026] ZAGPPHC 1029 (8 September 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 53027/2019
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHERS JUDGES:
YES
/NO
(3)
REVISED
DATE
8/9/2026
SIGNATURE
In
the matter between:
MNCUBE
MBENI
CELENKOSINI
PLAINTIFF
and
PRASA
DEFENDANT
This order is made an
Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court, and
is submitted
electronically to the Parties/their legal representatives by e-mail.
The Order is further uploaded to the electronic
file of this matter
on Caselines by the Judge or his secretary. The date of this Order is
deemed to be 8/9/2026.
JUDGMENT
LEDWABA
JP
INTRODUCTION
[1]
The plaintiff instituted an action against the defendant claiming
damages in the amount of R2 600 000.
The application for
separation of the issues on merits and quantum was not opposed, and I
ruled that the matter would proceed on
merits only.
[2]
The plaintiff testified and closed his case without calling any
witnesses. The defendant's counsel also
closed the defendant's case
without calling any witnesses.
[3]
In terms of the plaintiff's amended particulars of claim, the
plaintiff alleges that he was pushed out
of a moving train by
passengers who were jostling for space in the overcrowded train. The
doors of the train were allegedly open
while the train was in motion.
SUMMARY
OF PLAINTIFF’S EVIDENCE
[4]
On 27 February 2019, at about 17:00, he boarded a train at Knight
station and was going to Tembisa.
There were no available seats, the
train was full, and he was standing holding the belts hanging from
the ceiling of the train
to balance himself about one metre from the
door. The plaintiff alleges that the doors of the train were open
when the train was
in motion.
[5]
The plaintiff described a commotion among passengers, characterized
as a fight or pushing, which caused
him to lose grip of the belt and
fall from the train. As a result of the fall, the plaintiff lost
consciousness and was admitted
to hospital. He regained consciousness
the following day.
[6]
During cross-examination, the plaintiff was asked why it was alleged
in the particulars of claim that
he was pushed out of a moving train
by a passenger, and in his evidence in chief, he said there was a
fight on the train. He responded
that there was a commotion in the
train.
[7]
He testified that he boarded the train at 17:00 despite overcrowding
because he needed to collect medication
and noted the presence of a
belt to hold onto to balance himself in the train.
[8]
The plaintiff further clarified that the alleged altercation occurred
after the train departed from
Ravensklip Station, the station
following Knight Station.
EVALUATION
OF THE EVIDENCE
[9]
It is common cause between the parties that:
9.1. The
plaintiff was a passenger in the train, and he had a valid ticket.
9.2. The
train was full, and the plaintiff held the belt of the roof to
balance himself as he was standing.
9.3. The
train was in motion, and the doors thereof were open.
9.4. There
was some commotion and jostling in the train.
9.5. The
plaintiff was admitted to the hospital on 27 February 2019.
[10]
The main issue to be determined is whether the defendant's negligence
was the sole cause of the damages suffered
by the plaintiff and/or if
there was contributory negligence on the part of the plaintiff.
CONTRIBUTORY
NEGLIGENCE
[11]
The defendant did not lead evidence. In relation to contributory
negligence, it is trite that the defendant bears
the onus of proving
on a balance of probabilities, that the plaintiff contributed to his
own injuries. This is confirmed in section
1 (1)(a) of the
Apportionment of Damages Act.
[1]
[12]
The evidence demonstrates that the plaintiff possessed a valid ticket
and was therefore a lawfully passenger on
the train. He
travelled on an overcrowded train of and used the belt attached to
the roof of the carriage to maintain balance,
which was its intended
purpose for standing passengers. The plaintiff fell from the
moving train when a commotion amongst
passengers caused him to lose
his grip and be pushed towards the open doorway. Had the doors
been closed , the probability
of the plaintiff falling from the train
would have been substantially reduced or eliminated.
[13]
The defence made the submissions that the contributory negligence is
based on the fact that the plaintiff could
have taken another train
due it being overcrowded. The defence further submitted that:
“…
this
person was someone who was taking this train on a daily basis because
he had a monthly ticket and he is familiar with the running
of the
trains that follow each other.”
[14]
The court questioned the counsel for the defendant as to whether
there was any evidence that another train would
have been available.
Counsel conceded that no such evidence existed.
[15]
The Plaintiff’s counsel submitted that PRASA has a duty to
manage the state of overcrowding, and this principle
is supported by
Alfred v
Passenger Rail Agency
[2]
wherein Manamela AJ, as he then was, stated:
“
The question is,
what is there for the plaintiff to do when a train is running with
open doors and is overcrowded. I am of the view
that if there is
anyone to rectify this it would only be the Defendant, I support the
view by AJ Pangarker in Maphela v Passengers
Rail Agency of South
Africa, that –
‘
In my view, all
that was required of the defendant was to comply with its own
operating instructions. Yet, the defendant failed
to do so and
operated its train the Mutual to Nyanga stations with its carriage
doors open; put another way, the defendant’s
employees omitted
to close the train doors, and such conduct is not acceptable. In
allowing the train doors to be and remain open
while the train was in
motion, the defendant failed in its legal duty towards the plaintiff
as a commuter. The resultant
finding is that the defendant
failed to ensure that the safety precaution (closing the train doors)
was complied with and such
failure amounts to negligence on its part.
A reasonable organ of state in the defendant’s position, which
owes a public law
duty to commuters, would have ensured that the
train doors were kept closed to prevent the plaintiff’s fall or
slip from
the train onto the railway tracks. Thus, the
reasonable possibility of the plaintiff, a commuter, falling from the
packet,
moving train whistly the doors were open, was foreseeable.’”
[16]
The defence admitted to this duty and further stated that even if
there are no personnel to regulate
the overcrowding, the passengers
themselves must make a judgment call of whether it is safe to board
the train or not. This
appears to raise the defence of
volenti
non fit iniuria
.
[17]
In
Y v
PRASA,
[3]
Strydom
AJ stated the following:
“
In all matters
that I had regarded this defence was linked to instances where
commuters alighted or disembarked from a moving train
through open
train doors.
The essential elements
that the Defendant must proof are expressed in the
well-known dictum of Innes CJ in
Waring and Gillow
Ltd v Sherborne
:
‘
It must be clearly
shown that the risk (of injury) was known that it was realized, and
that it was voluntarily undertaken. Knowledge,
appreciation, consent
– these are the essential element, but knowledge does not
invariably imply appreciation, and both together
are not necessarily
equivalent to consent.’
The prejudiced person
should be intellectually mature enough to appreciate the effect of
his actions. The test to establish volenti is
a subjective
one. I am of the view that where a defendant embarks on a superficial
enquiry into what the plaintiff’s knowledge
was, his
appreciation of the risk/s and to what he consented to that it would
not satisfy the requirements of volenti.”
[18]
Having regard to the decided cases it can be inferred that it is not
for the passenger to navigate
overcrowding in a train but for PRASA
to exercise its duty of care to safeguard passengers on the trains.
[19]
In
the matter of
Chauke
v Passenger Rail Agency of South Africa
,
[4]
with
reference to
Transnet
Limited t/a Metrorail and Another v Witter
,
[5]
the
court confirmed that a train moving with open doors constitutes
negligence.
[20]
The defendant elected not to adduce evidence. Consequently,
the plaintiff's version concerning the circumstances of the incident
stands largely uncontested. While the plaintiff bore the overall onus
of proving negligence, the facts that the train was overcrowded
and
that its doors were open while in motion were not disputed. These
facts establish a basis for negligence as recognised in numerous
decisions involving PRASA.
Conclusion
[20]
Having carefully considered the evidence and the relevant
authorities, I find that the plaintiff has established
on a balance
of probabilities that the defendants were negligent in operating the
train with its doors open while in motion was
the cause of the
plaintiff’s fall and resultant injuries.
[21]
The defendant has failed to discharge the onus to prove contributory
negligence or voluntary assumption of risk
by the plaintiff.
Accordingly, there is no basis to reduce or exclude the defendant’s
liability on these grounds.
[22]
I am satisfied that the plaintiff has stablished, on a balance of
probabilities, that the defendant’s negligence
caused the
incident and the injuries sustain by him. The plaintiff is therefore
entitled to succeed on the merits of the claim.
ORDER
[23]
I make the following order:
1.
The defendant is liable for 100% of the plaintiff’s proven or
agreed damages
arising from the incident of 27 February 2019.
2.
The issue of quantum is postponed sine die.
3.
The costs of the merits, including the costs of counsel are awarded
to the plaintiff.
4.
The Registrar is directed to enrol the matter for a quantum hearing
upon request
by either party.
A P EDWABA
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
Matter
heard: 3 March 2025
Delivered:
APPEARANCES:
For
the Applicants:
Adv N. Makhani instructed
by Rapfumbedzani
Attorneys
For
the First
Respondent:
Adv T M Ngoepe instructed
by Dabishi Nthambeleni
Attorneys Inc
[1]
34
of 1956.
[2]
(88925/2019) [2025] ZAGPPHC 251 (12 March 2025) at paragraph
31.
[3]
(25598/2016)
[2017] ZAGPJHC 434 (8 September 2017) at paras 5-7.
[4]
[2015]
ZAGPPHC 1075.
[5]
[2008] ZASCA 95
;
2008
(6) SA 549
(SCA).