REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

						    		CASE NO: 46347/09

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

REJOICE SELETELA			        				Plaintiff

And

SOUTH AFRICAN RAIL COMMUTER 
CORPORATION LIMITED 				                    		Defendant

___________________________________________________________________________ 

J U D G M E N T
___________________________________________________________________________ 

MATHOPO J

[1]	On the 12th February 2008 at or about 6H50 the plaintiff a regular traveller on the defendant’s train was injured when she allegedly fell on the platform with the result that she sustained bodily injuries.
 
[2]	As a result of the injuries sustained, Plaintiff instituted an action against the defendant on the basis that its employees were negligent in one or more of the following respects:
	 
2.1	 he allowed the train to be in motion when its doors were open thereby exposing the commuters more specifically the plaintiff to the danger alternatively;
	
2.2	he allowed the commuters to alight from a moving train which led to other commuters pushing the plaintiff out of the train thereby causing him severe injuries alternatively;
 	
2.3	he caused the train to move without satisfying himself that all commuters boarding and/or alighting from the train and more particularly from the coach had properly done so;

2.4	he caused the train to move without keeping a proper and/or adequate lookout for commuters boarding and/or alighting from the train;

2.5	he failed to pay due regard to train commuters in general and to plaintiff in particular;

2.6	he failed to have due regard to safety signals and/or safety regulations designed to ensure the safety of the commuters travelling on the train and more particularly, in coach;

2.7	he failed to avoid the incident when by exercise of reasonable care such driver could and should have done so; 

2.8	he failed to maintain the train and/or the coach and/or the infrastructure, stations, land and property supporting the operation of the train and/or the coach in a safe and proper condition and/or

2.9	he failed to maintain adequate crowd control in and around the station, train and coach;

2.10	he failed to ensure that the station, train and coach did not become overcrowded;

2.11	he failed to ensure that the doors of the coach remained closed while the train was in motion.

[3]	The defendant denied liability and specifically pleaded that the plaintiff sustained the said injuries after she was bumped by one of the commuters whilst running towards the platform to catch the train.

[4]	At the commencement of the trial I was informed that the parties had agreed that the question of merits and quantum be separated in terms of section 33(4) of the Uniform rules of the high court.  I accordingly granted the order and matter proceeded only in respect of liability.

[5]	The following facts are not in dispute:

5.1	that on 12 February 2008, between 06H30 to 07H00, plaintiff was injured at the Tembisa Railway Station.

5.2	that at the time of the incident which resulted in her injuries, plaintiff was in possession of a valid ticket which entitled her to travel between Tembisa and Kempton Park railway station.

5.3	that Tembisa railway station was having many commuters at the time of the incident which resulted in the plaintiff being injured.

5.4	That after the plaintiff fell, she was assisted by the security guard Mr Mbuyazi who called an ambulance which took her to Tembisa hospital.

[6]	the issue to be decided is whether or not the plaintiff was indeed inside the train which was travelling from Tembisa Railway Station to Kempton Park and if so whether or not plaintiff was injured as alleged in her particulars of claim.  

Evidence for the Plaintiff

[7]	The plaintiff a regular traveller on the defendant’s train stated that on the day in question she boarded a train at Tembisa Station on the way to school with a valid train ticket.  While waiting at the platform which was full of people, a train arrived and stopped.  The commuters who were outside including the plaintiff started pushing their way inside the train.  Because they were many in number, pushing and jostling ensued.  At the same time passengers who were inside the train were at that time also attempting to disembark with the result that there was a commotion between the inside and the outside passengers.  At some stage during the ensuing commotion, plaintiff succeeded in getting into the train and because the train was full and with no seats available in the coach, she stood in the middle of the coach near the door holding onto a belt mounted on the rail inside the train to support herself.  She testified that there were about 50 to 70 people in the coach.   There were also about 20 people around her who were pushing her from the back and left hand side.  She was approximately 2 ½ metres from the door. 

[8]	She had been in the train for about 2 minutes when the train started moving with its doors still open.  Apparently the commotion did not stop and she was pushed outside and landed on the platform and was trampled on by the people.  She sustained a broken arm and a cut on the lip.  She was on the ground for about 10 to 15 minutes.  Security officers arrived and she was taken to their offices.  An ambulance was arranged and she was taken to Tembisa hospital.

[9]	During cross examination she stated that she was not standing close to the door but close to the coach and remained standing there because there were no seats available.

[10]	It was put to her that she was in the platform and not inside the train and that commuters who wanted to embark the train bumped and pushed her and she fell.  She denied the proposition as being untrue.  She was adamant that even after she had fallen, the train did not stop and that people were still trying to get in and out of the train.  According to her the pushing stopped after the train had started moving. In essence it would seem that according to her the cause of her fall was the commotion and the train moving with its doors still open.

[11]	It was further put to her in cross examination that since there were other people closer to the door, it was improbable that they (people) did not fall and were not injured but only her, she responded by saying that she was the only person who had been pushed out of the train and fell as a result of the commotion. When pressed further, speculated that there could be other people who had been injured as well.  She could not explain how the other commuters who were subjected to the same pushing and were closer to the door did not fall off.  

Evidence for defendant

[12]	Bongani Mbuyazi, who testified on behalf of the defendants, informed the court that on 12 February 2008 he was employed by Afri-Guard, a security company contracted to Metrorail, and was posted at Tembisa Railway Station.  His duties were mainly to ensure the safety of passengers boarding the trains by patrolling the platform and the staircase leading to the platform because commuters have the tendency of running down the stairs when they see the train approaching.

[13]	He testified that he observed the incident.  His evidence in this regard is that, shortly before 07H00, he was standing next to the stairs observing commuters who were descending down the stairs coming to the platform.  According to him the reason for such observation is to discourage commuters from running down the stairs as they normally collide with each other whilst running and get hurt in the process.

[14]	Mr Mbuyazi further testified that whilst observing the stairs he noticed a number of people running down the stairs and he reprimanded them.  Amongst these people was a certain male person who was running in front of the group that was descending the stairs and reprimanded him to stop running but ignored him.  This male person got down onto the platform and collided with the plaintiff.  As a result of the collision, plaintiff fell on the platform, got up and stood on her legs and enquired from the male person as to why did he knocked her down and at that stage the train had already entered the platform and it was stationary when the incident took place.   	

[15]	According to Mr Mbuyazi, plaintiff sustained a small cut on her lips and an abrasion on her right elbow.  He then took her to their guardroom and summoned an ambulance for her.  During cross examination he was asked what he did to prevent people from running and responded by saying that he reprimanded them.  It was further put to him during cross examination that the plaintiff was inside the train, he hotly disputed this proposition and stated that the plaintiff was injured “right in front of me”.  He further denied that the plaintiff was pushed out of the moving train and responded by saying that when the train was moving he was talking to her on the platform.

[16]	This is the conspectus of the evidence which I must evaluate.  On the central issue whether or not the plaintiff was indeed inside the train when she sustained the injuries alleged in her particulars of claim, there are irreconcilable differences.  A tendency generally by courts in resolving factual disputes of this nature is to be found in the case of Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and others 2003 (1) SA 11(SCA) where Nienaber JA held that :
 	
“On the central issue, as to what the parties actually decided, there are two irreconcilable versions.  So, too on a number of peripheral areas of dispute which may have a bearing on the probabilities.  The technique generally employed by the courts in resolving factual disputes of this nature may conveniently be summarised as follows.  To come to a conclusion on disputed issues a court must make findings on (a) the credibility of various factual witnesses; b) their reliability and c) the probabilities.  As to (a), the court will depend on its impression about the veracity of the witness.  That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blantant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (iv) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.  As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii),(iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.  As to (c), this necessitates an analysis and evaluation of the probability or the improbability of each party’s version on each of the disputed issues.  In the light of its assessment of (a),(b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.  The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another.  The more convincing the former, the less convincing the latter.  But when all factors are equipoised probabilities prevail”. 

Submissions

[17]	Mr Manyage who appeared on behalf of the plaintiff submitted correctly in my view that the weakness in the plaintiff’s case revolves around the circumstances which led to her alleged ejectment from the train.  Conscious of the improbabilities in the plaintiff’s evidence conceded correctly in my view that the improbability or unreliability in the plaintiff’s case emerged when she attempted to explain how, when she was surrounded by a lot of people and with others at the door, she was the only one pushed out of the train and sustained the injuries.  This is clearly so because according to her evidence she was in the middle of the coach where there was a commotion among the commuters who were embarking and disembarking from the train.

[18]	Ms Makopo for the Defendant briefly submitted that the weakness in the plaintiff’s case identified by her counsel demonstrates how improbable her version is and urged upon me to reject it and accept as correct the version of the security guard regarding the circumstances surrounding the incident.     
[19]	The test by which to determine delictual liability is trite.  It involves, depending upon the particular circumstances of each case, the questions whether (a) a reasonable person in the defendant’s position would foresee the reasonable possibility of his or her conduct causing harm resulting in patrimonial loss to another; (b) would take reasonable steps to avert the risk of such harm; and (c) the defendant failed to take such steps.  But not every act or omission which causes harm is actionable.  For liability for patrimonial loss to arise, the negligent act or omission must have been wrongful.  And it is the reasonableness or otherwise of imposing liability for such a negligent act or omission that determines whether it is to be regarded as wrongful.  The onus to prove negligence rests on the plaintiff and it requires more than merely proving that harm to others was reasonably foreseeable and that a reasonable person would probably have taken measures to avert the risk of such harm.
	See: Kruger v Coetzee 1966 (2) SA 429 AD 

[21]	The onus to prove negligence reposed on the plaintiff and objectively requires more than merely proving that the risk of harm to her was reasonably foreseeable and that a reasonable person would have taken measures to prevent the risk of such harm.  The plaintiff must adduce cogent credible evidence regarding the reasonable measures which could have been taken by the defendant to prevent or minimise the risk of such harm.  In South African Rail Commuters Corporation Limited v Thwala 2011 JDR 1242 SCA 170 it was held that:
      
	“ The nature of the Respondent’s onus was such to oblige her to adduce evidence that give rise to an inference of negligence.  Only then would the Appellant (The Plaintiff) have had to rebut that inference by adducing evidence relating to the measures it took to avert harm”. 

[22]	Applying the principles enunciated in the Stellenbosch Farmers winery Group Limited, case supra, I am satisfied that Mr Mbuyazi gave evidence in a clear, coherent and reliable manner.  His demeanour in the witness box demonstrated  to me that he was not biased towards the plaintiff.  He made concessions without any difficulty.  On the other hand the plaintiff’s evidence is fraught with improbabilities.  It is unconscionable that being surrounded by many people who were busy pushing, shoving and jostling each other, in an effort to embark and disembark the train, the plaintiff would during that melee or commotion miraculously or inexplicably be ejected from the train notwithstanding that there were people closer to the door who were subjected to the same commotion as her.  It is surprising why nothing happened to them.  This clearly shows that the description of her alleged fall is not only improbable but irreconcilable with facts and illogical. On the contrary Mr Mbuyazi’s evidence that plaintiff was still on the platform waiting for the train when she was bumped by one unknown male is credible and reliable.  Mr Mbuyazi was standing next to the stairs when he first observed the male person descending the stairs onto the platform.  He reprimanded him but he was ignored.  He also observed when this unknown male person collided with the plaintiff because at that time he was closer to incident and assisted the plaintiff thereafter.  I have no doubt that his evidence was not only reliable but credible.  He is an eyewitness who had a full view of the incident. I am fortified in my view that the Plaintiff was injured as a result of the circumstances described by Maya JA in South African Rail Commuters Corporation Limited v Thwala, supra  where the learned judge said the following: 

“I may just add that I accept that it is common human behaviour for railway commuters, particularly during morning peak periods when most are in a hurry to get to work, to rush to the doors of a coach, when it nears their destination, so as to disembark quickly.  This, in fact, is supported by the respondent’s evidence that if the train is about to stop or to arrive at the station, people push each other… because they want to get off the train”. 

[23]	In my view the incident upon which the plaintiff’s claim is based occurred not in the manner pleaded and testified by the Plaintiff but in the manner narrated by Mbuyazi and pleaded by the Defendant.  There is simply no basis to draw the conclusion that the defendant was negligent.  In my view to impose a duty of care on the defendant in such circumstances would be casting the duty wide and impractical.

[24]	In the premises I do not believe that the plaintiff has discharged the onus, consequently the plaintiff’s action is dismissed with costs.

___________________________
R MATHOPO J
Judge of the South Gauteng 
High Court, Johannesburg

Appearances:
For the Appellant	:	Adv T.K. Manyage
instructed by		:	Denga Incorporated
For the Respondent 	:	Adv N. Makopo 
instructed by		:	Majavu Incorporated	
Date of hearing	:	12 MARCH 2012
Date of Judgment	:	16 MARCH 2012