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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG  DIVISION,  PRETORIA	
	CASE NO:  54226 / 2014
DATE: 10 MAY 2016

In the matter between:

SABELO SIZWE SIBUSISO NGOQI	Plaintiff

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA	Defendant

JUDGMENT

MAKHUBELE  AJ INTRODUCTION
[ 1]	The Plaintiff, a 26 year old male fell from a stationery train onto or near   the   tracks   of   oncoming   trains   at   Mabopane	Station,    Pretoria,

Gauteng Province. He was subsequently hit by an oncoming train and sustained injuries described in the particulars of claim  as  "Fracture  of femur and Fracture of right knee". He instituted a claim for  damages against the Passenger Rail Agency of South Africa ("PRASA") alleging that the incident was caused  solely by negligence  on the part of its employees.
[2] The trial proceeded on the issue of liability only after I granted an order of separation of issues in terms of Rule 33(4) of the Rules of this Court.
[3] The negligence of the Defendant is based on the following alleged omissions;
[3. 1]  Failing to prevent the incident by  exercising reasonable care and  attention.
[3.2]	being inconsiderate to plaintiff and other commuters;

[3.3]  Failing to ensure that all doors of the train are closed before departure;  and
[3.4]  Allowing  the  train  to  depart  when  it  was  dangerous  and inconveniet to the commuters.
[4]  The Plaintiff described the circumstances under which he fell from the train in paragraph 5 of his Amended Particulars  of  Claim  which reads in part as follows;

" The palintiff  was standing in front  of an open door in one of the cartrid ges (  sic) ,  holding onto a steel  bar. When the train stopped , passengers  and/ or commuters from  the other cartridge (sic J   forced their  way   into  the plaintiff's	cartridge  because  the door I	their cartridge was not functioning.  They forced  and/ or maneuvered  their way  into the plaintiff's  cartridge in such a manner that the Plaintiff was  over-powered  and  pushed		and fell  unto the opposite  railway lane, resulting in an oncoming train d departing the station hitting him on his lower body"

[4. 1] The Defendant's Counsel made a point  during  cross examination that his oral evidence in this regard differs  materially with what he has pleaded  in  this paragraph.  I  agree with  counsel for the plaintiff that on a proper reading of this paragraph, the plaintiff is not admitting that the doors in  his  carriage  were functional. I do not think that his evidence was different from what is pleaded  in this paragraph.

[5] In its Amended Plea , the Defendant blamed the Plaintiff for the incident. The Defendant alleged that the incident occurred because he failed to keep a proper lookout, failed to heed warnings inside the train and on stations and positioning himself in a dangerous position and "elected  to disembark  the  train on the track  side  and  not on the

 platform and attempted to cross the adjacent track in front of an oncoming train, which resulted in the Plaintiff being injured" (highlighted for emphasis).

[5. 1] Though the other defences were not formally abandoned , the Defendant's case on trial was built around the highlighted parts and the alternative pleas arising from it.

[6] In the alternative, one applicable if the other one fail, the Defendant pleaded that;

[6. 1] there was no  causal  connection  between  the  negligence  of the employees of the Defendant and the injuries and damages suffered by the Plaintiff;

[6.2]   The  actions  of  the  Plaintiff  indicated  in  paragraph  6.2.1 to

6.2.4 were negligennt and that such negligence is Contributory negligence as contemplated in the Approtionment of Damages Act, Act 34 of 1956;

[6.3] Plaintiff knew that it was dangerous to disembark the train on the track side and he acted with dolus, which excludes any negligence on the part of the Defendant; and
[6.4] By disembarking on the track side and  not  on  the  platform side, with full knowledge and appreciation of the risks, the Plaintiff consented to be subjected to the risk of injury .

COMMON CAUSE ISSUES

[7] On the totality of the evidence pleaded and  concessions made by the witnesses during cross examination, the following issues are common cause .

[7.1] The Plaintiff, is a regular commuter who at the time of the incident, had a valid monthly ticket that he used to board the Defendant's trains between his home town, Soshanguve and  his place of work at Groenkloof, Pretoria.
[7.2 On 30 April 2014, the Plaintiff arrived at Pretoria ( Bosman ) Station at about 17:00. According  to the train schedule, his usual train , Number 96,  was  scheduled  to  arrive just  before  18:00. It did not arrive as scheduled.

[7.3] He then took a train to Attridgeville and ended up at Hercules where he took another one to Marabastad. There he boarded a train to Mabopane. This train was full, but it loaded more commuters along its route until Kopanong station where the first batch of commu ters started to disembark.

[7.4] When he boarded the train, he used the doors on its right hand side, where the platform was. Each coach  or carriage  has four doors, two on each side.

The subsequent passengers before Akasia station also boarded the train on its right handside. The train changed tracks at Kopanong, with the result that the platform now was on the left hand side of the train.

[7.5] The right handside of the train, from which Plaintiff boarded the train had no Platform. It was now parralel to the tracks by the time the train arrived at Mabopane Station.

[7.6] Mabopane Station is the last for the route and it has what is referred to as a "LOOP/  BALOON" where trains make a U-Turn after offloading commuters and travel back to Pretoria. The train that hit the Plaintiff had just made such a U-turn, whilst the one he was travelling in was still off-loading commuters.

[7.7] The train that he was travelling in was offloading commuters at Platform 6.
The distance between Platform 6 and  Platform  7  where  Plaintiff tried to climb onto before he was hit by the other train is about 1,5 to 2 metres.
[7.8] The height of a platform is about 1,2 metres. The train doors are on the same level with the platform ground.

[7.9J Loose small stones, with a mixture of concrete and more or less the size of an ice cube cover the ground between the two platforms.
[7.1OJ The Plaintiff fell on his back next to the tracks of the train that was travelling in the opposite direction to the one he fell from. He did not stand u p, but crawled towards  Platform 7, touched the platform and lifted his body up. His upper body was already on top of the Platform 7 when the train hit his legs.

[7. 1l J Platform 7 is  not a beeline or "shortcut" out of Mabopane Station.

ISSUES THAT ARE IN DISPUTE

[8J	Whether  there was any negligence  on the  part of the  Defendant,  if so;

[9J	Whether the Plaintiff  contributed to the negligence.

ORAL  EVIDENCE

[ 1OJ	In  view  of  the  common	cause  facts   ,  I   will   only  proceed	to summarize  the evidence in as far as the  disputed  issues are concerned.

Plaintiff's  case

[ 11] Ngoqi testified that the doors in the compartment that he was m were and remained opened throughout the journey.

During cross examination, the Defendant's counsel put to him that evidence would be led to prove that the doors were not open. However, no such evidence was led by the time the hearing was concluded.

Ngoqi was also asked to confirm if he was aware that it is possible for the doors to be forced open by passengers. He confirmed that he knew that this was  possible.

[ 12] He testified further that after  the  platforms  were  changed ,  the doors through which passengers had to alight  from  the  train  did  not open , with the result that the passengers moved to other carriages to disembark.

Initially he disagreed with a suggestion from counsel for the defendant that his carriage became emptier as passengers moved to other carriages to disembark. He indicated that passengers usually give each other a chance to dismbark by going out and then coming back in. He conceded that it did become emptier as more passengers alighted along the route.
[ 13] He testified further that at Mabopane station he was pushed by the people who wanted to go to the carriage behind the one he was in to disembark from the train.

[ 14] He confirmed that one other person who was pushed also fell, but he does not know what happened to him. Counsel for the defendant put it to him that there is an eyewitness that saw him and this other person jump from the train. This other person got onto platform 7 before the train came. He demied having seen what became of this person.

He denied having jumped . He knows the risks ,  and  furthermore,  he knows Mabopane station very well. The lights are not functional at night and it is difficult to see the train when it comes back from the loop. He would not have taken the risk of jumping. He always buy a monthly train ticket and would not board  a train without a ticket.

[ 15] He denied that he wanted to go to platform 7 as alleged by the Defendant's witness and that this is the reason why he jumped.
[ 16] He fell on his back, rolled over. He was on his knees, he crawled and used  his hands to touch  the platform.
[ 17] It was suggested to him that he should have remained between the two platforms because there is enough space for a person to do so whilst two trains pass . He testified that he did not consider  that  as a  safe option. His thinking was that because his body has already landed on the tracks, he thought that the safer route would be to climb onto the nearest platform.

It was also suggested that it would have been safer for him to go back to the train that he fell from. His response was that it would have been difficult to climb on the train as there was no platform. The doors are high.

[ 18] On why he did not sustain injuries on his back, the plaintiff explained  that the concrete on the tracks is not  slab, bu t loose stones.

Defendant's case

[ 19] The first witness was Mr. Mathys Croukamp.  He testified  that he was employed by PRASA as a train driver at the relevant time. He arrived at Mabopane station at about 07:30 in the evening. He made a u-turn  at the loop after all passengers  had  disembarked.  He was  heading  back  to the depot, at Wolmerton.
[20] Before he made the u-turn, he had stopped at platform 6 where his passengers disembarked. After he left, another train came and stopped at platform 6. As he made the u-turn , he saw a male person jump out of the train and he was foollowed by another one. He blew a hooter and applied emergency brakes. They kep on moving to get onto platform 7. One of them made it, but one was hit by his train . His upper body was on the platform and he was struggling to lift his feet.

[21] Trains take long to stop  because  the  entire  carnage  fleet  must come to a stand still. He  stopped  about  90-100  metres  away  after applying emergency brakes. He called Train Emergency control from inside his train with  his  cellphone  and  requested  medical  assistance  for the person that had been struck by his train. He climbed out and walked back. He found this person lying on the platform on the yellow line. He was lying on his stomach with armed crossed . He kept on saying that he could not feel his legs. He told him that help was coming. A lady security guard came running from the back of platform 7. He told her what had happened. He had 33 years service experience as a  train  driver  at  the time. He no longer works for PRASA. He has seen people  take  chances like the plaintiff did before.

[22] He denied that the people who jumped from the train fell down. According to him they were moving towards platform 7.
[23] The lighting at the station was good. His train headlight was also on , but not bright because he was passing another train.
He confirmed that he drafted the sketch plan that depicts the layout of the Mabopane station.

[24] He confirmed that it  is possible to force open train  doors from inside. The train guard at the back of the train controls the doors by pushing a button to open and close them. The doors u se air pressure.  If a door malfu nctions, it could be a mechanical problem, but one can still

open them by applying force. Usually commuters notify the guard that the door has malfunctioned. The guard would then put a sign to warn passengers not to u se it.
[25]    Cross examination elicited the following responses;

[26] He saw the people jump as he was parallel to the third or fourth coach of the other train .. He was about 40 meters away from them. He was travelling at about 40 kilometers per hour.
[27] He denied that there was anything that obstructed his view and prevented him from clearly seeing the two male persons jump from the other train and walk towards platform 7. His train has a big screen.
[28] He cannot dispute the Plaintiff s evidence that  there  was commotion in the train he was traveling in because he was not there.

[29] He demonstrated how people jump out of  trains  .  This  entails putting hands on the platform. He saw the plaintiff jump. He denied a suggestion that it is possible that when he first saw the plaintiff , he had already risen up after falling. He reiterated that he was the first person to arrive where the plaintiff was lying .

[30] The second witness was Margaret Dimakatso Chauke. She testified that she was employed as a security guard by a private company

called Enlightened Security and on the day in question she was posted at Mabopane Station.
[31] She did not see how the plaintiff was hit by the train because she was at platform 6 checking the passengers that were disembarking from a train. The incident occurred at platform 7. She went  there after the incident and found him in a lying position. She was alerted to the incident by siren honking. She met with t train driver and he was talking on the phone. He told her what had happened.

[32]   The train doors had no problem.

[33] She spoke to the plaintiff who told her that he was hit by a train after he jumped the tracks and that the reason he jumped was because he wanted to take a shortcut as the other side was full with people.

[33] She was checking passengers who were alighting from a train at platform 6. She confirmed that she asked the plaintiff if he had a train ticket. She established that he had.
[34] She was cross examined by counsel for the plaintiff and  the following responses were elicited;

[35] She recorded the incident  m her pocket boook, but it has since been collected by her employer as it was full.

[36] She confirmed  that she made a statement about the incident . In the statement she did not indicate why plaintiff chose to jump.  She did

not read the statement back to the plaintiff. She denied  that  what  she wrote is not what he told her.

[37]   Platform 7 is not a shortcut or shortest way out of the station.

[38] It is an offence to to disembark from a train through a wrong door. She made a statement about this and if  plaintiff  was  not  injured ,  he would have been arrested.

[39]   The defendant closed its case.

ANALYSIS OF EVIDENCE

[40] The defendant did not lead any evidence with regard to the ,issue of whether the  doors were  open  or not. The security guard  that was  called to testify , Ms Chauke, is not employed by PRASA. She testified that the doors were functioning. Having heard the evidence of Croucamp that the train guard is the one who controls the  train  doors,  I  do not  think  that one can attach any probative value to the evidence of Ms Chauke.  Her duties, according to her is to check that passengers do not  cross  the railway line, answer  their questions,  and check tickets.

[41] A train guard, or any other person who knows something about functioning of train doors on the other hand would have  told  the court about the actual state of affairs with regard  to  the  functioning  of  the doors  of  the  specific  train  on  the  day  in     question.  Ms  Chauke,  in

response to a question to clarify why she stated that the train doors were functioning, indicated that when a train leaves the station, she watches it and see that the doors are closed.

She did not observe the doors of this particular train. Furthermore, it is not her job. She could not explain how it is possible for her, even ; f it was her job, to see that all doors are closed when she remain standing on the platform whilst  the train  saunters away.

[42] I do not understand why she was called to testify. Having heard her testimony and considered the statement she made, it would appear that she is the one that came with the version that the plaintiff jumped from the train. She destroyed that defence herself by conceding that platform 7 was not a shortcut or the shortest way out of the station.

[43] Croucamp on the other hand appeared to me to be an over­ enthuastic witness. He has seen it all, and to him train commute s often jump off trains. It may be so, but the question is, did plaintiff jump off the train on the day in question?. He did not see what was happening in the train.

[44] This defence of contributory negligence or self-assumption of risk appear to have been premised on the evidence of Ms Chauke as I have indicated above. Now, the plaintiff had a monthly train ticket, and there is no apparennt reason why he would have wanted to go to platform 7

becasuse , as Ms Chauke conceded , it was not a shortcut  out  of  the station.

[45] On the other hand, I find the version of the Plaintiff to  be  more probable.  He was  consistent  and  in my view  truthful.

LEGAL  PRINCIPLES

[46] I agree  with  counsel  for  the  both  parties  that  the  " ers10ns presented before me as to how the plaintiff found himself on the tracks of an oncoming train  are  totally  irreconcilable  and  thus  mutually destructive.  Under  the  circumstances,  two issues arise for consideration:

[46.1]

probable.

which	of  the  two  irreconcilable  versions  is	most

[46.2]	whether the defendant has any duty of care towards the plaintiff as a train commuter as alleged in the Particulars of his Claim, and if so, whether it has discharged it.

[47]  With regard to the first issue, the approach is stated in the matter of Ste llenbosch Farmers Winery Group & Another v Martell & Others . The court summarized the technique generally employed to resolve factual disputes in order to come to a conclusion. The court is

required to make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.

[48] On the question of onus, the Supreme  Court  of  Appeal,  per Mhlanta JA had this to say in the matter of the City of Johannesburg metropolitan Council v Patric Ngobeni  had this to say:
"[50] It is trite that a part y who asserts has a duty to discharge the onus of proof In African Eagle Life Assurance Co Ltd v Cainer,11 Coetzee J applied the principle set out in National Employers' General Insurance Association  v Gany  1 931 AD   187 asfollows:
'Where there are two stories mutually d estructive, before  the onus is discharged  the Court  must  be satisfied  that the story of the litigant upon whom the onus rests is true and  the other false. It is not enough to say that  the story  told  by  Clarke is not  satisfactory  in every  respect,  it  must  be clear to the Court of first instance that the version of  the litigant upon whom the onus rests is the true version . . . . '
[51] The approach to be adopted when dealing with the question of onus and the probabilities was outlined by Eksteen JP in National Employers' General v Jagers, 12 as follows:
'It seems to me, with respect, that in any civil case, m: in any

criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the part y on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal  case, but  nevertheless  where the onus rests on the plaintiff as  in the present  ca:;e,  and where there are two mutually destructive stories, he can only succeed if he satisfied the Court on a preponderance of probabilities that his version is true  and  accurate  and therefore acceptable, and  that the other version advanced by the defend ant is therefore false or mistaken and fall s to be rejected . In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff s allegations against the general probabilities. The estimate of the credibility of a witness will  therefore  be  inextricably  bound  up  with  a consideration of the probabilities of the case and , if the balance  of probabilities  favours   the plaintif f,  then the Court
will accept his version as being probably true. If however the

probabilities are evenly balanced in the sense that they do not favour the  plaintiff s  case  any  more  than  they  do  the defend ant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.'
[52] In the present  case the plaintiff,  during the trial, abandoned his

main ground and pursued his claim on the basis that Ledwaba negligently discharged the firearm. It follows that the plaintiff  bore the onus of proof and had to prove that Ledwaba  had  been negligent. Accordingly, the defend ant no longer had a duty to prove the defence of justification as it could not raise such a defence against a claim of negligence. In the result, the plaintiff had to prove the element of negligence on Ledwaba's part in order to succeed . Regarding the question of onus, Spilg J remarked:
'I am satisfied that after subjecting the evidence in  this manner the truth is readily discernible. Moreover  I  am satisfied that irrespective of who was  required  to discharge the onus, the result will be the same.'
[53] I d o not agree with the trial judge when regard  is had  to the facts.  It is difficult  to comprehend  how  the judge could  make  this statement  unless  he  had  pre-judged   the  issues.  He  adopted   an approach  that is flawed	and  which cannot  be applied  when faced with two mutually destructive versions. It was imperative for  Spilg J to have been alive to the issue relating  to the onus and  to make a determination in that regard . Had  the trial judge ad opted a proper approach and  applied  the principles  set out in the Jagers  case, the result would  have been different. I will hereafter show how the trial judge erred in his approach."

[49]	I  have  no  doubt  in  my  mind,  as I  have  already  stated  above,  that the version  of the plaintiff  is more probable.

[50] The enquiry 1s not complete though because even if 11e  was pushed, the next question 1s whether this and the resultant harm was foreseeable, and if so, whether there is anything  that  the  Defendant could have done to prevent   the harm, which should also be foreseable.

[5 1]	The  defendant  concentrated  on  proving  that  the  Plaintiff jumped and forgot to place facts before me with regard to the issue of negligence.
[52]	I t is the defendant that should have led evidence with regard to measures that it took to ensure that train passengers are safe.

The test for negligence is as formulated in the matter of Kruger v   Coetzee

. Jolmes JA formulated it as follows in paragraph 430E

"For the purposes  of liability culpa arises if -
(a)	a diligens paterfamilias in the position of the defendant - {i)	would foresee  the reasonable possibilit y 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 defend ant failed  to take such steps.

[53] It is a basic fundamental requirement for the safe operation of a passenger train that it should not depart with  a door open. The defendant should in my view have placed evidence before me with regard to standard operating procedures and how they were complied wit h on the day in question.

In the matter of Transnet Ltd t/ a Metrorail  and  Another  v  Witter 2008 (6) SA 549 (SCA), this was indicated as evidence that would satisfy the first two requirements in paragraph (a) of the test for liability as formulated by Holmes JA in the matter of Kruger v Coetzee.
[54] The defendant bore the  onus  to  place  such  evidence  as  I  have already stated  above. In the  absence of  such evidence,  I am bound  to find in favour of the plaintiff that the fact that he would be pushed off the train  and  that  he  would  suffer  injuries  as a result  thereof  was  foreseable.
Furthermore, the defendant failed to take steps to prevent it.

[55] The duty to care, and to protect commuters was denied by the Defendant in its plea, but suprising enough no evidence was tendered in this regard.

CONCLUSION AND ORDER

[55]    Under the circumstances, I make the following order;

[55.1] The defendant is liable to compensate the plaintiff  to the full extent of his proven damages  and costs of the trial on merits ;
[55.2] The determination of the quantum of the claim is postponed sine die.

.

TAN MAKHUIBELE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

PLAINTIFF  :	ADVOCATE NR RALIKHUVH ANA INSTRUCTED BY:	MIKE MABUNDA INCORPORATED
ARCADIA, PRETORIA

DEFENDANT	JG CILLIERS SC

INSTRUCTED  BY	STONE  ATTORNEYS MONUMENT  PARK,  PRETORIA