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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)      REPORTABLE: NO/YES

(2)      OF INTEREST TO OTHER JUDGES: NO/YES

(3)      REVISED: NO

CASE NUMBER:     44541/17

 

In the matter between:

 

Duiker Klaas Meletse                                                                                            Plaintiff

 

And

 
PRASA                                                                                                                    Defendant

 

JUDGMENT

Senyatsi AJ

[1]       This is a damages claim by the Plaintiff, Mr Klaas Meletse Duiker, against the Defendant, Passenger Rail Agency of South Africa Limited ("PRASA") based on injuries sustained when the Plaintiff was allegedly pushed from a moving train by the other commuters.

[2]       PRASA defended the claim and the ground thereof is that the Plaintiff allegedly tried to board the train whilst it was in motion.

[3]       The common facts are that the Plaintiff was injured on the 15 September 2017 at Croesus Station when the train was leaving to Naledi Station.

[4]       The parties agreed to separate the merits and the quantum of damages. This court was required to make a determination on the liability of PRASA based on the merits of the claim.

 

Plaintiff's Evidence

[5]       There was only one witness for the Plaintiff, Mr Klaas Meletse Duiker, the Plaintiff himself.

[6]       He testified that he was on duty and knocked off at about 12h00 as it was Friday. He works for a Vita Foam manufacturing company.

[7]       On the day of the incident, he went to the train station at about 18h00. The Plaintiff had been a train commuter for 14 years. When he boarded the train, the train was full although not overflowing with commuters.

[8]       After boarding the train, he stood in the middle of the coach away from the door. As the train started moving, other commuters started pushing him. As the coach doors were not closed, he fell down between the train and the platform and could not remember what happened thereafter because when he regained consciousness, he found himself in hospital.

[9]       He testified that he boarded the train at platform1 and could not remember the train number.

[10]     Under cross-examination, he was not able to tell this court when asked by the Defendant's counsel what he did between 12:00 and after 18:00 when he boarded the train at Croesus train station. When asked about the basic of train safety and processes, he was also unable to shed any light as he claimed that he had no knowledge of any train processes and safety procedure.

[11]     In his testimony, the Plaintiff claims that the coach in which he was overcrowded with the door wide open throughout the journey.

[12]      After falling from the moving train, the Plaintiff sustained severe bodily injuries as follows:

12.1      right knee injury;

12.2      right arm injury;

12.3      right jaw twisted;

12.4      loss of one lower tooth;

12.5      anal injury - colostoctomy done glutes disruption of sphincters; and

12.6      other bodily injuries.

 

Defendant's Evidence

[13]      The Defendant called a single witness to also testify on its behalf. Mr Mkhatshwa told this court that he is employed by the Defendant as a train guard. On the day of the incident he started his shift in the afternoon.

[14]      He inspected the train he was going to use to ensure that all doors and locks were functional. In terms of the safety procedures, if the door malfunctions, he would lock it and place a sticker on it showing that it is out of order. He would then ask for authority to allow the coach with the malfunctioning door to be used. The control centre of the Defendant would then provide him the permission.

[15]       On the day of the incident all doors were functional. When the train entered Croesus station platform 2, he was at the last coach in the train guard cabin. He opened the window and stuck his head out to check the passengers on the platform. After the train came to halt, he opened the doors to allow commuters to disembark and embark.

[16]       After the commuters had disembarked and embarked, he blew his whistle which he carries with him, three times to warn that the train's doors will be closed and the train would be departing. He then signalled the train driver to proceed with the journey. As the train started moving with his head still stuck out of the window, he saw a man running and trying to board the train. The man tripped and fell between the platform and the rail track.

[17]       Mr Mkhatshwa then ordered the train driver to stop immediately as there was an emergency. The train was already out of the platform and after it came to halt, both himself and the driver went to check the injured man.

[18]       Mr Mkhatshwa contacted PRASA's operation centre and informed them about the accident. Both him and the train driver were instructed to proceed with their trip while emergency medical services personnel was sent to the scene of the accident.

[19]       Under cross-examination, Mr Mkhatshwa conceded that even when doors are locked, they do get forced open by commuter sometimes. He denied that the train was overcrowded on the day and that any of the doors malfunctioned.

[20]       Mr Mkhatshwa explained in detail the process he undertook at the train yard that afternoon to ensure that the train was in good and safe condition to convey commuters. One of the steps he takes when any door is not in good order is to lock that door and seal it with a tape inscribed "out of order" meaning the door is not working.

[21]       The two witnesses that testified gave mutually exclusive versions on what transpired on the day of the accident.

[22]       The plaintiff's version is that he was pushed out of a moving train due to opened coach doors. The Defendant's version is that the plaintiff fell while he attempted to board a moving train.

[23]       I am faced with a difficulty of which version I should accept. The law dealing with such difficulty is set out below.

 

The Legal Principles

[23]      The onus of proof rests upon the Plaintiff who must show this court through credible evidence that his version is more probable that that of the Defendant. [See AA Onderlinge Assuransie Assosiasie Bpk v De Beer 1982 (2) SA 603 (A)].

[24]      Where the factual version by both parties is mutually destructive, and in the absence of probabilities one way or the other the onus will only be discharged if the court is satisfied that the version of the party upon whom the onus rests is true and the other false. [See African Eagle Life Assurance Co Ltd v Gainer 1980 (2) SA 234 (W) at 237G-H; National Employers Mutual General Insurance Association v Garey 1931 AD 187].

[25]      In Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at 14J-15E, it was held:

"[5]         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 courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on

(a)             the credibility of the various factual witnesses;

(b)             their reliability; and

(c)             the probabilities.

As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in tum will depend on a variety of subsidiary factors, not necessarily in order of importance, such as

(i)           the witness's candour and demeanour in the witness-box,

(ii)          his bias, latent and blatant,

(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,

(vi)         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's 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 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 compels it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail."

 

[26]      Section 15(1) of the South African Transport Services Act 9 of 1989 provides:

"Subject to the provisions of this section, the Company shall provide, at the request of the corporation or a transport authority, a service that is in the public interest."

 

[27]     It was submitted, correctly so by Mr Ramaili, that the Defendant was under a legal duty to ensure the safety of commuters on its trains. This is a trite law principle that is, without doubt, known. I will add that he who alleges that the Defendant failed to discharge this duty, must bring credible evidence before this court point to the neglect of such duty.

 

Reasons for the judgment

[27]      The Plaintiff's testimony was not satisfactory to me. He was evasive under cross-examination. He was not persuasive and his candour and demeanour left much to be desired.

[28]      He was less candid for instance when asked what he did between 12:00 and 18:00 after leaving his work. He simply stated that he was busy with his "business" and would not elaborate even when pressed what "business" it was except to mention banking. It is highly unlikely that he did banking the entire afternoon.

[29]      The Plaintiff would not offer this court any help on what he understood about the basic safety procedures of being a passenger of the commuter train. He truly gave an impression that he was less interested in assisting this court. I find his evidence unreliable and less credible as he claimed that he had been a train commuter for fourteen years.

[30]      Mr Khatshwa, on behalf of the Defendant, was forthright candid and took extra trouble to explain the processes and procedures as a train guard in great details.

[31]       Mr Mkhatshwa was truthful and willing to conceed even those facts that could potentially work against the Defendant's case. By way of example when asked by Mr Ramaili on behalf of the Plaintiff whether it was possible for train doors to remain open when he closed all doors when the train was in motion, he conceded that it was possible especially with an overflowing train with commuters. His evidence was more probable.

[32]       Mr Mkhatshwa assisted this court with full details on what he did on the day of the accident. The processes and procedures he followed to assess and ensure that all doors in the train coaches were functional and the process he follows when any of the doors was disfunctional.

[33]       I therefore find his evidence to be credible and reliable and have no reason to reject his evidence as unreliable.

[34]       Consequently, the claim by the Plaintiff must fail.

 

ORDER

[35]      The following order is made

(a)                The claim is dismissed with costs.

 

 

 

M.L. SENYATSI

ACTING JUDGE OF THE HIGH COURT OF

SOUTH AFRICA GAUTENG DIVISION, PRETORIA

 

 

 

 

APPEARANCES

For The Plaintiff:                  Adv M Ramaili

Instructed By:                      B Mzamo Incorporated

For The Defendant:             Adv Mkhatshwa

Instructed By:                     Norton Rose Fulbright South Africa Inc

Date of Hearing:                 1 July 2019

Date of Judgment:              9 September 2019

 

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