THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 585/2013

In the matter between:

GLEN MORARE
APPELLANT

and

SA RAIL COMMUTER CORPORATION LIMITED
RESPONDENT

Neutral citation:
Morare v SA Rail Commuter Corporation Limited
(585/2013) [2014] ZASCA 7 (13 March 2014)

Coram:
Navsa, Theron and Wallis JJA and Swain and Mathopo
AJJA

Heard:
28 February 2014

Delivered:
13 March 2014

Summary:
Delict – appellant claiming he was pushed through an
open door of a train and suffered injuries – appellant failed to prove he was on a
train operated by respondent – appeal dismissed.

ORDER

On appeal from the full court of the South Gauteng High Court, Johannesburg,
sitting as the court of appeal (Kathree-Setiloane J with Saldulker J concurring,
Makgoka J dissenting):

1 The appeal is dismissed with no order as to costs.

JUDGMENT
_______________________________________________________________
Swain AJA (Navsa, Theron and Wallis JJA and Mathopo AJA concurring):
[1] The appellant, Mr Glen Morare, claimed payment of damages in the
sum of R1 900 000 from the respondent, SA Rail Commuter Corporation
Limited (SA Rail), in the South Gauteng High Court (Randera AJ). Mr Morare
alleged that whilst being conveyed on a train operated by SA Rail he was
attacked by unknown persons and pushed through an open door, whilst the
train was in motion. He said that as a consequence he was seriously injured. He
claimed compensation from SA Rail on the basis that SA Rail had negligently
failed to ensure his safety whilst being conveyed on the train and had failed to
take steps to prevent the train travelling whilst the door in question was open,
which had enabled his assailants to eject him from the train.
[2] By consent between the parties the issues of liability and quantum were
separated in terms of rule 33(4) of the Uniform Rules of Court and the court of
first instance was asked to determine only the issue of the liability of SA Rail to
compensate Mr Morare.
[3] That issue was resolved in favour of Mr Morare in the form of an order
declaring that SA Rail was liable to compensate Mr Morare ‘for such damages

as he was able to prove in consequence of being pushed out of the train on 7
November 2008 at or near Doornfontein Station’. The trial court accepted his
evidence that he was travelling on a train from Park Station to Naledi and SA
Rail was liable to compensate him for the injuries he sustained as a result of
being ejected from the train.
[4] An appeal to the South Gauteng full court by SA Rail, was successful,
the order being set aside and replaced with an order dismissing Mr Morare’s
claim with costs. The present appeal is with the leave of this court.
[5] From the outset SA Rail placed in issue the following allegations made
by Mr Morare in his particulars of claim:
‘5.1
On the 07th November 2009 at approximately 20h10 at Park Station, the
Plaintiff boarded the commuter train traveling from Park Station to Naledi
Station.
5.2
Between Doornfontein and Braamfontein, the Plaintiff was attacked and
was pushed and/or became dislodged from the said train at a dangerous and
inopportune moment by persons unknown to the Plaintiff.
5.3
The Plaintiff was pushed through the open door of the moving train.’

The entire factual basis for Mr Morare’s claim depended on his having been on
a train. This was in issue, because although it was uncontested that Mr Morare
had been found alongside the railway tracks at Doornfontein Station which is
east of Park Station, the train to Naledi from Park Station travels west towards
Braamfontein.

[6] Mr Morare had to prove on a balance of probabilities that he had been a
passenger on a train operated by SA Rail. Intrinsically linked to proof of this
issue was proof of Mr Morare’s allegations as to where he had boarded the
train, the time he did so, where the train was headed and where the incident
occurred. His difficulty was that he was found at a place in the opposite
direction from that in which he claimed to have been travelling.

[7] Mr Morare testified that on the day in question he had finished working
as a packer at a Pick & Pay family store at Craighall at 18h00, after working
overtime. He travelled in a taxi from Craighall to Park Station in order to board a
train to travel to his home in Naledi, Soweto. He was familiar with the route and
the train he had to catch, because he had been travelling by train between his
home and work for at least five months prior to the incident.
[8] Having arrived at Park Station he boarded the train at some time
between 19h00 and 20h00, from platforms one and two, as these platforms
were combined in the same area. The train he boarded was travelling to Naledi
via Braamfontein and Mayfair. He agreed that platforms one and two were
known as the Soweto platforms because trains travelling west to Naledi and
Soweto departed from these platforms. The first stop at Braamfontein Station
was only a few hundred metres down the line so that you could, according to Mr
Morare, see the trains at Braamfontein Station from Park Station. He agreed
that Doornfontein Station was in the opposite direction to Braamfontein Station
from Park Station.
[9] When it was put to Mr Morare in cross-examination that SA Rail would
lead evidence that he was found injured at Doornfontein Station and he was
asked how he got there, he replied ‘I ask myself, how did I get to Doornfontein’.
When it was suggested to him that the question was whether he was on a train
at all he replied ‘Yes, I was on the train’. When it was then put to Mr Morare that
he could not have been on the train to Naledi, he replied ‘I was assaulted. I
cannot say we were on the train going towards Doornfontein or towards
Braamfontein’. When pressed for an explanation he said ‘I do not have any’.
[10] Evidence that Mr Morare was found injured alongside the tracks at
Doornfontein Station was given by Ms Elizabeth Khumalo, a segment security
commander employed by SA Rail, who explained that her duties included
receiving reports of any incidents from the joint operation centre of SA Rail and
then attending the scene of the incident to investigate. A guard or train driver
who witnessed an incident would usually report it to the joint operation centre.

[11] Ms Khumalo gave evidence as to what Mr Morare said to her as well as
what she was told at the scene by a security guard named Mr Mshengu
employed by Hlanganani Security, who apparently found Mr Morare injured next
to the track and moved him onto the platform. In turn SA Rail led the evidence
of Mr Patrick Seshonga, a supervisor employed by Hlanganani Security who,
apart from giving direct evidence that Mr Morare was lying injured on the
platform when he came on the scene, also gave evidence as to what Mr Morare
said to him, and what he was told by Mr Mshengu, and another security guard
employed by Hlanganani Security, Mr Kuba. No regard was paid to the
admissibility of any of these statements, or the weight to be attached to them
during the proceedings before the court of first instance. Simply put, one of the
statements made by Mr Morare was a previous consistent statement and the
statements by Mr Mshengu and Mr Kuba were hearsay evidence. Mr
Shepstone, who appeared on behalf of the appellant, sought to find
corroboration for Mr Morare’s evidence that he had been travelling on a train at
the relevant time, in the statements made to Mr Khumalo and Mr Seshonga by
Mr Morare, Mr Mshengu and Mr Kuba. I will assume in favour of Mr Morare that
these statements are admissible and only deal with the weight to be attached to
their content.
[12] Ms Khumalo confirmed that trains from Park Station bound for Naledi,
Soweto departed from platforms one and two. She said that there was a train
known as Jigaleza that ran in the opposite direction from Park Station via
Doornfontein to Naledi and Soweto, during the peak hour in the morning, but
that this train did not operate during the afternoon and evening, which are the
times relevant to the incident. Ms Khumalo said that trains that travelled from
Park Station towards Doornfontein in the evening did not travel to Naledi, but
travelled to Springs, Pretoria and Thembisa. She was emphatic that no trains
travelled to Naledi from Park Station via Doornfontein in the evening. This
evidence was never challenged by Mr Morare. In addition, when cross-
examined she said that if Mr Morare had been travelling on a train to Naledi in
the evening, he would not have been found at Doornfontein Station, but would
rather have been found between Johannesburg and Braamfontein.

[13] I turn to Ms Khumalo’s evidence of what transpired at Doornfontein
Station. She said Mr Mshengu was on the scene when she arrived and she
found Mr Morare lying on the platform. Doornfontein Station was not operational
at the time as it was being renovated for the Soccer World Cup, with the result
that trains did not stop there and commuters did not enter the station. Ms
Khumalo said Mr Mshengu informed her that Mr Morare had been found lying
next to the tracks and had been moved to the platform. Although badly injured,
Mr Morare was able to furnish his personal details such as his name, identity
number, home address and telephone number. She asked Mr Morare whether
he had a ticket to which he replied ‘no’. Mr Morare told her that he had been
robbed and pushed from the train but did not say he had been assaulted.
However, she agreed that it was recorded in the occurrence book of the joint
operations centre at 21h50 that she had reported that ‘at Doornfontein there is a
person who has been hit by a train’. Mr Louw, counsel representing SA Rail,
however, agreed when questioned by the court of first instance that this ‘is a
generic term used for an accident’. This concession is somewhat startling when
regard is had to clause 10 of the railway occurrence report, partially completed
by Ms Khumalo at the scene, which provides for a number of ways in which a
person may be killed or injured by a train.
[14] Be that as it may, Ms Khumalo also agreed that there was a later entry
in the occurrence book that recorded at 00h25 that she had reported ‘that at
Doornfontein Station Glen Morare of 5605 Protea Glen alleged that he jumped
from unknown metro and is 30 years of age contact no. 987-2733 fell between
km points AE12/631 and AE 12/729 as jumped off . . . was not in possession of
valid ticket’. She initially agreed that she had reported that Mr Morare had
jumped from the train and that she had obtained this information from Mr
Morare. She however then added that the word ‘jumped’ was totally wrong.
There is, however, a later entry in the occurrence book at 00h30 to which Ms
Khumalo was not referred, which refers to a report by her ‘that the person . . .
was hit by the train at 20:48’.
[15] Mr Patrick Seshonga gave evidence that he was employed by
Hlanganani Security to ensure that the line between the platform end of

Doornfontein Station and Johannesburg Station was patrolled. He had posted
two guards to patrol that portion of the line. There is considerable confusion
concerning the identity of these two guards. Mr Seshonga mentioned three
names, namely Mr Mshengu, Mr Bonga and Mr Malopa. Counsel then
continued on the basis that Mr Mshengu and Mr Bonga were one and the same
and that Mr Malopa was Mr Kuba. However, it is plain from the documents that
Mr Mshengu and Mr Bonga are different people and Mr Bonga was patrolling
the section between Doornfontein and Johannesburg with Mr Kuba. It seems
likely that Mr Mshengu was patrolling between Doornfontein and Jeppe.
[16] Mr Seshonga had been unable to trace Mr Mshengu and Mr Kuba had
since died. No mention is made of any endeavours to trace Mr Bonga. He
stated he was at Park Station and received a report from the joint operation
centre that a person had been found at Doornfontein Station. He immediately
went there and found Mr Morare lying on platforms two and three in the
company of Mr Mshengu and Mr Kuba. Ms Khumalo had already arrived at the
scene and he questioned Mr Morare after Ms Khumalo had already done so. Mr
Seshonga said he asked Mr Mshengu and Mr Kuba what had happened. Mr
Seshonga’s evidence was as follows ‘they tell me the guy is falling off from the
train’ and ‘they said they saw the train, it was (indistinct). He said they fell off . . .
They said he fell to the train, so the train was in motion . . .’. This evidence was
inconsistent with the statements he obtained from Mr Kuba, Mr Bonga and Mr
Mshengu, none of whom claimed to have seen Mr Morare fall from the train. Mr
Morare told Mr Seshonga that he was travelling to Naledi and was robbed in the
train. He asked Mr Morare for his name, address and his ticket, but Mr Morare
did not have a ticket. Mr Seshonga confirmed that it was only the morning trains
that travelled from Park Station in the direction of Doornfontein to Naledi, which
was never challenged by Mr Morare. By reference to the occurrence report that
he completed at the scene, he confirmed that Mr Morare told him he was
travelling home from work at the time.
[17] SA Rail had placed in issue the allegation made by Mr Morare that at
the time of the accident he was in possession of a valid train ticket. Both Ms
Khumalo and Mr Seshonga independently asked Mr Morare whether he had a

ticket to which he replied ‘no’. That this was his reply is confirmed by the fact
that they both recorded Mr Morare’s answer in the relevant railway occurrence
reports, which they had completed independently and contemporaneously at
the scene of the incident. When this evidence was put to Mr Morare in cross-
examination his reply was ‘they did not search me’. Ms Khumalo and Mr
Seshonga confirmed they did not search Mr Morare, because that was the
function of the police. When Mr Morare was asked whether he remembered
them asking whether he had a ticket he said he did not. However, when regard
is had to the evidence of Ms Khumalo and Mr Seshonga that Mr Morare was
able to furnish them with his name, identity number, home address and
telephone number, there can be no reason to doubt Mr Morare’s ability to
understand the question and furnish a reliable answer. Although maintaining he
did not remember being asked he never disputed that he had given such an
answer. When giving evidence Mr Morare maintained that when he boarded the
train he was in possession of a monthly ticket. Included in the record is a
document which appears to be a metro monthly train ticket valid from Naledi to
Johannesburg for November 2008. However, there is no evidence to prove its
authenticity or any admission by SA Rail in this regard. Indeed it is recorded in
the rule 37 minutes that ‘the truth and correctness’ of any documents were not
admitted and would have to be proved. The court of first instance accordingly
erred when it found that a valid ticket was annexed to the particulars of claim
and was not placed in dispute. I am accordingly satisfied that Mr Morare failed
to prove that he had been in possession of a valid train ticket at the time.
[18] It is quite clear that Mr Morare could not have boarded a train at Park
Station, at that time of the night, to travel home to Naledi via Braamfontein
Station as he says he did. Mr Morare could not have been mistaken about the
train he boarded. The westbound Soweto train to Naledi leaves from platforms
one and two at Park Station. That is the train he had taken on a regular basis to
travel home from work for the previous five months. Trains travelling east leave
from platform nine. I accordingly disagree with the conclusion of the appeal
court that the only reasonable inference is that Mr Morare boarded the wrong
train. No evidence was led to suggest that because of the injuries he had
sustained his mental faculties had been impaired, or that he was unable to

recall what he was doing immediately before the incident. On Mr Morare’s
version of events there is no logical reason why he would be on a train travelling
in the opposite direction to that which he had to board to get home. On this
basis there is no reasonable ground for concluding on a balance of probabilities
that Mr Morare was travelling on a train and that his injuries were caused by
being thrown off that train.
[19] As regards the costs of the appeal Mr Smit, who appeared for SA Rail,
did not persist in a prayer for costs against Mr Morare. He also informed us that
SA Rail was not intent on recovering the costs of the trial or the previous appeal
from Mr Morare.
[20] The following order is accordingly granted:
1 The appeal is dismissed with no order as to costs.

K G B SWAIN

ACTING JUDGE OF APPEAL

Appearances:
For the Appellant:
R Shepstone

Instructed by:
Diale Attorneys, Benoni

Morobane Inc, Bloemfontein

For the Respondent:
M Smit

Instructed by:

Cliffe Dekker Hofmeyr Inc, Sandton

McIntyre & Van Der Post, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

13 March 2014

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Morare v SA Rail Commuter Corporation Limited (585/2013) [2014] ZASCA 7
(13 March 2014)

Media Statement

The SCA dismissed an appeal by Mr Glen Morare in which he had claimed damages
from SA Rail Commuter Corporation Limited alleging that SA Rail had negligently fail
to ensure his safety whilst travelling on a train. He alleged that he had been
assaulted and pushed through an open door of the train by unknown assailants,
resulting in serious injury. SA Rail denied any negligence and placed in issue
whether Mr Morare was travelling on a train at the time. The SCA held that Mr
Morare had failed to prove on a balance of probabilities that he was travelling on a
train.

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