THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  661/2010

In the matter between:

SOUTH AFRICAN RAIL COMMUTER
CORPORATION LIMITED

Appellant
and

ALMMAH PHILISIWE THWALA

Respondent

Neutral citation: South African Rail Commuter Corporation Ltd v Thwala
(661/2010) [2011] ZASCA 170 (29 SEPTEMBER 2011)

Coram:
MTHIYANE, HEHER, MAYA, MAJIEDT AND WALLIS JJA

Heard:
16 August 2011

Delivered: 29 September 2011

Summary: Damages – appellant falling on train station platform and sustaining
bodily injuries when jostled by fellow commuters alighting from a stationary train –
claim based on negligent omission – negligence not proved.

___________________________________________________________________
ORDER

On appeal from: South Gauteng High Court, Johannesburg (Lamont J sitting as
court of first instance):

1 The appeal is upheld with costs.
2 The order of the court below is set aside and the following is substituted:
‘Absolution from the instance is granted, with costs.’

_____________________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (MTHIYANE, HEHER, MAJIEDT, WALLIS JJA concurring):

[1] The respondent, a 54 year-old woman, sued the appellant in the South Gauteng
High Court (per Lamont J) for damages arising out of an incident in which the
respondent was injured at the Village Main Station, Johannesburg on 1 June 2007.
The trial proceeded only on the issue of liability (which the appellant denied), the
parties having obtained a consent order separating the issues of liability and quantum
in terms of rule 33(4) of the Uniform Rules. At the conclusion of the trial, the court
below found that the appellant’s negligence caused the respondent’s injury and that it
was consequently liable for her damages. The appeal is with its leave.

[2] The background facts are simple and largely undisputed. On her way to work
on the fateful morning, the respondent, a regular commuter on the appellant’s train
service since she took employment in the Village in 1990, boarded her usual train,
9705, at Orlando West, Soweto between 05h00 and 06h00. The train was more

crowded than usual because of a civil service strike which brought more passengers.
Her regular coach was full to capacity with seated and standing passengers and she
was compelled to take the adjacent one, also crowded, in which she stood for the
duration of her ride. As the train approached her station, disembarking passengers
pushed their way to the doors sweeping her along with the tide. She was pushed in
that throng and fell on the station platform. She was trampled whilst lying there in a
daze. She sustained soft tissue injuries on the neck and right arm and a further head
injury which caused the momentary loss of consciousness. No one came to her aid in
the rush and when she could compose herself, she rose and sought a station official to
assist her. She found a ticket examiner, Ms Rennet Tshidzumba, to whom she
reported the incident and showed her injuries. Ms Tshidzumba took her to Mr
Johannes Maleka, a Metrorail1 leading protection official and manager who had
visited the station to investigate a case of theft. The latter simultaneously interviewed
and took sworn statements concerning the incident from both the respondent and Ms
Tshidzumba. Thereafter, the respondent was conveyed to hospital to receive medical
care.

[3] The only dispute which arose related to whether the train was in motion or
stationary when the respondent was pushed and fell. In opening addresses at the
beginning of the trial, the parties’ legal representatives informed the court below that
it was not disputed that ‘the [respondent] was pushed from [in]side the train onto the
platform and basically the only issue ... is whether the train was stationary or in
motion’. According to the respondent’s counsel, ‘[the] only other evidence on behalf
of the [respondent would] be that the train was overcrowded and that the doors of the
train remained open from the previous station up to the station where the incident
occurred’.

1  Metrorail is one of the divisions or business units of services Transnet Ltd, a public company with share capital owned
by the State, which include South African Airways, port services and freight rail. It was established in terms of the Legal
Succession to the South African Transport Services Act 9 of 1989 to render commuter rail services.

[4] The respondent’s testimony was that she noticed that the train doors were open
only when it pulled in at Village Main Station (contrary to her counsel’s summation
of her case above that the train doors were open from the previous station) and
jostling passengers, who pushed her causing her fall, started disembarking before the
train came to a complete standstill. She claimed to have told both Ms Tshidzumba
and Mr Maleka that she was pushed from the train whilst it was still moving, albeit
slowly. However these officials, who testified for the appellant, were adamant that
she reported that the train had already stopped when she was pushed to the platform
and fell.

[5] In his evidence, Mr Maleka referred to two documents which he said recorded
the respondent’s report to him. In the statement she gave to Mr Maleka mentioned
above – which he took in her language, Zulu, translated into and wrote in English and
then read back to her for confirmation – the respondent said:
‘On its arrival at Village Main the train stopped and as I was about to disembark the train I was
pushed by commuters who were also disembarking. I then fell out of the train to the ground with my
right shoulder. The train was overcrowded. I then went to the ticket offices ... and looked for ticket
examiners as they were not yet at the station. At about 7h10 I saw one of the ticket examiners
arriving and I reported the incident to her.’

[6] In the appellant’s Railway Occurrence Reporting (Liability) Report completed
by Mr Maleka contemporaneously with the execution of the respondent’s affidavit
during her interview, one of the pro forma questions was whether the train was in
motion when the accident occurred. Mr Maleka had checked the answer ‘No’. He
emphasized the importance of this aspect in his evidence stating that ‘it very
important … it is one of the major question[s] put on the liability form … and the
information which I must write into that form, I must be very certain that it is
correctly related to me, what I am writing down’.

[7] Ms Tshidzumba’s account was similar and, despite lengthy cross-examination
on this point, she steadfastly maintained that the respondent’s report was that the
accident took place after the train had stopped. This testimony tallies with her
affidavit recorded by Mr Maleka, in the respondent’s presence, which reads:
‘[The respondent] accessed the train at about 05h40. She was inside the train ... at Village Main and
was about to disembark ... She alleges that immediately after the train stopped commuters from her
back pushed her out of the coach ... and she fell to the ground on her right shoulder. Train according
to her was overcrowded.’

[8] The driver of train 9705, Mr Johannes Fourie, testified. He explained that he
cannot see the 12-coach train from his driving post in the front as he faces forward
and relies on train guards who man the coaches to operate the doors. It is these guards
who open and close the train doors (which are inspected daily for mechanical faults
and functioned properly at the material time) by pressing certain buttons to release or
engage the door locking mechanism when it is safe for passengers to board or
disembark. He said he is able to hear, from his driving seat, the whooshing sound
from air pressure being released when the doors open after he stops the train. When
the train departs the guards sound a bell to alert him that it is safe to drive. From his
account, there appears to have no deviation from this procedure on the relevant
morning. His train ran smoothly and no mishap was brought to his attention. He
sought to dispute that the train was overcrowded but conceded in cross-examination
that he could not deny such evidence as he did not and could not see what happened
in the coaches behind him.

[9] The court below rejected the respondent’s evidence that the train was moving
when the accident occurred. It found it improbable that ‘the general throng of
passengers of whom she was one would’ exit a moving train and concluded that the

train was stationary when the respondent, pushed along by other passengers,
disembarked and fell. The court however accepted the respondent’s version that the
train was overcrowded. On that basis it found that the harm suffered by the
respondent – that a frail commuter such as the respondent, travelling on a crowded
train during peak hours, might be pushed, fall and suffer injury – was foreseeable and
that the appellant ‘was under an obligation to take steps to prevent’ it. The court
consequently held that by allowing the train to be overcrowded, the appellant
negligently failed to take reasonable steps to prevent harm which was foreseeable and
that such negligent omission was the direct cause of the respondent’s injuries giving
rise to liability for her damages.

[10] In her particulars of claim the respondent based her cause of action on the
appellant’s alleged breach of its ‘legal duty, alternatively a duty of care ... to ensure
the safety of the public ... making use of such services as passengers or otherwise’. It
was alleged that the respondent ‘was pushed, by persons unknown to her, from the
moving train, through open coach doors and fell on the platform’. The grounds of
negligence were then pleaded as follows:
‘6.1 The Defendant failed to ensure the safety of members of the public in general and the Plaintiff
in particular on the coach of the train in which the Plaintiff travelled;
6.2 The Defendant failed to take any or adequate steps to avoid the incident in which the Plaintiff
was injured, when by the exercise of reasonable care it could and should have done so;
6.3 The Defendant failed to take any or adequate precautions to prevent the Plaintiff from being
injured by moving train;
6.4 The Defendant failed to employ employees, alternatively, failed to employ an adequate number
of employees to guarantee the safety of passengers in general and the Plaintiff in particular on the
coach in which the Plaintiff intended to travel;
6.5 The Defendant failed to employ employees, alternatively, failed to employ an adequate number
of employees to prevent passengers in general and the Plaintiff in particular from being injured in
the manner in which she was;
6.6 The Defendant allowed the coach of the train in which the Plaintiff was travelling to be

overcrowded;
6.7 The Defendant allowed the train to be set in motion without ensuring that the doors of the train
and coach in which the Plaintiff was travelling were closed before the train was set in motion;
6.8 The Defendant took no steps to prevent the coach in which the Plaintiff was travelling from
becoming overcrowded;
6.9 The Defendant allowed the train to move with open doors and failed to take any, alternatively,
adequate steps to prevent the train from moving with open doors;
6.10 The Defendant failed to keep the coach safe for use by the public in general and the Plaintiff
particular;
6.11 The Defendant neglected to employ security staff on the platform and/or the coach in which
the Plaintiff was travelling to ensure the safety of the public in general and the Plaintiff.’

[11] 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.2  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.3 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.4
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. The plaintiff
must adduce evidence as to the reasonable measures which could have been taken to

2 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F; Mkhatshwa v Minister of Defence 2000 (1) SA 1104 (SCA) paras
19-22; Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA) para 22.
3  See, for example, Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority 2006 (1) SA 461
(SCA) para 12; Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd  2006 (3) SA 138 (SCA) para 10;
Charter Hi (Pty) Ltd v Minister of Transport  [2011] ZASCA 89.
4 Trustees,Two Oceans above para 11; Shabalala v Metrorail 2008 (3) SA 142 (SCA) para 7.

prevent or minimise the risk of harm.5

[12] It is settled that the appellant (a corporation whose main object and business in
terms of the Legal Succession to the South African Transport Services Act 9 of 1989
under which it was established, is to provide rail commuter services in the public
interest and generate income from the exploitation of rail commuter assets on behalf
of the State)6 carries a positive obligation to implement reasonable measures to ensure
the safety of rail commuters who travel on its trains.7 Such obligation must give rise
to delictual liability where, as was pleaded here, the risk of harm to commuters
resulting from falling out of crowded trains running with open doors is eminently
foreseeable.

[13] Reverting to the facts of the present matter, I respectfully agree with the court
below that the train must have stopped before the respondent was unceremoniously
ejected from her coach. Any other conclusion would necessitate a finding that Mr
Maleka and Ms Tshidzumba who interviewed the respondent directly after the
accident, for an unknown reason and no obvious gain to them, somehow concocted a
grand scheme to cover for the appellant and, to achieve that goal, falsified
documentation by deliberately recording a report contrary to what the respondent told
them and were prepared to perjure themselves in court. Notably, it was not put to
either of them in their thorough cross-examination that they were lying in this regard
to afford them an opportunity to deal with such a charge. There is, in my view, simply
no basis to draw the far-fetched conclusion of a conspiracy on the acceptable
evidence.

[14] I may just add that I accept that it is common human behaviour for railway

5 Shabalala para 11.
6  See ss 15(1), 22 and 23(1) of the Legal Succession to the South African Transport Services Act 9 of 1989.
7 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) paras 82-88.

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’. I find it most unlikely, as did the court below, that the
majority of the passengers, no matter how much in a rush they are, would engage in
such a dangerous exercise as to exit a moving train as the respondent would have it.
What seems more probable is that when the doors of the stationary train opened, the
respondent was trapped in the surge of dismounting passengers, shoved in the rush
and lost her balance.

[15] But I have a difficulty with the factual finding made by the court below that the
train and, in particular, the respondent’s coach, was ‘overcrowded’, from which the
inference of negligence was drawn. The sum of the respondent’s evidence on this
aspect was merely that the train was ‘very full … even up to the door’. She neither
pleaded nor established in evidence that the appellant had a duty to regulate the
numbers of its rail passengers nor what reasonable measures it ought to have
implemented in that regard to ensure passenger safety that it omitted to take. She led
no evidence, for example, on the passenger capacity of the coach; if that number was
exceeded, how many passengers remained in the coach when the train reached her
station etc. One cannot assume simply from the fact that there were standing
passengers that the coach carried an impermissible number as the appellant’s policy
and applicable safety standards might well legitimately have allowed that practice.

[16] I say this aware that the appellant’s policies and legal obligations in the
conduct of its rail service are, of course, peculiarly within its knowledge. So too is the
nature and extent of the relevant precautionary measures it must take to ensure rail
commuter safety. However, the fact remains that it did not have to prove that it could

not reasonably have prevented the respondent’s fall. The record shows no
indication that the respondent attempted to ascertain this kind of evidence by, for
example, employing the mechanisms provided by the rules of court such as seeking
discovery, requesting particulars for trial etc. The nature of the respondent’s onus was
such as to oblige her to adduce evidence that gave rise to an inference of negligence.
Only then would the appellant have had to rebut that inference by adducing evidence
relating to the measures it took to avert harm. But the onus of proving that such
measures were inadequate and unreasonable in the circumstances would nevertheless
remain on the respondent.

[17] The question which remains for determination is whether on the evidence that
the respondent fell and sustained injury as a result of being pushed from a stationary
train by impatient fellow commuters – a happenstance over which the appellant was
not shown to have control – she discharged the onus resting upon her, of proving on a
balance of probabilities that the appellant was negligent: bearing in mind that whether
or not conduct constitutes negligence ultimately depends upon a realistic and sensible
judicial approach to all the relevant facts and circumstances.8

[18] As indicated above, the premise of the respondent’s case was that she fell and
sustained injury as a result of being pushed by an excessive crowd ‘from inside’ a
moving train. Quite apart from the finding that the evidence does not establish that
she was pushed and fell because the coach was overcrowded and her failure to
establish the reasonable precautionary measures that the appellant could have taken to
prevent passengers knocking one another down when disembarking from stationary
trains, the respondent’s single, insurmountable hurdle is her failure to establish that
the train was in motion when she was ejected from it. It seems to me that once the
court accepted that the train was stationary when the respondent disembarked and the

8  Mkhatshwa para 23.

accident occurred, that should have been the end of the respondent’s case. This,
clearly, was  the result contemplated by the parties themselves when they defined the
issue; that only a finding that the train was in motion when the respondent was
pushed and fell would give rise to liability. The court below thus erred in this regard
and the appeal must succeed.

[19] In the result the following order is made:
1 The appeal is upheld with costs.
2 The order of the court below is set aside and the following is substituted:
‘Absolution from the instance is granted, with costs.’

____________________

MML Maya

Judge of Appeal

APPEARANCES

FOR THE APPELLANT:
M Smith

Instructed by Cliffe Dekker

Hofmeyer Inc, Johannesburg

McIntyre & Van der Post, Bloemfontein

FOR THE RESPONDENT:
JC Pieterse

Instructed by Edeling Van Niekerk Inc, Johannesburg

Lovius-Block, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  29 September 2011
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

SOUTH AFRICAN RAIL COMMUTER CORPORATION LIMITED v
ALMMAH PHILISIWE THWALA (661/2010) [2011] ZASCA 170 (29
SEPTEMBER 2011)

The Supreme Court of Appeal today upheld an appeal brought by the South African Rail
Commuter Corporation (the appellant) against the decision of the South Gauteng High Court,
Johannesburg. The High Court had found the appellant liable for damages suffered by Mrs
Almmah Philisiwe Thwala arising from injuries she sustained when she was pushed by
fellow commuters and fell from a train onto the platform at Village Main Station in
Johannesburg.

The SCA held that Mrs Thwala failed to prove that the accident occurred because the train
was overcrowded and in motion when she was pushed and that the appellant had been
negligent in any way.

---ends---