THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 803/13

In the matter between:

Reportable

PRIMILDA JACOBS

FIRST APPELLANT

CAROLINA CHRISTINA HENDRICKS

SECOND APPELLANT

and

TRANSNET LTD t/a METRORAIL                                FIRST RESPONDENT

THE SOUTH AFRICAN RAIL COMMUTER
CORPORATION LTD                                                SECOND RESPONDENT

Neutral citation:  Jacobs v Transnet Ltd t/a Metrorail (803/13) [2014] ZASCA
113 (17 September 2014)

Coram:
Navsa ADP, Majiedt, Saldulker, Swain and Zondi JJA

Heard:
21 AUGUST 2014

Delivered:
17 SEPTEMBER 2014

Summary:
Delict – negligence established where speed restriction
imposed by the railway operator excessive on section of railway line
where passenger train collided with stationary truck at level crossing –
role of expert witness.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Western Cape High Court, Cape Town (Ndita J sitting as
court of first instance):

1. The appeal is upheld.

2. The order of the high court is set aside and substituted with the following:
„The defendants are liable, jointly and severally, for such damages as
the plaintiffs may prove to have sustained in the collision of 13
November 2006.
The defendants are ordered, jointly and severally, to pay the plaintiffs‟
costs of suit.‟
3. The respondents are ordered, jointly and severally, to pay the costs of the
appeal.

______________________________________________________________

JUDGMENT
______________________________________________________________

Majiedt JA (Navsa ADP, Saldulker, Swain and Zondi JJA concurring):

[1] Calamity struck during the morning of 13 November 2006 when a high
speed commuter train slammed into a stationary truck at the Croydon level
crossing near Somerset West. Nineteen occupants of the truck, 18 of whom
were seasonal farm workers, died in the collision and 12 others were injured –
the worst incident of its kind in this country‟s history.

[2] The two appellants, Ms Primilda Jacobs and Ms Carolina Christina
Hendricks, were among the injured. They instituted action in the Western
Cape High Court, Cape Town, against the respondents for damages
consequent upon the injuries sustained as a result of the collision. The

respondents are companies in the Transnet parastatal.1 The first respondent
(Metrorail) runs the railway line operations for Transnet while the second
respondent (the Commuter Corporation) runs its rail commuter operations. In
the high court Ndita J dismissed the actions (brought separately but
consolidated into one trial, seemingly as a „test case‟ for all the other pending
damages claims arising from this incident), but granted leave to appeal to this
court.

[3] The driver of the truck, Mr Gert Zeelie (Zeelie), perished in the collision.
Several witnesses, including the first appellant, other survivors of the collision,
the train driver and a number of experts testified in the high court. The
common cause facts are briefly as follows:
(a) During the morning of 13 November 2006 at around 7 o‟clock, the
truck, driven by Zeelie and carrying 29 seasonal farm labourers in the
rear and a Mr Morne Kershoff (Kershoff) in the front cab, was en route
to a grape farm. It was Zeelie‟s first day of employment and the first
time that he drove the truck, a 3 ton Mitsubishi Canter. He had never
before traversed that particular route. For that reason, the truck
owner‟s son, Kershoff, sat with Zeelie in the cab of the truck to give him
directions to the farm. Kershoff pertinently cautioned Zeelie about the
Croydon level crossing on their approach to it.
(b) Zeelie heeded the stop sign at the level crossing. At that moment
Kershoff bent down to retrieve his pen which had fallen on the floor of
the cab. He then became aware that the truck had edged forward and
had stalled on the railway line. When he looked up, he observed Zeelie
struggling to engage the truck‟s gears and, more alarmingly, the train
hurtling towards them from the Somerset West side, ie from the right.
Kershoff managed to extricate himself from the truck, as did some of
the passengers at the back, before the train slammed into the truck.
(c) The impact of the collision severed the truck cab from the body and
the latter was pushed about 510 metres along the railway line by the
train until it came to a standstill. Aerial photographs depict several

1 Established in terms of the Legal Succession to the South African Transport Services Act 9
of 1989.

bodies strewn along the way and 3 bodies on the back of the truck. The
cab burst into flames and was completely destroyed.
(d) The train driver, Ms Nomava Harriet Mxalisa (Mxalisa) caused the
so called „dead man‟s brake‟ to engage by fleeing to the rear of the
locomotive for self-preservation when she saw the stationary truck on
the railway line ahead of her. She did not sustain any significant
physical injuries. The „dead man‟s brake‟ is intended to monitor the
train driver‟s presence at the controls. Whenever the driver releases his
or her hands from the steering control, this brake will engage
automatically after about five seconds. The emergency brake, on the
other hand, engages immediately when activated by the driver.
(e) The collision occurred just after 7am. The police arrived on the
scene shortly thereafter. The Railway Safety Regulator‟s2 (the
Regulator) investigators arrived from Johannesburg on that same
afternoon. Pursuant to its investigations the Regulator afforded the
railway operator (Metrorail) the following three alternative remedial
measures – to eliminate the level crossing, to provide appropriate
protection to the level crossing or to institute an appropriate speed
restriction to mitigate the consequences of future collisions of this kind.
The Regulator required Metrorail to revert with a plan of action based
on the alternatives referred to above. Pending that decision it directed
Metrorail to implement forthwith, a speed restriction of 40 km/h at that
level crossing from the second whistle board on the railway line, ie 125
metres from the level crossing. As directed, Metrorail implemented the
new speed limit of 40 km/h with immediate effect. It also improved the
signage at the crossing.
(f) The level crossing is not controlled by a boom and flashing red
lights. Prior to the collision the only signage on the road was a
signboard some 120 metres from the crossing, warning of a railway
crossing ahead, and a stop sign. Overhanging foliage and a vibacrete
wall partially obscured the visibility to the left for train drivers
approaching the crossing from the Somerset West side and for motor

2 Established in terms of the National Railway Safety Regulator Act 16 of 2002.

vehicle drivers approaching the intersection in an easterly direction (ie
from the left of trains travelling from the Somerset West side), as Zeelie
did on that fateful morning.
(g) The railway line is a major commuter line from Strand to Cape
Town. The speed restriction on that part of the railway line, determined
by Metrorail, is 90 km/h. This is the speed normally designated for
Metrorail trains, unless there are speed restrictions in place. The train
was travelling at 96km/h shortly before the collision.3 Whistle boards
are located 400 metres and 125 metres from the crossing. Metrorail‟s
standard procedures require a train driver to emit a cautionary siren
once at the 400 metre board, and a continuous warning siren at the
125 metre board. While there was some conflicting evidence on
whether Mxalisa had followed the standard procedures with regard to
the cautionary sirens that day, it does appear that she in fact did so.
The train driver would have a clear view of the railway track for a
distance of about 700 metres from the crossing, but there is partial
obstruction to the left as the train approaches the crossing, as stated
above.

[4] The only issue before the high court was the alleged negligence on the
part of the respondents in causing the collision. The appellants endeavoured
to establish negligence on one or more of the following grounds:
(a) that the speed limit of 90 km/h was inappropriate and excessive for
that particular crossing;
(b) that the road signage was inadequate to warn motorists of the
crossing;
(c) that the respondents failed to put up a boom or barrier to prevent
vehicles crossing the railway line simultaneously with the train;
(d) vicariously through Mxalisa‟s failure to sound the warning siren at
the whistle boards and her failure to engage the emergency brake
which would have lessened the impact considerably.

3 This information was gleaned from the train‟s on board data recorder, the so called trip
logger system of the microprocessor traction controller.

[5] A number of witnesses, including experts, testified for the appellants to
establish these grounds of negligence, without any success. The high court
found that „the evidence presented [by] the plaintiffs failed to establish
negligence on the part of the train driver, Ms Mxalisa and on the part of the
defendants‟. In this court both counsel for the appellants ultimately confined
themselves in argument to ground 4(a) above, namely the question of
whether the speed restriction was appropriate for that part of the railway line.
In respect of the other grounds of negligence, it was accepted by the parties
that the evidence showed that, in the event that there had been an absence
thereof, it cannot be said that the collision would have been avoided. Put
differently, even if the other acts of negligence had not been present the
collision would in any event, because of the speed of the train, have occurred.

[6] The test for negligence has been authoritatively laid down as follows in
Kruger v Coetzee:4
„For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person on property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.‟
This test rests on two bases, namely reasonable foreseeability and the
reasonable preventability of damage.5 I consider each of these next.

[7] The foreseeability of harm at a place where rail and vehicular traffic
intersect is unquestionable. More than a century ago the dangers associated
with level crossings were recognized in Worthington & others v Central South
African Railways6 as follows:

4 Kruger v Coetzee 1966 (2) SA 428 (A) at 430E. See further: Minister of Safety and Security
v Van Duivenboden  2002 (6) SA 431 (SCA) paras 12 and 23; Minister of Safety and Security
v Carmichele 2004 (3) SA 305 (SCA) para 45; Transnet Ltd t/a Metrorail & another v Witter
2008 (6) SA 549 (SCA) para 5.
5 Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA)
paras 41-42.
6 Worthington & others v Central South African Railways 1905 TH 149 at 150-151. See
further: Celliers v South African Railways and Harbours 1961 (2) SA 131 (T) at 135-136.

„The level-crossing itself is common both to the railway and to the public: Each has
the right to pass over it, and to expect that due care will be exercised by the other to
avoid mishaps; but it is quite clear from the nature of the case that a train cannot in
the ordinary course be expected to pull up at a crossing to allow passengers by the
public road to get over the crossing. The train must necessarily have the preference
over passengers by road.
It is the duty of the traveller to look out for and wait for the train. At the same time a
condition is attached to the preference which the railway has, and that is that the train
ought to give due warning of its approach when it is nearing a level-crossing of this
nature, so that persons might stop and allow the train to pass. The train is bound, in
my opinion, to give due and timely warning of its approach, and also not to be
travelling at such an excessive rate of speed that the warning it might give should be
of no avail. What is an excessive speed and what is due warning must entirely
depend on the special circumstances of each case. Where there are obstructions to
prevent persons travelling along the road from seeing an approaching train, or where
there are any other circumstances which would make it difficult to ascertain that a
train is approaching, then of course, better warning would have to be given, and the
train would have to travel at a slower speed.’ (My emphasis).

[8] A train has the right of way at a level crossing.7 Reasonable measures
have to be put in place to prevent the foreseeable harm from occurring. In
Ngubane v South African Transport Services8 Kumleben JA, after restating
the test for negligence as laid down in Kruger v Coetzee, adopted the
following comments from Lawsa9 and Herschel v Mrupe:10
„˝Once it is established that a reasonable man would have foreseen the possibility of
harm, the question arises whether he would have taken measures to prevent the
occurrence of the foresseable harm. The answer depends on the circumstances of
the case. There are, however, four basic considerations in each case which influence
the reaction of the reasonable man in a situation posing a foreseeable risk of harm to
others: (a) the degree or extent of the risk created by the actor‟s conduct; (b) the
gravity of the possible consequences if the risk of harm materialises; (c) the utility of
the actor‟s conduct; and (d) the burden of eliminating the risk of harm.”

7 Ibid.
8 Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776E-777C.
9 JC van der Walt „Delict‟ in Joubert LAWSA vol 8 para 43 at 78.
10 Herschel v Mrupe 1954 (3) SA 464 (A) at 477A-C.

The first two considerations are recognised and discussed in the well-known and oft-
quoted passage in Herschel v Mrupe 1954 (3) SA 464 (A) at 477A-C, which is as
follows:
“No doubt there are many cases where once harm is foreseen it must be obvious to
the reasonable man that he ought to take appropriate avoiding action. But the
circumstances may be such that a reasonable man would foresee the possibility of
harm but would nevertheless consider that the slightness of the chance that the risk
would turn into actual harm, correlated with the probable lack of seriousness if it did,
would require no precautionary action on his part. Apart from the cost or difficulty of
taking precautions, which may be a factor to be considered by the reasonable man,
there are two variables, the seriousness of the harm and the chances of its
happening. If the harm would probably be serious if it happened the reasonable man
would guard against it unless the chances of its happening were very slight. If, on the
other hand, the harm, if it happened, would probably be trivial the reasonable man
might not guard against it even if the chances of its happening were fair or
substantial. An extensive gradation from remote possibility to near certainty and from
insignificant inconvenience to deadly harm can, by way of illustration, be envisaged
in relation to uneven patches and excavations in or near ways used by other
persons.”‟

[9] The low level of protection at the crossing under consideration
presented a substantial risk of very serious harm being caused in the event of
a collision. Factors which played a significant role in this regard are:
(a)
it was uncontrolled with no booms or other barriers;
(b)
the overhanging foliage and vibacrete wall at the crossing
partially obstructed the views of both an oncoming train driver and an
approaching motor vehicle driver;
(c)
the speed restriction of 90 km/h was at the highest end for trains
on a railway line; and
(d)
there was generally a fair amount of vehicular and pedestrian
traffic at that level crossing, due to the farm labourers‟ houses and the
farms being located nearby. On the uncontested evidence of the
investigating officer, Warrant Officer Niemand, schoolchildren cross
there on a daily basis and families live in the vicinity. On the day of the
incident a number of schoolchildren who had witnessed the collision

and its aftermath had to be removed from the scene and were given
trauma counselling.

[10] All the experts called by the appellants opined that the 90 km/h speed
restriction was excessive. These experts were –
(a)
Mr Daniel Leonardus van Onselen, (Van Onselen) a mechanical
engineer who had worked for, inter alia, the South African Railways for
20 years, who stated that the speed limit was too high, given the fact
that there are people living in the built up area close by, without any
protective fencing. A further factor in this regard was the limited vision
from both sides due to the vegetation and the vibacrete wall.
(b)
Mr Timothy Spencer, a town planner who made an assessment
of the collision scene. He testified that the speed limit should have
been reduced due to the fact that the crossing is poorly controlled,
there is low visibility and the crossing is on an urban residential edge.
(c)
Mr Konrad Walter Lötter (Lötter), a mechanical engineer and
managing director of Du Métier (Pty) Ltd (Du Métier) who had been
tasked by the Road Traffic Management Corporation (RTMC) to
investigate the collision.11 Mr Lötter concluded that the level crossing
warranted either booms as a preventive measure or the lowering of the
speed restriction on that section of the railway line. In the latter regard
he recommended the reduction of the speed limit from 90km/h to
50km/h.
(d)
Lastly, and most importantly, the three inspectors from the
Regulator, Mr Eric Nkwinika (Nkwinika), Mr Dick Arnold and Dr Chris
Dutton, produced a unanimous report dated 19 December 2006 after
their investigation in which they concluded, inter alia, that: „This
road/rail interface is considered to be a high risk. it is therefore
disconcerting to note that the operator deems it appropriate to allow
trains to operate at a section speed of 90 km/h in an environment of
unprotected level crossings‟. It afforded the three alternative remedial
measures mentioned in para 3(e) above and directed Metrorail to

11 Du Métier had a contract with the RTMC at that time to investigate all motor vehicle related
incidents where there were more than five fatalities.

implement forthwith a reduced speed limit of 40 km/h for that level
crossing from the second whistle board.

[11] It is necessary to elaborate on the functions and powers of the
Regulator generally and on its report and the testimony of Nkwinika on behalf
of the Regulators‟ investigating team in particular. As the name depicts, the
Regulator was established to enhance rail safety operations. Its objects, set
out in s 5 of the National Railway Safety Regulator Act 16 of 2002 (the Act)
are to:
„(a) oversee safety of railway transport while operators remain responsible for
such safety within their areas of responsibility;
(b) promote improved safety performance in the railway transport industry in
order to promote the use of rail as a mode of transportation;
(c) develop any regulations that are required in terms of this Act;
(d) monitor and ensure compliance with this Act; and
(e) give effect to the objects of this Act.‟
It has the power to conduct, inter alia, investigations in respect of railway
safety.12 The Regulator is granted extensive powers to conduct its
investigations into railway occurrences. This includes the power to conduct
hearings with sworn oral evidence, to summon any person to appear before it
or to produce a document of object in his or her custody or under his or her
control and to enter any premises for the purposes of such investigation.13
The Regulator‟s report on this incident runs into 17 pages, including the
annexures. As stated, its investigating team arrived from Johannesburg on the
scene that same afternoon. Its final report is dated 19 December 2006. The
report is detailed and bears testimony to an extensive investigation.

[12] The only expert witness whose opinion does not accord with these
strong views of an excessive speed restriction on that railway section, is Mr
Louis de Villiers Roodt (Roodt), a civil engineer who specializes in
transportation engineering. He testified in support of the respondents‟ case. In
his opinion the level crossing was appropriately classified as a protection level

12 Section 7(2)(o) of the Act, read with section 38 thereof.
13 Section 38 of the Act.

3A crossing, ie one where there was low usage by vehicular traffic. This
classification emanates from Volume 2 Chapter 7 entitled „Signage for
Railway Crossings‟ of the South African Road Traffic Signs Manual (the
Manual). He regarded the speed restriction of 90 km/h as appropriate, given
the low usage of the road and the excellent visibility in excess of 400 metres,
which is more than the required sight distance for trains travelling at speeds of
up to 100 km/h. With regard to a reduction of the speed limit as a preventive
measure he opined in his report that „[o]perating trains at lower speed will not
necessarily result in safer conditions, as negligent drivers will adapt to the
lower speed and still cross the lines with high risk‟. It is of some significance
that Roodt‟s report is dated 27 September 2012, less than 3 weeks before the
trial commenced on 8 October 2012.

[13] Roodt was a poor witness. He was evasive and argumentative during
cross-examination and loathe to make concessions where it was plainly
required. He reluctantly conceded that his view on the speed limit was based
on the information he had at the time. When asked whether he still held that
view he was only prepared to concede that the speed limit „can be lower‟. The
following extract from his cross-examination is revealing:
„[Mr Corbett, for the second plaintiff/appellant]: . . . Do you still hold the view you set
out in your report, that 90 was a reasonable speed at this crossing?
Your Ladyship, yes, provided that the accident did not happen.
[Court:] Sorry? – Sorry, no, I take that back.
[Court:] I did not hear the last bit? – Yes, just give it a yes’. (My emphasis).
When pressed further under cross-examination, he disagreed with Lotter, Van
Onselen and the Regulator‟s conclusions on this aspect. Roodt evidently
compiled his report under great pressure of time and with unseemly haste –
within two days. This is in stark contrast to the detailed, meticulous report
prepared by the Regulator. His testimony smacks of stark bias in favour of his
client, Transnet.

[14] The high court was faced with conflicting expert opinions on this issue
of an excessive speed limit. It is for the court to decide which, if any, to

accept.14 Regrettably it failed to undertake this exercise. No finding was made
on the reliability of the various expert opinions. There were no reasons
advanced for the implied rejection of the appellants‟ experts and, in particular,
the Regulator‟s opinion that the speed restriction was excessive for that
section of the railway line.

[15] It is well established that an expert is required to assist the court, not
the party for whom he or she testifies.15 Objectivity is the central prerequisite
for his or her opinions. In assessing an expert‟s credibility an appellate court
can test his or her underlying reasoning and is in no worse a position than a
trial court in that respect. Diemont JA put it thus in Stock v Stock:16
„An expert . .  . must be made to understand that he is there to assist the Court. If he
is to be helpful he must be neutral. The evidence of such a witness is of little value
where he, or she, is partisan and consistently asserts the cause of the party who
calls him. I may add that when it comes to assessing the credibility of such a witness,
this Court can test his reasoning and is accordingly to that extent in as good a
position as the trial court was.‟

[16] This court is at large to assess the expert evidence on the record
before it and to decide which one, if any, of the two conflicting opinions is to
be preferred. On the objective facts the appellants‟ experts‟ opinions are
preferable over that of Roodt. Their reports are detailed and extensive and
contain compelling motivations for their conclusions that 90 km/h was an
excessive speed restriction for that crossing. This is particularly true in respect
of the Regulator‟s report. They treated this tragic incident with the urgency it
deserved, had their investigators on the scene on the same day and
conducted extensive investigations which culminated in a detailed, well
motivated report.

14 Buthelezi v Ndaba 2013 (5) SA 437 (SCA) para 14: „Yet that determination [of negligence]
is bound to be informed by the opinions of experts in the field which are often in conflict, as
has happened in this case. In that event the court‟s determination must depend on an
analysis of the cogency of the underlying reasoning which led the experts to their conflicting
opinions‟.
15 Stock v Stock 1981 (3) SA 1280 (A) at 1296E-F; P v P 2007 (5) SA 94 (SCA) paras 18 and
21.
16 Stock v Stock at 1296F; and see Jackson v Jackson 2002 (2) SA 303 (SCA) at 324B-C
(para 16 of the judgment of Scott JA).

[17] The urgency for Roodt apparently only concerned the finalisation of his
report within two days. He brushed over this aspect in his report and his
opinion, set out in para 12 above, is startling. It is difficult to comprehend his
conclusion that a lower speed limit will be of no help, since it will merely
encourage negligent drivers to take further risks to cross in front of oncoming
trains. As stated, his testimony was of a poor quality and it lacked impartiality
and objectivity. His opinion lacks proper motivation and can be discarded.

[18] On the accepted evidence the speed restriction of 90 km/h was
excessive for that railway section. The possibility of harm was reasonably
foreseeable for the reasons already stated. The preventive measure of
reducing the speed limit to 40 km/h was eminently reasonable. On the
common cause facts (on which even Roodt agreed), this reduced speed limit
would have delayed the train‟s journey by a mere eight seconds, without any
expense to the respondents. And on the common cause facts if the train had
been travelling at 40 km/h from the second whistle board, the collision would
have been avoided since the train would have been able to stop in time.

[19] The respondents‟ primary contention in respect of this issue was that
the speed limit was justified. In this regard they relied heavily on the
provisions contained in the Manual and on Roodt‟s testimony. As already
stated, the level crossing was categorized as a protection level 3A crossing, ie
one of low risk due to low vehicular traffic usage on that road.17 Roodt
explained in his report that the road which intersects the railway line at that
crossing is not a public road, but a servitude for access to the Faure Winery
Farms. The railway crossing class designation for a single high speed railway
line, with excellent sight distance such as the present one, has a minimum
protection level of 3A, as was the case here. He stated further that additional
safety measures, for instance flashing red lights or booms, were not
warranted at the crossing, given the low traffic volumes and speed, the lack of
through traffic, local knowledge of the hazard and lack of an accident history.

17 See para 12 above.

[20] In respect of the classification of the level crossing, it was the
respondents‟ case, as advanced by Roodt‟s report and his testimony, that an
upgrade to a higher level of protection could only have occurred within the
prescripts of the Manual. Those prescripts contain the following criteria for
upgrades to flashing red lights and a boom – three accidents in one year or
five accidents over a three year period.18 The prescripts apply in respect of
the road signage and the safety measures at a level crossing. When
questioned about the speed restrictions, the respondents‟ counsel informed
us that this particular speed restriction was imposed by Metrorail, as is the
case with all speed restrictions. According to counsel Metrorail uses the same
aforementioned criteria for road signage and level crossing protection
upgrades in respect of the speed restriction designation. But different
considerations come into play as far as the speed limit is concerned. This is a
troubling approach. It is tantamount to measuring risk and the prevention of
foreseeable harm in terms of accidents occurring as far as the speed limit is
concerned – unless and until a certain number of accidents occur over a given
period, no additional precautionary measures will be instituted. This is an
unreasonable approach to preventing foreseeable harm from occurring. The
factors enumerated in para 9 above should have alerted the respondents to
the need for a review of the speed limit. To literally wait for an accident to
happen is to neglect the legal duty imposed upon the respondents to
implement reasonable preventive measures to avert the eminently
foreseeable harm at that hazardous uncontrolled level crossing. Moreover,
and in any event, the prescripts applicable to road signage and level crossing
protection were simply transposed as criteria to review the appropriateness of
the speed limit for that railway section. Different factors may conceivably
inform a decision to reduce speed as opposed to a review of road signage or
level crossing protection. One that comes to mind is for instance a curve on

18 Paragraph 7.2.4.2(a) of the Manual reads as follows: „The use of flashing red disc signals
should, in conjunction with adequate advance warning signs, be used to control vehicles at a
railway crossing when warranted by one or more of the following conditions: (a) when a
crossing has an accident history involving at least three vehicle/train accidents in one year, or
alternatively five vehicle/train accidents in three years and/or…‟

the railway line close to the level crossing. The respondents have failed to
implement reasonable preventive measures.

[21] In summary: on the facts and in the circumstances of this particular
case, the harm of the train colliding with a vehicle at the uncontrolled,
minimally protected level crossing was reasonably foreseeable. The
respondents failed to take adequate reasonable steps to prevent the
materialisation of the harm, namely by reducing the speed restriction to 40
km/h on that part of the railway line from the second whistle board. Such a
reduction would have entailed no cost at all to the respondents. On the
uncontested evidence this simple precautionary measure would have averted
the collision altogether. In the circumstances the respondents are jointly and
severally liable for the damages caused by the collision. The appeal must
therefore succeed.

[22] I make the following order:
1. The appeal is upheld.
2. The order of the high court is set aside and substituted with the following:
„The defendants are liable, jointly and severally, for such damages
as the plaintiffs may prove to have sustained in the collision of 13
November 2006.
The defendants are ordered, jointly and severally, to pay the
plaintiffs‟ costs of suit.‟
3. The respondents are ordered, jointly and severally, to pay the costs of the
appeal.

______________________
S A MAJIEDT
JUDGE OF APPEAL

APPEARANCES

For First Appellant:
M J M Bridgman
Instructed by:

Ighsaan Sadien Attorneys, Cape Town
For Second Appellant:
P A Corbett
Instructed by:

Malcolm Lyons & Brivik Inc, Cape Town

Matsepes Attorneys, Bloemfontein

For Respondents:
D J Jacobs (SC) with H Rademeyer

Instructed by:

Werksmans Inc. Jan de Villiers, Cape Town

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

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
17 September 2014

STATUS: Immediate

JACOBS v TRANSNET LTD t/a METRORAIL (803/13)

The Supreme Court of Appeal today upheld an appeal against a judgment of the
Western Cape High Court, Cape Town, which had dismissed a claim for damages
brought by the two appellants, Ms Primilda Jacobs and Ms Caroline Hendricks. Their
claim arose out of a horrific collision in November 2006 between a rail commuter
train and a small truck carrying seasonal farm labourers at the Croydon level
crossing near Somerset West. Nineteen persons were killed and 12 others were
injured – the worst incident of its kind in this country’s history. The appellants
brought their action for damages consequent upon injuries sustained in the collision
against the respondents, two companies in the Transnet parastatal. The case was
brought as a test case for all the other pending damages claims. The first
respondent, Transnet Ltd t/a Metrorail, runs Transnet’s railway line operations, while
the second respondent, the South African Rail Commuter Corporation Ltd, runs its
rail commuter operations. The SCA held the two respondents jointly and severally
liable on the basis that the speed designated by Metrorail for that particular part of
the railway line, namely 90 km/h, was excessive, given the low level of protection at
that crossing and the significant pedestrian traffic from the nearby farm labourers’
houses. In this regard the SCA accepted the evidence of the experts who testified on
behalf of the appellants at the trial, including that of the Railway Safety Regulator’s
experts who had conducted an extensive investigation into the collision. These
experts all opined that the speed limit of 90 km/h was excessive for that part of the
railway line. The SCA rejected the evidence of the only expert who held a contrary
view, Mr Roodt, who had testified for the respondents at the trial. The SCA criticized
Mr Roodt’s expert opinion evidence as being biased and lacking the requisite
objectively. It also reiterated the role and functions of expert witnesses and the need
for such witnesses to remain impartial and objective in assisting a court to arrive at
the truth. The SCA also emphasized that a court, faced with two conflicting opinions,

is required, where possible, to choose the one over the other based on the cogency
of the underlying reasoning and a court must furnish reasons for doing so. The high
court failed to undertake this exercise and failed to advance reasons for its implied
rejection of the appellants’ experts’ opinion that the speed restriction was excessive.

For these reasons the SCA upheld the appeal and substituted the high court’s order
with one holding the respondents jointly and severally liable for such damages as
the appellants were able to prove to have sustained in the collision and that the
respondents should jointly and severally pay the appellants’ costs in both the SCA
and the high court.

-- ends --