THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no:  1082/2016

In the matter between:

PASSENGER RAIL AGENCY OF SOUTH AFRICA                          APPELLANT

and

MMAKGABO SIMON MOABELO
RESPONDENT

Neutral citation:
Passenger Rail Agency of South Africa v Moabelo (1082/2016)
[2017] ZASCA 144 (2 October 2017)

Coram:
Ponnan, Leach and Seriti JJA and Mokgohloa and Mbatha AJJA

Heard:
23 August 2017

Delivered:
2 October 2017

Summary:
Law of Delict – Damages – appellant falling off the train and
sustaining bodily injuries when jostled by fellow passengers – claim based on
negligent omission – negligence proved – dissent – appellant injured not by train
on which he had fallen off – no proof of patrimonial or legal causation of harm.

ORDER

On appeal from: Gauteng High Court, Johannesburg (Moshidi, Masipa and
Francis JJ sitting as court of appeal):

The appeal is dismissed with costs, such costs to include the costs of two
counsel.

JUDGMENT

Mbatha AJA (Seriti JA and Mokgohloa AJA concurring):

[1] The respondent, Mmakgabo Simon Moabelo, a 37 year old man, sued
the appellant, the Passenger Rail Agency of South Africa (PRASA), in the
South Gauteng High Court (per Monama J) for damages arising out of an
incident in which the respondent was injured just outside Kaalfontein Station,
Gauteng, on 3 August 2009. 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 of Court. At the conclusion of the trial, the trial court found that
the appellant’s negligence was the cause of the respondent’s injuries and
subsequently liable for damages.

[2] The appeal against the whole judgment was heard by the full court, at
the South Gauteng High Court, with leave of the trial court. The full court
confirmed the order of the trial court and dismissed the appeal with costs.

[3] Following an application by the appellant, special leave was granted on
14 September 2016 to proceed with the appeal in this court. The issues
before this court are as follows:
(a) whether the trial court was correct in accepting the version given by the
respondent to the extent that it could be relied upon for purposes of deciding

whether the appellant had discharged the onus upon him that he was pushed
out of the train;
(b) whether the trial court was correct in rejecting the version put forward by
the train driver, Mr van der Mescht, that the respondent in fact ran in front of
the train that ran him over; and
(c) whether the finding by Monama J that the respondent’s version was
cogent, reliable, plausible and inherently probable and the rejection of the
evidence put forward by the appellant’s witnesses, was correct.

[4] The background facts according to the respondent, Mr Makgabo Simon
Moabelo (Moabelo), are that he was on a train that was en route from
Kempton Park Station to Tembisa Station. He boarded the train when it was
already dusk. He was a fare paying passenger who was in possession of a
weekly ticket.

[5] When he boarded the train he had to stand as the train was full to
capacity. He remained standing for the duration of the trip. On the way to
Kempton Park Station, the train stopped on Platform 3 in Kaalfontein Station
where more people boarded. The train was overcrowded as it left Kaalfontein
Station for Tembisa and Leralla Stations. As the train departed for Tembisa
Station, the pushing and jostling for door positioning began, as passengers
were preparing to alight at the next station. He remained standing in between
the doors, holding onto a pole. He did not push as he was in between the
doors. He was pushed in all directions by other commuters. When the train
changed lanes he was pushed more towards the side of the open coach door.
He tried to hold onto the pole but lost his balance and fell out of the moving
train. He recalls falling out and only regaining consciousness at the hospital.
The respondent’s evidence was that he could not recall the number of the
train he boarded at Kempton Park Station. He estimated the time he was
pushed out of the train to be towards 18h30. Mr Moabelo steadfastly stuck to
his version despite the lengthy cross-examination.

[6] He sustained severe tissue injuries, a bilateral amputation of both legs,
amputation of third and fourth digits of the left hand, fractured left humerus,
multilevel fractured cervical spine and a resultant brachial plexus injury.

[7] The version of the respondent was disputed in toto by PRASA. The
defence raised by the appellant was that the respondent ran/walked in front of
an oncoming train outside the confines of the station, when it was dangerous
or inopportune to do so. Respondent was a pedestrian.

[8] It is common cause that the respondent was hit by train number 1886
driven by Mr van der Mescht at about 19h13, that the trains had been running
late for the whole day on the route between Kempton Park and Leralla
stations.

[9] Mr Pelani Sam Baloyi (Baloyi), a security officer posted at Kaalfontein
Station on 3 August 2009 was called as a witness by the respondent. Baloyi
worked for Sinqobile Security Company. He related that he was on duty as
from 18h00 on 3 August 2009 and was posted with Ramalata. Their patrolling
post started from the beginning of Kaalfontein train station towards the
direction of Tembisa Station, covering an area of between 40 and 50 meters.
They were not in uniform that night as they operate undercover so as not to
be identified as security officers.

[10] They carried a radio, baton stick, firearm and a pocket book. The place
that they patrolled was well lit and visibility was good as it was a clear night.
The high water mark of Baloyi’s evidence is that ‘they would be able to see
that there walks a person’ but ‘not be in a clear picture to see who is that one
…’ He related that when they received a report about the person who fell off
the train, he recalled noticing two trains, one coming from Tembisa and
another one proceeding to Tembisa. This was between 19h00 and 20h00.
They found the injured respondent and made the necessary report.

[11] Though extensively cross-examined Baloyi was adamant that there
was no activity or movement in the vicinity of the area he patrolled. He
disputed the train driver’s version that he saw a figure running across the lines
from his right to the left and that that person came onto the line on which the
train was travelling. Baloyi’s evidence was that if there had been any
movement he would have seen it, as they could see both sides of the station

from where they sat. Furthermore, Baloyi testified that there was no way that
a person could have approached from the direction that the driver mentioned
as the place is fenced and there are industries behind the fence.

[12] On being questioned about the lines proceeding to Tembisa Station,
Baloyi’s evidence was that at times the trains switched lanes though he knew
the dedicated lines for trains to Tembisa.

[13] Mrs Moabela’s evidence related to her finding of her husband’s weekly
train ticket in his wallet and that the respondent had no reason to be suicidal.
The same sentiments were echoed by the respondent’s supervisor, Mr
Mathebula of Guardian Outsourcing Company. He testified that the
respondent was employed as a supervisor and confirmed that the latter’s
leave had been approved. The week he got injured was to be his last week at
work prior to going on leave.

[14] The driver of the train 1886, Mr van der Mescht (van der Mescht),
testified on behalf of the appellant. He had been a guard for 29 years and had
been a train driver for four years preceding the accident on 3 August 2009.
His evidence was that, on his return trip back from Leralla to Elandsfontein,
his train went past Tembisa Station before proceeding to Kaalfontein Station.
It was 41 minutes late. It left Leralla Station at 19h01 instead of 18h20 as on
that day the trains were running late.

[15] When he was proceeding to Leralla his train had been on the down
slow line, but on his return it was on the down main line. He went past point
135T, a crossover point, where the train crosses over the down slow line and
after going past all the crossover points he proceeded to join the main up line.

[16] He testified that as he was approaching Kaalfontein, a train went past
on the down slow line, proceeding to Tembisa Station. At the point when the
front of his train went past the back of the other train, he saw a movement
from the right hand side from underneath the bridge. He saw this movement
for the first time, just before the bridge. When he looked again he saw
someone running over the rails, who suddenly kneeled in front of the train and

the train ran him over. The movement he had seen was from the right hand
side. This person was standing underneath the bridge. When he saw this
movement he was about 20 to 25 meters from the crossover points.

[17] He was driving at 30km per hour when he saw the movement. After the
train hit the person, he applied the brakes, stopped and phoned operations in
Johannesburg. He made an entry in his daily journal that he ran over a person
at 19h13.

[18] The cross-examination of the driver revealed that a different version
was given on the plea being that ‘Plaintiff was injured after he walked or ran in
front of an incoming train outside the confines of the station’.

[19] It was also revealed during his cross-examination that when he passed
train 0547 on the down slow lane to Leralla, he saw a movement, ‘when I was
clearing train 0547’. He explained that the movement that he saw was from
the right to the left, moving towards his train. This person came from West to
East in a straight line, who then knelt in front of the train, between the lines
with his back towards his train ‘like he was going to start a race’.

[20] Having stopped the train he also phoned the guard Ms Beauty Masete
(Beauty), to check on the person that was hit by the train. Beauty reported
back to him that it looked like the person was dead. They were about 50 to 60
meters from Kaalfontein Station where the incident took place.

[21] It was pointed out to him under cross examination that he had reported
that he saw a movement, was not sure what it was and that when the train
came closer, he had seen someone kneeling on the rails and heard a loud
bang. This version was contrary to his evidence in chief that he had seen a
person from a distance running from underneath the bridge, crossing the rails
and kneeling in front of the train.

[22] The appellant had also called Ms Beauty Masete, who testified that her
duties are to see that the passengers are in and out of the coaches, close the
doors and blow the whistle to alert the driver that the doors are closed so that

he can drive off. She was asked by the respondent’s counsel about the
procedure in terms of PRASA’s procedure book as to what happens when
people hang outside the open doors of the train. Her response was that even
in that condition she would give the signal to the driver to drive off.

[23] Mr Kgare, the signal man, gave evidence as to the routes taken by
trains from Kempton Park to Leralla and Pretoria. His evidence was that in
general, trains proceeding to Tembisa Station from Kempton Park Station use
the down slow line or the down main line. Platform 3 serves the down main
line and Platform 4 serves the down slow line.

[24] What was significant about his evidence in chief was that where there
is another train on Platform 4, the train proceeding to Tembisa may be
diverted to Platform 3. At times a train could leave Kempton Park on the down
slow, but may even cross to the down main line before reaching Kaalfontein
Station. Therefore trains to Tembisa Station could be on either line. At times
the station gets so busy that he would be forced to switch the lines and
platforms particularly at peak hours between 15h00 to 19h00.

[25] This corroborated the respondent’s evidence in a material respect in
that though the train which he boarded in Kempton Park Station was on
Platform 4, at Kaalfontein Station it stopped on Platform 3. Platform 3 serves
the down main line which is next to the up main line. If the train that had
stopped on Platform 3 on the down main line proceeds to Tembisa Station, it
will crossover at certain points to proceed to Tembisa Station just beyond
Kaalfontein Station. However, this was not reflected on his train register of 3
August 2009. He also confirmed that no train went past between 18h20 and
18h30 that evening as estimated by the respondent. The evidence showed
that the only trains that went past Kaalfontein Station were trains no 1886 and
0547, respectively. Train no 0547 which went past the signal cabin at 19h13
was accepted by the respondent as the train from which he fell.

[26] Kgare was cross-examined about the entries in his register reflecting
the change in the lanes of certain trains, for example, train 1887 and 0667.
His answer was that the train could leave Kempton Park Station on the down

slow line, but could change lanes before reaching Kaalfontein Station. More
significantly, it was pointed out to him that there was no column on his control
book which is available to reflect that he switched the trains, when they were
late, to let the express to Pretoria pass through or to accommodate another
train at peak hours. This was raised as he had stated in his evidence in chief
that when a train is late on the down slow line, it could be directed to the down
main line, if there was a train on the down slow line. On the day in question,
van der Mescht’s evidence was that since the morning of the 3 August 2009
the trains were running late.

[27] The court below had found that Monama J’s approach was correct in
accepting that the versions of the respondent and the driver were mutually
destructive, and dealing with the matter as advocated in Stellenbosch
Farmer’s Winery Group Ltd & another v Martell et Cie & others.1 Monama J
found that the probabilities prevailed in favour of the respondent. The court
below found that there was no irregularity or misdirection on the findings of
the trial court.

[28] The respondent in his particulars of claim based his cause of action on
the appellant’s negligence in that the appellant ‘owed a duty of care to the
plaintiff to ensure that the doors of the train were closed before the train
started moving into/from/out of the station, and to ensure that passengers on
board the train would not fall or be ejected therefrom before allowing any train
to commence moving into/from/out of the station, and/or to take all reasonable
steps to ensure the safety of all passengers on the train at all reasonable
times (“the duty of care”).’

[29] The test for delictual liability is trite.2 Reverting to the facts of this case,
I accept that it has been proven that the respondent was on the train, which
was overcrowded and was in motion with open coach doors. And that the
respondent fell as a result of being pushed off by other passengers jostling for
positions near the door and sustained injuries as a result thereof. PRASA
should have foreseen that by leaving the doors of a moving train open, this

1 Stellenbosch Farmer’s Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11
(SCA) at 14-15.
2 Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E-F.

would pose potential danger to passengers, like the respondent, who may
accidentally be pushed off the train and sustain serious injuries. PRASA
should have ensured that the coach doors were closed whilst the train was in
motion.

[30] The onus to prove negligence rests on the plaintiff. The plaintiff is
required to prove that harm to others was reasonably foreseeable and that a
reasonable person would have taken steps to guard against such harm
occurring. The plaintiff must adduce evidence as to the reasonable steps that
ought to have been taken by the defendant to prevent or reduce the risk of
such harm.

[31] The Constitutional Court in Rail Commuters Action Group v Transnet
Ltd t/a Metrorail & others3 recognised that the rail commuter services carry a
positive obligation to implement reasonable measures to ensure the safety of
rail commuters who travel on the trains, and that such obligation should give
rise to delictual liability where there is a risk of harm to commuters resulting
from falling out of the crowded trains running with open doors, which is
foreseeable.

[32] The same court in Mashongwa v Passenger Rail of South Africa,4 in a
unanimous judgment, held that PRASA had been negligent because it did not
ensure that the doors of the train were closed when the train left the station as

3 Rail Commuters Action Group v Transnet Ltd t/a Metrorail & others 2005 (2) SA 359 (CC)
para 84:
‘In these circumstances, I conclude that Metrorail and the Commuter Corporation bear a
positive obligation arising from the provisions of the SATS Act read with the provisions of the
Constitution to ensure that reasonable measures are in place to provide for the security of rail
commuters when they provide rail commuter services under the SATS Act. It should be clear
from the duty thus formulated that it is a duty to ensure that reasonable measures are in
place. It does not matter who provides the measures as long as they are in place. The
responsibility for ensuring that measures are in place, regardless of who may be
implementing them, rests with Metrorail and the Commuter Corporation.’
4 Mashongwa v Passenger Rail of South Africa 2016 (3) SA 528 (CC) para 52:
‘It must be emphasised that harm was reasonably foreseeable and PRASA had an actionable
legal duty to keep the doors closed while the train was in motion. Not only has it expressly
imposed this duty on itself, its importance was also alluded to in Metrorail. It is also
commonsensical that keeping the doors of a moving train closed is an essential safety
procedure. Mr Mashongwa would probably not have sustained the injuries that culminated in
the amputation of his leg had PRASA ensured that the doors of the coach in which he was,
were closed while the train was in motion. It was thus negligent of PRASA not to observe a
basic safety-critical practice of keeping the coach doors closed while the train was in motion
and therefore reasonable to impose liability for damages on it, if other elements were proved.’

a result, Mashongwa was thrown out of the train by his assailants. This arose
after a contention by this court that the open coach doors while the train was
in motion did not dispose of the issue of causation as the appellants could
have forced open the coach doors to throw Mashongwa out of the train. The
Mashongwa matter centered around the issue whether PRASA’s conduct was
wrongful when physical harm befell passengers travelling on the trains with
the coach doors open.

[33] In Mashongwa it was found that PRASA’s wrongful conduct attracted
liability. The Constitutional Court held that public carriers like PRASA have
always been regarded as having a duty of care towards passengers to protect
them from physical harm whilst making use of their services.

[34] Furthermore, the court had to also consider whether a reasonable train
operator would have foreseen the risk of harm befalling its passengers arising
from such conduct and whether such operator would have taken the
necessary steps to guard against such harm occurring on its trains. The court
held that the breach of the public duty by PRASA should translate into a
private law breach in delict and that such breach would amount to
wrongfulness.

[35] On the question of the overcrowded trains with open doors at peak
hours, the court found that this posed real danger to passengers on board.
The harm was reasonably foreseeable, and PRASA had a legal duty to keep
the doors closed when the trains were in motion. This conduct attracts liability.

[36] In the current case, the question is whether the respondent discharged
the onus of proof. The aspect of time, as estimated by the respondent as to
when he boarded the train or when he was pushed and fell off, cannot be held
against him. It is in my view that the respondent established that it was
already dusk when he boarded the train in Kempton Park and that the incident
occurred within that period. He was not aware that the trains were running
late, his estimate of the times could also be related to that factor.

[37] The respondent did not take note of the train number that he boarded
in Kempton Park. When one looks at the objective facts of the case, it was
established that van der Mescht’s train crossed with train no 0547 proceeding
to Tembisa and Leralla Stations. The respondent was found in possession of
a valid weekly ticket which was produced to support that he had boarded the
train from Kempton Park Station. Mathebula’s evidence explained that after a
week of the incident the respondent, would have commenced his approved
leave of three weeks. In the light thereof, it is immaterial why he had not gone
to work on that day and why he had gone to Kempton Park Station as,
possession of a valid train ticket proved that he had boarded the train as a fee
paying passenger.

[38] The fact that he did not know the number of the train that he boarded,
the exact time of the incident and the number of the train that hit him, is
immaterial as long as he proved that he was on the train. It does not absolve
the appellant of its public law duty to have the doors closed at all material
times when the train is in motion. More so, the respondent was hit by a train
which had crossed with the train proceeding to Tembisa Station.

[39] The appellant’s witnesses including the train driver, the guard and the
signal man confirmed that the trains were running late on the day in question.
The guard, Beauty, confirmed that the train coach’s doors were not closed.
Taking all these factors together, one can only conclude that the respondent
fell off the train.

[40] The trial court had rejected the evidence of the train driver. It found that
it lacked credibility and was improbable and accepted the evidence of the
respondent and Baloyi. The train driver gave a completely different version
when he reported the incident, shortly after it had occurred. Whereas, a
different version was pleaded in the plea and he testified to a different version
in court. It is my view that the trial court correctly rejected the train driver’s
evidence as a fabrication.

[41] The respondent had specifically pleaded, amongst other acts of
negligence or omissions, that the appellant’s train driver was negligent in

setting the train in motion whilst the coach doors were opened. The
respondent had discharged the onus that the train doors remained open whilst
the train was in motion. This was also confirmed by the evidence of Beauty.

[42] The issue that needs to be considered is whether it could not have
been reasonably foreseeable that a train operating at peak hours, with open
doors in motion, would cause injury to the commuters. My view is that injury
was foreseeable and the train should not have been in motion with open
coach doors.

[43] On the issue of legal causation in Mashongwa, the court acknowledged
that ‘no legal system permits liability without bounds’. Proximity has to be
established, to establish a nexus between the incident and the harm caused.
The court in para 69 held as follows:
‘That the incident happened inside Prasa’s moving train whose doors were left open
reinforces the legal connection between Prasa’s failure to take preventative
measures and the amputation of Mr Mashongwa’s leg. Prasa’s failure to keep the
doors closed while the train was in motion is the kind of conduct that ought to attract
liability. This is so not only because of the constitutional rights at stake but also
because Prasa has imposed the duty to secure commuters on itself through its
operating procedures. More importantly, that preventative step could have been
carried out at no extra cost. It is inexcusable that its passenger had to lose his leg
owing to its failure to do the ordinary. This dereliction of duty certainly arouses the
moral indignation of society. And this negligent conduct is closely connected to the
harm suffered by Mr Mashongwa. It is thus reasonable, fair and just that liability be
imputed to Prasa.’

[44] The respondent in this matter was hit by another train as he fell off the
train to Tembisa Station. It is my view that even if he had hit a pole or rails,
the appellant should be held liable as the injury was foreseeable. I therefore
find that the trial court cannot be faulted in finding in favour of the appellant.

[45] Accordingly the following order is made:
The appeal is dismissed with costs, such costs to include the costs of two
counsel.

Y T MBATHA
ACTING JUDGE OF APPEAL

Ponnan JA (Leach JA concurring):

[46] I have had the benefit of reading the judgment of my colleague Mbatha
AJA, with which I regret I am unable to agree.

[47] This appeal is against a judgment upholding with costs, the claim of the
respondent, Mr Simon Moabelo, against the appellant, the Passenger Rail
Agency of South Africa (PRASA). Mr Moabelo’s claim against PRASA is one
in delict for physical injury suffered on 3 August 2009. The issues of liability
and quantum having been separated, the matter proceeded to trial in respect
of the former before Monama J in the South Gauteng High Court. Monama J
held PRASA liable to compensate Mr Moabelo ‘for all proven damages
suffered by him’. But, he did grant leave to PRASA to appeal to the full court.
The appeal to the full court (per Moshidi J, Masipa et Francis JJ concurring)
failed. The further appeal by PRASA is with the special leave of this court.

[48] The pleadings are a useful starting point. In the summons filed on
behalf of the respondent, it was alleged that:
‘5.
On or about the 3rd of August 2009 and at approximately 18h20, at or near
Kaalfontein Station, Tembisa, within the jurisdiction of the above Honourable Court,
plaintiff was on board a train for which he had a valid ticket. Whilst on board the train
with the carriage’s doors opened whilst the train was in motion, plaintiff was
forced/ejected/pushed/jostled out of the carriage by other passengers, as a result of
which plaintiff lost his balance and fell out of the carriage.
6.
The sole cause of plaintiff’s falling from the train, was the negligence of the
conductor, whose identity is to the plaintiff unknown, who was negligent in one or
more or all of the respects.
9.
As a result of the Plaintiff’s falling from the moving train and the negligence of
the defendant aforesaid, plaintiff sustained the following injuries.’

[49] The further particulars elaborated:
‘3.5.
The plaintiff records that he boarded a train from Kempton Park which was
going to Tembisa, when the train was moving out of Kaalfontein Station it was
overcrowded with its doors not closed and the passengers were pushing each other
as they were preparing to disembark the train at the next station. The plaintiff records
that he was pushed out of the train when it was changing lanes and he tried to hold

an iron rail which is in between the doors but he lost balance on his feet and could no
longer hold the iron rail and he fell. The plaintiff also records that before he fell he
was not close to the open doors.
3.6.
The plaintiff records that he was standing far away from the open doors.
3.7.
Plaintiff puts on record that the train was overcrowded and passengers were
pushing each other. Plaintiff also records that he was pushed whilst the train was
changing lanes and lost balance and tried to hold on the iron rail in between the
doors but also lost balance and fell.’

[50] The plea in response to those allegations was:
‘4.3.
The defendant pleads that the plaintiff was injured after the plaintiff walked or
ran in front of an oncoming train, outside the confines of a station, when it was
dangerous and inopportune to do so.
5.1.
The defendant denies each and every allegation contained in these
paragraphs, as if specifically traversed, and the plaintiff is put to the proof thereof.
5.2.
Alternative to 5.1 above, the defendant pleads that, in the event of the above
Honourable Court finding that the incident occurred in the manner as alleged, and
that the defendant was negligent in any manner as alleged, then the defendant
pleads that such negligence was not causally related to the incident and any injuries
sustained by the plaintiff.’

[51] The respondent testified that he awoke on the morning of 3 August
2009 feeling ill. As a result he did not go to work. He consumed medication
and went back to sleep. At about 3pm that afternoon, he made his way by
train from his home in Tembisa to Kempton Park. He alighted at the Kempton
Park station and made his way on foot to the Festival Shopping Mall. Having
withdrawn cash at an ATM machine and spent some time window shopping in
the mall, he decided to return home. In his evidence in chief he stated:
‘Now, do you know more or less what time it was when you decided to go home? ---
My estimation of the time says it could be 17:00 when I left the mall on my way home
now.
And where did you go to form the mall? --- I went to the station.
Which station? --- Kempton Park Station.
Why did you go to Kempton Park Station? --- Well, I was at the mall which is in
Kempton Park, so I went back to the station. Kempton Park train station.
To catch the train? --- Yes.
To go where? --- On my way to Tembisa.

. . .
Now it was August month. When you got onto the train was it light or was it already
dark? --- Slightly dark.’

[52] Although he was unable to identify the train, Mr Moabelo did say that
he boarded the first train on his arrival at the Kempton Park station. The train
was already full and picked up more passengers at the Van Riebeck,
Birchleigh and Kaalfontein stations. As the train left Kaalfontein station, so
stated Mr Moabelo:
‘There was some pushing your Lordship. Well, I was standing . . . [incomplete]. As I
was standing the people who were just in front of us they were pushing us.
Yes. --- That moment is when the train pulled off leaving the platform, that is when
the pushing started as the train was leaving the platform.
Yes. --- I have been pushed till such time when I noticed myself that I was now near
the doors. I had been pushed up to the doors.
Ja. --- I turned so that I could hold onto the aisle which is situated on the middle of
the coach.
Ja. --- Unfortunately they were powerful than myself then I fell, I had been pushed out
of the moving train.
Which way did you fall? --- Backward your Lordship on my back. I fell on my back.
And when that happened, was the train still at Kaalfontein station or had it left the
station? --- It has left the platform at Kaalfontein when it happened.’
That was his last recollection of the events of that day. He subsequently
regained consciousness in a ward at Tembisa Hospital, when he became
aware that his lower limbs had been amputated.

[53] As to how Mr Moabelo came to sustain his injuries, it is to the evidence
of Mr van der Mescht, a train driver in the employ of Metro Rail, that one must
look. He was driving train 1886 en route from Tembisa to Kaalfontein when,
so he testfied:
. . . ‘I saw a movement from the right hand side from underneath the bridge. When I
saw that movement it was just before the bridge. Then I saw the movement and
when I look again I saw somebody is running over the rails.
In which direction? --- In the direction of my train. When he was running over the rails
he suddenly kneeled in front of my train and then I ran him over.
. . .

You say you see the movement and then you see him run toward your train and you
see somebody kneeling before your train. When you saw that did you do anything? --
- When he kneels in front of my train it was a shock. It was a shock. After I hit him
then I applied the brakes and when the train stopped I phoned operating.
From where? --- From inside the cab.’
It is undisputed that this incident occurred at 7.13 pm.

[54] The trial court recorded:
‘There are two train stations between Kempton Park train station and Kaalfontein
train station. These are Van Riebeeck Park and Birchleigh. All these stations have
four platforms [platform 1 – 4]. There are four lines or lanes or tracks that pass at
these platforms.’
. . .
The down main line passes on platform three at each and every relevant station. Like
dsl it runs in the northern direction towards Tembisa and Pretoria. The tracks are
1.2m wide, the distrance between dsl and dml is some 2.9m, the distance between
the dml and uml is 2.82m and the distrance between dsl and uml is 6.92m.
. . .
Train No. 0547 was scheduled to depart at 18:52. It was 21 minutes late. It passed
the signal cabin at or just after 19:13 (i.e. at the same time as 18:86 passed the
signal cabin approaching Kaalfontein station from Leralla.
. . .
Mr Van der Mescht was the train driver of train number 1889. This train was coming
from Tembisa. He was travelling on the up main line. As it approached Kaalfontein he
had to cross train No.0547 which was on the down slow line . . .’

[55] The trial court reasoned:
‘The plaintiff bears the onus to proof his case. The first question which the court had
to determine was whether the plaintiff was on a train as he alleges or whether he was
a trespasser running across the train tracks at Kaalfontein station as alleged by Mr
van der Mescht.’
It approached that enquiry thus:
‘The versions of the plaintiff and Mr van der Mescht are important. To determine
whether the plaintiff was on a train or whether he was trespassing as stated above.
The two versions are mutually destructive. The court has developed a technique to
resolve the factual dispute where there are two irreconcilable versions. The
technique is formulated as follows: “To come to a conclusion on the disputed issue
the court must make a finding on (a) the credibility of various factual witnesses; their

reliability and (c) the probabilities . . . But when all factors are equipoised the
probabilities . . . But when all factors are equipoised the probabilities prevail.” In my
view the factors are equipoised save to state that the version of the train driver
cannot be relied upon.  He testified that he saw a movement under the bridge. That
bridge is in the vicinity of the signal cabin as well as a place where he diverted his
train to up main line in order to give the train from Kaalfontein station to Tembisa a
space on the down slow lane. Consequently he could not have seen the events
properly. To suggest that the plaintiff wanted to commit suicide is absurd. He was
happily married, happily employed and he was indeed looking forward to a holiday.
These factors militate against any suggestion of suicide. He had a valid train ticket
and Mr Baloyi testified that the area where the accident occurred is sufficiently
secured. This strengthens my view that the plaintiff was indeed on the alleged train.
He was not trespassing. On these objective facts there are overwhelming
probabilities which favour the plaintiff, in this regard. Accordingly, I am not persuaded
that the plaintiff was trespassing as alleged. I find that the plaintiff was a passenger
with a valid train ticket travelling on a train to Tembisa township.’

[56] The trial court ultimately concluded:
‘In my view, the version by Mr van der Mescht stands to be rejected on account of
the evidence of Mr Baloyi. It is therefore reasonable to infer that the plaintiff was on
the train that passed the train driven by Mr van der Mescht. The plaintiff fell from the
train in and around the area of cross over by train 1886 to usl.’

[57] In the main, the full court endorsed the approach of the trial court. The
full court made two important observations, both of which find support in the
recorded evidence: first, ‘when [Mr Moabelo] boarded [the] train at about
18h00, it was already dusk’; and, second, ‘[Mr Moabelo] could not point out
the exact spot where he was pushed out of the moving train, and fell.’ Those
observations are destructive of the inference drawn by the trial court that Mr
Moabelo was a passenger on train 0547. If, indeed, Mr Moabelo left the
Festival Shopping Mall at approximately 5 pm and boarded the first train
heading to Tembisa, he could not have been a passenger on train 0547.
Although all the trains were running late, the evidence reveals that there were
in all some 17 trains that departed from Kempton Park to Tembisa between 5
and 7 pm that evening.  According to the summons, Mr Moabelo sustained his
injuries at 6.20 pm when he fell out of a moving train. The only train that
passed that area at around 6.20 pm was a business express train to Pretoria

that did not stop at Kaalfontein Station. There is thus no support at all for Mr
Moabelo’s allegation that he sustained his injuries at 6.20 pm.

[58] I have great difficulty with the approach of both courts below that the
versions of Mr Moabelo and Mr van der Mescht were mutually destructive.
Even if Mr Moabelo’s evidence is to be accepted in its totality it does not
explain how he came to sustain his injuries. On the version of Mr Moabelo at
least one hour remains unaccounted for. Mr Moabelo’s account ends with him
being pushed off the train. Mr van der Mescht was the only eye witness to the
collision. There was simply nothing to gainsay his version. One therefore
cannot simply juxtapose the two versions and reject his version as the trial
court did. In any event, both courts appeared not to appreciate that the
rejection of Mr van der Mescht’s evidence meant that there was simply no
evidence as to how Mr Moabelo sustained his injuries. Rejecting Mr van der
Mescht’s version, in and of itself, carried the destruction of Mr Moabelo’s
case. Importantly, the trial court simply ignored Mr Moabelo’s evidence that:  ‘I
was never hit by a train. What I know is that I fell out of the moving train. That
is what I know, Your Lordship I was not hit by a train, no’. It accordingly found
in his favour on a basis entirely different to that sought to be advanced by him.

[59] Mr Moabelo simply had no version or recollection as to how he got to
the up main line a little to the north of Kaalfontein Station, where the train
driven by Mr van der Mescht collided with him. The evidence of the signalman
in the employ of PRASA, Mr Kgare, supported by the train schedule for the
evening and the four-platform layout at Kaalfontein station, is that Mr
Moabelo, having fallen off a train travelling on the down slow line, would have
had to have landed 6.92 metres away on the up main line for Mr van der
Mescht’s train to have collided with him. Mr Moabelo was simply unable to
proffer an account as to how that could have occurred.

[60] Both courts below appear to have placed much store on the evidence
of Mr Baloyi for rejecting that of Mr van der Mescht. According to the trial
court, Mr Baloyi ‘vehemently denied that the plaintiff was running across the
train’s line and kneeled on the lane uml. He stated that he could have seen
him.’ But, Mr Baloyi did not have a version as to how the plaintiff could have

ended up in front of Mr van der Mescht’s train. Mr Baloyi did not see the
plaintiff fall from the train, run across the tracks or the train driven by Mr van
der Mescht collide with Mr Moabelo. His evidence was that when he walked
from Kaalfontein to a hut north of the signal cabin, he did not see anything.
His evidence in chief was to the effect that it was whilst he and his colleague
were getting ready to go on patrol, that they received a radio call instructing
them to go and look for an injured person. In any event Mr Baloyi’s
opportunity for observation was far from ideal. According to Mr Baloyi, he and
his partner commenced their shift at 6 pm. They left the platform at
Kaalfontein station at 6.05 pm and proceeded to their ‘post’, which was
located approximately 50 to 60 metres from the platform, where they placed
their personal belongings and got ready to patrol. Whilst at their post they
received a radio call instructing them to look for an injured person. They did
so and found Mr Moabelo. Mr Baloyi did not vehemently deny that Mr
Moabelo ran across the lines and knelt on the up main line. He merely
testified that he did not see Mr Moabelo. Mr van der Mescht testified that it
was dark and he had his headlights on at the time that he collided with Mr
Moabelo. Moreover, train 0547 would have obscured Mr Baloyi’s view. To the
extent that Mr Baloyi made reference to the fencing in the area of the signal
cabin, it is noteworthy that the plaintiff was hit by Mr van der Mescht’s train
under the overhead bridge which was some distance from the signal cabin.
There was no evidence about the state of fencing under the bridge.

[61] In a matter such as this we would do well to carefully distinguish
inference from conjecture or speculation. The trial court inferred that: first, Mr
Moabelo was on train 0547; and, second, he ‘fell from [that] train in and
around the area of cross over by train 1886 to usl’. I am far from persuaded
that each of those inferences are indeed the most readily apparent and
acceptable inference in the circumstances of this case.5 Moreover, with
respect to the trial court, it appears to have impermissibly reasoned by way of
an inference upon an inference. As I have already shown, Mr Moabelo was
neither able to identify train 0547 as the one on which he travelled, nor point
out where train 1886 collided with him. Even if it were permissible for the trial

5 AA Onderlinge Assuransie Bpk v De Beer 1982 (2) SA (A); see also Cooper and Another
NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA).

court to have drawn the first inference, the second, which lacked a proper
factual foundation and was clearly dependent upon the first, was
impermissible. What is more, in straining to find for Mr Moabelo, the trial court
appears to have reasoned backwards from effect to cause.

[62] It goes without saying that such sympathy as we may have for Mr
Moabelo should not impel us to a conclusion in his favour. We would do well
to remind ourselves, as Harms JA did in Telematrix (Pty) Ltd v Advertising
Standards Authority SA 2006 (1) SA 461 (SCA) par 12, that:
‘The first principle of the law of delict, which is so easily forgotten and hardly appears
in any local text on the subject, is, as the Dutch author Asser points out, that
everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that
‘skade rus waar dit val’. Aquilian liability provides for an exception to the rule and, in
order to be liable for the loss of someone else, the act or omission of the defendant
must have been wrongful and negligent and have caused the loss. But the fact that
an act is negligent does not make it wrongful. To elevate negligence to the
determining factor confuses wrongfulness with negligence and leads to the
absorption of the English law tort of negligence into our law, thereby distorting it.’

[63] At the close of Mr Moabelo’s case, his counsel placed on record:
‘M’lord it can never be nor would it be the plaintiff’s case that Mr Van der Mescht was
responsible for the plaintiff’s injuries’. In that, counsel was undoubtedly correct, for it
was no part of Mr Moabelo’s pleaded case that Mr van der Mescht had in any respect
been negligent in colliding with him. Mr Moabelo’s case was confined to PRASA’s
negligent failure to ensure that the doors were closed whilst the train was in motion.
On that score the trial court held: ‘Accordingly I find that the plaintiff has proven
negligence on the part of the defendant’s servants.’ It then added: ‘It is trite law that
negligence is a question of fact and there is no such a thing as negligence in the air.’

[64] Insofar as that last proposition is concerned, the trial court was plainly
wrong. It is useful to revisit first principles in this regard. In Overseas Tankship
(U.K.) Ltd v Morts Dock and Engineering Co. Ltd [1961] 1 All ER 404 (PC)
(Wagon Mound No 1) at 415A Viscount Simonds explained:
‘But there can be no liability until the damage has been done.  It is not the act but the
consequences on which tortious liability is founded.  Just as (as it has been said) that
there is no such thing as negligence in the air, so there is no such thing as liability in
the air.’

In Premier of The Province of the Western Cape v Fair Cape Property
Developers (Pty) Ltd [2003] 2 All SA 465 (SCA), it was put thus:
‘Just as there cannot be negligence in the air,6 so too there cannot be wrongfulness
(the breach of a legal duty) in the air: “it is as well to remember that conduct which is
lawful to one person may be unlawful towards another” – per Harms JA in S M
Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd.’

[65] The enquiry did not end, as the trial court appears to have thought, with
a finding that PRASA was negligent. It remained for the trial court to have
considered the element of causation. Causation involves two distinct
enquiries.7 The first is a factual one and relates to the question as to whether
the negligent act or omission in question caused or materially contributed to
the harm giving rise to the claim.  The enquiry as to factual causation is
generally conducted by applying the so-called ‘but-for’ test. Lack of factual
causation is the end of the matter. No legal liability can follow. But, if factual
causation is established the second enquiry arises, namely whether the
wrongful act is linked sufficiently closely or directly to the loss for legal liability
to ensue or whether, as it is said, the loss is too remote.8 According to Brand
JA in ZA v Smith 2015(4) SA 574 (SCA) para 30): ‘The application of the “but-
for test” is not based on mathematics, pure science or philosophy.  It is a
matter of common sense, based on the practical way in which the minds of
ordinary people work, against the background of every-day experiences.’

6 Per Lord Russell of Killowen in Bourhill v Young [1943] AC 92 (HL) (Sc) at 101--2.
7 Home Talk Developments (Pty) Ltd & others v Ekurhuleni Metropolitan Municipality [2017] 3
All SA 382 (SCA) para 45; In International Shipping Company (Pty) Ltd v Bentley [1989]
ZASCA 138; 1990 (1) SA 680 (A); [1990] 1 All SA 498 (A) para 64-66, Corbett CJ expressed
the position thus: ‘. . . in the law of delict causation involves two distinct enquiries. The first is
a factual one and relates to the question as to whether the defendant's wrongful act was a
cause of the plaintiff's loss. This has been referred to as "factual causation". The enquiry as to
factual causation is generally conducted by applying the so-called "but-for" test, which is
designed to determine whether a postulated cause can be identified as a causa sine qua non
of the loss in question. In order to apply this test one must make a hypothetical enquiry as to
what probably would have happened but for the wrongful conduct of the defendant. This
enquiry may involve the mental elimination of the wrongful conduct and the substitution of a
hypothetical course of lawful conduct and the posing of the question as to whether upon such
an hypothesis plaintiff's loss would have ensued or not. If it would in any event have ensued,
then the wrongful conduct was not a cause of the plaintiff's loss; aliter, if it would not so have
ensued. If the wrongful act is shown in this way not to be a causa sine qua non of the loss
suffered, then no legal liability can arise. On the other hand, demonstration that the wrongful
act was a causa sine qua non of the loss does not necessarily result in legal liability. The
second enquiry then arises, viz whether the wrongful act is linked sufficiently closely or
directly to the loss for legal liability to ensue or whether, as it is said, the loss is too remote.
This is basically a juridical problem in the solution of which considerations of policy may play
a part. This is sometimes called "legal causation".’
8 Minister of Police v Skosana 1977 (1) SA 31 (A) at 34E-G.

[66] To succeed in an action for damages, Mr Moabelo had to establish that
it was probable that the negligent conduct found by the trial court, namely
PRASA in allowing the train to travel with open doors, caused the harm. Mr
Maobelo simply did not know the source of the harm. Had he known the
source it is possible that he might have established a causal link between it
and the specific negligent conduct sought to be established. Regard being
had to the evidence of Mr van der Mescht, Mr Maobelo’s injuries were caused
not by him having fallen out of a train, but by another train driven by the
former colliding with him. Those two occurrences are not inextricably linked to
each other. From the bar in this court counsel for Mr Moabelo sought to meet
this difficulty with the argument that after having fallen from the train, Mr
Moabelo must have knocked his head become disorientated and,
consequently at some time later, wandered in front of Mr van der Mescht’s
train. However, there is simply no evidence to support that speculative
hypothesis. And, as I see it Mr Moabelo failed the test for factual causation. It
follows that on this ground as well, Mr Moabelo should have failed.

[67]   But even if Mr Moabelo had succeeded in establishing factual
causation – which as I have demonstrated he had not – his claim should in
any event have failed at the legal causation stage. The issue of legal
causation or remoteness is determined by considerations of policy. It is a
measure of control. This is basically a juridical problem in which
considerations of legal policy may play a part. It serves as a ‘longstop’ where
right-minded people, including judges, will regard the imposition of liability in a
particular case as untenable, despite the presence of all the other elements of
delictual liability.9 Even if one accepts that: (i) Mr Moabelo was a passenger
on train 0547; (ii) PRASA was negligent in allowing that train to travel with
open doors; (iii) Mr Moabelo fell off that train as a consequence of PRASA’s
negligence; and (iv) factual casation has been established - the issue of
remoteness still looms large in this case. In reality, Mr Maobelo’s injuries and
consequent loss were not caused by those events. It was instead attributable
to something very different – train 1886, which was driven by Mr Van der

9 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd  2009 (2) SA 150 (SCA);
mCubed International v Singer 2009 (4) SA 471 (SCA);

Mescht, colliding with him. And, as I have already pointed out, it was no part
of Mr Moabelo’s case that Mr van der Mescht was negligent in any respect or
that this occurrence is in any way causally connected to the earlier events.

[68] In my view, for the reasons given, PRASA’s appeal ought to succeed.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For the Appellants:

T J Bruinders SC

Instructed by:

Norton Rose Fulbright, Johannesburg

Webbers, Bloemfontein

For the Respondents:

M Chaitowitz SC (with him M Sibuyi)

Instructed by:

Mafori Lesufi Inc., Johannesburg

Morobane Inc., Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal
DATE
02 October 2017
STATUS
Immediate

Passenger Rail Agency of South Africa v Moabelo (1082/2016) [2017] ZASCA ###
(02 October 2017)

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.

The Supreme Court of Appeal (the SCA) today dismissed an appeal by the appellant
and confirmed the decision of the order of the full court of the Gauteng Local
Division, Johannesburg.

The respondent had instituted action against the appellant claiming payment of
damages on the basis that he had been injured by the negligent conduct of the
appellant. The court a quo found in favour of the respondent on the merits. The
appellant then appealed against the decision of the court a quo and special leave was
then granted by the SCA.

The issue before the SCA was whether the court a quo erred in determining the merits
in favour of the respondent.

On 3 August 2009 the respondent sustained bodily injuries after falling off from a
moving train and was hit by an oncoming train owned and operated by the appellant.
The respondent then instituted action against the appellant claiming payment of
damages on the basis that the injuries sustained were as a result of the negligent
conduct of the appellant. The issue of the merits was separated from the determination
of quantum. The trial court proceeded to determine the issue of the merits. It found in
favour of the respondent. Dissatisfied with this order the appellant challenged the
decision of the trial court to the full court. The full court confirmed the order of the
trial court. With special leave of the SCA the appellant appealed the order of the full
court.

The SCA dismissed the appeal and confirmed the order of the full court.

~~ ends~~