THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  157/08

In the matter between:

GUGU PRECIOUS MTHEMBU                                                         APPELLANT

v

TRANSNET t/a METRORAIL                                                         RESPONDENT

Neutral citation:
Mthembu v Transnet t/a Metrorail (157/2008) [2009] ZASCA
67 (29 May 2009).

Coram:
Streicher ADP, Jafta, Mlambo JJA, Hurt et Griesel AJJA
Heard:
19 May 2009
Delivered:
29 May 2009

Summary:    Application for special leave to appeal – no reasonable prospects of
success in a further appeal.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: High Court, Johannesburg (Blieden, Claassen, Saldulker JJ
sitting as a Court of Appeal).

The following order is made:

‘The application for special leave to appeal is refused.’

________________________________________________________________

JUDGMENT
________________________________________________________________

MLAMBO JA (Streicher ADP, Jafta JA, Hurt, Griesel AJJA concurring)

[1] The applicant sued the respondent in the South Gauteng High Court for
damages arsing from injuries she sustained in an accident at the Tembisa
Station in Gauteng on 25 May 2002. The trial court (Fourie AJ), after ordering in
terms of Uniform Rule 33(4) that the issue of liability be determined first and
separately as agreed between the parties, found that the applicant’s injuries were
as a result of the negligence of the respondent’s servants acting within the
course and scope of their employment by it. The trial court further refused the
respondent’s application for leave to appeal. This court, however, granted the
respondent leave to appeal to the full court. That appeal was successful and that
court (Claassen J with Blieden and Saldulker JJ concurring) granted the
respondent an order for absolution from the instance with costs.

[2] The applicant lodged an application for special leave to appeal that
decision to this court which Cloete JA and Leach AJA referred for oral argument
in terms of s 21(3)(c)(ii) of the Supreme Court Act 59 of 1959 and directed that
the parties be prepared, if called upon, to address the court on the merits. The
approach in such matters is to consider whether there are reasonable prospects
of success and whether ‘there are special circumstances which merit a further
appeal’ to this court. Westinghouse Brake & Equip v Bilger Engineering 1986 (2)
SA 555 (A) at 564H. I propose to consider first whether there are reasonable
prospects of success and in doing so I briefly sketch the background of the
matter.

[3] The applicant’s version of how she came to be injured is that on the
morning of 25 May 2002 she went to the Tembisa Station in the company of her
common law husband, Sipho Sibiya (‘Sibiya’) and two of his friends, Jeremiah
Msweli (‘Msweli’) and Themba Khumalo (‘Khumalo’), intending to catch a local
train to Kempton Park. The applicant knew Msweli and Khumalo very well in view
of the fact that they hailed from the same area in KwaZulu-Natal as the applicant
and Sibiya. After they had waited for a short while the train arrived at
approximately 9 o’clock and stopped.

[4] The platform was full of commuters who were alighting from the train and
others boarding. She saw Sibiya rushing towards the train and lost sight of him.
She also saw Khumalo and Msweli, who were also ahead of her, board the train.
As it was her first time to board such a train she stood aside for commuters to
alight and she could at that time see Khumalo and Msweli inside the train. She
then moved towards the door of the train and as she put her foot on the step of
the train to board, the train suddenly pulled off and she bumped her head against
the side of the door and fell onto the platform. She could not recollect what
happened after she was hit by the train.

[5] Michael Mthembu (Mthembu), the applicant’s brother, testified in support
of her case. His version was that he had a telephone discussion with Khumalo
sometime after the accident and asked him how the plaintiff came to be injured.
Khumalo had informed him that on the day in question they boarded the train at
Tembisa Station and only realised after the train had departed that the applicant
was not amongst them, which suggested that something was wrong. Khumalo
told him that they had to wait for the train to reach the next station before they
could alight and rush back to Tembisa Station, where they discovered that the
applicant had been injured.

[6] The respondent’s version, on the other hand, came predominantly from
Khumalo and Emma Phasha (Phasha), one of the security guards who were on
duty at Tembisa Station that morning. Khumalo’s version was that the four of
them had waited at the Tembisa Station for quite some time and when the train
entered the station, and before it could come to a stop, the applicant stumbled in
a bizarre fashion towards the train and bumped into it with her head. None of
them had yet boarded the train as it had not stopped. Thereafter, one of them
rushed up the stairs to call the station security guards to come and assist.
Khumalo disputed the appellant’s version that he, Msweli and Sipho had
managed to board the train. Phasha testified that she and her colleague,
Ledwaba, were stationed on an overhead bridge over platform 1 and the railway
lines when she suddenly heard screaming just before 09h50. The screaming
came from the platform below and within two minutes or so of hearing the
screaming a young man had approached her and her colleague and advised
them that someone had been injured on the platform below.

[7] She and Ledwaba then went down to the platform and found the applicant
lying on the platform bleeding profusely from a wound on her head. The young
man who had summoned them from the overhead bridge was also there with two
others who said they were travelling with the applicant. One of these young men
related to her and Ledwaba how the accident occurred and she recorded this in

the occurrence book. She is the one who summoned an ambulance to ferry the
applicant to hospital. She transcribed the entry she had made in the occurrence
book into her pocket book. The occurrence book and pocket book were handed
in as exhibits during the trial. The note she made in the occurrence book reads:

‘Saturday 25 May 2002
ACCIDENT REPORT
09h50 At time 09h50 at Tembisa Station Gugu Mthembu date of birth 1980, address
548 Endulwini sec Tembisa that lady hit a train with her head before the train
stop. That happened at platform 1 . . . Found injury at the left head (deep cut)
and bruises on the left leg. She hold weekly ticket from Limdlela – Elandsfontein
ticket no: 19842108736024. Train no: 1832. Taken her to Tembisa Hospital.
Ambulance Arrive: 10h08
Driver: Samson Baloyi
Reg no. BXV 651 GP
Departure: 10h25.’

[8] As is apparent from the aforegoing the applicant’s version of how the
accident occurred and that of the respondent’s witnesses differed materially and
were clearly mutually destructive. A useful reminder on how courts should
approach such matters is found in SFW Group Ltd & another v Martell et CIE &
others 2003 (1) SA 11 (SCA) at 14I-15E.

[9] The trial court in accepting the applicant’s version found that she was an
honest, straight forward and credible witness who did not endeavour to embellish
her evidence in order to strengthen her case. For this reason the trial court
reasoned that it had no reason to disbelieve her and concluded that her version
accorded substantially with the objective facts. The trial court was critical of
Khumalo branding him as an incredible and unreliable witness whose version
was as absurd as it was improbable. The trial court was especially critical of
Khumalo’s version that the appellant had simply stumbled towards the
approaching train as if she was intoxicated and struck her head against it. In this

regard the trial court reasoned that the respondent had tendered no evidence to
indicate why the applicant, who had behaved in a perfectly normal and sane
manner up to that time, could all of a sudden have behaved in the manner
described and demonstrated by Khumalo, stumbling past her three companions
and running head first into a moving train.

[10] It becomes immediately apparent that in accepting the appellant’s version
and rejecting Khumalo’s the trial court completely ignored Phasha’s version.
Perusal of the trial court’s judgment reveals that nowhere does that court
consider Phasha’s version when analysing the evidence. This was correctly
found to be a misdirection by the full court which reasoned:

‘1.
Nowhere was the vital importance of the evidence of Phasha discussed. On
appeal it was conceded that the evidence of Phasha was of vital importance to the
defendant to establish that Khumalo, Sipho and Msweli were in fact on the platform
immediately after the incident and after the train had left the station. On the plaintiff’s
version, on the other hand, the three young men boarded the train and only discovered
that plaintiff had remained behind after the train had left. Phasha’s evidence in regard to
her contemporaneous recordal of the events on the platform immediately after the
incident confirms the version of the defendant that the three young men were on the
platform enabling her to obtain the details of the plaintiff and how her injuries occurred.
On the plaintiff’s version there would have been no eye witnesses to the incident to
supply Phasha and Ledwaba with any particulars regarding the incident. It was therefore
important for the court to deal with this evidence. Its failure to do so fell foul of the duty of
a court to traverse in judgment all relevant evidence.’

[11] Furthermore, the full court stated that:

‘(16)
I am of the view that the record clearly shows Phasha to have been a credible
and trustworthy witness. Had the court a quo evaluated her evidence, it would have
come to this conclusion. In so doing, it would not have found in the plaintiff’s favour,

since Phasha’s evidence corroborates the evidence of Khumalo that he gave a report to
the security officers to the effect that the plaintiff had collided with the train prior to it
coming to a standstill.
(17)
The court a quo also failed to take into account that plaintiff’s pleaded version of
how she had fallen between the platform and the tracks is wholly inconsistent with her
evidence as well as the evidence of the defendant’s witnesses. This fact affects the
credibility of the plaintiff.’

[12] Regarding the trial court’s finding that there was no dispute that the
applicant’s three companions had boarded the train, the full court found that the
trial court had erred in that regard as the respondent had disputed the applicant’s
allegation that her three companions had boarded the train. The full court found
that this misdirection by the trial court indicated a lack of understanding of one of
the crucial issues that was at stake during the trial. This was also a correct
finding by the full court.

[13] Regarding the trial court’s criticism of the version tendered by Khumalo, as
to why the applicant had suddenly stumbled towards the moving train, on the
basis that the respondent had failed to produce evidence showing that the
applicant would have suddenly behaved in that manner, the full court reasoned
thus:

‘There was no onus upon the defendant to tender any evidence to indicate why the
plaintiff acted as Khumalo had alleged. The onus is upon the plaintiff to prove on a
balance of probabilities that her version is the correct one. It seems, however, from the
statement quoted above that the court required the defendant to give some explanation
why plaintiff acted as alleged by Khumalo. In this regard, the court misdirected itself as
to a proper evaluation of the probabilities and onus of proof.’

Whilst Khumalo’s description and demonstration of how the applicant stumbled
into a moving train may appear bizarre, the fact is Khumalo was an eyewitness
and his version is corroborated by Phasha’s contemporaneous note of that

version, taken from one of the applicant’s companions on the platform shortly
after the accident occurred.

[14] Furthermore, regarding the trial court’s finding that there was some
suggestion on record that Khumalo had been persuaded to give evidence to
controvert the plaintiff’s version, the full court found that the trial court had also
misdirected itself in that regard. The full court reasoned:

‘The evidence discloses no such suggestion at all. In my view this is an important
misdirection on the part of the court a quo’s evaluation of the evidence. It seems as if its
conclusion that Khumalo was not a credible or reliable witness, resulted directly from a
misdirected appreciation of the onus of proof and a wrong understanding of what the
evidence disclosed as to why Khumalo testified contrary to the plaintiff’s version. If those
were the only reasons for the court holding Khumalo not to be a credible and an
unreliable witness, then such conclusion is unjustified, both in law and in fact.’

[15] The full court concluded that for these reasons it was of the view that the
trial court’s judgment contained substantial misdirections, which caused it to
come to a wrong conclusion on the facts as well as on the law. The full court
found that the trial court should in fact have accepted the evidence of Phasha as
proof that a description of how the collision occurred was reported immediately
after the incident by one of the applicant’s companions.

[16] In my view, the full court was fully justified in concluding that the trial court
had committed the misdirections it identified. The trial court clearly failed to
evaluate the evidence in line with the approach referred to earlier in SFW Group
& another v Martell et CIE & others (supra). On the other hand, the full court dealt
with the matter comprehensively and properly and consequently there is very
little that one can add to its reasons.

[17] Based on the aforegoing, I am of the view that there are no prospects of
success whatsoever in a further appeal. The probabilities are very strongly in

favour of the respondent’s version. This being my conclusion, there is no warrant
to consider whether there are any special circumstances that would warrant a
further appeal to this court. The respondent did not insist on the costs of the
application.

[18] The application for special leave to appeal is refused.

_________________
D MLAMBO
JUDGE OF APPEAL

APPEARANCES:

COUNSEL FOR APPELLANT:   G J Strydom
INSTRUCTED BY:
Edeling Van Niekerk Inc; Johannesburg
CORRESPONDENT:
McIntyre & Van der Post; Bloemfontein

COUNSEL FOR RESPONDENT: M M Antonie;  A Lapan
INSTRUCTED BY:

Deneys Reitz Inc; Johannesburg
CORRESPONDENT:

Webbers Attorneys; 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 May 2009

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.

GUGU PRECIOUS MTHEMBU v TRANSNET t/a METRORAIL

The Supreme Court of Appeal (SCA) today refused an application, by Gugu
Mthembu, for special leave to appeal a decision of a Full Court of the
Johannesburg High Court. Ms Mthembu had sued Metrorail for damages arising
from injuries she sustained at Tembisa Station on 25 May 2002. The trial court
had ruled that her injuries were caused by the negligence of Metrorail’s servants
and refused Metrorail’s application for leave to appeal that decision. That
decision was overturned by the Full Court after the SCA granted Metrorail leave
to appeal to that court.

The SCA confirmed the Full Court’s finding that the trial court had committed a
number of misdirections which had caused it to come to the wrong conclusion. In
this regard, the applicant’s version was that she was in the process of boarding a
train to Kempton Park when the train suddenly pulled off without warning causing
her to bump her head on its door panel. She had also testified that her three
companions had already boarded the train when she got injured. The trial court
found her to be an honest and forthright witness and rejected the version by
Themba Khumalo, one of her companions who testified for Metrorail, branding
him as an unreliable witness who may have been persuaded to testify against the

applicant. Khumalo’s version was that applicant had stumbled headlong onto the
train when it entered the platform and before it came to a standstill. The trial court
had also found that Metrorail had failed to produce evidence showing why the
applicant would have behaved in that bizarre fashion.

The Full Court found that the trial court had committed a misdirection by not
considering the evidence of Emma Phasha, a security guard who was on duty at
the station on the day the accident happened. In this regard, Phasha’s version
was that one of the applicant’s companions had summoned her and her
colleague from an overhead bridge where she was stationed advising them of the
accident. She also testified that this was shortly after she had heard screaming
coming from the platform where the accident happened. She testified that she
found the injured applicant lying on the platform with her three companions
standing around her and that one of them related to her and her colleagues how
the applicant got injured. She recorded this report in the occurrence book and her
pocket book. In this regard, the SCA found that the Full Court had correctly found
that Khumalo’s version was corroborated by Phasha in her testimony as well as
through the note she made of the report given to her by one of the applicant’s
companions. The SCA also found that the Full Court was correct in finding that
Phasha’s testimony corroborated Khumalo’s version that none of them had
boarded the train when the accident happened. The SCA further found that the
Full Court was justified in accepting Khumalo’s version. The SCA ruled that the
Full Court had dealt with the matter properly and comprehensively and that there
were therefore no reasonable prospects in a further appeal.