THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Not reportable
Case no: 39/07

In the matter between:

TRANSNET LIMITED

APPELLANT

and

ARLINDO DE ASSIS JANUARIO MAELA

RESPONDENT

______________________________________________________________

Coram:
SCOTT, NUGENT, HEHER, MAYA JJA et MHLANTLA
AJA

Date of hearing:
22 FEBRUARY 2008

Date of delivery:     27 MARCH 2008

Summary:  Two mutually destructive versions - probabilities favouring version of the
appellant’s witness.

Neutral citation: Transnet Ltd v Maela (39/07) [2008] ZASCA  26 (27 March 2008)

SCOTT JA/ ….

SCOTT JA:
[1] The respondent, who was the plaintiff in the court a quo, sued the
appellant in the High Court, Johannesburg, for damages arising out of an
incident that occurred while travelling as a passenger on a train operated by
the appellant. The court was asked to decide only the question of the
appellant’s liability and to order the remaining issues to stand over for later
determination. In short, the respondent testified that he was robbed of his cell
phone and money and thrown out of the train by the robbers. He contended
that the appellant was liable for damages arising from the injuries he
sustained by reason of its failure to prevent the incident from occurring. The
respondent’s version of what happened was denied by the appellant. A
security officer employed by the appellant testified that the respondent had
attempted to disembark from the train after it had commenced moving out of
the station. Only the two witnesses testified. The trial judge, Msimeki AJ,
accepted the version of the respondent, rejected that of the security officer
and found the appellant liable for failing to prevent the incident from occurring.
Leave to appeal was refused by the court a quo but was granted by this court.

[2] Counsel for the appellant attacked the judgment on two grounds. The
first was that the court erred in rejecting the evidence of the appellant’s
witness. The second was that even on the respondent’s own version he had
failed to establish that the appellant was liable in delict. As to the latter
ground, it was conceded on behalf of the appellant (as it was in Shabalala v
Metrorail1 where a passenger was similarly robbed on a train) that the
appellant owed the respondent a legal duty to act without negligence. The
inquiry into the existence or otherwise of such a duty is distinct from and
involves different considerations from the inquiry into whether there was
negligence or not. What was placed in issue was whether the appellant’s
employees had acted negligently. In this regard, counsel for the appellant
conceded, too, that harm to passengers as a result of criminal activity on its

1 157 [2007] SCA.

trains was foreseeable and that the appellant was accordingly obliged2 to take
such steps as were reasonable to provide for their safety. Counsel submitted
that on the respondent’s own version he had failed to prove that the appellant
had not taken such steps.

[3] Against this background I turn to the facts. On 23 June 2004, sometime
after 8 pm, the respondent, a forty two-year old man whose home language is
Portuguese, boarded a train at Angelo station with the intention of travelling
as far as Benoni station where he proposed taking a taxi to his home in
Daveyton. He said that when the train arrived at Dunswart station, being the
station immediately before Benoni station, a number of passengers
disembarked leaving him and five other passengers alone in the coach. He
said that after the train had pulled out of Dunswart station he received a call
on his cell phone. After speaking to the caller he put the phone back in his
pocket. He said he was then approached by one of the other passengers who
addressed him in Sesotho. He replied in isiZulu saying that he did not
understand, whereupon the other passenger spoke to him in isiZulu and
demanded that he be given the cell phone. When he refused he was punched
and thrown to the floor of the coach. The respondent described in some detail
how the other passengers then joined the person who had first approached
him, how he was robbed of his cell phone and wallet and how he was dragged
to the sliding door of the coach, which his assailants forcibly opened while the
train was in motion, and thrown out. According to the respondent his head hit
the platform, which he believed to be at Benoni station but he said he could
not be sure.

[4] Mr Mzobanzi Ceba, a security officer employed by the appellant,
testified that on the night in question he was on duty with six other security
guards on the ‘last train’ which left Park station, Johannesburg, at 8.45pm
bound for Springs. He said that as the train proceeded away from
Johannesburg the stations at which it stopped were, in order; Germiston,

2 In Shabalala v Metrorail (in para 7) I used the expression ‘legal duty’ in relation to this
obligation, ie the obligation which may or may not arise in response to the second leg of the
inquiry into the existence of negligence. Its use in this context is unfortunate. The expression
is more appropriate to the inquiry whether negligence should attract delictual liability.

Delmore, Angelo, East Rand, Boksburg, Dunswart, Benoni, New Kleinfontein,
Apex, (it missed out Anzac) Brakpan and then  on to Springs. He said he was
in charge of the other six and their function was to patrol the train with the
object of curbing crime.  None of them was in uniform. Ceba said he was to
go off duty at Brakpan where he had arranged for a colleague to meet him
and give him a lift home. Many of the passengers disembarked at Benoni
station. Ceba said that at that stage he and the other six security officers were
working their way down the train from coach to coach in the direction of the
rear of the train. He said that when they reached the second last coach he
saw that it was occupied by a single passenger who appeared to be reading.
Ceba sat down on a seat about two seats behind the passenger and
instructed the other security guards to begin working their way back in the
direction from which they had come.

[5] Ceba’s account of what happened when the train reached Apex station
was shortly as follows. He said that he noticed that when the sliding doors
opened, the passenger did not immediately stand up. After a while he did get
up, at which stage the train was still stationary, and asked in English if they
were at Benoni. He spoke with a foreign accent which Ceba recognised when
the respondent testified. Ceba replied that they had passed Benoni which was
two stations behind. The passenger moved towards the door. As he did so the
sliding doors began to shut. He said to Ceba that he had intended to get off at
Benoni and using his left leg he stopped the doors from closing altogether.
Ceba shouted at him not to jump and told him to get a taxi from Brakpan,
which was the next station at which the train stopped. While he was speaking
the train had begun to move and was already accelerating when the
passenger squeezed sideways through the doors and jumped, with the doors
closing behind him. Using his cell phone, Ceba immediately telephoned his
colleague who was waiting for him at Brakpan, telling him of the incident and
asking him to go to Apex station to find out what had happened to the
passenger whom Ceba suspected had fallen down between the platform and
the train.

[6] In the course of cross-examination Ceba was confronted with a written
report he had made to his superior officer which was undated but which was
received two days after the incident, ie on 25 June 2004. Counsel’s object, no
doubt, was to draw attention to certain discrepancies between the report and
Ceba’s evidence. However, the content of the report, made a day or two after
the event, is significant. It reads: (without corrections)

‘On the 23rd June 2004 I was working crime prevention with national force guards between
Germiston and Springs.
In the evening at about 21:35 at Apex station on a third coach from the train guard side I was
with one male commuter on the very same coach and this commuter asked me if the station
is Benoni and I told him that we had already passed Benoni.
He then quickly went to open the door and I told him that he ill get of at next station which is
Brakpan he then said no I am going to Benoni and  he jump out and by that time the train was
running faster.
When I look through out the window I could not see anything like a human being and I
shouted to the guards that there is some body fell between the train and the platform because
they were facing opposite direction and sow nothing, but they ignore that.

I decided to phone our shift member (LPO RAKGWADI) and he found the victim on the lying
railway line and was seriously injured on the head and right leg was broken and identified him
as Mike Mayela of 424 Sigalo street Daveyton with no other documentation.

The paramedics were contacted and the victim was transported to Johannesburg General
Hospital. And other references are reflecting on an OB.’

Ceba testified that Rakgwadi had since died. He confirmed that the latter had
later that evening reported that he had found a person with serious injuries on
the railway line who was identified from the documents he was carrying as
Mike Maela of 421 Cigallo Street, Daveyton. It was not in dispute that this
person was the respondent.

[7] As previously indicated, the trial judge accepted the evidence of the
respondent and rejected that of Ceba whom he found to be ‘a poor witness’.
In this court counsel for the appellant attacked this finding and submitted that
the grounds upon which the judge criticised and rejected the evidence of
Ceba were trifling and ill founded. I am constrained to agree.

[8] First, Ceba was criticised for testifying that the incident had occurred in
the second last coach whereas in his report he had said it occurred in the third
coach from the end of the train. This was described by the trial judge as ‘an
obvious contradiction’. I regard it as being of no significance, particularly as
Ceba readily conceded that what he had said in his report was to be preferred
as he wrote it immediately after the event when the incident was fresh in his
memory. The trial judge further placed much emphasis on the discrepancy
between Ceba’s report, on the one hand, and his evidence, on the other, as to
how the respondent jumped from the train. In his report (repeated in the plea)
it was said that the respondent ‘went to open the door’ whereas in his
evidence Ceba described how the respondent had put his leg between the
sliding doors to prevent them from closing. Once again, in the context of
Ceba’s evidence as a whole this criticism can carry little weight. The report
Ceba made after the event was short and cryptic. To write that the respondent
‘went to open the door’, although not strictly accurate, is much easier than to
write a description of how the respondent had stopped the doors from closing.
In any event, nothing turns on whether the doors were forced open or forcibly
prevented from closing. It is also worth noting that the respondent said in an
affidavit he made seven months after the event that ‘the train left Angelo train
station with its doors open until [he] was thrown through it’. If anything, the
discrepancy between this statement and the respondent’s evidence that the
robbers forcibly opened the doors is more significant.

[9] Ceba was subjected to a somewhat tedious cross-examination during
which he was questioned at length as to the precise sequence of events from
the time the respondent stood up to the time he jumped from the train and as
to what was likely to have motivated the respondent to do what he did. This
elicited some uncertainty on the part of Ceba as to details such as whether he
shouted at the respondent not to jump once or twice or whether the
respondent appeared nervous or not. For this he was heavily criticised. But in
my view the criticism was unjustified. The events he was describing took
place in a matter of seconds; the uncertainty was understandable. Another
criticism levelled at Ceba by the trial judge was the former’s failure to tell the
respondent that he was a security guard and that it would be unlawful for him

to jump out of a moving train. Here again the criticism is unfair. As I have said,
the whole incident took place very quickly and Ceba was hardly afforded the
opportunity to advance every reason why the respondent should not jump out
of a moving train. In any event, his failure to warn the respondent of the
unlawfulness of his conduct was not something that reflected adversely on
Ceba’s credibility. The same is true of the criticism that Ceba failed to speak
to the respondent or ‘see the need to search the man’ on finding him alone in
the coach.

[10] Turning to the probabilities, the trial judge found Ceba’s version to be
‘highly improbable’. In support of this conclusion the judge said:

‘It would have been ludicrous of the plaintiff to jump out of the moving train when he well knew
that he could disembark at the next station. The plaintiff was well aware of what would
become of him if he jumped out of a moving train. That would be too great a risk to take.’

I am unable to agree. The conduct would admittedly be highly irresponsible,
but regretfully such conduct, ie boarding or alighting from a train after it has
commenced moving, is anything but uncommon. It is a risk that is frequently
taken by commuters either to board a train they would otherwise miss or to
avoid being overcarried after realising too late that they had reached their
destination. However, what the judge failed to consider at all in his judgment
was the improbability of Ceba having fabricated his evidence. There was
clearly no reason for him to have done so and the report he submitted to his
superiors the next day or the day thereafter contained in substance the
account of the incident he described in evidence. His evidence was no recent
fabrication.

[11] Ceba stated in his report that the incident occurred at Apex station. The
respondent was unable to contradict that this was so. But it could hardly have
been false because had it been so the falsehood would not have gone
unnoticed, nor could Ceba have thought that it would, if indeed he could ever
have had any reason to lie about the station at which the incident occurred.
But the respondent’s version is inconsistent with him having been thrown out

of the train at Apex station. It is clear from his evidence that the whole incident
culminating in him being thrown out of the train was of short duration, perhaps
a minute or two. It was also his evidence that he was first approached by one
of the robbers after the train left Dunswart station, ie that the robbery took
place while the train travelled between Dunswart and Benoni stations. His
evidence is wholly inconsistent with the train having stopped at two stations,
ie Benoni and New Kleinfontein, and thereafter having reached Apex, while
the robbery was taking place.

[12] It follows that in my view not only was the trial judge’s criticism  of Ceba
ill founded but the established facts are consistent with his version and
inconsistent with that of the respondent. It is true that the trial judge had the
opportunity of observing the two witnesses and their demeanour in the
witness box but, as has been stressed both by this court and the
Constitutional Court, the truthfulness or untruthfulness of a witness can rarely
be determined by demeanour alone. In my view, therefore, the court a quo
erred in rejecting the evidence of Ceba and the appeal must succeed.

[13] The appellant was represented in this court by both senior and junior
counsel. However, I am unpersuaded that the case justified the employment
of two counsel.

[14] The appeal is upheld with costs. The order of the court a quo is set
aside and the following substituted in its place:

‘The action is dismissed with costs.’

__________
D G SCOTT

JUDGE OF APPEAL
CONCUR:

NUGENT
JA
HEHER
JA
MAYA
JA
MHLANTLA AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

TRANSNET LIMITED / ARLINDO DE ASSIS JANUARIO
MAELA
Case no: 39/07

From :
The Registrar, Supreme Court of Appeal
Date:
27  March 2008
Status:
Immediate

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

Mr Arlindo Maela sued Transnet Ltd for damages, alleging that he
had been robbed and thrown off a train by the robbers while
travelling between Angelo and Benoni stations. Transnet resisted
the claim and relied on the evidence of a security guard employed
by Transnet who testified that Maela het been reading, that he had
been overcarried and had tried to disembark at Apex station by
stopping the sliding doors from closing and jumping from the train
after it had commenced moving.

The High Court, Johannesburg, had rejected the evidence of the
security guard and found in favour of Maela. On appeal, the SCA
found that this finding could not be justified on the evidence. The
security guard had made a report of the incident a day or two after
the event and had no reason to fabricate his evidence. It was also
clear that Maela had fallen between the train and the platform at
Apex station which was two stations beyond Benoni where he had
intended to disembark. This fact was wholly inconsistent with
Maela’s evidence. Accordingly, the appeal was upheld and
Maela’s claim was dismissed with costs.

---ends---