TRANSPORT UTILIITY’S DUTY TO PREVENT HARM TO PASSENGER.

INTRODUCTION

On 31st January 2011, Irvine Van Sam Mishanga boarded a train operated by PRASA at Walker Street Station in Pretoria. . He was the only passenger in the coach when the train pulled out of the station and it was possible for passengers to move from one coach to another. Here were no security guards on the platform at Walker Street Station or on this train. Two minutes into the journey three unarmed men entered the coach in which Mr Mashongwa was travelling from an adjoining coach. They approached him and demanded his watch and cell phone which he gave to them without protest or demur. They then hit him, punched him and kicked him and he was unceremoniously thrown out of the moving train shortly before it reached Rissik Street Station. He landed about 30 metres away from the station platform and sustained serious injuries to his left leg which had to be amputated.
These events were the prelude to an action Mr Moshongwa brought against PRASA in the Gauteng Provincial Division Pretoria of the High Court. He alleged that PRASA:- 1. Did not adopt reasonable measures to ensure his safety;

2. As an Organ of State had a duty to protect promote and fulfil his constitutional rights by reason of its obligations in terms of the Provisions of the SATS Act 9 of 1989. He asserted that he enjoyed the right to be free from all forms of violence in terms of Section 12 of the Constitution.
The Trial Court held that PRSA were negligent because it did not ensure that the doors to the train were closed when the train left Walker Street Station. It also ought to have ensured that at least one armed guard was deployed on each train during the festive season in order to deter prospective criminals. The Trial Judge also held that although crime can never be completely prevented PRASA had a duty to secure its passengers. As a result PRASA were held to be liable to Mr Moshongwa in an amount equivalent to 100% of his agreed or proven damages.
PRASA lodged an Appeal to the Supreme Court of Appeal. The Appeal Court held that both grounds of negligence alleged, could be held to have been the cause of Mr Moshongwa injuries and invoked the “but for” test set out in INTERNATIONAL SHIPPING CO (PTY) LTD VS BENTILEY 1990(1)SA680 A. The Appeal Court Judges held that leaving the doors of the coach open whist the train was in motion did not dispose of the issue of causation as the assailants could have easily forced the doors open in order to throw Mr Moshongwa out of the moving train. If at least one security guard was deployed on Mr Moshongwa’s coach the attack could have been avoided but expressed doubts as to whether it would have made any difference. PRASA’s appeal was upheld.

Mr Moshongwa then escalated the matter to the Constitutional Court. On 26th November 2015, after hearing argument Mogoeng CJ handed down his judgment with which Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Malanga J Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ, and Zondo J unanimously concurred, and reported under the citation
MASHONGWA VS PRASA (2015) ZACC 36
JURISDICTION OF THE CONSTITUTIONAL COURT
The Court had to first consider whether it was vested with jurisdiction to entertain the Application for leave to appeal to it bearing in mind that there is no automatic right of appeal to the Highest Court in the Land. It is well known that this Court will only have such jurisdiction if the issues on which it is called to pronounce embraces a constitutional issue and/ or the matter in question raises a point of Law of general public importance. In his judgment Mogoeng CJ pronounced on this issue of jurisdiction at numbered paragraphs 12, 13 and 14, from which I quote verbatim:-

(12) On the face of it, the determination of the issues does not seem to hinge on any constitutional issue. The case appears to be purely factual in nature with the result that once the requirements of wrongfulness, negligence and causation are met that should be the end of the matter. As I understood the concern in relation to this Court’s jurisdiction, it was that no constitutional matter appeared to be implicated.

[13] Although it may not look like the outcome turns on the meaning or vindication of any constitutional provision or right, sections 7(2) and 12(1)(c) of the Constitution are the pillars on which the superstructure of this case rests. Mr Moshongwa’s claim owes its origin largely to the obligations imposed on PRASA, an organ of state, by these provisions.14 In addition, an enquiry into wrongfulness “focuses on the conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable”.15 On these bases this Court does have jurisdiction in terms of section 167(3)(b)(i) of the Constitution.

[14] This Court also derives jurisdiction from the realisation that this matter raises an arguable point of law of general public importance, which deserves the attention of this Court.16 In this country, trains are generally used by the overwhelming majority of people who fall within the low income bracket. These are the proverbially voiceless and in reality vulnerable members of our society. Furthermore, incidents of crime on trains and related issues have in the past been sufficiently raised before our courts to warrant a pronouncement by this Court.17 The safety and security of the poor people who rely on our train network to go to work or move from one place to another does raise an arguable point of law of general public importance.”

RAIL COMMUTERS ACTION GROUP VS TRANSNET T/A METRORAIL 2005 (4) BCLR 301CC(METRORAIL AT PARA 82

LOUREIRO AND OTHERS VS IMVULA QUALITY PROTECTION (PTY) LTD (2014) ZACC4 ; (2014) (3) SA394 (CC); 2014(5) BCLR 511 CC

COUNTRY CLOUD TRADING CC VS MEC DEPARTMENT OF INFRASTUCTURE DEVELOPMENT GAUTENG (2014) ZACC 28; 2015 (1) SA 1 CC; 2014(12) BCLR 1397 (CC) AT PARA 21;

SECTION 167(3)(b) (ii) OF THE CONSTITUTION;

MINISTER OF SAFETY AND SECURITY VS VAN DUIVENBODEN (2002) ZASCA 79; 2002 ALL SA 741 SCA;

VAN EDEN VS MINISTER OF SAFETY AND SECURITY (2002) ZASCA 132; 2003 (1) SA389 SCA;

SHABALALA VS METRORAL (2007) ZASCA 157; 2008(3) SA142 SCA;

PAULSEN AND ANOTHER VS SLIP KNOT INVESTMENTS 777 (PTY) LTD (2015) ZACC 5; 2015(3) SA479 CC AT PARA 20-4.

The Court this concluded that the issues in this case raises a constitutional issue and an arguable point of law of general public importance relating to PRASA’S legal obligations to protect its rail commuters from harm, and as such granted leave to Appeal, having found that Mr Moshongwa had reasonable prospects of success and that it was in the interests of justice that leave to Appeal be granted.

Mogoeng CJ then described the situation of commuters travelling by train at paragraphs 16, 17, and 18 of his Judgment, thus:

“(16) Many rail commuters are constrained by the long distances they have to travel and limited financial resources, to use trains as their primary mode of transport. Understandably so, because this well-subsidised public transport system is affordable. Presumably, passengers enter these trains reasonably believing that the transport utility is alive to the dangers to which train users are exposed in the course of their journeys and has taken such steps as are necessary to avert the reasonably foreseeable harm that could otherwise befall them.

[17] When acts of violence are perpetrated while a train is in motion, commuters are virtually trapped. Confinement to compartments places passengers almost entirely under the control and mercy of PRASA. So does the fact of the train being in motion limit the ability to simply alight at will. Passengers jump out of a moving train to escape an attack by violent criminals, at the risk of breaking their limbs or losing their lives. And the reality is that violent crime is not a rarity on our trains.

[18] The vulnerability of rail commuters and the precarious situation in which they often find themselves ought, by now, to be self-evident. It is 10 years since Metrorail in effect highlighted the need to keep coach doors closed to secure rail commuters and the significance of failing to provide safety and security measures for them when a train is in motion.20 Even then it was not a new problem as there were reported decisions in other courts that dealt with it.21 This underpins the utmost importance of PRASA’s duty “to ensure that reasonable measures are in place to provide for the safety of rail commuters”

TRANSNET TRADING AS METRORAIL AND ANOTHER VS WITTER (2008) ZASCA 95; 2008 (6) SA 549 (SCA)

NGUBANE VS SOUTH AFRICAN TRANSPORT SERVICES 1991(1) SA756 A;

KHUPA VS SOUTH AFRICAN TRANSPORT SERVICES 1990 (2) SA 627 W

WRONGFULNESS

This case concerned and centred around physical harm suffered by passengers when attached on a train and later thrown off a moving train as well as whether the measures employed by PRASA to control the safety of passengers and whether in this matter PRASA’S conduct was wrongful.

In COUNTRY CLOUD TRADING CC VS MEC DEPARTMENT OF INFRASTUCTURE DEVELOPMENT GAUTENG (2014) ZACC 28; 2015 (1) SA 1 CC; 2014(12) BCLR 1397 (CC) AT PARA 22,

Khampepe J stated:
Wrongfulness is generally uncontentious in cases of positive conduct that harms the person or property of another. Conduct of this kind is prima facie wrongful.”

Mogoeng CJ, in accepting the validity of this principle, held it remains appropriate and correct irrespective whether one is dealing with positive conduct such as an assault, or the negligent driving of a motor vehicle, or whether one is dealing with negative conduct such a failing to observe a pre-existing duty such as failure to provide safety equipment in a factory. In relation to Public carriers such as PRASA he said at paragraph 20;

“[20] Public carriers like PRASA have always been regarded as owing a legal duty to their passengers to protect them from suffering physical harm while making use of their transport services. That is true of taxi operators, bus services and the railways, as attested to by numerous cases in our courts. That duty arises, in the case of PRASA, from the existence of the relationship between carrier and passenger, usually, but not always, based on a contract. It also stems from its public law obligations. This merely strengthens the contention that a breach of those duties is wrongful in the delictual sense and could attract liability for damages.”

In this case, it was contended by the Plaintiff, that PRASA failed to do two things:

1. It failed to ensure that there were security guards on the train; and;

2. It permitted the train to travel from Walker Street Station to Rissik Street Station with the train doors open.

In casu the Court was required to consider whether a reasonable train operator would have forseen the risk of harm befalling its passengers arising from such conduct and whether it ought to have taken steps to guard against such harm occurring in answering the enquiry into negligence. The learned Chief Justice at paragraph 22 said:

“But in addressing wrongfulness the question is whether omissions of that type, in breach of PRASA’s public law obligations, are to be treated as wrongful for the purposes not only of public law remedies, but also for the purpose of attracting delictual liability sounding in damages.”

He continued at paragraphs 26 and 27 by stating:

“[26] Safeguarding the physical well-being of passengers must be a central obligation of PRASA. It reflects the ordinary duty resting on public carriers and is reinforced by the specific constitutional obligation to protect passengers’ bodily integrity that rests on PRASA, as an organ of state. The norms and values derived from the Constitution demand that a negligent breach of those duties, even by way of omission, should, absent a suitable non-judicial remedy, attract liability to compensate injured persons in damages.

[27] When account is taken of these factors, including the absence of effective relief for individual commuters who are victims of violence on PRASA’s trains, one is driven to the conclusion that the breach of public duty by PRASA must be transposed into a private law breach in delict. Consequently, the breach would amount to wrongfulness”

MINISTER OF SAFETY AND SECURITY VS VAN DUIVENBODEN (2002) ZASCA 79; 2002 ALL SA 741 SCA;

VAN EDEN VS MINISTER OF SAFETY AND SECURITY (2002) ZASCA 132; 2003 (1) SA389 SCA;

SHABALALA VS METRORAL (2007) ZASCA 157; 2008(3) SA142 SCA;

The learned Chief Justice concluded that PRASA is under a public law duty to protect its commuters and this duty together with the constitutional values have altered the situation of a private law duty to prevent ham to commuters. As a result the Court was now obliged to consider whether the Plaintiff proved negligence on the part of PRASA.

NEGLIGENCE

In the Trial Court PRASA contended that it took all measures which were reasonably required of it to secure its passengers.

Following the dictum in

SHABALALA VS METRORAL (2007) ZASCA 157; 2008(3) SA142 SCA;

The Court held that PRASA is not required to provide measures which will guarantee its passengers absolute freedom from crimes of violence and Mogoeng CJ stated at paragraph 34 and 35

“…..It is only obliged to provide measures consonant with a proper appreciation of the constitutional and statutory responsibilities it bears. That acts of violence are perpetrated on our trains is a reality. It is also known that the levels of crime vary from area to area, from season to season and from one time of day to another. An individualisation of solutions to regions, routes, seasons and time of day would thus be an appropriate response to this challenge.

[35] Consistent with the different levels of crime on trains countrywide, there should be a differentiation in the deployment of the limited resources at the command of PRASA for security. The resources allocated to Johannesburg or Cape Town may, for example, have to be significantly different in nature or greater in comparison with those set aside for a city like Kimberly. And this differential treatment extends to the kind of safety and security measures deemed appropriate for areas whose trains are affected more by violent crime than others. That security guards are deployed to trains in one area would thus not necessarily mean that trains in all other areas have to be provided with the same security detail. Security measures must be crime-level and area-specific. A one-size-fits-all approach would be rather too robotic and insensitive to the priorities that compete for the meagre resources that all state subsidised institutions have to contend with.

[36] Some lines or trains probably require more security attention than others. It would thus not necessarily be negligent of the transport utility to have not deployed security guards to a particular route at a time a commuter was attacked, if that route were known to be in a low risk or low crime area. To determine the reasonableness of the measures taken by PRASA, in conformity with the value of accountability, reasons for the position taken must be provided.”

RAIL COMMUTERS ACTION GROUP VS TRANSNET T/A METRORAIL 2005 (4) BCLR 301CC (METRORAIL AT PARA 88

After considering the evidence presented by PRASA at the Trial as to the reasonableness or otherwise of having a security guard on the coach in which the Plaintiff was a passenger, and concluded that no negligence on the Part of PRASA was established in it not having posted a security guard on the coach in which the Plaintiff was travelling.

On the question of the open doors of the coach in which the Plaintiff was a passenger between Walker Street Station and Rissik Street, Mogoeng CJ said this at paragraphs 46 47 48 and 49

“[46] It bears yet another repetition that there is a high demand for the use of trains since they are arguably the most affordable mode of transportation for the poorest members of our society. For this reason, trains are often packed to the point where some passengers have to stand very close to or even lean against the doors. Leaving doors of a moving train open therefore poses a potential danger to passengers on board.

[47] Any passenger could deliberately or accidentally be pushed out of a moving train. Several scenarios that could result in a passenger falling out of a train come to mind. Slipping or losing one’s balance before the train comes to a standstill or as it takes off or after it has taken off, falling out of the already open door and sustaining serious injuries are some of the potential risks of harm. Open doors are just as dangerous for the elderly, the infirm and small children, as they are for those who might be preoccupied with one thing or another and thus not paying adequate attention to the danger they are exposed to.

[48] Doors exist not merely to facilitate entry and exit of passengers, but also to secure those inside from danger. PRASA appreciated the importance of keeping the doors of a moving train closed as a necessary safety and security feature. This is borne out by a provision in its operating procedures requiring that doors be closed whenever the train is in motion. Leaving them open is thus an obvious and well known potential danger to passengers.

[49] PRASA’s general operating instructions have rules “prohibiting trains traveling with open doors”.46 The very existence of these instructions and the fact that they were an issue of note whose importance was explained in Metrorail,47 ought to have fuelled PRASA’s zeal to ensure that all doors were closed when the train took off. Keeping them open rendered throwing Mr Mashongwa out of a moving train a virtually irresistible temptation to criminals. It thus facilitated his being thrown out. Importantly, it must have been known to PRASA that criminals at times throw their victims out of its moving trains.”

At paragraph 52 the Learned Chief Justice stated

‘[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.”

In the circumstances the Court held that PRASA was negligent in not ensuring that the doors to the coach were closed whilst the train was in motion.

CAUSATION

The Constitutional Court now had the task of dealing with the finding of the Supreme Court of Appeal that the element of causation had been established. At paragraph 66 and 67 of his Judgment the Learned Chief Justice held that:

‘ “(66)……Had the doors of the coach in which Mr Mashongwa was travelling been closed, it is more probable than not that he would not have been thrown out of the train. The distance to be traversed by the train between the station where he boarded and the station where he was thrown out of the train takes about six minutes to cover. To beat him up and throw him out of a moving train is a mission that would probably have required more than six minutes to accomplish, if the doors were closed.

[67] In all likelihood, he would not have been thrown out of the train had the strict safety regime of closing coach doors, when the train is in motion, been observed. Contrary to what the Supreme Court of Appeal held, it strikes me as highly unlikely, based on the evidence tendered, that the three attackers would have found it easy to force the doors open and throw out Mr Mashongwa, who was resisting, as quickly as they did taking advantage of the already open doors. On a preponderance of probabilities Mr Mashongwa would not have sustained the injuries that led to the amputation of his leg had PRASA kept the doors closed.”

And further at paragraph 69

“[69] 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.”

Accordingly, PRASA was held liable to pay to Mr Mashongwa an amount equivalent to 100% of his agreed or proven damages.

CONCLUSION

This decision, being a unanimous judgment of the Justices serving at highest Court in the Land sets out the circumstances under which an Organ of State will be held liable for damages in respect of personal injury befalling any person in respect of whom such Organ of State has a duty of care to protect an fails to do so.

----------------------..
LESLIE KOBRIN
Associate Attorney at
BOVE ATTORNEYS
JOHANNESBURG

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