IG}i..Jt'&' I '"J / c.;, 4-1 J::, If.,.DATE JUDGMENT. following an incident which occurred in the early hours of the morning of the

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1 I/ IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) DELETE WHICHEVER IS NOT APPLlCABLE (1) REPORTABLE: \"!!JS / NO. (2) OF INTEREST TO OTHER JUDGES: ~/NO (3) REVISED. I '"J / c.;, 4-1 J::, If.,.DATE IN THE MATTER BETWEEN: KABELO BRIAN KEKANA s CASE NO: 46801/2016 DATE: I d(olf /~ie IG}i..Jt'&' Plaintiff and PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant JUDGMENT KOLLAPEN J: 1. In this action the Plaintiff seeks delictual damages from the Defendant following an incident which occurred in the early hours of the morning of the 21 st of April 2016 at the Kopanong Railway Station near Pretoria.

2 2. At the commencement of the trial and upon the application of the parties, an order was made in terms of Rule 33 ( 4) separating the merits of the trial from the quantum thereof, the Court being satisfied that it was reasonable and expedient to do so. The trial proceeded on the merits and the determination of the quantum was postponed sine die. The background facts 3. The parties have placed diametrically opposed versions of the incident before this Court, as will appear from the evidence. The plaintiff testified in advance of his own case, while the Defendant called four witnesses. The plaintiff's version 4. The Plaintiff's testimony was that on the 21st of April 2016 at about 7:00 am he was at the Kopanong Station waiting for a train that would take him to Mabopane. He waited for between 5 and 7 minutes whereafter the train arrived. The train was full and the Plaintiff boarded. He says the doors of the carriage were open as the train arrived and remained open even after the train departed. After boarding he stood in the centre of the carriage with his back facing the door and was about 1 metre away from the door. He testified that approximately 8 people boarded the carriage after him and would have been standing between him and the door of the carriage. 5. As the train started moving, he was pushed from the carriage and landed on the platform. He says no one offered to assist him but he recalls being approached

3 oy an omc1a1 wno enqwreo about whether he had a train ticket. It was common cause that the Plaintiff had a weekly train ticket 6. He denied that he had informed Mr Modiba. the security officer who approached him after the incident, that he was "staff riding", trying to board a moving train, lost his balance and fell. The plaintiff also denied that he was the person that the train guard, Mr Swanepoel, says he saw running toward the moving train at the Kopanong station at about 7 am that morning, and who tried to unsuccessfully board the moving train and injured himself in the process. He further denied that Mr Swanepoel shouted at him to stop running. 7. While the Plaintiff's further evidence was that none of the personnel at the station offered any assistance to him and that he did not report the incident to any of them, he was unable to offer an explanation for his response furnished through his attorneys, in reply to a question posed by the Defendant in its Request for Further Particulars for Trial. The Defendant's question was: "2. 9 To whom and where was the incident reported?" The Plaintiff's response was: "2.9 The Plaintiff reported the incident to the security officer who later came when he was lying injured on the platform." 8. Finally, when he was asked to offer an explanation as to why it was possible for him to have exited the train after being pushed, without any other person who stood between him and the door and closer to the door, doing so, his response was that it was possible that they were holding onto a rail which prevented them from falling out of the moving train.

4 ~. 1 ne uerenaam Calleo Mr 1v10ruoa, a secunty omcer m its employ. He was not present when the incident occurred, but his evidence was that when he and his colleagues, Ms Mashele and Mr Victor Mashele approached the Plaintiff who was lying injured on the platform and enquired from him as to what happened, the Plaintiff responded that he fell and injured himself while attempting to board a moving train to Mabopane. 10. The ambulance arrived some time after 8am and left the station with the injured Plaintiff at about 8.30 a.m. 11. The witness caused an entry to be made in the Occurrence Book at the Kopanong Station at about 9: 10 am which reads in part as follows: "Feedback: PO Modiba gave feedback as follows: The name inured person is Kabelo Kekana born 1983/ 10/10 residing at no 3881 extension 04 Soshanguve. According to PO Modiba, the victim fell between train and platform at Kopanong Station while trying to board moving train 9611." 12. Ms Mashele and Mr Victor Mashele, a security officer and protection officer respectively, also testified and confirmed in large measure the evidence of Mr Modiba as to the report the Plaintiff made to him as to how the incident occurred. It warrants mention that Mr Modiba and Ms and Mr Mashele did not witness the incident but were only able to testify as to what the Plaintiff had told them about how the incident happened. 13. It is common cause that the Plaintiff's now deceased father, Mr Kekana Sm arrived at the station after the incident and before the ambulance had removed the Plaintiff. Mr Kekana Snr was in discussion with Mr Modiba and Mr

5 1viasne1e ana iv1s iv1asne1e anct provided some mtormation to them with regard to the movements and the timeline of the Plaintiff that morning that suggested that the Plaintiff was late for work that morning and failed to respond to attempts by his father to wake him up earlier That evidence constitutes hearsay and I was urged by counsel for the defendant to admit that evidence in terms of Section 3(1) of The Law of Evidence Amendment Act 45 of 1988 which provides as follows: 3. (J) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless - a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings; b) the person upon whose credibility the probative value depends, himself testifies at such proceedings; or c) the court, having regard to - i. the nature of the proceedings; ii. the nature of the evidence; iii. the purpose for which the evidence is tendered; iv. the probative value of the evidence; v. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends; vi. any prejudice to a party which the admission of such evidence might entail; and vii. any other factor which should in the opinion of the court be taken into account.

6 D. w nen 1 nave regara to mat eviaence ana m parncuiar the probanve value thereof as well as the purpose for which it is tendered, then I am not satisfied that the interests of justice warrant that such evidence be admitted. 16. Finally the Court heard the evidence of Mr Swanepoel, a train guard employed by the Defendant who was travelling with the train and was on board the train when the incident occurred. His evidence was that as part of his duties he is required to activate the opening of the doors when the train arrives at a station, wait for passengers to disembark, and then for others to embark, blow his whistle as a warning before the doors are to close, to activate the closing of the doors then to observe, and to sound the train bell once as a signal for the driver to depart the station. 17. He says he did all of this at the Kopanong station and that from his observations of the carriages he estimated that the train was about half full. He was adamant that all the doors of the carriages were in working order - something again he concluded from his own observations. 18. His fw'ther evidence was that as the train began departing from the station he saw an unknown person running from the subway. He blew his hooter and shouted at him to stop and the person stopped momentarily but then continued running again towards the moving train. He saw the person fall, at which point he sounded the alert for the driver to stop. He then walked along the platform and saw people assisting to get the injured person off the track and onto the platform and when he was satisfied that the injured person was in a safe zone on the platform, he sounded the signal for the train to depart.

7 1~. w Illle ne was unao1e to 1aent1ty the mjured person as being the Plaintiff, his evidence was that there was no other incident at the Kopanong station that morning apart from the one that he had observed. Analysis and Discussion 15. Given the two substantially conflicting versions before the Court, the dicta in STELLENBOSCH FARMERS' WINERY GROUP AND ANOTHER v MARTELL ET CIE AND OTHERS 2003 (1) SA 11 (SCA) is instructive, where the Court held that: "To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability: and (c) the probabilities." 16. In this regard it is also trite that the onus to prove his case on a preponderance of probabilities rests with the Plaintiff as will appear from the following dictum of WESSELS JA in NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION v GANY 1931 AD 187 "Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version and that in this case absolute reliance can be placed upon the story as told by A. Gany... " 17. Adopting the approach enunciated in STELLENBOSCH FARMERS' WINERY, and when I have regard to the totality of the evidence before me,

8 men n 1s c1ear mat wru1e l would not characterise the Plaintiff as a dishonest witness, there are many features of his evidence that are both unreliable and improbable including: a. The significant and unexplained contradiction as to whether or not he reported the incident to any personnel of the Defendant. In my view, persisting with the stance that he did not report the incident would simply mean that the Plaintiff would then not have to contend with the evidence of Mr Modiba and Mr and Ms Mashele as to what he would have told them. It is also highly improbable that none of the staff of the Defendant would have not enquired from the Plaintiff as to what happened, which in all likelihood would have evoked a response from him. b. It is highly improbable, if not impossible, given that the plaintiff was about 1 metre away from the carriage doors with about 8 other people standing between him and the door, that only the Plaintiff would have been expelled from the train. Simply put, it would mean that he would somehow be forced past and through the other commuters who stood between him and the carriage door. c. The Plaintiffs suggestion that the Defendant's witnesses were involved in a conspiracy of lies against him is not only far-fetched, but is militated against by the undisputed facts, namely: 1. Mr Modiba caused the report in the Occurence Book to be made very soon after the incident, as to what the Plaintiff had reported to him. If the conspiracy theory is to hold, it would mean that at that point,

9 wnu;n was aoout L nours aner me mc1dent, Mr Modiba would have had already signed on, as it were, Mr and Ms Mashele to be part of that conspiracy. 11. Mr Swanepoel would also have had to be a willing participant in that conspiracy. Yet he departed from Kopanong soon after the incident and only made a statement much later It would have been bold and extremely optimistic and highly improbable for Mr Modiba to hatch a conspiracy and then hope to get the other conspirators to sign on at alter stage 18. When I have regard to the evidence of the Plaintiff and that of Mr Swanepoel (the only two witnesses in the trial able to give a direct account of the incident) then I was impressed by Mr Swanepoel whose evidence was not seriously challenged except to suggest that there may have been two incidents on the day. His clear and unexaggerated account of the incident and his almost emotionless response to the injured person he saw, contributes to the reliability of his version, even if it leaves him open to criticism for not assisting the injured person. 19. It is against these considerations that I must then determine whether the Plaintiff has discharged the onus of proving the negligence of the Defendant. In this regard when I consider the credibility and reliability of the Plaintiff as a witness, which I have made reference to, as well as the probabilities, to which I have referred, then it cannot be said that the version of the Plaintiff is one upon which reliance can be placed as the true version of events.

10 L.u. vn me conmuy ana ror me reasons given, l must accept the Defendant's version of how the incident occurred and accept the evidence of Mr Swanepoel, supported as it was in material respects by the evidence of Mr Modiba, as well as that of Mr and Ms Mashele, who all testified in clear and satisfactory terms and made a positive impression on me, unlike the Plaintiff whose evidence I have already dealt with above, and who crucially, was unable to offer any explanation as to the two key aspects of his evidence that are central to the determination of liability in this matter - the improbability of the version of his exit from the train; as well as the issue around the reporting of the incident. 21. That being the case, I move on to deal with one final issue having accepted the version of the Defendant, namely that of volenti non fit injuria. Even on the acceptance that the business enterprise of the Defendant carries with it certain dangers and risks, it is evident that the risk of serious injury and perhaps even death is inherent in trying to board a moving train. 22. In SANTAM INSURANCE CO. LTD v VORSTER 1973 ( 4) SA 764 (A) the Court held that "I am accordingly of the opinion that, if it be shown that, in addition to knowledge and appreciation of the danger, the claimant foresaw the risk of injury to himself, that will ordinarily suffice to establish the "consent" required to render him volens- provided always that the particular risk which culminated in his injuries falls within the ambit of the thus foreseen risk. The inherent difficulty that the central factum probandum.-viz. the consent to the particular risk which occasioned the supervening injuries-is basically a subjective enquiry can, I suggest, only be abridged by way of inference from the proved facts. In the nature of things, direct evidence will seldom, if ever, be available; and

11 manijesuy tne negatrve zpse dixit oj the claimant himself can by itself usually carry but little weight. The Court must, in my view, thus perforce resort first to an objective assessment of the relevant facts in order to determine what, in the premises, may fairly be said to have been the inherent risks of the particular hazardous activity under consideration. Thereafter the Court must proceed to make a factual finding upon the vital question as to whether or not the claimant must, despite his probable protestations to the contrary, have foreseen the particular risk which later eventuated and caused his injuries, and is accordingly to be held to have consented thereto. The foregoing appears to me to afford a practical method of dealing with what is admittedly a somewhat difficult problem, to be in general conformity with our decisions in so far as they touch this point. 18. The Plaintiff was clearly alive to the risks inherent in boarding a moving train and notwithstanding that knowledge and realisation, continued to attempt the extremely dangerous manoeuvre of trying to board the moving train. Under those circumstances I must conclude that the Plaintiff voluntarily assumed the risk of being injured. 19. In the circumstances I conclude that the Plaintiff has failed to prove on a preponderance of probabilities any negligence on the part of the Defendant or its agents and his claim must accordingly fail. In addition my conclusion is that on the facts of the matter and the evidence that I have dealt with, the Plaintiff assumed the risk of injury in attempting to board a moving train. His claim must accordingly fail. Order 20. I make the following order:

12 The plaintiffs claim is dismissed with costs including the costs of senior counsel. NKOLLAPEN JUDGE OF THE HIGH COURT OF SOUTH AFRICA 46801/2016 HEARD ON: March 2018 FOR THE PLAINTIFF: Advocate E Phiyega INSTRUCTED BY: Mashapa Attorneys (ref.; Mashapa/CIV/ 16/482) FOR THE DEFENDANT: Advocate J G Cilliers SC INSTRUCTED BY: Stone Attorneys (ref. :4403/Stone)