Bukhosini v Transnet Ltd t/a Metrorail
| Jurisdiction | South Africa |
| Judge | Murugasen J |
| Judgment Date | 17 October 2008 |
| Citation | 2008 JDR 1325 (D) |
| Docket Number | 6673/2004 |
| Court | Durban and Coast Local Division |
Murugasen J:
The Plaintiff in this matter. Sabelo Malkom Bhukhosini, a 24 year old male, has instituted an action against the Defendant, Transnet Ltd t/a Metrorail, a company providing rail facilities for the public, for damages arising from an incident which occurred on the 4 August 2001 at the Tongaat Central Railway Station ('the Station") in which the Plaintiff sustained injuries consequent upon being shot by one Nkosinathi Moffat Memela (hereinafter referred to as 'Memela').
In his particulars of claim the Plaintiff alleged that he had been shot by Memela acting in the course and scope of his employment with the Defendant; and alleged in the alternative, that the Defendant was in breach of a duty of care it owed to commuters utilising the rail facilities, and to the Plaintiff in particular.
2008 JDR 1325 p2
Murugasen J
The Plaintiff was represented by Adv F Abrahams instructed by Feisal Abrahams Attorneys. The Defendant was represented by Adv J Marais SC and Adv V Naidu instructed by Woodhead Bigby & Irving.
By consent, the issues of liability and quantum were separated at the commencement of the trial, and the trial therefore proceeded only on the issue of liability.
The following exhibits were admitted:-
Exhibit A Criminal Bundle, being the record and documents relating to the criminal proceedings against Memela and Metrorail Posters
Exhibit B The Defendant's General Bundle of Documents
Exhibit C The Defendant's Album of Photographs
Exhibit D J88 Report by Dr A G Naidu on the medico-legal examination of the Plaintiff dated 4 August 2001
Exhibit E Letter dated 9 September 2008 in respect of the budget for Security Costs for Durban Metrorail 2001-2008, as prepared by Mr Rajen Haripersad.
During argument, Mr Abraham advised the Court that the Plaintiff would not persist with the cause of action based on the vicarious liability of the Defendant , and that the Plaintiff accepted that there were two security guards on duty on 4 August 2001 at the time of the incident.
Mr Abrahams properly conceded that the aforementioned causa could not be sustained, as the Defendant had presented evidence that Memela was employed by the Defendant as a ticket seller and announcer at Gledhow Station as at 4 August 2001. On that date he was on duty only between the hours of 4h30 and 12h00 and was therefore, at the time of the incident not on duty. The firearm with which Memela shot the Plaintiff was not issued by the Defendant. It would therefore appear that Memela's actions were a result of
2008 JDR 1325 p3
Murugasen J
his personal reaction to the behaviour of the Plaintiff and his friends, and that Memela was therefore on, the much quoted, 'frolic of his own', and clearly acting outside the course and scope of his employment with the Defendant.
It is common cause that:
The Plaintiff sustained gunshot wounds to his abdomen and his right leg whilst on the platform of the Tongaat Central Railway Station, the property of the Defendant, on the evening of 4 August 2001.
Memela, who was employed by the Defendant as a ticket seller and announcer at the Gledhow Railway Station on 4 August 2001, was the person who shot the Plaintiff.
The Plaintiff was removed from the Station in a private vehicle.
He was treated at the Victoria Hospital and his injuires were as recorded in the J88 (Exhibit D).
The Defendant owed a Duty of Care to the Plaintiff in particular and to commuters who used its facilities in general;
The Defendant had employed a private security company, East Coast Security, in discharge of its aforesaid duty of care;
Two security guards in the employ of the security company were on duty at the Station on 4 August 2001 at the time when the Plaintiff was shot.
The issues that lay for decision by the Court were:
Whether the employees of the security company, subcontracted to the Defendant, had on 4 August 2001 performed their duties as they were required to for the purposes of discharging the the Defendant's duty of care;
If not, whether as a result of their failure to perform their duties there was any vicarious liability attaching to the Defendant;
Whether the Defendant was in breach of the Duty of Care it owed to the Plaintiff in that :
it had failed to discharge the legal duty on it to ensure that reasonable and adequate security measures were in
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Murugasen J
place for the protection of the commuters, and of the Plaintiff in particular;
the Defendant was negligent in failing to take steps to ensure that the security company and its guards were executing their responsiblities and duties effectively ;
the negligence of the Defendant had resulted in the Plaintiff being shot.
The Plaintiff testified on his own behalf and called one witness, Mfundiso Lungwana, who was present with him on the 4 August 2001 on the train and at the Station when he was shot.
The Plaintiff testified that he and his friends boarded a train belonging to the Defendant at Berea Road Station at about 18h00. There were signs in or on the train that knives and weapons were not allowed on the train. While the Plaintiff and his friends were talking, Memela who was unknown to them, approached them and told them that they were being noisy. He then returned to his seat. They continued talking but at a reduced level of noise. Memela approached them again, this time aggressively, and said to them "Didn't I tell you that you were making a noise?" Nothing further occurred on the train.
The Plaintiff and his friends disembarked from the train at Tongaat Central Station and were walking together towards the exit when Memela approached them and said "Didn't I tell you you were making a noise? You are going to die badly".
As the Plaintiff was about to ask what it was that they had done, Memela drew a firearm and shot the Plaintiff on the right side of his abdomen. The Plaintiff fell down. He heard further shots but did not see who was firing. He then saw Memela standing in front of him pointing the firearm at his head. The Plaintiff begged him not to shoot and raised his right leg, but Memela shot him in the leg. His friends then tried to assist him and his brother arrived and took him to the hospital where he was treated and remained for some time.
The Plaintiff indicated on Photographs 2 and 3 of Exhibit C that the shooting had taken place away from the ticket office and building at the Station and on the platform indicated to the near right on the photographs.
2008 JDR 1325 p5
Murugasen J
The Plaintiff testified that he commuted on the same route daily prior to 4 August 2001, and he had seen Metro officials on previous occasions, identifying them by the bibs they wore. He saw them inside the train during the day, and observed them sometimes conducting searches of suspicious persons. Prior to 4 August 2001, he had also seen them patrolling at the Tongaat Central Station but only during the day; he had not seen them after 18h00.
On 4 August 2001 when he alighted from the train, he had not seen any security personnel nor had they approached him.
Under crossexamination by Mr Marais, the Plaintiff testified that at the time of the incident he was seventeen years old and in Grade 11. He came from a stable home environment where education was important. His friends were students and did not drink alcohol.
While they were on the train they had not misbehaved. No one in their coach had a problem with their behaviour but Memela. They were surprised when he asked them to be quiet on the train but thought it was the end of the incident.
The Plaintiff confirmed that the Station was fenced on both sides adjacent to the railway lines which were alongside the two platforms, and entrance was via a gate. It was dark when they arrived at the Station but there were overhead lights.
The Plaintiff confirmed that the only incident that he was aware of that had occurred on the...
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