Mashongwa v Passenger Rail Agency of South Africa
Jurisdiction | South Africa |
Judge | Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J |
Judgment Date | 26 November 2015 |
Citation | 2016 (3) SA 528 (CC) |
Docket Number | CCT 03/15 [2015] ZACC 36 |
Hearing Date | 06 August 2015 |
Counsel | G Marcus SC (with SG Maritz) for the applicant. JG Cilliers SC for the respondent. |
Court | Constitutional Court |
Mogoeng CJ (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J concurring): H
Introduction
I [1] This case raises an important question of law. And that is whether a transport utility ought to be held delictually liable for damages that flow from a breach of its public-law duty to provide safety and security measures for its rail commuters.
[2] More specifically, when no security guards were deployed on a train or J coach in which a passenger was attacked and severely injured by
Mogoeng CJ (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J concurring)
criminals, should this failure result in the responsible transport utility A being held delictually liable for the ensuing damages? Additionally, when the doors of a coach were left open while the train was in motion and a passenger was thrown out of it and sustained injuries and damages, should that omission alone, or only when coupled with the non-deployment of security guards, lead to the imputation of delictual liability for the harm? B
[3] To answer these questions it must first be determined whether wrongfulness, negligence and causation, necessary for delictual liability to be imputed, have been proved.
Parties C
[4] The applicant is Mr Irvine Van Sam Mashongwa. He resides in Mamelodi East. The respondent is the Passenger Rail Agency of South Africa (Prasa). It is a transport utility established in terms of s 2 of the Legal Succession to the South African Transport Services Act [1] (SATS Act) and trades as Metrorail. Prasa is an 'organ of state'. [2] D
Background
[5] On 1 January 2011 Mr Mashongwa boarded a train operated by Prasa at Walker Street Station in Pretoria. He was the only passenger in E the coach when the train left the station, but passengers could move from one coach to another. And there were no security guards at Walker Street train station or on the train.
[6] Approximately two minutes into the journey three unarmed men entered the coach in which Mr Mashongwa was travelling, from an F adjoining coach. They demanded his money, wallet and cellular phone. He readily obliged. Despite his cooperation, they hit him with fists and kicked him even after he had fallen. That part of the incident lasted for about two minutes. He called for help, to no avail. In spite of his resistance, his assailants threw him out of the moving train shortly before it reached Rissik Street station. He landed approximately 30 metres from the station platform and sustained serious injuries to his left leg. That leg G was subsequently amputated.
Litigation history
[7] Mr Mashongwa instituted action against Prasa in the Gauteng Division of the High Court, Pretoria (High Court). [3] H
[8] His case was that Prasa did not adopt reasonable measures for his safety. Also that Prasa, as an organ of state, had a duty to respect, protect, promote and fulfil his constitutional rights [4] by reason of its I
Mogoeng CJ (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J concurring)
A responsibilities in terms of the SATS Act. [5] His main contention was that his constitutional right to be free from all forms of violence from either public or private sources was infringed. [6]
[9] Prasa was found to have been negligent because it did not ensure that the train doors were closed when the train left Walker Street station and B that at least one armed guard was deployed on each train during the festive season so as to deter potential criminals. [7] The High Court also held that Prasa had a duty to secure its rail passengers, although crime can never be completely prevented. Prasa was held liable for 100% of Mr Mashongwa's proven or agreed damages, with costs. [8] Aggrieved by C this outcome, Prasa lodged an appeal to the Supreme Court of Appeal. [9]
[10] The Supreme Court of Appeal disposed of both grounds of negligence on the basis that neither was causative of Mr Mashongwa's loss. It invoked the traditional 'but for' test as set out in International Shipping Co (Pty) Ltd v Bentley in support of this finding. [10] It took the D position that leaving the doors open was not dispositive of the causation issue, because the assailants could just as well have forced the doors open in order to throw Mr Mashongwa out. [11] It held that at least one security guard was required in Mr Mashongwa's coach to have averted the attack, and expressed reservations whether one security guard in the train would E in any event have made a difference. [12] It then concluded that it was unreasonable to require Prasa to have a security guard in every coach because that requirement would far exceed the precautionary measures reasonably to be expected of Prasa. [13] The judgment records that this was accepted by counsel for Mr Mashongwa. Dissatisfied with the unfavourable outcome, Mr Mashongwa escalated the matter to this court.
Jurisdiction F
[11] The engagement with counsel during the hearing necessitated a reflection on whether this court has jurisdiction to entertain this application.
G [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.
Mogoeng CJ (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J concurring)
As I understood the concern in relation to this court's jurisdiction, it was A 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, ss 7(2) and 12(1)(c) of the Constitution are the pillars on which the superstructure of this case rests. Mr Mashongwa's claim owes its origin largely to the obligations B 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 s 167(3)(b)(i) of the Constitution. C
[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 D 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 E law of general public importance. [18]
Leave to appeal
[15] Leave to appeal must be granted. As indicated above, [19] this application raises a constitutional issue. It also raises an arguable point of F
Mogoeng CJ (Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and Zondo J concurring)
A law of general public importance relating to Prasa's legal obligations to protect its rail commuters from harm. And Mr Mashongwa has reasonable prospects of success. That this is so will become apparent in the ensuing discussion. It is thus in the interests of justice that leave be granted.
Wrongfulness B
[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 C 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.
D [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 E 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 F 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'. [22]
G [19] What then is this case about? It concerns physical harm suffered by a passenger when attacked and later thrown off a moving train, as well as the sufficiency of the safety and security measures employed by Prasa. And the question is whether Prasa's conduct was wrongful. Khampepe J pointed...
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