Mashongwa v Passenger Rail Agency of South Africa

• Jurisdiction: South Africa
• Citation: 2016 (3) SA 528 (CC)

Mashongwa v Passenger Rail Agency of South Africa
2016 (3) SA 528 (CC)

2016 (3) SA p528

Citation	2016 (3) SA 528 (CC)
Case No	CCT 03/15; [2015] ZACC 36
Court	Constitutional Court
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
Heard	August 6, 2015
Judgment	November 26, 2015
Counsel	G Marcus SC (with SG Maritz) for the applicant.; JG Cilliers SC for the respondent.

Flynote : Sleutelwoorde B

Delict — Elements — Unlawfulness or wrongfulness — Liability for omission — Failure to post guard on passenger train — Failure to close carriage's C doors.

Headnote : Kopnota

Mr Mashongwa boarded one of Prasa's [*] trains and it set off with the doors of his compartment open. Three men then entered who robbed and beat him and threw him out of the open doorway. Mashongwa sustained serious injuries D and sued Prasa in delict for the damages flowing from them. His assertion was that the failure to close the door and to post a guard on the train were the cause of his injuries; and that these omissions were wrongful and negligent. A High Court agreed, but its ruling was overturned by the Supreme Court of Appeal. Mashongwa then appealed to the Constitutional Court. There, the issues were as follows:

(1)

E Whether the omissions were wrongful. Held, that they were. Factors supporting this conclusion were: that persons were often forced by means and geography to use trains and to be exposed to the attendant risk of violent crime; once a train was moving passengers were particularly vulnerable to the risk; violent crime on trains was common, and an old and well-known problem; physical injury was involved, and public carriers had a common-law F duty to protect their passengers from physical injury; Prasa had a public-law duty, stemming from the Legal Succession to the South African Transport Services Act 9 of 1989, to protect rail commuters; the Constitution obliged organs of state to protect individuals' constitutional rights; a delictual remedy was the only way to enforce the constitutional value of accountability; Prasa had been aware of its public-law duties for many years; G and no remedy other than a delictual claim was available to Mashongwa and similarly-placed individuals. (Paragraphs [16] – [20], [22], [24] – [27] and [29] at 534B – 535D, 535F – 536A, 536D – 537D and 538A – B.)

(2)

Whether Prasa's failure to post a guard on the train had been negligent. Held, that it had not been. In coming to this conclusion the court considered H the reasonableness of the steps taken to prevent the harm. It accepted that it was necessary to tailor security measures by route, region, and time of year and day; and also that the steps that could be taken were constrained by the available resources. However it could not come to a conclusion on whether the steps that had been taken here were reasonable or unreasonable, because it lacked information on the measures that had been considered and I adopted, and why particular measures had been employed. (Paragraphs [32], [34] – [35], [41] and [43] at 538E – G, 539B – F, 541E – G and 542B.)

(3)

Whether Prasa's failure to ensure the doors were closed was negligent. Held, that it was. This was because the harm (falling from the train) was

2016 (3) SA p529

reasonably foreseeable, even if the sequence leading to it was not; and the A steps reasonably required to prevent it were easy to take. (Paragraphs [51] – [52] and [61] – [62] at 544C – G and 546C – H.)

(4)

Whether the failure to close the doors was the factual cause of the harm. Held, that it was: had the doors been closed it would probably not have been possible for the robbers to rob, beat, force open the doors and throw Mashongwa out before the train reached the next station. (Paragraphs [63] B and [66] – [67] at 546H – 547A and 547E – I.)

(5)

Whether the failure to close the doors was the legal cause of the harm. Held, that it was. (Paragraphs [68] – [69] at 548A – F.)

Appeal upheld and Prasa declared to be liable for Mashongwa's damages. (Paragraph [71] at 548F – G.)

Cases Considered

Annotations C

Case law

Southern Africa

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28): followed D

Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) (2014 (12) BCLR 1397; [2014] ZACC 28): dictum in para [21] applied E

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) ([1989] ZASCA 138): referred to

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; [2005] 8 BLLR 749; [2005] ZACC 8): referred to

Khupa v South African Transport Services 1990 (2) SA 627 (W): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): dictum at 430 applied F

Kruger v Van der Merwe and Another 1966 (2) SA 266 (A): dictum at 272F applied

Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) (2013 (2) BCLR 129; [2012] ZACC 30): referred to

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) G 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): referred to

Loureiro and Others v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) (2014 (5) BCLR 511; [2014] ZACC 4): dictum in para [53] applied

Mashongwa v Passenger Rail Agency of South Africa (GNP case No 29906/2011): referred to H

Minister for Safety and Security v Scott and Another 2014 (6) SA 1 (SCA): dictum in paras [37] – [38] applied

Minister of Police v Skosana 1977 (1) SA 31 (A): referred to

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565; [2000] ZASCA 149): referred to I

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): dictum in paras [21] – [22] applied

Minister van Polisie v Ewels 1975 (3) SA 590 (A): referred to

Ngubane v South African Transport Services 1991 (1) SA 756 (A): referred to J

2016 (3) SA p530

Passenger Rail Agency of South Africa v Mashongwa [2014] ZASCA 202: reversed on appeal A

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) ([2015] ZACC 5): dictum in paras [20] – [24] applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) B (1999 (10) BCLR 1059; [1999] ZACC 11): referred to

R v Dhlumayo and Another 1948 (2) SA 677 (A): dictum at 705 applied

Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): applied

S v Hadebe and Others 1998 (1) SACR 422 (SCA): dictum at 426 applied

S v Mokgethi en Andere 1990 (1) SA 32 (A): referred to

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA) ([2000] 1 All SA 128): referred to C

Shabalala v Metrorail 2008 (3) SA 142 (SCA): referred to

Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) (2007 (3) BCLR 300; [2006] ZACC 16): dictum in para [37] applied

Transnet Ltd t/a Metrorail and Another v Witter 2008 (6) SA 549 (SCA) ([2009] 1 All SA 164; [2008] ZASCA 95): referred to D

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA) ([2002] 4 All SA 346): referred to.

E United Kingdom

Hughes v Lord Advocate [1963] AC 837 (HL) ([1963] 1 All ER 705 (HL)): followed.

Case Information

G Marcus SC (with SG Maritz) for the applicant.

JG Cilliers SC for the respondent. F

An appeal from the Supreme Court of Appeal.

Order

1.

Leave to appeal is granted.

2.

G The appeal is upheld.

3.

The order of the Supreme Court of Appeal is set aside.

4.

The respondent is liable for the damages the applicant may prove.

5.

The respondent is to pay costs of the applicant in the High Court, the Supreme Court of Appeal and in this court, including costs of two counsel, where applicable.

Judgment

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

2016 (3) SA p531

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...