Ngubane v South African Transport Services

• Jurisdiction: South Africa
• Judge: Joubert ACJ, E M Grosskopf JA, Milne JA, Kumleben JA and Nicholas AJA
• Judgment Date: 28 November 1990
• Citation: 1991 (1) SA 756 (A)
• Hearing Date: 12 November 1990
• Court: Appellate Division

Kumleben JA:

Before and during July 1985 the appellant made daily use of the passenger rail service, owned and administered by the respondent, to travel from home to his place of employment and back. He would board at Dube station and proceed to Cleveland station where he would alight and J go to work. Grosvenor Halt and George Goch station are two of the

Kumleben JA

A intermediate stops along that route. It is part of an extensive railway network for the Southern Transvaal region operating inter alia to convey commuters living in the townships on the Witwatersrand.

On the morning of 23 July 1985 the appellant was severely injured at Grosvenor. He sustained a spinal fracture resulting in permanent partial B paralysis. In due course he sued the respondent in the Witwatersrand Local Division of the Supreme Court for payment of the sum of R1 817 733,06 as damages, alleging that negligence on the part of the respondent or its servants, or both, caused his injuries. The plea denied liability; alleged that the appellant had been contributorily negligent; and put him to the proof of his damages. The Court (per C Hattingh AJ) dismissed the claim on the ground that the appellant failed to prove that the respondent or its servants had acted negligently. The Court, however, did indicate the amount it would have awarded under the various heads of damages, had liability been proved. The appellant was granted leave to appeal to this Court. The respondent successfully D applied for leave to cross-appeal against the 'findings', as they were described in the notice of application to cross-appeal, in respect of damages. Section 20 of the Supreme Court Act 59 of 1959 authorises an appeal, which includes a cross-appeal, from a 'judgment or order' of the Supreme Court. Since the Court a quo neither made an order nor gave a judgment in favour of the appellant, the cross-appeal was plainly E misconceived. This Mr Burman, who appeared for the respondent, conceded. It follows that any costs arising from the 'cross-appeal' are to be borne by the respondent whatever the outcome of this appeal.

The appellant's notice of appeal was not timeously served on the respondent or lodged in this Court. The reasons for this oversight F appear from an affidavit of the attorney in an application for condonation. It was not opposed and was granted at the start of the hearing of the appeal on the understanding that the appellant is to pay the costs, if any, incurred by the respondent arising from this application.

The appellant gave evidence and told the Court how he came to be injured. That morning he was a passenger on the train from Dube to G Grosvenor. He arrived there at about 07:20 and alighted to await a train to take him on to Cleveland. When one arrived he boarded a third class coach, which was more or less in the middle of the train. A series of photographs of a similar coach (exh A) and its interior (exh E) depict the doorway and in its immediate vicinity the configuration of the H interior of the coach. Each coach has sets of double doors opposite each other. When the train stops at the station only those doors on the platform side ought to be opened. There is a step running below the bottom of each doorway, and a vertical post in the middle, as shown in exh A p 1, both of which are intended to facilitate entering and leaving the coach. In line with and between the centre posts, hanging straps are I attached to the roof of the coach: they thus extend across its width. When the doors are closed the sliding sections on each side meet at the centre post. To continue with his evidence, the coach which he boarded was crowded, particularly in the vicinity of the doorway through which he and others entered: so crowded in fact that he was obliged to be close to that doorway. On entering he stood with his back to the post as J he faced the opposite doorway, which he

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A noticed was open although it was not on the platform side. He held on to the overhead strap nearest that doorway with his one hand: he was not the only person holding on to it. (His evidence thus indicates that he was just inside the coach and, had the doors closed behind his back, he would have been close to them.) As he secured himself in this position, people, as he put it, 'were pushing their way to get out' and 'others B were pushing in'. At this point the train started with a jerk and continued moving forwards. Those passengers near the doorway who still wished to disembark, or were in the act of doing so, started screaming and pushing past and against him. Before the train started there were no signs of disorder or panic. The state of congestion and the movement of people at the critical time when he took up his position in the coach, C and immediately afterwards, were thus described by him during cross-examination:

'Now the train that you tried to get into, was it full? - Yes, it was full.

And was it also full at that compartment where the door is? - Yes, my Lord.

And was it full to the degree that there were people standing right up to where the door was? - Yes, my Lord.

In other words to get onto the train you had to move these people to D make room for yourself? - My Lord, the people who were in front, that is, next to the door, some of them had already got out of the train and there was a little space for me to squeeze in and then I had to push in, my Lord, to make way for me to get in.

And those people who also got on together with you, did they have to do the same? - My Lord, I assumed that they should have used the same E manner to get in. My Lord, I was not the only one pushing in to get onto the train. There were people pushing in on my right-hand side as well as on my left-hand side.

Now when you got on the train, had everyone who wanted to get off, got off or were there still people trying to get off? - Yes, my Lord, there were. There were people still trying to get off? - Yes.

Can you help us by telling us how many approximately? - No, my Lord, I F cannot assist this Court to that effect because, my Lord, I already had had a grip on the belt, that is the strap, my Lord, and even if there were people pushing past me and then I had my grip on that strap.'

And at a later stage his evidence reads:

'When you got onto the second train it was stationary? - Yes.

And you do not know. These people who when tried to get off, where were G they coming from? - They came out of the train.

How many in number were they approximately? - No, my Lord, I cannot say or estimate how many there were but there were many people.

Trying to get out? - Yes those were coming out. You know everybody has got many ideas of what they think are many. What do you think is many? Two, four, 10? - My Lord, it is difficult for me to say because, my H Lord, when I was already inside there were still people who were trying to get out of the train, my Lord. That is why then I cannot say how many there were.

And when you got on you could see that there were people trying to get off? - My Lord, there were people who were going the opposite direction, getting out of the train as we were getting onto the train.'

(The passages I have italicised will be referred to later in this I judgment.)

The passengers pushing as they alighted caused him to loose his overhead hold. He fell backwards out of the open doorway of the coach and rolled onto his side. He remembers hearing an unusual noise and feeling warm air on his body. (From these recollections he infers that he had fallen J between the platform and the train and that he was injured whilst

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'Underneath' the Train.) He Next Remembers Lying on the Platform and Talking to a Policeman. an Ambulance Was Summoned. He Was Taken on a Stretcher from the Platform and Conveyed to Hospital.

There were no eyewitnesses to the occurrence: the appellant's account therefore stands uncontradicted by any direct evidence. The trial Court B made no adverse finding on the credibility of the appellant. Nor is it said in the judgment that his demeanour on the witness stand in any way pointed to his being untruthful or unreliable. The Court, however, after considering certain aspects of his evidence, concluded that it contained some unsatisfactory features and, in the light of them, entertained a 'serious doubt' as to whether the appellant was injured in the manner C described by him. For this reason it assumed the correctness of his evidence and held, as I have said, that the respondent was not proved to have been negligent. Before us counsel for the respondent went further: relying upon substantially the same aspects of the evidence of the appellant as the trail Court, Mr Burman submitted that the appellant was D an untruthful witness. Thus one must first and foremost decide whether the appellant's evidence ought to be accepted. Although the respondent relies upon the cumulative effect of the points of criticism raised in the judgment and in argument before us, it is necessary to examine them individually in order to decide what weight, if any, ought to attach to each.

E [The learned Judge of Appeal then dealt with the various points of criticism against the appellant's evidence and continued as follows.]

I have already drawn attention to the fact that the Court a quo found no fault with the manner in which the appellant gave his evidence; nor did it make any adverse finding on his credibility. The grounds for F doubting the truth of his testimony are, in my view for the reasons stated, not significant. They do not warrant its rejection in the absence of any direct evidence that he was injured in some other manner.

The liability of the respondent is therefore to be determined on the basis that the appellant's account of the accident is in all material G respects truthful and reliable.

I turn to...