Shongwe v South African Rail Commuter Corporation
| Jurisdiction | South Africa |
| Judge | Phatudi J |
| Judgment Date | 20 February 2009 |
| Docket Number | 41334/2007 |
| Hearing Date | 04 February 2009 |
| Court | Transvaal Provincial Division |
| Citation | 2009 JDR 0114 (T) |
Phatudi J:
The Plaintiff instituted an action on personal injury claim against the Defendant. The Plaintiff claims payment of a global estimated amount of R573 000, 00 as damages he allegedly will suffer as a result of injuries he sustained on the 28 November 2006 at Kopanong Railway Station. The Plaintiff sustained the said injuries when he fell in between the moving train that had gained speed and the platform.
2009 JDR 0114 p2
Phatudi J
At the commencement of the trial, both Counsel for the parties informed me that the parties had agreed to separate the merits and the quantum as envisaged in terms of the Rule 33(4). I then made an order to that effect. In their opening statements, Counsel for the Plaintiff submitted that the Defendant negligently contributed to Plaintiff's injurie while, on the other hand, the Defendant raised volenti non fit iuria as their defence.
The Plaintiff testified in Zulu and Mr Buda, (the Interpreter) interpreted to English. His testimony was, in short, that he was commuting by train on daily basis from home to work. At the time of the accident he was almost in his 28th day commuting home to work by train. He was a bearer of monthly train ticket en mute Pretoria- Mabopane. He, on the 28 November 2006 at about 20h00 went to Kopanong railway station with intent to board a train home (Mabopane). The train was on the platform on his entering the station's main entrance gate (access control).
He said that the train had already pulled off when he was at the last two (2) steps up the last set of stairs on the platform. He was 6-7 metres from the stairs to the train. He, at that moment, saw the first two (2) train doors open followed by the third that was closed pass by. He then ran towards the fourth door, which he alleged to have been opened. He ran parallel with the train for a distance of about 2-3 meters trying to board the train through that fourth train door. He then slipped, fell under the train and sustained injuries on his left
2009 JDR 0114 p3
Phatudi J
leg, which had to be amputated, as a result thereof. The security guards assisted him later by removing him from the rails onto the platform.
He, under cross examination, conceded that the train was already in motion at the time he intended to board the rain. He further conceded that it was dangerous to board a train that was in motion.
When questioned on the procedures on the part of the train guards before the train depart the station, he said that he observed that one of the following would happen:
Train guard would blow the whistle indicating to the train driver to pull off, or
The train driver would stick his head out from the front prior to pulling off from station.
He further said that they do that to ensure that the commuters have cleared from the train doors. He then conceded that he knew that no one is allowed to board a moving train. He said although he knew that it was dangerous to board a train in motion, he did try to board that train because the door was open. He acknowledged that he took a risk as it was late at night. He, however, blamed himself for what had happened and for the open door.
2009 JDR 0114 p4
Phatudi J
The Plaintiff stated under re-examination that he neither heard any blown whistle nor saw the train guard on the day in question. He further said that he slipped when boarding the train in motion. The Plaintiff then closed his case.
The Defendant called 3 witnesses to testified. The first to testify was Robert Mokgotho. He was a security guard employed by Hlanganani Protection Services and deployed as such at Kopanong Railway Station. He, on the 28 November 2006, was on duty at access control (gate).
Robert said that the Plaintiff ran passed the access control around 20H30. He shouted and told him not to run as he may get injured. He was downstairs and did not see what had actually happened. He was later called by his colleague who requested some assistance.
He under cross examination estimated the distance from the access control to the staircase entrance to be 15 meters. He further estimated the time spent by Plaintiff to reach the platform to have been 45 seconds. The second witness Justice Maigo, a security guard, as well employed by Hlanganai Protection Service, was, on the 28 November 2006, on duty at Kopanong Railway Station when the accident occurred. He stated that he was deployed to guard platform 1. He said on the said day, he saw a man running parallel with the train that was already in motion with its doors closed. The train had picked up speed, he said. He, however, did not see what had happened to the running man as he...
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