Mashongwa v PRASA 2016 (2) BCLR 204 (CC)

By Leslie Kobrin

On 31 January 2011, Irvine Van Sam Mashongwa boarded a train operated by the Passenger Rail Agency of South Africa (PRASA) at Walker Street Station in Pretoria. He was the only passenger in the coach when the train pulled out of the station and it was possible for passengers to move from one coach to another. There were no security guards on the platform at Walker Street Station or on the train.

Approximately two minutes into the journey three unarmed men entered the coach in which Mashongwa was travelling from an adjoining coach. They approached him and demanded his money, wallet and cellphone, which he gave to them without protest. They then hit and kicked him and he was thrown out of the moving train shortly before it reached Rissik Street Station. He landed about 30 metres away from the station platform and sustained serious injuries to his left leg, which had to be amputated.

These events were the prelude to an action Mashongwa brought against PRASA in the matter of Mashongwa v Passenger Rail Agency of South Africa t/a Metro Rail (GNP) (unreported case no 29906/2011, 1-10-2013) (Pretorius J).

Mashongwa alleged that PRASA –

• did not adopt reasonable measures to ensure his safety; and
• as an organ of state, had a duty to protect, promote and fulfil his constitutional rights by reason of its obligations in terms of the provisions of the South African Transport Services Act 9 of 1989 (the SATS Act).

He asserted that he enjoyed the right to be free from all forms of violence in terms of s 12 of the Constitution.

The court held that PRASA had been negligent because it did not ensure that the doors of the train were closed when the train left Walker Street Station. It also ought to have ensured that at least one armed guard was deployed on each train in order to deter prospective criminals. Pretorius J also held that although crime can never be completely prevented PRASA had a duty to secure its passengers’ safety. As a result PRASA was held to be liable in an amount equivalent to 100% of Mashongwa’s agreed or proven damages.

PRASA lodged an appeal to the Supreme Court of Appeal (SCA) (Passenger Rail Agency of South Africa v Mashongwa (SCA) (unreported case no 966/2013, 28-11-2014) (Dambuza AJA)). The SCA held that both grounds of negligence alleged, could be held to have been the cause of Mashongwa’s injuries and invoked the ‘but for’ test set out in International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A). The court held that leaving the doors of the coach open while the train was in motion did not dispose of the issue of causation as the assailants could have easily forced the doors open in order to throw Mashongwa out of the moving train. If at least one security guard had been deployed on Mashongwa’s coach the attack could have been avoided but expressed doubts as to whether it would have made any difference. PRASA’s appeal was upheld.

Mashongwa then escalated the matter to the Constitutional Court (CC) in Mashongwa v PRASA 2016 (2) BCLR 204 (CC).

Jurisdiction of the CC

First, the court had to consider whether it was vested with jurisdiction to entertain the application for leave to appeal to it bearing in mind that there is no automatic right of appeal to it. It is well known that the court will have such jurisdiction only if the issue on which it is called to pronounce embraces a constitutional issue and if the matter in question raises a point of law of general public importance.

The court concluded that the issues in this case raise a constitutional issue and an arguable point of law of general public importance relating to PRASA’s legal obligations to protect its rail commuters from harm and, as such, granted leave to appeal, having found that Mashongwa had reasonable prospects of success and that it was in the interests of justice that leave to appeal be granted.

Mogoeng CJ then described the situation of commuters travelling by train by observing that many rail commuters are constrained to use trains to travel to and from work. He also observed that when acts of violence are perpetrated while a train is in motion commuters are confined to the carriages, are virtually trapped and are under the control of PRASA. Commuters cannot escape the attack by alighting from the train.

Wrongfulness

This case concerned and centred around physical harm suffered by passengers when attacked on a train and later thrown off a moving train, whether the measures employed by PRASA to control the safety of passengers sufficed and whether in this matter PRASA’s conduct was wrongful.

In Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2014 (12) BCLR 1397 (CC) at para 22, Khampepe J stated: ‘Wrongfulness is generally uncontentious in cases of positive conduct that harms the person or property of another. Conduct of this kind is prima facie wrongful.’

Mogoeng CJ, in accepting the validity of this principle, held it remains appropriate and correct irrespective of whether one is dealing with positive conduct such as an assault, or the negligent driving of a motor vehicle, or whether one is dealing with negative conduct such as failing to observe a pre-existing duty such as failure to provide safety equipment in a factory. In relation to public carriers such as PRASA, he observed that they have always been regarded as having a duty of care towards passengers to protect them from physical harm while making use of their services.

In this case, it was contended by Mashongwa, that PRASA –

• failed to ensure that there were security guards on the train; and
• permitted the train to travel from Walker Street Station to Rissik Street Station with the train doors open.

In casu the court was required to consider whether a reasonable train operator would have foreseen the risk of harm befalling its passengers arising from such conduct and whether it ought to have taken steps to guard against such harm occurring in answering the inquiry into negligence. The court held at paras 26 and 27:

‘Safeguarding the physical well-being of passengers must be a central obligation of PRASA. It reflects the ordinary duty resting on public carriers and is reinforced by the specific constitutional obligation to protect passengers’ bodily integrity that rests on PRASA, as an organ of state. The norms and values derived from the Constitution demand that a negligent breach of those duties, even by way of omission, should, absent a suitable non-judicial remedy, attract liability to compensate injured persons in damages.

When account is taken of these factors, including the absence of effective relief for individual commuters who are victims of violence on PRASA’s trains, one is driven to the conclusion that the breach of public duty by PRASA must be transposed into a private law breach in delict. Consequently, the breach would amount to wrongfulness.’

Mogoeng CJ concluded that PRASA is under a public law duty to protect its commuters and this duty, together with the constitutional values, have altered the situation of a private law duty to prevent harm to commuters. As a result the court became obliged to consider whether Mashongwa had proved negligence on the part of PRASA.

Negligence

In the GNP, PRASA contended that it took all measures, which were reasonably required of it to secure its passengers.

Following the dictum in Shabalala v Metrorail 2008 (3) SA 142 (SCA) the court held that PRASA was not required to provide measures which would guarantee its passengers absolute freedom from crimes of violence.

After considering the evidence presented by PRASA at the trial as to the reasonableness or otherwise of having a security guard on the coach in which Mashongwa was a passenger, it concluded that no negligence on the part of PRASA was established in it not having posted a security guard on the coach in which Mashongwa was travelling.

On the question of the open doors of the coach in which Mashongwa was a passenger between the Walker Street and Rissik Street stations, the court concluded that particularly during peak periods where trains are overcrowded leaving doors of a moving train open poses a real danger to passengers on board. At para 52 the court stated:

‘It must be emphasised that harm was reasonably foreseeable and PRASA had an actionable legal duty to keep the doors closed while the train was in motion.’

In the circumstances the court held that PRASA was negligent in not ensuring that the doors to the coach were closed while the train was in motion.

Causation

The CC now had the task of dealing with the finding of the SCA in regard to establishing whether causation had been established. It held that, had the doors to the carriage been closed, it would have been unlikely that the assailants would have been able to throw Mashongwa out of the doors of the moving train, and at para 69 the court further held:

‘That the incident happened inside PRASA’s moving train whose doors were left open reinforces the legal connection between PRASA’s failure to take preventative measures and the amputation of Mr Mashongwa’s leg. PRASA’s failure to keep the doors closed while the train was in motion is the kind of conduct that ought to attract liability. This is so not only because of the constitutional rights at stake but also because PRASA has imposed the duty to secure commuters on itself through its operating procedures. More importantly, that preventative step could have been carried out at no extra cost. It is inexcusable that its passenger had to lose his leg owing to its failure to do the ordinary. This dereliction of duty certainly arouses the moral indignation of society. And this negligent conduct is closely connected to the harm suffered by Mr Mashongwa. It is thus reasonable, fair and just that liability be imputed to PRASA.’

Accordingly, PRASA was held liable to pay to Mashongwa an amount equivalent to 100% of his agreed or proven damages.

Conclusion

This decision, being a unanimous judgment, sets out the circumstances under which an organ of state will be held liable for damages in respect of personal injury befalling any person in respect of whom such organ of state has a duty of care to protect and fails to do so.

Leslie Kobrin Dip Iur (Wits) Dip Bus man (Damelin) is an attorney at Bove Attorneys in Johannesburg.

This article was first published in De Rebus in 2016 (May) DR 42.