Mashongwa v Passenger Rail Agency of South Africa

‘The reality is that violent crime is not a rarity on our trains’.¹

New Year’s Nightmare

On New Year’s Day in 2011, Mr Irvine Van Sam Mashongwa was travelling on a train from Walker Street Station to Mamelodi Gardens Station in Pretoria, South Africa. At approximately 11AM, Mr Mashongwa—the only person in his train carriage at the time—was subjected to a violent assault and robbery. Since departing from Walker Street Station, the exterior doors of his train carriage had remained open, and neither the station, nor the train, had any security guards stationed.

Shortly after departing Walker Street, three men entered Mr Mashongwa’s carriage from an adjacent carriage. They demanded his cell phone and money, which Mr Mashongwa obligingly handed over. The assailants then assaulted Mr Mashongwa, causing him to fall. They continued to punch and kick him while he lay on the floor of the train. Shockingly, they then picked him up and threw him off the moving train, through the open exterior doors of the carriage. Mr Mashongwa landed close to the railway platform at Rissik Street Station. He sustained serious injuries to his left leg which subsequently had to be amputated.

The South African Law of Delict

Returning readers of this blog will be familiar with the tort law system. In South Africa, however, it is the law of delict (as opposed to the law of torts) which is used. In civil law and mixed law systems, delict is a type of civil (as opposed to criminal) wrong, just as a tort is a civil wrong in common law jurisdictions.² While South African law does not recognise a tort of negligence, it does recognise the possibility of delictual liability where one person negligently harms another. While delict and tort may be ‘functional equivalents’, their approaches to defining the nature and scope of wrongful acts varies significantly.³ The law of delict is based on general principles and abstract concepts. Five elements of delict must be proven by a plaintiff who suffers harm at the hands of another: conduct, wrongfulness, fault, causation and damage.⁴

Procedural History

Mr Mashongwa brought a claim against the Passenger Rail Agency of South Africa (‘PRASA’) which trades as ‘Metrorail’ and is in charge of public rail transportation in South Africa. In his claim for damages, Mr Mashongwa alleged two negligent omissions by PRASA:

1. That PRASA had negligently failed to provide security guards to ensure the safety of rail commuters; and
2. That PRASA had negligently failed to ensure the exterior carriage doors were closed while the train was in motion.

At first instance, the trial court (the Gauteng High Court of Pretoria) found that PRASA was liable for the injuries sustained by Mr Mashongwa. On appeal, the Supreme Court of Appeal of South Africa reached the opposite conclusion.⁵

In relation to Mr Mashongwa’s first allegation of negligence (failure to provide adequate security), the Supreme Court of Appeal held that even if security guards had been stationed at Walker Street Station, and had ensured that the exterior carriage doors were closed prior to the train’s departure, this would not have prevented the assault on Mr Mashongwa. The assailants would still have entered his carriage and attacked him, given that they entered from an adjoining carriage and not through the open exterior door. To prevent the attack, there would have needed to be at least one security guard stationed in his carriage. According to the Supreme Court of Appeal, this would far exceed the precautionary measures expected of PRASA.

In relation to Mr Mashongwa’s second allegation of negligence (failure to ensure the exterior carriage doors were closed), the Supreme Court of Appeal concluded that once the assailants decided to throw Mr Mashongwa from the train, nothing would have stopped them from forcibly opening the carriage doors to execute their plan. The evidence indicated that this was certainly possible, with the doors deliberately designed to facilitate forced opening in emergency situations.⁶

Accordingly, Mr Mashongwa’s claim was dismissed. Mr Mashongwa appealed to the Constitutional Court (the apex court in the South African judicial system).

The Constitutional Court Decides

Mogoeng CJ delivered the Constitutional Court’s unanimous judgment in favour of Mr Mashongwa. In delivering the Court’s judgment, Mogoeng CJ observed that:

‘In this country, trains are generally used by the overwhelming majority of people who fall within 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. 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 law of general public importance.’⁷

Wrongfulness

In relation to the delictual element of wrongfulness, Mogoeng CJ observed that an omission will be wrongful when it ‘evokes moral indignation and the legal convictions of the community require that the omission be regarded as wrongful’.⁸ Mogoeng CJ further opined that:

‘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 reality is that violent crime is not a rarity on our trains.’⁹

The Court proceeded to point out that PRASA’s ‘central obligation’ is ‘safeguarding the physical well-being of passengers’.¹⁰

Failure to provide sufficient security

In relation to the allegation that PRASA failed to provide sufficient security, the Court determined that there was insufficient evidence to support the assertion that PRASA’s crime-prevention measures were ineffective. It observed that ‘PRASA is not required to provide measures that will guarantee its rail commuters absolute freedom from crimes of violence’.¹¹ Varying crime rates in different parts of the country meant that PRASA was entitled to deploy its limited resources in areas which required more security attention than others.¹² The train from which Mr Mashongwa was thrown operated in a region that had very few incidents of violent crime.¹³

Failure to close the carriage doors

Although the failure to provide additional security guards had not been negligent, the Court reached the opposite conclusion in relation to PRASA’s failure to ensure the exterior doors of the carriage were closed. The Court observed that leaving the train doors open was an obvious potential danger:

‘Any passenger could deliberately or accidentally be pushed out of a moving train. Several scenarios that could result in a passenger falling out of a train come to mind. Slipping or losing one’s balance before the train comes to a standstill or as it takes off or after it has taken off, falling out of the already open door and sustaining serious injuries are some of the potential risks of harm. Open doors are just as dangerous for the elderly, the infirm and small children, as they are for those who might be preoccupied with one thing or another and thus not paying adequate attention to the danger they are exposed to.’¹⁴

The Court also reiterated the high demand for railway travel in South Africa, as the most affordable mode of transportation for the poorest members of society: ‘[f]or this reason, trains are often packed to the point where some passengers have to stand very close to or even lean against the doors. Leaving doors of a moving train open therefore poses a potential danger to passengers on board.’¹⁵

In delivering the Court’s judgment, Mogoeng CJ even went as far as to characterise the open doors of the train as ‘a virtually irresistible temptation to criminals’.¹⁶ Interestingly, Mogoeng CJ concluded that ‘it must have been known to PRASA that criminals at times throw their victims out of its moving trains.’¹⁷ Applying the ‘but-for’ test of factual causation, Mr Mashongwa would probably not have been thrown out of the train had the doors been closed.¹⁸ In relation to legal causation, PRASA’s failure to keep the doors closed was not too remote from Mr Mashongwa’s injuries.¹⁹

Harm of the same general nature

PRASA contended that what was reasonably foreseeable was an accidental fall from the train, and not a deliberate ejecting of a passenger by criminals, especially on a route known for its relatively low crime rate. In rejecting this submission, Mogoeng CJ relied heavily on the decision of the UK House of Lords in Hughes v Lord Advocate.²⁰ That decision dealt with injuries sustained by a child who had accessed a paraffin lamp belonging to the Post Office. As the child descended down a ladder into an open manhole, the paraffin lamp accidentally slipped from his grip. The paraffin which poured from it vaporised and exploded, propelling the child down the manhole and causing him severe burns.

Although the manner in which the harm arose was unexpected, the Post Office was nevertheless liable because the harm that transpired was of the same general nature as the harm which was reasonably foreseeable (namely, that a child may sustain burns if he handled an unattended paraffin lamp). The Constitutional Court applied the reasoning in Hughes v Lord Advocate to the facts of Mr Mashongwa’s case as follows:

‘[T]he criminal act of throwing Mr Mashongwa from the train is equivalent to the paraffin that vaporised, exploded, burnt the boy and threw him down into the manhole. Unforeseeable as was the mechanism by which Mr Mashongwa came to fall from the train, it was most certainly harm of the same general nature as the harm that was foreseen. Landing out of a moving train as a result of an accidental fall at the risk of life or limb is not materially different from so landing as a result of some criminal activity. Negligence has thus been established.’²¹

Trouble on the South African Rails

Mr Mashongwa’s injuries were certainly not the first to be sustained on South Africa’s trains. Indeed, South Africa has a long history of violence on its railways. This has disproportionately affected those South Africans who, as a result of Apartheid spatial planning, have been required to live far from urban centres and travel long distances via train to get to work.²²

In an incident near Cape Town in 2013, a man who was rushing to catch his train to work reached the platform just as the train started to pull away from the station. Its carriage doors remained open and the man tossed his bag to a friend who was already inside the train, before attempting to board himself. Unfortunately he fell, fracturing his hips and injuring his spinal cord. The High Court of South Africa found that the man was entitled to recover 50% of his damages from the railway company. The Court observed that a train which moves with its doors open constitutes an invitation to prospective passengers to attempt to board.²³ For an Australian case involving a negligence claim where a man was injured while attempting to alight from a moving train, rather than board a moving train, see our post on Caterson v Commissioner for Railways.

There have also been a number of South African cases involving plaintiffs who have fallen from moving trains while the carriage doors were open. In one such case, a man boarded a train and positioned himself in the middle of the carriage, holding onto a strap which hung from the roof. As more passengers boarded the train, they pushed the man across the carriage, forcing him to release the strap. As the pushing continued, he fell out the open door of the carriage while the train was in motion, landing on the tracks below. He sustained serious bodily injuries and PRASA conceded 100% liability.²⁴

In 2018, a voluntary commuter association, the Rail Commuters Action Group, commenced an action against PRASA/Metrorail, seeking additional security measures on South Africa’s railways. The matter reached the Constitutional Court which ruled that PRASA is obligated ‘to ensure that reasonable measures are taken to provide for the security of rail commuters whilst they are making use of rail transport services provided’.²⁵

Cases involving individuals who have fallen from the open doors of a moving train, or faced harm from assailants while on board a train, underscore the need for enhanced security measures on South Africa’s railways. The readiness of courts to find the railway authority delictually liable in such circumstances goes at least some way to encouraging safety improvements within the rail network.