Yet another sorry story of a passenger injured due to negligence by the Passenger Rail Agency of South Africa (Prasa) is playing out in the high court.
This time, the injured passenger is Siyamthanda Maphela. In 2019, he was a learner at a school in Mowbray, Cape Town. On his way home, a stone thrown from outside the train passed through the open doors of the carriage and struck Maphela on the head. As a result, he fell from the moving train and landed on the rails, unconscious and bleeding from the head.
Luckily, he was travelling with a school friend, Aphelele Tsibiyani. Noticing Maphela was missing, Tsibiyani alighted at the station and went to look for him. He found his friend “lying unresponsive on the railway track ... bleeding from his forehead”. After his call for help to the security officer on the platform met no response, Tsibiyani somehow managed to pick Maphela up on his own and flag down a taxi, which took them to hospital.
According to Maphela’s claim, he suffered a right frontal decompressed fracture of the skull and blunt trauma injuries to his upper and lower body. He wants R3.5m in compensation from Prasa, but this amount has yet to be considered by the courts: the Western Cape High Court has given judgment on the merits of his claim only — compensation must still be argued.
Maphela’s case is that his trauma was the result of Prasa’s negligence in allowing the train to travel with its doors open.
He had a monthly ticket for travelling by train to school and back every day, so he could prove he was a lawful passenger. He said he boarded this particular train as it was the only one that would take him home. The train was packed and there was no place to be seated. He stood facing the open door with people on either side of him “in a line”.
In answer to questions, Maphela said he didn’t hold on to any grab rails “as he was too short to reach them”.
Tsibiyani, for his part, explained that as he was taller than Maphela, he could hold on to the side of the train and could see above the heads of other passengers in the carriage. Further, he could see the people outside the train throwing stones.
All that was required [of Prasa] was to comply with its own operating instructions
— Mas-Udah Pangarker
A ‘disquieting lack of care’
Acting judge Mas-Udah Pangarker ultimately found in favour of Maphela on the merits. However, in the course of her decision she also had some harsh criticism for Prasa.
Awarding punitive legal costs against the rail agency, Pangarker criticised aspects of the way Prasa had handled the matter leading up to the hearing, and said the case could have been settled on the merits (without a court hearing).
Further, this case — in which a pupil had fallen from a train — showed Prasa’s “disquieting lack of care and interest in the safety of commuters” was continuing, despite the warnings of the Constitutional Court in several decisions about the duty of care owed to passengers.
Pangarker referred to argument that, according to general operating instructions, train doors are to be closed when the train is moving. “All that was required [of Prasa] was to comply with its own operating instructions,” she said. Only, this wasn’t done. In allowing the doors to remain open while the train was travelling, Prasa failed in its legal duty towards Maphela.
The judge took issue with a further aspect of Prasa’s conduct: there were five hours between the rail agency receiving an anonymous call that there was someone lying on the tracks near Nyanga station and an employee going out to investigate.
“This conduct is shocking,” Pangarker said, adding: “I wonder what would have happened to [Maphela] had he been travelling [without] Tsibiyani, who had the concern and foresight to run back to the railway tracks once he realised that his friend was no longer in the train.”
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