THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case no:   062/07

In the matter between:

SIPHIWE ALTON SHABALALA

APPELLANT

and

METRORAIL

RESPONDENT

______________________________________________________________

Coram:

SCOTT, HEHER, JAFTA, MAYA et COMBRINCK JJA

Date of hearing:
20 November 2007
Date of delivery:   28 November 2007

Summary:     Commuter shot and robbed on train – action for damages – Metrorail
could not be expected to have had a security guard in each and every carriage.

Citation: This judgment may be referred to as Shabalala v Metrorail  [2007] SCA   157
(RSA)

SCOTT  JA/….

SCOTT JA:

[1] The appellant, a 44 year-old man, was shot and robbed while a
passenger on a train operated by the respondent. He subsequently instituted
action in the Johannesburg High Court alleging negligence on the part of the
respondent and claiming damages arising from gunshot wounds he sustained
in the attack. The court a quo (Horn J) was asked to decide only the issue of
the respondent’s liability and to direct that the issue of the quantum of
damages stand over for later determination. The court decided the former
issue in the respondent’s favour and dismissed the action with costs. The
judgment is reported as Shabalala v Metrorail 2007 (3) SA 167 (W). The
appeal is with the leave of this court.

[2] The appellant testified that at about 7 pm on 21 May 2004 at Dunswart
railway station he boarded a train bound for Springs with the intention of
travelling as far as Brakpan station. Before boarding the train he observed
about 11 commuters waiting on the station. He said there were no security
guards on the platform and there was no ticket examiner at the entrance to
the station. When the train arrived he got on and sat down. The other 11
commuters got into the same coach. As the train pulled away three men in the
coach stood up. One of them confronted the appellant and demanded money.
When the appellant said he had none, the person produced a handgun and
without further ado fired three shots. The appellant was hit twice in the leg and
once in the arm. He fell to the floor and his assailant searched his pockets,
taking R130 in cash, a train ticket and a wrist watch. In the meantime, the
other two who had stood up busied themselves robbing other passengers in
the coach. When the train arrived at the next station, which was Benoni, the
appellant managed to get off the train. Two security guards, one male and the
other female, came to his assistance. He pointed out the robbers to them but
they attended to him rather than attempt to apprehend the robbers. The train
pulled off with the robbers still on board.

[3] The appellant testified that the 11 persons who had waited on the
platform at Dunswart station all gave the appearance of being normal

passengers. There was similarly nothing untoward about the appearance of
the three robbers. The gunman wore a leather jacket which covered his hips.
He drew his firearm from under his jacket. The appellant could not say
whether the robbers had boarded the train at Dunswart or whether they were
already in the coach when the train arrived at the station.

[4] In the course of cross-examination, the appellant testified that there
were usually security guards on the trains on which he travelled. He said this
was the case ‘especially during the day’ and ‘on occasions at night’. Some of
the security guards, he said, were armed while others had ‘two-way radios’.
They all wore uniforms. The appellant inferred that there were no security
guards in the other coaches at the time of the robbery. But this inference, he
said, was based on the fact that he ‘banged on the coach’, while being
attacked and no one came to his assistance. Given the fact there was no door
linking the coach in which he travelled to the next one, and also the noise the
train in motion would have made, the inference was unjustified.

[5] The above was the sum total of the evidence placed before the trial
court. After the appellant had testified he closed his case. The respondent
thereupon also closed its case.

[6] In his particulars of claim the appellant alleged that the respondent (the
defendant in the court below) had been negligent in the following respects:

‘1.
The Defendant failed to ensure the safety of members of the public in general and the
Plaintiff in particular on the coach of the train in which the Plaintiff travelled;
2.
The Defendant failed to take any or adequate steps to avoid the incident in which the
Plaintiff was injured when by the exercise of reasonable care they could and should have
done so;
3.
The Defendant failed to take any or adequate precautions to prevent the Plaintiff from
being injured on the moving train;
4.
The Defendant failed to employ employees, alternatively, failed to employ an
adequate number of employees to prevent passengers in general and the Plaintiff in particular
from being injured in the manner in which he was.

5.
The Defendant failed to employ employees; alternatively, failed to employ an
adequate number of employees to guarantee the safety of passengers in general and the
Plaintiff in particular;
6.
The Defendant neglected to employ security staff alternatively sufficient security staff
on the platform and/or the coach in which the Plaintiff was travelling to ensure the safety of
the public in general and the Plaintiff.’

It will be observed, in passing, that the grounds of negligence relied upon are
all of a general nature and relate to a systemic failure on the part of the
respondent. In other words, the alleged failure did not relate to an omission on
the part of an individual employee to act in a particular way in relation to the
specific incident in question, but rather to an omission of a general nature on
the part of the respondent to put in place measures that would ensure the
safety of commuters travelling on the respondent’s trains.

[7] It is now well-established that a negligent omission, unless wrongful,
will not give rise to delictual liability. The failure to take reasonable steps to
prevent foreseeable harm to another will result in liability only if the failure is
wrongful. It is the reasonableness or otherwise of imposing liability for such a
negligent failure that will determine whether it is to be regarded as wrongful.
See eg Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138 (SCA) para 11. If it is reasonable to do so, the defendant will
be said to have owed the injured party a legal duty to act without negligence;
that is to say, to take such steps as may have been reasonable to avert the
harm. In Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2)
SA 359 (CC) it was held that Metrorail was obliged to take reasonable
measures to provide for the security of commuters while making use of its rail
transport. However, the court (in paras 79-81) emphasized that the obligation
to which it referred arose by virtue of the Legal Succession to the South
African Transport Services Act 9 of 1989; it was a public law obligation and
did not automatically give rise to a legal duty for the purpose of the law of
delict. In this court, counsel were agreed that the respondent was indeed
obliged to act without negligence. In other words, given the foreseeability of
harm to commuters resulting from criminal activity, it was agreed that the
respondent owed commuters a legal duty to take such steps as were

reasonable to provide for their safety and that the failure to take such steps
would render it liable in delict.

[8] It appears from the evidence of the appellant that the respondent had
indeed adopted measures to avert crime by employing security guards both
on its trains and on railway platforms. The question in issue is therefore
whether the appellant discharged the burden of establishing on a balance of
probabilities that those measures were unreasonable in the circumstances
and that had reasonable measures been taken the attack would not have
occurred. When considering this question it is important to bear in mind that
merely because the harm which was foreseeable did eventuate does not
mean that the steps taken to avert it were necessarily unreasonable. See
Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 (6) SA 537 (SCA) para
14. To hold otherwise would be to impose on the respondent a burden of
providing an absolute guarantee against the consequence of criminal activity
on its trains. There clearly is no such burden and the appellant did not
contend that there was.

[9] Whether there were security guards present in any of the other
coaches at the time of the attack is unclear. What is clear is that there was no
security guard present in the coach in which the appellant travelled from
Dunswart station to Benoni station. It is also clear that to avert the attack on
the appellant there would have had to be, at the least, one security guard
present in that coach. I say ‘at the least’ because given the willingness of the
assailant to shoot the appellant in response to no more than the latter’s
statement that he had no money, the presence of a single security guard,
even if suitably armed, may well have made no difference. Indeed, attacks by
armed robbers on security guards, even when armed, are sadly not
uncommon. But even assuming that the presence of a security guard in the
coach would have served as a deterrent sufficient to thwart the attack, the
question remains whether it would be reasonable to require the respondent to
have a security guard, whether armed or otherwise, in each and every coach
of every train. If regard is had to the large number of railway coaches
employed by the respondent to convey commuters many kilometres each day,

such a requirement would, in my view, exceed by far the precautionary
measures that could reasonably be expected of an enterprise operating a
commuter train service. No doubt in particular circumstances it may be
reasonable to expect the respondent, regardless of the cost, to place armed
security guards in each and every coach of a train travelling on a particular
line. Typically, the need for such special precautions could arise if  a particular
line had been identified as being particularly dangerous on account of
repeated criminal activity. But there was no evidence to suggest that this was
so in the case of the line from Dunswart to Benoni.

[10] Counsel for the appellant sought to make something of the fact that
there were no security guards on Dunswart station. But whether this was
unreasonable or not need not be decided. It is clear from the appellant’s own
evidence that whether there were or not, would have made no difference.
There was nothing about the appearance of the commuters waiting on the
station to indicate that any of them might be armed robbers; nor was it
established that the robbers boarded the train at Dunswart station. Counsel
did not suggest that the respondent was required to take steps to ensure that
each and every commuter was searched before boarding a train, nor was this
pleaded. It is conceivable that it might be reasonable in appropriate
circumstances for the respondent to adopt such an extreme measure, but
once again, no evidence was tendered to suggest the existence of such
special circumstances.

[11] It was also emphasized on behalf of the appellant that the nature and
extent of the precautionary measures adopted by the respondent were
peculiarly within its knowledge. This, of course, is so. But it does not mean
that the respondent bore the onus of establishing that it could not reasonably
have prevented the robbery from taking place. The onus of proof remained on
the appellant throughout. Had, however, the appellant placed before the court
at least some evidence giving rise to an inference of negligence on the part of
the respondent which was causally connected to the robbery, the latter would
have been obliged to adduce evidence to rebut that inference or face the
prospect of having judgment granted against it. But, as I have indicated, the

evidence of the appellant makes it clear that the attack could only have been
averted by having an armed security guard in that particular coach. In the
absence of further evidence to justify the need for a security guard in each
coach, the failure on the part of the respondent to ensure that there was such
a security guard present in each coach does not give rise to an inference of
negligence. It is true, as counsel argued, that any such further evidence that
there may have been, would have been within the knowledge of the
respondent, but that did not preclude the respondent from ascertaining the
existence of such evidence, whether by seeking discovery of documents in
the respondent’s possession, or requesting particulars for trial or otherwise.

[12] It follows that in my view the appellant failed to discharge the burden of
proving negligence on the part of the respondent and to this extent the appeal
must fail. The court a quo granted judgment against the appellant. In my view
the correct order should have been one of absolution from the instance. I
propose to amend the order accordingly.

[13] The appeal is dismissed with costs, including the costs of two counsel.
The order of the court a quo is altered to read as follows:

‘(a)
Absolution from the instance is granted.
(b)
The plaintiff is ordered to pay the costs of the defendant.’

__________
D G SCOTT
JUDGE OF APPEAL

CONCUR:

HEHER
JA
JAFTA
JA
MAYA
JA
COMBRINCK JA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

SIPHIWE ALTON SHABALALA AND METRORAIL CASE NO
062/07

From :
The Registrar, Supreme Court of Appeal

Date:
28 November 2007

Status:
Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today dismissed the appeal of Mr
Siphiwe Shabalala whose claim for damages against Metrorail had
been rejected in the Johannesburg High Court.

On 21 May 2004 Mr Shabalala was shot and robbed while a
passenger on a train travelling between Dunswart and Benoni
stations. After boarding the train three men whose appearance
suggested they were ordinary passengers, stood up and
demanded money from the passengers in the coach. When Mr
Shabalala said he had none, one of the men drew a handgun and
without further ado fired three shots at him, hitting him twice in the
leg and once in the arm.

It appeared that Metrorail employed security guards on its trains
and on station platforms. The Court considered that the attack
could possibly have been averted had there been a security guard
in that particular coach. But having regard to the willingness of the
robber to shoot Shabalala in response to no more than the latter’s

statement that he had no money, the Court noted that the
presence of a single security guard, even if armed, may well have
made no difference. It noted, too, that attacks by armed robbers on
security guards, even when armed, are not uncommon.

While accepting that Metrorail was obliged to take reasonable
steps to prevent criminal activities on its trains, the Court held that
Metrorail could not be expected to go so far as to place a security
guard in each and every one of its coaches. This was particularly
so, the Court said, having regard to the large number of coaches
employed by Metrorail to convey commuters many kilometres each
day. Such a requirement, said the Court, would exceed by far the
precautionary measures that could reasonably be expected of an
enterprise operating a commuter train service.

The Court held that the position may have been different had
evidence been adduced that that particular line was notorious for
criminal activity and that special precautions were, therefore,
necessary. But no such evidence was produced and Shabalala’s
claim had to fail. The Court held in the circumstances that the High
Court should have granted an order of absolution from the
instance (ie an order declaring the claim not to have been proved)
rather than judgment in favour of Metrorail. It altered the High
Court’s order accordingly.

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