Passenger Rail Agency of South Africa (PRASA) v Makgonyana (68646/2014) [2017] ZAGPPHC 773 (8 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 68646/2014

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

PASSANGER RAIL AGENCY OF SOUTH AFRICA

(PRASA) Applicant

And

KARABO SEFAHLI MAKGONYANA Respondent

JUDGMENT

NKOSI AJ

INTRODUCTION

(1) This is an application for leave to appeal against the judgment of this court which I delivered on the 23 August 2016.

(2) The basis of this appeal is to be found in section l 7(i)(a)(i) of the Supreme Court 10 of 2013 which provides that :

(i) Leave to appeal may only be given where the Judge or Judges concerned are of the opinion that,

(a)(i) The appeal would have a reasonable le prospect of success;

(3) This appeal turns on two main issues. First, whether the court should have rejected the evidence of the single witness, who was a minor because of contradictory versions in his testimony. Second, whether the court in realizing that it was dealing with the evidence of a minor should have applied the cautionary rules and by failing to do so, should have declared to mistrial or absolved the Defendant from the instance.

APPLICATION FOR POSTPONEMENT

(4) The Applicant was represented by Mr Machaba. When the matter was called, he informed the court that he had no opposition. Indeed so, there was no notice of opposition in the bundle of documents before court. When he commenced arguing the application for leave to appeal , Mr Ledwaba arrived in court and immediately introduced himself as the Respondent's Attorney of record. Nevertheless, I allowed him to address the court.

(5) Mr Ledwaba informed the court that he was not aware of this application for leave to appeal because the attorney who handled the matter at his office has since resigned and he needed time to familiarise himself with the matter. He further stated that he only became aware of Applicant's application when he received an email from Registrar advising him of the date of hearing of this

application. Since then, he did nothing to approach his counterpart, alert them of his intention to seek a postponement or request an indulgence. There was also no formal application for a postponement before court.

(6) Mr Machaba submitted that the application for postponement took him by surprise and consequently the applicant claimed prejudice. He brought to light the fact that. the Respondent knew about the appeal since 2 September 2016 when the notice of leave to appeal was served. The judgment and transcript were emailed to the Respondent on the 16 October 2016 and on the 24 October 2016 the Respondent was furnished with a paginated bundle. Notwithstanding receipt of these documents, the Respondent failed to deliver a notice of intention to oppose.

(7) It is fast becoming a common practice by legal practitioners in lower courts to force a postponement merely because the practitioner has recently taken over the matter from his colleague. This practice is slowly finding its way into our higher courts. Such practice should be discouraged at all levels of courts. A postponement may be granted only in those instances where good cause is shown and the court is satisfied that it will be in the interest of justice to do so. I am heeding the call made in Take and Save Trading CC v Standard Bank[1] wherein Harms JA said ;

"One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner),to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right"

(8) In Lekolwane and Another v Minister of Justice and constitutional Development[2] it was said ;

"The postponement of a matter set down for hearing on a particular date cannot be claimed as a right. An Applicant for a postponement seeks an indulgence from the court. A postponement will not be granted, unless this court is satisfied that it is in the interest of justice to do so. In this respect the application must ordinarily show that there is good cause for the postponement, whether a postponement will be granted is therefore in the discretion of the court. In exercising that discretion this court takes into account a number of factors, including (but not limited to ) whether the application has been timeously made, whether the explanation given by the Applicant for postponement is full and satisfactory , whether there is a prejudice to any of the parties , whether the application is opposed ad the broader public interest"

(9) The application for a postponement was brought on the date of hearing of the application for leave to appeal and this took the applicant by surprise. In my view the Applicant was justified to claim prejudice. Mr Ledwaba failed to take the court into his confidence by not giving a reasonable explanation for the delay in bringing the application for a postponement. He did not show a good cause to persuade the court to grant his request for a postponement. In my view it is not in the interest of justice to grant the request. I accordingly dismissed the application for a postponement.

EVIDENCE IN BRIEF

(10) The minor testified that he was a passenger in a train and had a valid train ticket. In its plea, the defendant denies that the minor had a valid ticket. However, this issue was not challenged during cross examination. When he boarded the train it was full of passengers who were jostling for space. The train door was open when the train left the train station. It was at that stage that he was pushed by other passengers and fell out of the train. What remains a thorny issue is the description of how he fell out of the moving train. In this regard the minor gave different versions.

(11) First, he testified that he was inside the train holding to a steal rail which was a step away from the train door. When the train left the train station, it was shaking and someone stepped on his foot he lost his grip and fell out of the train. If this version was to be believed, it demonstrates that the minor is not the author of his own misfortune. A passenger caused him to lose his grip and fell out of a moving train when the train door was open at the time.

(12) Second, in his particulars of claim he stated that he was pushed by passengers who were jostling for space inside the train. According to this version, he was pushed and did not jump out of the train.

(13) Third, during cross examination it came out that the minor made a contemporaneous statement to a nurse on the same date of the incident. In that statement, it is written that he fell trying to climb on the train. The Applicant submitted that what the minor told the nurse constitutes a further version of the incident. I have difficulties with this submission . In its plea, the Applicant merely stated that the incident did not happen as alleged by the minor and did not plead the version told to the nurse .

(14) Fourth, under cross examination he gave a further version by stating that being stepped on and being pushed is the same thing. I understood the minor to mean that the stepping and pushing happened in the process of being pushed out of the rain. It should be recalled that the train was moving, shaking and full of passengers who were jostling for space. It is not always possible to an adult or a child alike, to be precise about the sequence of events under such circumstances.

CAUTIONARY RULES

(15)The minor was born on the 31 May 1999. The incident took place on the 6 March 2013 and he was a teenager aged approximately 14 years at the time. When he testified in court, he was still a teenager but approaching the age of18 years.

(16) It was the minor's evidence in the trial that he commutes daily to and from school using a train unaccompanied. This lead the court to believe that he was familiar with the environment at the train station and has the experience in travelling in a train

unaccompanied. His testimony would therefore not be foreign to his daily experiences of travelling in a train.

(17) I agree with respect with Mr Machaba's submission that a cautionary rule is an important aid to assist a Judge when considering

uncorroborated evidence of a minor. In this instance, the court is faced with only the evidence of the minor and nothing of substance

from the Defendant.

(18) The minor was a comp tent witness. At no stage was the court given an impression that he could not distinguish between right and wrong or between the truth and a lie. Considering his age at the time he testified, his past experience in travelling in a train unaccompanied and the fact that his injuries according to him were not self-inflicted but

caused by the train which was carrying him to his destination, I did not anticipate that his evidence was inherently potentially unreliable as submitted by Mr Machaba and in effect I did not find it to be as such.

(19) In S v Stevens[3] the Supreme Court of appeal confirmed the application of the so called "Cautionary Rule " as was set out by Diemont JA in S v Sauls and others 1981 (3) SA 172 at l 80E-G as follows ;

"There is no rule of thumb test or formula to apply when it comes to consideration of the credibility of a single witness (see the remarks of Rump FF JA in S v Webber ...). The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether despite the fact that there are short comings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP in 1932 (in R v Mokoena 1932 OPD 79 at 80) may be a guide to a right decision but it does not mean "that the appeal must succeed if any criticism, however slender of the witnesss evidence were well-founded" (per Schreimer JA I in R v Nhlapo (AD 7 0 November 7952) quoted in R v Bellingham 7955 (2) SA 566 (A) act 569). It has been said more than once that the exercise of caution must not be allowed to displace the exercise of commonsense. "

(20) In weighing the evidence the court had only the evidence of the minor to consider. There was no material evidence lead by the defendant. The fact that he uses a train daily when travelling to and from school, which fact was not disputed, lead the court to accept that he was on the train in question on the day of the incident. In three of the four versions on how he fell from the train, it is clear that he did not jump out of a moving train but was pushed. He testified that the door of the train was open when the train was in motion. If the train door was closed, that could have prevented him from falling out of the moving train. The train conductor was not called to either dispute the allegation of an open door or explain the condition of the door at the time of the incident. The plaintiff pleaded various acts of negligence on the part of the defendant including the defendant's failure to secure the train door.

(21) The totality of the minor's evidence notwithstanding the inconsistencies on how he fell persuaded me to conclude that the minor's evidence was reasonably probably true. There was nothing suggesting that the minor exaggerated his evidence.

(22) When the minor boarded the train, there were already other passengers in the train. More passengers boarded the train at the next train station which lead the train to be full to capacity. It is not the minor's fault that the train was full of passengers. The plea of contributory negligence or apportionment of damages cannot hold. The minor cannot be blamed for being in a train that was full to capacity.

(23)The circumstances of the present case are distinguishable from various decided cases which deal with cautionary rules and which I was referred to namely, R v Manda 1951 (3) SA 158 (A); Mokoatle vc (CA & R.266/11 (2013) ZAECG HC 39 (l March 2013); S v Dyria 2010(i) SACR 78 (ECG), S v Cele (AR48/2012(2012) ZAKPHC 42; (2012) 4 ALL SA 182 KZP (17 Juky 2012) . In each of these cases, the court qualifies the noun "child" by using an adjective such as, "young" or "little" to describe the child.

(24)In S v Cele[4] the court stated

"The evidence of a young child has been said to be unreliable because of the child's inexperience, imaginativeness and suggestibility to influence".

It is significant to note that the court referred to the child as "a young child". In the present case the minor is not a young child.

(25) In the present case, the minor was approaching the age of 18 years when he testified. He testified about an incident which emanates from his daily experience of travelling in a train. What he encountered in the train on the day of the incident was not imaginative. He was therefore capable of giving independent testimony without external influence from any person.

CONTRADICTIONS

(26)I have already referred to the contradictions in the minor's evidence. These are in my view not relevant to what the plaintiff needed to prove in order to succeed with her claim.

(27) The facts which I found to have been proven on balance of probabilities are first, the minor was a passenger in the train in

question. In this regard the applicant did not place any evidence on record to the contrary. Second, the minor had a valid ticket and it forms part of the bundle of documents before court. There is no evidence from the applicant to prove the contrary. Third, the train was full and people were jostling for space. Except a bare denial, there is no evidence to prove otherwise. Fourth, the door of the train remained open when the train was in motion. The train conductor was not called to give evidence and refute the minor's allegation. Fifth, the minor did not jump out of the train on his own volition.

(28)The minor made a statement later that day to a nurse explaining how he got injured. However .he was not the author of the statement and was in pain when asked to explain the incident. The applicant chose not to call the nurse who took down the minor's statement. The circumstances under which the statement was taken are not clear. It is not c lea r whether the nurse had the necessary consent of the minor's guardian when taking the statement. The alleged statement was not tendered into evidence since the nurse was not called to testify. In my view this version was not properly established .This version is outweighed by the other versions which confirm that the minor did not jump but was pushed.

(29)The court is not pleased with the manner in which the Respondent conducted himself in this application. The court's displeasure should reflect in the cost order to be made.

CONCLUSION

(30) I am not convinced that there is reasonable prospects that another court would come to a different conclusion.

ORDER

I. The application for leave to appeal is dismissed.

II. There is no order made in respect of cost.

ACTING JUDGE

HIGH COURT GAUTENG

For Applicant : Advocate Machaba

Instructed by :Jerry Nkeli & Associates Inc

For Respondent :Mr Ledwaba

Instructed by :M.A Selota Attorneys

Date of Hearing :26 October 2017

Date of Judgment :08 November 2017

[1] Take and Save Trading CC v Standard Bank of SA LTD 2004 (4) SA 1 (SCA) per Harms JA at para 3.

[2] Lekolwane and Another v Minister of Justice and Constitutional Development [2006] ZACC 19; 2007 (3) BCLR 280 (CC) para 17, see also National Police Service Union v Minister of safety and security 2000(4} SA 1110 (CC) at 1112 c-f.

[3] 3 S v Stevens [2004] ZASCA 70 at para 17

[4] S v Cele [2012) 4 ALL SA 182 at para 16