A man who was thrown from a moving train wants the Constitutional Court to overturn a judgment which he claims would make it impossible for people to hold the Passenger Rail Agency of SA (Prasa) accountable for such injuries.
Irvin Mashongwa had boarded Prasa’s Metrorail train from Walker Street to Mamelodi in Pretoria on New Year’s Day in 2011 when three men approached him and demanded his wallet and cellphone.
After he complied with their demand‚ the men assaulted him and threw him out through the moving train’s open doors. His leg was later amputated as a result of the injuries.
Mashongwa claimed damages from Prasa and the high court in Pretoria found that Prasa was liable for 100% of Mashongwa’s proven damages.
However‚ Prasa appealed and the Supreme Court of Appeal dismissed Mashongwa’s claim. It held that Mashongwa had failed to establish that Prasa’s negligence caused the attack.
In written submissions to the Constitutional Court filed last month‚ Mashongwa’s advocates‚ Gilbert Marcus SC and Stefan Maritz‚ said at issue was whether Prasa fulfilled its statutory and constitutional duties to take reasonable measures to provide for Mashongwa’s safety and whether failure to do so caused the attack.
They said the evidence established that there were no security guards on the train at all when Mashongwa was attacked. They also said where the doors were already opened‚ robbers could easily throw passengers from a moving train.
They said the presence of at least a single guard would undoubtedly have had a better chance of preventing an attack.
“It is highly unlikely that the three unarmed men would have attacked or attempted to rob Mr Mashongwa and then throw him out of a moving train under circumstances where an armed guard was nearby.”
Prasa’s advocate‚ Jaap Cilliers SC‚ in his written submissions filed this month‚ said if the court found Prasa did not provide sufficient security measures‚ the question was whether Mashongwa proved that the incident would have been prevented if Prasa took reasonable measures relating to protection of commuters on trains. Prasa also denies that the doors of the train were open.
Cilliers said even if the Constitutional Court found that Prasa should have employed guards on all its trains‚ this would still not assist Mashongwa. He said Mashongwa also had an onus to prove a causal link between the failure to do so and the incident that followed.
Cilliers said even if the doors were opened‚ Mashongwa failed to establish a causal link between the open doors and the incident that caused his injury.
-RDM News Wire
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