Gauteng / 27 November 2015, 3:31pm / BALDWIN NDABA
Johannesburg - The troubled Passenger Rail Agency of South Africa (Prasa) has suffered another blow, with the Constitutional Court ruling on Thursday that it is liable to pay up if commuters suffer any form of harm while using its trains.
In what could be a watershed ruling, the Concourt also ruled that bus and taxi operators as well as other transport agencies have, like Prasa, a legal duty to protect their passengers against any form of harm.
Thursday’s ruling came as Prasa is still reeling from scandals involving wasting millions of rand in taxpayers’ money through the illegal awarding of tenders, among other irregularities, as per the findings by Public Protector Thuli Madonsela.
Its former chief executive, Lucky Montanta, was axed for allegedly securing more than R3.5-million tenders for the new diesel locomotives, which reportedly did not meet the country’s railway line standards.
The chief engineer Dr Daniel Mthimkhulu - who made the recommendation for the tender - was found to have not been properly qualified for that job and was not a member of a professional body.
Now, Prasa could face hefty civil claims if it fails to protect its commuters.
In the Mashongwa matter, the Concourt delivered the majority and unanimous ruling on Thursday when it ordered Prasa to pay for the medical and legal costs of Irvine Mashongwa. He had his left leg amputated after four thugs severely assaulted him, robbed him of his belongings, including his cellphone and cash, before they threw him out of a moving train in Pretoria on New Year’s Day in 2011.
In 2013, Mashongwa, a Zimbabwean national, lodged a R4m civil claim against Prasa in the high court in Pretoria. In his main application, Mashongwa said the coach's doors opened while the train was moving - exposing him to danger.
Judge Cynthia Pretorius agreed with Mashongwa and ruled that Prasa was 100 percent liable for the damages he had suffered.
Prasa appealed to the Supreme Court of Appeal (SCA), which found that there were adequate security measures in place and set aside the order of the high court.
Mashongwa then approached the Concourt challenging the SCA’s decision on the basis that it failed to properly consider the evidence.
“If the Court had done so, it would have found that closed train doors and the presence of guards on trains would have reduced the risk of an assault or being thrown off the train,” Mashongwa argued.
On Thursday, the judges of the Concourt, among them Chief Justice Mogoeng Mogoeng and Deputy Chief Justice Dikgang Moseneke, endorsed the high court in Pretoria’s findings and held Prasa liable for the damages Mashongwa suffered.
They found that ordinary commuters use trains because they are affordable and a well-subsidised mode of transport and that they (passengers) expected Prasa to look after their welfare while travelling by train.
Justice Mogoeng further said: “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 act of the train being in motion limit the ability to 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.
“Public carriers like Prasa have a legal duty to their passengers to protect them from suffering physical harm while making use of their transport services. That is true of taxi operators, bus services and the railways,” he added.
The Concourt set aside the SCA ruling and ordered Prasa to pay for damages suffered by Mashongwa and for his legal costs at the high court, SCA and the Concourt.
Prasa spokesperson Victor Dlamini said they would study the judgment first before commenting.