Mashongwa v Passenger Rail Agency of South Africa

On 1 January 2011, Mr Irvine Van Sam Mashongwa boarded a train operated by the Passenger Rail Agency of South Africa (PRASA) at Walker Street station in Pretoria. He was the only passenger in the coach. There were no security guards at the station or on the train. Approximately two minutes into the journey, three unarmed men entered the coach from an adjoining coach and demanded his money, wallet and cellular phone. Despite his cooperation, they assaulted him and threw him out of the moving train shortly before it reached Rissik Street station. The doors of the coach had been left open while the train was in motion. He landed approximately 30 metres from the station platform and sustained serious injuries to his left leg, which was subsequently amputated. The distance between the two stations takes about six minutes to cover by train.

• Whether a transport utility can be held delictually liable for damages flowing from a breach of its public law duty to provide safety and security measures for rail commuters
• Whether the failure to deploy security guards on a train constitutes wrongfulness and negligence
• Whether leaving coach doors open while a train is in motion constitutes wrongfulness and negligence
• Whether the elements of wrongfulness, negligence and causation necessary for delictual liability have been proved
• Whether a breach of public law duty can be transposed into a private law delictual claim
• Whether factual and legal causation have been established

1. Leave to appeal is granted. 2. The appeal is upheld. 3. The order of the Supreme Court of Appeal is set aside. 4. The respondent (PRASA) is liable for the damages the applicant may prove. 5. The respondent is to pay costs of the applicant in the High Court, the Supreme Court of Appeal and in this Court including costs of two counsel, where applicable.

1. A breach of public law duty by an organ of state can be transposed into a private law delictual breach where multiple factors are satisfied, including: the existence of constitutional obligations (particularly sections 7(2) and 12(1)(c)), the absence of other effective remedies, moral indignation evoked by the breach, and consonance with constitutional values including accountability. 2. Public carriers like PRASA have a legal duty to protect passengers from physical harm arising from both the carrier-passenger relationship and their public law obligations as organs of state. 3. The standard of care applicable to organs of state is that of a "reasonable organ of state" assessed in light of available resources and constitutional obligations, not that of a "reasonable person". 4. An organ of state cannot rely on bald assertions of resource constraints to escape liability - it must provide detailed information about resource constraints, alternative measures explored, and reasons for decisions taken to enable a court to assess reasonableness. 5. In negligence, it is not necessary to foresee the precise mechanism by which harm occurs - it is sufficient if harm of the same general type or nature was reasonably foreseeable. 6. Where an organ of state fails to implement a basic safety measure that requires no additional resources (such as closing train doors while in motion) and this facilitates harm to a person, factual causation is established on a balance of probabilities if the harm would not have occurred had the measure been implemented. 7. Legal causation (proximity) is established where the harmful conduct occurred within the defendant's sphere of control, the breach involved constitutional rights, moral indignation is aroused, and the preventative measure would have required no extra cost.

1. The Court noted that while security measures must be crime-level and area-specific, and a one-size-fits-all approach would be inappropriate, PRASA must still provide reasons for its security deployment decisions based on proper risk assessments and security plans. 2. The Court observed that the Lee test for causation did not seek to replace the traditional "but for" test but rather provides flexibility where the traditional test is inadequate, particularly where harm is closely connected to an omission by a defendant with a duty to prevent harm. 3. The Court noted that trains are generally used by the overwhelming majority of people who fall within the low income bracket - "the proverbially voiceless and in reality vulnerable members of our society" - making the safety and security of train passengers a matter of general public importance. 4. The Court remarked that random raids conducted by PRASA were shown to be ineffective because body searches depended entirely on commuter consent, meaning those carrying dangerous weapons would simply not consent. 5. The Court observed that the vulnerability of rail commuters and the precarious situation in which they find themselves ought to be self-evident, particularly since Metrorail had highlighted these issues 10 years prior to this incident. 6. The Court noted that organs of state exist to give practical expression to constitutional rights and bear immense responsibility that must be matched by seriousness in discharging those responsibilities, and that a culture of impunity cannot be allowed to develop. 7. The Court commented that confinement to train compartments places passengers almost entirely under the control and mercy of PRASA, and passengers who jump from moving trains to escape attack risk breaking their limbs or losing their lives.

This case is significant in South African law as it clarifies when a breach of a public law duty by an organ of state can be transposed into a private law delictual claim sounding in damages. It establishes that transport utilities like PRASA can be held delictually liable for failing to implement basic safety measures for passengers, particularly where constitutional rights (sections 7(2) and 12(1)(c)) are implicated and no other effective remedy exists. The case is important for defining the standard of care applicable to organs of state as "reasonable organ of state" rather than "reasonable person", requiring assessment in light of available resources and constitutional obligations. It emphasizes accountability for organs of state and protects vulnerable rail commuters, most of whom are low-income individuals who depend on subsidized public transport. The judgment also clarifies the application of the test for foreseeability in negligence, confirming that it is not necessary to foresee the precise mechanism of harm - it is sufficient if harm of the same general type was foreseeable, applying the principle in Hughes v Lord Advocate to South African law.