Transnet Limited t/a Metrorail and Another v Witter

The respondent (plaintiff), David Witter, attempted to board a commuter train at Witteboom station in the Western Cape at about 06:40 on 7 February 2002. The train had just started moving slowly when he reached the platform. Although most doors were closed, the doors of one carriage were open. The respondent ran a few steps, grasped the central pillar between the open doors, lost his footing and fell between the platform and the train, resulting in the severing of his right foot above the ankle. The train was operated by Transnet Limited t/a Metrorail on behalf of the South African Rail Commuter Corporation Limited. The respondent sued both entities in delict for damages. The High Court found the appellants negligent for allowing the train to depart with doors open, found the respondent contributorily negligent, apportioned damages 50/50, and declared the plaintiff’s expert witnesses to be necessary witnesses, allowing their qualifying fees.

The appeal was dismissed on negligence and apportionment of damages. The order declaring the plaintiff’s expert witnesses necessary witnesses was deleted and replaced with an order allowing their preparation fees on taxation. The appellants were ordered, jointly and severally, to pay the respondent’s costs of appeal, including the costs of two counsel.

The case is significant for confirming the high duty of care owed by railway operators to commuters, particularly the obligation to ensure trains do not depart with doors open. It reaffirms principles governing contributory negligence and the limited circumstances in which an appellate court may interfere with a trial court’s apportionment of damages. The judgment is also important for its authoritative clarification of South African law on expert witness costs, distinguishing between preparation fees and statutory witness allowances, and rejecting the need for courts to declare witnesses ‘necessary’.