Mthembu v Transnet t/a Metrorail

On 25 May 2002, the appellant (Mthembu) was injured at Tembisa Station in Gauteng. She sued Transnet t/a Metrorail for damages. Mthembu's version was that she, her common law husband Sipho Sibiya, and two friends (Jeremiah Msweli and Themba Khumalo) went to the station to catch a train to Kempton Park. When the train arrived and stopped, she saw her three companions board the train. As she attempted to board and put her foot on the step, the train suddenly pulled off, causing her to bump her head against the door and fall onto the platform. The respondent's version, as testified by Khumalo (one of the companions) and security guard Emma Phasha, was that before the train stopped, Mthembu stumbled towards the approaching train and bumped her head against it. None of the companions had boarded the train. Phasha testified that she was summoned shortly after the incident and made a contemporaneous record in the occurrence book based on information from one of Mthembu's companions who were present on the platform immediately after the accident. The trial court (Fourie AJ) found in favor of Mthembu on the issue of liability (decided separately per Uniform Rule 33(4)), finding the respondent negligent. The trial court rejected Khumalo's evidence and accepted Mthembu's version. On appeal, the full court (Claassen J, Blieden and Saldulker JJ concurring) reversed this finding and granted absolution from the instance with costs. Mthembu then applied for special leave to appeal to the Supreme Court of Appeal.

• Whether the trial court misdirected itself in evaluating the evidence and assessing credibility of witnesses
• Whether the trial court properly considered all material evidence, particularly the evidence of witness Phasha
• Whether the trial court correctly applied the principles for resolving mutually destructive versions
• Whether there were reasonable prospects of success in a further appeal to warrant special leave
• Whether the full court was correct in finding that the trial court committed substantial misdirections

The application for special leave to appeal was refused. The respondent did not insist on costs of the application.

A trial court commits a misdirection when it fails to consider and evaluate all material evidence, particularly evidence that is vital to a party's case. When faced with mutually destructive versions, a court has a duty to traverse all relevant evidence in its judgment and apply the proper principles for evaluating conflicting testimony as set out in SFW Group Ltd v Martell et CIE. The onus remains on the plaintiff to prove their case on a balance of probabilities; it is not incumbent on the defendant to provide explanations for why events may have occurred as alleged by their witnesses. Special leave to appeal will not be granted where there are no reasonable prospects of success in a further appeal, and the probabilities strongly favor the respondent's version based on proper evaluation of the evidence.

The court noted that while Khumalo's description and demonstration of how Mthembu stumbled into a moving train may appear bizarre, the fact remains that Khumalo was an eyewitness and his version was corroborated by Phasha's contemporaneous note. The court also observed that the respondent did not insist on costs of the application, though this was merely noted without further comment or significance attached to it.

This case demonstrates the importance of trial courts properly evaluating all material evidence when faced with mutually destructive versions. It reinforces that courts must traverse all relevant evidence in their judgments and cannot simply ignore crucial testimony that does not support their preferred conclusion. The case reaffirms the proper application of the SFW Group test for assessing conflicting versions and emphasizes that the onus remains on the plaintiff to prove their case on a balance of probabilities. It also illustrates the appropriate application of the test for special leave to appeal, requiring reasonable prospects of success before such leave will be granted. The judgment serves as a reminder that contemporaneous documentary records (such as the occurrence book entry in this case) can be highly probative in establishing what occurred, particularly when they corroborate witness testimony.