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Judgment a victory for train assault victims

Cape Town - A new Constitutional Court judgment could have far-reaching consequences for rail commuters who are assaulted on trains operated by the Passenger Rail Agency of South Africa (Prasa) without adequate security measures.

On Thursday the full bench of the Constitutional Court found in favour of a Metro Rail commuter who had been assaulted on a train and lost a leg as a consequence.

According to Sunelle van Heerden, a professional consultant for Christopher Consulting acting for people injured in train accidents, this is a ground-breaking case which can act as a precedent for damages claims of assault victims on Prasa trains with inadequate security measures to protect commuters.

READ: Remedial action to get Prasa back on track - as it happened

On January 1 2011, at about 11:00, Irvine van Sam Mashongwa was travelling on a train he had boarded at Walker Street station in Pretoria to Mamelodi Gardens Station. He was the only occupant of his coach.

His evidence was that the doors of his coach remained open as the train left Walker Street station. Shortly after the train departed, four men entered from an adjacent coach. They demanded his cellphone and money, which he handed over. They then assaulted him, causing him to fall. They continued to assault him with their fists and kicked him while he was lying on the floor of the train.

Then they picked him up and threw him off the train through the open doors of the coach as the train approached the next station, Rissik Street. He landed on the railway platform where he cried out for help and two security guards came to his assistance. As a result of his injuries, one of his legs had to be amputated.

Mashongwa's legal team argued that closed doors and the presence of guards on the train would have reduced the risk of harm to their client. Prasa, on the other hand, argued that there were reasonable measures in place to ensure the safety of commuters and that it was not under an obligation to guarantee the absolute safety of each commuter.

READ: Prasa management must 'shape up or ship out'

Mashongwa won his case in the High Court, but Prasa appealed and won the case in the Supreme Court of Appeal.
 
The legal team at law firm CP van Zyl, acting for Mashongwa, believed so strongly in the merits of the case that they decided to take it to the Constitutional Court.
 
The Constitutional Court found that Prasa was negligent in not providing adequate security to prevent the assault on Mashongwa and was, therefore, liable for compensation claimed by him. According to Van Heerden, the Constitutional Court decision means Prasa does in fact have the responsibility to take reasonable measures to protect the safety of passengers. This will make it easier for passengers to claim for compensation in future.

“I knew what happened to me was the direct result of negligence by Prasa and we decided to push ahead,” said Mashongwa, adding he is very pleased that the whole matter is now behind him and that he can get on with his life.

ALSO READ: Prasa's non-compliance threatens town's economy

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