Bhiya v Passengar Rail Agency of South Africa (72237/2019) [2023] ZAGPPHC 1873 (2 November 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 1873 | Noteup | LawCite sino index ## Bhiya v Passengar Rail Agency of South Africa (72237/2019) [2023] ZAGPPHC 1873 (2 November 2023) Bhiya v Passengar Rail Agency of South Africa (72237/2019) [2023] ZAGPPHC 1873 (2 November 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_1873.html sino date 2 November 2023 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case No: 72237/2019 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. 1 November 2023 In the application for leave to appeal: GABRIEL MASIKO BHIYA Applicant and PASSENGER RAIL AGENCY OF SOUTH AFRICA Respondent In re : GABRIEL MASIKO BHIYA Plaintiff and PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant JUDGMENT SK HASSIM AJ 1. The applicant, the plaintiff in the action, seeks leave to either the Full Court or the Supreme Court of Appeal to appeal the order absolving the defendant from the instance. The parties are referred to as cited in the action. 2. The plaintiff pleaded that he was at all material times in possession of a valid train ticket but failed to discharge the onus in this regard. The plaintiff’s action was however unsuccessful not because he could not produce a ticket. It was unsuccessful because he was unable to prove that he paid the requisite fare to lawfully travel on the train and therefore that the defendant owed to him a duty of care. The finding on this issue was dispositive of the matter. 3. Mr Maphutha who appeared with Mr Marema on behalf of the plaintiff submitted that the defendant’s public law duty is to ensure the safety of all commuters on a train. And that this duty is not confined to fare paying passengers but extends to commuters whose presence on the train constitutes an offence. He argued that the dictum in Farmer v Robinson Gold Mining Company Limited [1] finds no application because in that case there was no positive duty on the owner of premises to prevent injury to persons trespassing on his property, whereas the defendant has a public law duty to protect rail commuters from suffering physical harm while using its transport services. 4. I am satisfied that the plaintiff has a reasonable prospect of success on appeal. I have considered whether leave to appeal to the Supreme Court of Appeal or to the Full Court should be granted. In my view the legal question in this case is deserving of the attention of the Supreme Court of Appeal. 5. Consequently, I make the following order: (a) The applicant is granted leave to appeal the whole of the judgment and the orders to the Supreme Court of Appeal. (b) The costs of the application for leave to appeal shall be costs in the appeal. S K HASSIM AJ Acting Judge: Gauteng Division, Pretoria Counsel for the applicant/plaintiff: Adv Maphuta and Adv Marema Counsel for respondent/defendant: Adv Nsthangase This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties’ legal representatives by e-mail and by uploading it to the electronic file of this matter on CaseLines. The date for hand- down is deemed to be 2 November 2023. [1] 1917 AD 501 sino noindex make_database footer start