The recent Constitutional Court judgment of Mashongwa v Passenger Rail Agency of South Africa (PRASA) [2016] JOL 34753 (CC) explored an interesting and, in the Court’s view, rather important question of law.

That is: can a transport utility be held liable in delict for damages that flow from a breach of its public law duties (namely the duty to provide safety and security measures for its rail commuters)?

The enquiry may be stated even more broadly. If, for example, the Constitution enshrines one’s right to be free from all forms of violence from either public or private sources and the State is charged with giving expression to that right, does the State’s failure to do so necessarily give rise to a delictual claim for damages?

A “delict” is the act of a person which, in a wrongful and culpable way, causes harm to another. The law of delictual liability is a component of private law in South Africa, inasmuch as it is directed at the protection of individual or “private” interests. Public law, on the other hand, is directed at upholding the public interest or the welfare of society as a whole (i.e. criminal laws, municipal laws and of course, the Constitution).

The applicant in this case, Mr Mashongwa, boarded a train operated by the respondent, PRASA , on New Year’s Day in 2011. Mr Mashongwa was the only passenger in the coach when the train left the station, but passengers could move from one coach to another. There were no security guards at the train station or on the train. In addition, the train doors were open when the train left the station.

Approximately two minutes into the journey, three unarmed men entered the coach in which the applicant was traveling, from an adjoining coach. The men demanded the applicant’s money, wallet and cellular phone. He did not resist, but despite the applicant’s cooperation, the men assaulted him and continued to do so even after he had fallen to the floor. The applicant called for help, but to no avail.

In spite of his resistance, Mr Mashongwa’s assailants threw him out of the moving train shortly before it reached the next station, causing him to sustain severe injuries to his left leg. Regrettably, the leg could not be saved and was subsequently amputated.

The applicant brought legal proceedings against PRASA in the Gauteng Division of the High Court, alleging that the respondent failed to adopt reasonable measures to ensure his safety. The applicant also alleged that PRASA, as an organ of state, had a duty to respect, protect, promote and fulfil his constitutional rights by virtue of its responsibilities in terms of the Legal Succession to the South African Transport Services Act. The applicant’s key contention was that his constitutional right to be free from all forms of violence from either public or private sources was infringed.

PRASA was found to have been negligent insofar as it did not ensure that the train doors were closed when the train left the station and that at least one armed guard was deployed on each train during the festive season so as to deter potential criminals. Furthermore, the Court held that PRASA had a duty to secure its rail passengers. In the circumstances, PRASA was held liable for the applicant’s damages.

Thereafter, PRASA lodged an appeal to the Supreme Court of Appeal. The Court disposed of both grounds of negligence on the basis that neither was causative of applicant’s loss. It held that merely leaving the train doors open was not determinative of the issue, because the attackers could just as well have forced the doors open in order to throw the applicant out of the train. The Court also held that it was unreasonable to require the respondent to station a security guard in each and every coach, because that requirement would far exceed the precautionary measures which one could reasonably have expected of the rail operator.

The matter was eventually escalated to the Constitutional Court, which at the outset was faced with the question of whether or not it had the jurisdiction to entertain the application by Mr Mashongwa.

The Court found that although at face value it did not seem as if the outcome of the matter turned on the meaning or vindication of any constitutional provision or right, sections 7(2) and 12(1)(c) of the Constitution were in fact “the pillars on which the superstructure of the case rested”.

Also, the Court held that the applicant’s claim largely originated from the obligations imposed on the respondent by those same constitutional provisions. An enquiry into wrongfulness, said the court, focuses on a person’s conduct and asks whether the policy and legal convictions of the community, constitutionally understood, regard that conduct as acceptable. In the result, the Court found that it did have jurisdiction in terms of section 167(3)(b)(i) of the Constitution.

Public carriers (such as the respondent) have always been regarded as owing a legal duty to their passengers to protect them from suffering physical harm while making use of their transport services, said the Court. That duty arose, in the case of PRASA, from the existence of the relationship between carrier and passenger (usually based on a contract), but the Court held that it also stemmed from PRASA’s public law obligations.

To conclude that a failure to do something, particularly in relation to public law duties, is wrongful and therefore to impute delictual liability was, in the Court’s view, an “exacting exercise” that required a reflection on a number of important factors. These factors included whether the operating legislation actually provided for a delictual claim for damages, whether the legislation’s scheme was primarily about protecting individuals or advancing public good and whether there was any other remedy available to the applicant.

The Court went on to consider the appropriateness of “transposing” the breach of a constitutional duty into a private law breach leading to an award of damages. The Court was of the view that such a transposition could only become an option if there were no other appropriate non-judicial remedies available to enforce accountability by the State. Put differently, the prospects of the Court recognising a private law remedy following upon a breach of a public law duty would be enhanced where no other effective remedy existed.

The State and its various organs exist to give practical expression to the constitutional rights of citizens and to ensure that the aspirations held out by the Bill of Rights are realised, said the Court. To that end, State organs and functionaries could not be allowed to adopt a “lackadaisical attitude” at the expense of the interests of the public and without consequences. For that reason, exceptions were at times made to the general rule that a breach of public law obligations will not necessarily give rise to a delictual claim for damages. 

The Court held that safeguarding the physical well-being of passengers had to be a central obligation of the respondent. It reflected the ordinary duty resting on public carriers and was reinforced by the specific constitutional obligation to protect passengers’ bodily integrity that rested on the respondent as an organ of State. Critically, the Court found that:

“The norms and values derived from the Constitution demand that a negligent breach of those duties, even by way of omission, should, absent a suitable non-judicial remedy, attract liability to compensate injured persons in damages. When account is taken of these factors, including the absence of effective relief for individual commuters who are victims of violence on PRASA’s trains, one is driven to the conclusion that the breach of public duty by PRASA must be transposed into a private law breach in delict. Consequently, the breach would amount to wrongfulness.”

However, the Court did stress that wrongfulness in the present matter did not flow directly from the breach of the public duty. The fact that a public duty had been breached was merely one of the factors underpinning the development of the private law of delict to recognize what the Court referred to as “a new form of wrongfulness”. The fact that PRASA was under a public law duty to protect its commuters could not be disputed. However in the present case, the Court acknowledged that it was going a step further by pronouncing that the duty in question, together with the values enshrined by the Constitution, had effectively “mutated” into a private law duty to prevent harm to commuters.

Having said that, the Court made clear that the respondent was not required to implement measures that would guarantee its passengers absolute freedom from violent crime. It was only obliged to implement measures which were consistent with a proper understanding of the constitutional and statutory responsibilities it bore.

The Court held that the precise mechanism by which the applicant fell and the injury that was sustained did not have to be foreseen by the respondent. In the opinion of Mogoeng CJ, the criminal act by which the applicant came to fall from the train, although not reasonably foreseeable, was most certainly harm of the same general nature as the harm that was foreseen – namely that somebody might fall out of a train coach with its doors left open. The open doors, he said, evidently facilitated the ease with which the applicant was thrown out of the train. Negligence on the part of the respondent had therefore been established, but the question remained as to whether there was a sufficient causal link between the respondent’s negligent conduct or omission and the applicant’s injuries.

In all likelihood, said Mogoeng CJ, the applicant would not have been thrown out of the train had the proper safety measures been observed by the respondent. Contrary to what the Supreme Court of Appeal held, the Court found it highly unlikely that the three attackers would have found it easy to force the doors open and throw out the applicant as quickly as they did – having taken advantage of the already open doors. The respondent’s failure to keep the doors closed while the train was in motion was the kind of conduct that ought to attract liability, not only because of the constitutional rights at stake but also because the respondent had imposed the duty to secure commuters on itself through its operating procedures. More importantly, said the Court, that preventative step could have been carried out at no extra cost. In short, the Court found that it was reasonable, fair and just that liability be imputed to the respondent and the applicant’s appeal was therefore upheld.

This remarkable judgment is an eye-opener for state organs and enterprises, inasmuch as it confirms that their public law duties may, in certain circumstances and with reference to the rights which individuals enjoy under the Constitution, coalesce into a private law duty to prevent harm to individuals. Of course, where appropriate non-judicial remedies are in place, this transposition of liability will not be permitted by the courts. However, in the absence of suitable alternatives, a finding that a public law breach gives rise to a private law delict is not beyond the realm of possibility.

Written by Morgan Riley, Associate (Litigation), Knowles Husain Lindsay