Leo Boonzaier | Constitutional Court preview: Mashongwa v PRASA

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5 August 2015 – Mashongwa v Passenger Rail Agency South Africa CCT 03/15 (court papers, media summary)

Date of hearing:  Thursday, 6 August 2015

Issue: Whether the state rail authority is liable for failing to prevent an assault on one of its passengers

Background: When Mr Mashongwa was traveling on a commuter train in Pretoria, he was mugged and beaten by a group of four assailants, who then threw him from the train through its open doors. He sued PRASA, the state rail authority, in delict for its alleged negligence in failing to prevent the assault. The High Court found that PRASA had indeed been negligent, by failing to have an armed security guard on the train and leaving the train doors open in transit, and held it liable to compensate Mr Mashongwa for the injuries he had suffered.  The Supreme Court of Appeal (“SCA”) strongly differed.  It said (citing its earlier decision excusing the rail authorities from liability in similar circumstances) that having a security guard on each of its trains “would exceed by far the precautionary measures to be expected of PRASA”, and would in any event not have been sufficient to deter the gang of four assailants.  Nor, since train doors can be forcibly opened, could it be said that PRASA’s failure to close them had been the cause of Mr Mashongwa’s being thrown out.

Things to watch: The SCA’s application of orthodox delictual principles is far superior to that of the High Court, which materially misstates the negligence test and ignores the causation requirement altogether.  And the state has limited resources; a court should not lightly find that it has deployed those negligently simply because it cannot prevent some of its citizens’ coming to harm.  So Mr Mashongwa will struggle to establish the elements of a delict before the Constitutional Court.

At least, that is one way of approaching the matter.  Here is another.  Apartheid spatial geography forces millions of South Africans, overwhelmingly black and poor, to use the country’s rail services for their long daily commute.  Conditions are miserable.  Crime is rife; many commuters are robbed, assaulted, or worse.  And over many years they have demanded improvement, yet PRASA’s dysfunction is at an alltime low.  Now, the Court has the power to give valuable monetary compensation, and a signal legal victory, to one of those vulnerable citizens after he suffered a horrific attack.

This is the narrative that is likely to move the Constitutional Court (and which the Court has already articulated in part when finding, in Metrorail, that the rail authorities owe a legal duty to ensure the safety of their passengers).  Under its weight, the private law doctrines that the SCA expertly applied are likely to bend or break.  We have already once lamented the Court’s approach to causation in Lee, which it euphemistically described as “flexible” but is, in truth, intellectually bankrupt.

The plaintiff’s main argument is precisely that the SCA ignored Metrorail and Lee.  Expect the Court to find for him.  But hope that it finds a more principled and doctrinally savvy way of doing so than in Lee.  The Court should recognise that in Lee it was, in substance, abandoning factual causation and imposing liability for an increase of risk.  It can then explain the moral basis for that new standard, and in what circumstances it applies.  The Court typically invokes the norm of state accountability to justify expansions of state delictual liability, as in both Metrorail and Lee (though see now the sceptical Country Cloud).  But it remains unclear how making the taxpayer give money to plaintiffs like Mr Mashongwa promotes the accountability of state officials in any meaningful sense.

These are all hard questions, but an apex court needs to answer them.

Leo Boonzaier

About Leo Boonzaier

Leo is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk at the Constitutional Court of South Africa. He is currently a doctoral student at the University of Oxford.