26 November 2015 – This morning the Constitutional Court of South Africa handed down Mashongwa v Passenger Rail Authority of South Africa  ZACC 36 (full judgment, media summary), in which Mr Mashongwa was suing PRASA in delict for the loss he sustained when he was attacked by a group of assailants and thrown out of the open doors of a moving train. He argued that PRASA, the public authority in charge of the trains, owed him a legal duty to take reasonable steps to ensure his safety, by either having security guards on the trains or at least ensuring the doors were closed. The Supreme Court of Appeal (‘SCA’) had rejected Mr Mashongwa’s claim on the basis that having sufficient guards on each train to have prevented the attack would ask too much of the rail authorities, with its limited resources; and that closing the doors would have made no difference since they are deliberately designed to be easily opened in case of an emergency.
Listen to the hand-down of the judgment:
As we expected, the Constitutional Court (per Mogoeng CJ) has unanimously upheld Mr Mashongwa’s appeal and recognised his claim against PRASA, citing Metrorail and the norm of state accountability. The Court said it was not in a position to assess the reasonableness of PRASA’s decision not to have guards on the trains, but overcame that difficulty by saying the failure to close the doors was sufficient by itself to establish negligence. And, contrary to the SCA judgment, it was ‘highly unlikely’ that, if the doors were closed, the attackers would have managed to force Mr Mashongwa out of them as quickly as they did – and the delay would’ve allowed the train to reach the next station in relative safety. (Mogoeng CJ does not mention the SCA’s factual finding that there was a mechanism to open the doors in emergencies.) Causation was therefore established.
The judgment tries to address the Court’s notorious Lee judgment, making a welcome attempt to pare it down. Yet in the end it leaves things slightly unclear. On the one hand, Mogoeng CJ holds that ‘Lee never sought to replace the pre-existing approach to factual causation’, but in the next breath implies that the Lee approach is different to the pre-existing one: ‘where the traditional but-for test [i.e. the pre-existing approach to factual causation] is adequate to establish a causal link it may not be necessary, as in the present case, to resort to the Lee test’.
So it remains unclear what the Lee test is and how one determines whether to apply it. Otherwise, the judgment is learned and carefully reasoned and impressively weds legal doctrine to a just result.