The transposition of a breach in public law duty to private law liability: A new form of delict?

Every now and then there comes a case in our law which changes the direction of future cases. The case of Mashongwa v Passenger Rail Agency of South Africa (PRASA) [2016] JOL 34753 (CC) was exactly that.

The jest of this case is as follows: Can a transport utility be held delictually liable for damages arising from a breach of its public law duties, which includes providing safety and security to its commuters? In other words, the Constitution makes provision for the right to be free from any form of violence and harm, whether in the public or private source of events and the State is levied with the responsibility to express that right. So can the failure of the State to express the aforesaid give rise to a delictual claim for damages?

The significance hereof is the following: A delict is a wrongful act or omission causing another person harm. The law of delict is in itself a private law remedy as it is implemented to protect the interests of individuals or their private interests, whereas the public law is focussed on protecting and upholding the interests of society as a whole, which includes the implementation of the Constitution.

The Applicant in this case, Mr. Mashongwa, was a commuter on one of Prasa’s trains during the festive season of 2011. Naturally the coach was quiet as not a lot of people was travelling on that New Year’s Day. Passengers could easily move from one coach to another without much hindrance due to the fact that there was not enough security officers patrolling the train.

A few minutes into the journey to the next train station, three unarmed men approached Mr. Mashongwa and demanded his valuables. He did not resist and handed everything he had over to the attackers. Subsequent thereto and notwithstanding the fact that he did not resist, the robbers assaulted him whereafter they threw him out of the train and was left critically injured with severe injuries to his left leg. The injuries to his leg eventually caused his leg to be amputated.

The Applicant instituted legal proceedings against Prasa on the grounds that they failed to adopt reasonable measures to ensure his and other passengers’ safety. He also alleged that they failed to respect, promote and protect his Constitutional right to be free from all forms of violence.

The Court a quo, the High Court in Pretoria, found that Prasa had been negligent insofar that it did not ensure the safety of its passengers by deploying at least one security officer on the train as well as not closing the train’s doors. The Court found that criminal activities rise during a festive season and as such Prasa should have deployed more security officers in order to deter potential criminals.

Prasa appealed the Court a quo’s judgment to the Supreme Court of Appeal where the court found that the Court a quo erred in its reasoning of the judgment and also disposed of both grounds of negligence. The SCA said that it was unreasonable to expect Prasa to deploy security officers on every coach and that the reasoning behind the fact that the doors should have been closed is not sufficient. The Court said further that the attackers could have easily opened the doors and threw the Applicant out of the train and as such the measures which the Applicant alleges Prasa should have implemented exceeds the reasonable precautionary measures of its duty towards its passengers.

The matter was subsequently escalated to the Constitutional Court but from the offset the Court had a jurisdictional issue. The Court held that although at face value it did not have jurisdiction, section 7(2) and 12 (1) (c) of the Constitution was the pillars on which this case rested.

The Court held that the Respondent has always had a public law obligation towards its commuters to provide a safe environment on its trains whilst travelling. These obligations would normally be included in a contractual relationship between a commuter and Prasa, but these obligations arose from its public law duty in this case.

The Court admitted that to conclude that the failure to do something relating to public law duties, is wrongful and therefore impute a delictual liability, was an “exacting exercise” which needed to be investigated through a number of factors. The Court went on to consider the appropriateness of transposing a breach of constitutional duty into a breach of private law duty. It held that one can only, in exceptional circumstances, impose this transposition if there are no other non-judicial remedies available.

The Court envisaged the fact that State Organs existed to give effect to the public’s constitutional rights and as such State Organs cannot be allowed to adopt a “lackadaisical attitude” at the expense of the public without consequences and for that reason, there should be exceptions to the general rule that a breach in public law obligations does not necessarily give rise to a delictual claim in damages.

The Court held that the Respondent had a duty to ensure that its passengers was safe whilst making use of its trains and protecting each person’s bodily integrity.

It is important to note that the grounds on which the Court found the Respondent to be negligent was not about the exact way in which the Applicant incurred the injuries but rather the fact that reasonable measures could have been implemented to deny the attackers the opportunity to be able to throw the Applicant out of the train. Thus if the doors had been closed, as could reasonably be expected from the Respondent, it might have deterred the attackers from throwing the Applicant out of the moving train.

The unanimous decision of the Constitutional Court was that the Respondent was liable for all the proven damages of the Applicant as well as the costs of the matters in the High Court, Supreme Court and Constitutional Court, which includes the costs of both the Applicant’s counsel.

The judgment in this matter is a rare but explicit warning to State entities to ensure that they comply with their public law duties and uphold the interest of society as they are designed to do.

By Werner Cilliers