Written by Brian Preller
On 8 November 2021, the Supreme Court of Appeal (SCA) handed down judgment in the matter of Rautini v PRASA, a matter on appeal from a Full Bench of the Western Cape High Court.
The Appellant, Mr. Masibulele Rautini, was traveling via railway between the Du Toit and Lynedoch train stations on the morning of 19 November 2011. When the passengers disembarked at the Du Toit station, the train’s doors were open. According to the Appellant, the doors of the train remained open throughout the journey.
Shortly before the train arrived at the Lynedoch station, an armed gang of 3 men boarded the train, demanding the cell phones of passengers. The Appellant was thrown from the moving train during a scuffle with one of the gang members. The Appellant sustained severe injuries and was transported via ambulance to Stellenbosch hospital and subsequently, to Paarl General Hospital.
THE TRIAL COURT AND ON APPEAL TO A FULL BENCH OF THE HIGH COURT
The parties agreed to separate the merits and quantum aspects of the matter at the commencement of the trial. The Appellant was the sole witness before the Trial Court who provided testimony on how the aforementioned incident occurred. The Respondent led evidence from witnesses who were not helpful in narrowing down the facts of the matter and thus the Appellant’s version of events was accepted by the Trial Court. The matter then went on appeal to a Full Bench of the High Court.
The Full Bench of the High Court rejected the Appellant’s version of events on the basis that his version contradicted discovered documents in the form of medical and ambulance reports. The documents themselves contained contradictions, insofar as they did not provide clarity on whether the Appellant had jumped or fallen from the train. Nevertheless, the reports were accepted as admissible evidence.
THE SUPREME COURT OF APPEAL – HEARSAY EVIDENCE
The SCA identified the medical records as hearsay evidence, on the basis that the authors of the ambulance and medical records were not called as witnesses in the Trial Court to give testimony. The Full Bench of the High Court gave precedence to the medical records, by considering the records as admissible evidence, despite the provisions of Section 3(1 (the Act). Section 3(1) of the Act states that hearsay evidence will not constitute admissible evidence, except in certain exceptional scenarios, none of which the SCA recognised in this case.
No application was made by the Respondent to admit exceptional hearsay evidence, and thus the Full Bench’s reliance on the contradiction between the Appellant’s testimony and the medical records before the court, constituted a material misdirection of the outcome of the appeal.
The SCA stated further that it is a seminal principle in our law of evidence that in order to discredit the truth and relevance of a witness’s testimony, they should be cross-examined. Without cross-examination, the Appellant’s version of events was left unchallenged and should have been accepted as correct. The Appellant was not questioned regarding the accident or what he had said to medical personnel. Thus, it was a subsequent material misdirection to consider his version of events as fabricated.
It was common cause between the parties that the train doors were open, and that in the case of Mashongwa v PRASA, the Constitutional Court found that PRASA’s failure to keep the doors of trains closed, compromises the safety of passengers and attracts liability.
The Full Bench of the High Court had incorrectly drawn inferences from inadmissible hearsay evidence, despite no alternative version of events being put before the Court to contradict the Appellant’s case. The decision of the Full Bench of the High Court to uphold the appeal was based on materially incorrect assumptions and was not founded in the basic principles of evidence. Without evidence to the contrary, the appeal was upheld with costs. Hearsay evidence thus remains inadmissible in PRASA matters, unless there are exceptional circumstances that apply in terms of the Act.
 At Para 2.
 At Para 4.
 At Para 5.
 At Para 3.
 At Para 4.
 At Para 6.
 At Para 7.
 At Para 11.
 At Para 9.
 Law of Evidence Amendment Act 45 of 1988 at S3(4).
 At Para 12.
 At Para 14.
 At Para 18.
 Mashongwa v PRASA SA 528 (CC).
 Ibid Paras 61-62.
 At Para 23.
 At Para 26.