Since the commencement of the nation-wide lockdown, PRASA ceased all its operations. The country is now under Alert Level 3, as of 1 June 2020, and it has been announced by the Minister of Transport that PRASA will not be commencing with its proposed phased-in resumption of service. This is despite the fact that thousands of people are back at work, the majority of whom immensely rely on PRASA services. For safety reasons, it is applaudable and very much in the interest of the commuters not to resume with services if this entity is not ready to resume. Whenever PRASA decides to reopen, it will be significant for this particular State Organ to implement the necessary COVID-19 - safety measures in place, failing which there may be exponential surge in legal cases against this entity. Our courts, on many occasions, have handed some scathing judgements against PRASA - albeit for totally different reasons from what we may witness. PRASA has a legal duty to safeguard physical well-being of its commuters. Not only does this duty exist as an ordinary duty on public carriers, it is reinforced by a specific constitutional duty obligation to protect passengers' bodily integrity as an Organ of State.
As the number of the COVID-19 infections are rising expeditiously, combined with the easing of lockdown restrictions, most entities (public and private) run a risk of being sued in delict, in cases where transmission has been negligently permitted by the concerned entity. PRASA is no exception to this. Its position is further perilous having regard to the fact that, for many years, it has been in an "unhealthy condition" insofar as its facilities; train conditions, including safety and security; financial position; etc. is concerned. The COVID-19 pandemic then places an added burden on PRASA. If a passenger contracts the virus in the train and s/he is able to link the contraction to some negligence on the part of PRASA, s/he can sue the entity, accordingly, subject to proving the natural elements of delict. In such cases and the manner in which the virus may be transmitted, proving negligence and causation may prove to be a stumbling block, however, depending on the facts upon which each case is bound, this hurdle may be overcome. Chances of success are further enhanced by the applicable standard of proof i.e. balance of probabilities. To prove the causation element, it will be key to thoroughly investigate the facts and the surrounding circumstances as the case will heavily rely on circumstantial evidence.
Regarding the element of "negligence", in many court judgements, PRASA has been found to have been grossly negligent. One relatively recent relevant judgement herein is the case of Mshongwa v PRASA, by the Constitutional Court. Notwithstanding the differing contexts, similar legal principles applied in that case which would be applicable in any COVID-19 delict case against PRASA. In the Mshongwa case, PRASA was criticized for not having adequate security guards in "hazardous zones" (high risk of crime areas). It was also said that it is not expected of PRASA to have the same number of security guards in low-risk areas as in high risk areas. This may be relevant in the COVID-19 context. The amount of awareness; safety measures will have to correlate with the number of infections in the area. Whilst it may be necessary to have at least 2 (TWO) security guard in most trains on each coach in the Western Cape, to ensure social distancing adherence, same will probably not be applicable in Mpumalanga/Limpopo, for example. Therefore, having 1 (ONE) security per coach in the Western Cape may be negligent whilst having 1 in Mpumalanga/Limpopo may be reasonable. In view of the uncertainty surrounding COVID-19, there will have to be regular thorough monitoring by PRASA of the rise of infections in certain areas and adjust the measures, consequently. To circumvent negligence, PRASA will have to ensure that certain fundamental measures are in place. These include: ensuring availability of screening equipment and that the relevant personnel is trained to use same; clear floor markings to ensure social distancing; availability of sanitisers; preventing "ghost commuters" - increase security; coaches to be marked on the floor; regular decontamination of the trains and have security guards enforcing social-distancing protocols; etc. These are but some of the measures which the element of negligence will bring to light should PRASA COVID-19 court case be instituted.
As aforesaid, every entity runs a risk of being delictually sued for negligently allowing a "fertile soil" for the virus to be transmitted. PRASA will then have to have due regard to the legal fundamentals in order to avoid legal liability. In line with the utterances of the Mshongwa case, it is crucial to note that PRASA is not, in law, required to implement measures that will guarantee that its rail commuters are absolutely safe from contracting the virus. It has to implement reasonable measures in place. Failure to implement same will attract legal liability. It was initially proposed that PRASA will resume its operations on 1 June 2020, but the decision was reversed on the "eleventh hour". The sudden "U-turn" in the decision may be interpreted to mean that the Department is prioritizing safety of its commuters and will implement all the reasonable and necessary safety measures before deciding to resume operations.
Originally published 9 June 2020
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