Published Date: May 19, 2022

Within the legal profession, it is ordinarily said that “if the facts are unfavorable to you, argue the law and, if the law is unfavorable to you, argue the facts.” This proved to be the case in the Masibulele Rautini and Passenger Rail Agency of South Africa (“Masibulele case” hereinafter) matter, heard by the Supreme Court of Appeal late last year, 2021. The Masibulele case serves as a critical reminder for the need to bear in mind the law of evidence and other technical processes right from the inception of the matter, up to and including the post-trial stage. In addition, it reminds litigators of the applicable principles relating to the admissibility of hearsay evidence, consequences of failure to cross-examine the witness, how cross-examination should be, the significance of pleading correctly, the rules relating to the drawing of inferences by the courts – when and how can such inferences be drawn. These principles/rules will be discussed below and, this piece will also endeavour to explicate how they were applied in the Masibulele case. 



This case was an appeal of the Western Cape Division of the High Court, Cape Town, full bench decision. In brief, Mr. Masibulele, a gardener at Spier Wine Estate, was a usual commuter of a train, operated by PRASA. He would board at Du Toit station and disembark the train at Lynedoch station. On the fateful morning, just before Lynedoch station, a gang of three man appeared and threatened the passengers with a knife and a gun, demanding cell phones. In a scuffle with one of them, Mr. Masibulele was thrown out of the train. The train doors were opened for the entire journey. This was no isolated case – similar facts were before the Constitutional Court in the Mashongwa case (one of the leading cases in relation to the PRASA cases). As a result, Mr. Masibulele suffered several severe injuries. This incident gave birth to the court case under discussion. PRASA was successful in the court aquo. The full bench found in favour of PRASA on the basis that Mr. Masibulele’s version regarding the occurrence of the incident was inconsistent with the version as per the discovered documentation – medical and ambulance reports. Importantly, these documents themselves had evident disparities. The High Court deemed it apposite to rely on such documentation as credible and acceptable. Mr. Masibulele appealed to the SCA, accordingly.

Critical points of discussion at the SCA

Admissibility of hearsay evidence:

Mr. Masibulele argued that medical records could not be relied upon by PRASA as they constitute a hearsay evidence. The High Court had relied on the said records and stated that their veracity had not been challenged. The SCA reflected on the relevant principles in relation to admissibility of such evidence. The point of departure is that, as a general rule, hearsay evidence is inadmissible. There are, however, exceptions to this rule in terms of the common law and Law of Evidence Amendment Act 45 of 1988. The statutory exceptions are as follows:

  • Where a party against whom such evidence is adduced accedes to the admission of same.
  • Where a person whose credibility the probative value of such evidence depends, himself testifies at the pertinent proceedings.
  • Where the court, having had regard to several statutory considerations, is of the opinion that such evidence should be admitted in the interest of justice. 

It was common cause that the discovered documents were what they purport to be, but the correctness of the contents was not admitted. Having considered that the records constituted hearsay evidence, correctness of the contents had not been admitted (although discovered), the admissibility of such evidence had not been adduced under any of the common law exceptions and no application had been made in terms of Section 3 of the Law of Evidence Amendment Act, the SCA found that the High Court’s reliance on such evidence amounted to a material misdirection that vitiates its ultimate finding on the outcome of the case. 

Cross-examination, Pleadings & Inferences

It is appropriate to discuss principles relating to the above processes simultaneously. Relying on the Constitutional Court’s case between the President of the Republic of South Africa and South African Rugby Football Union (“the SARFU case” hereinafter), the SCA precisely explicated the significance of cross-examination and for what purpose it is used. Quoting the SARFU case, it explained that cross-examination, as a general rule, is essential when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact that by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, whilst still in the box, of giving any explanation open to the witness and to defend his character. Furthermore, if a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. In the Masibulele case, the appellant had given his evidence under oath. The High Court had not cross-examined Mr. Masibulele on what he had told the medical personnel at all the hospitals he was treated at. Also, he had not been cross-examined on when he relayed to anyone that the assailants pushed him out of the train. 

The High Court had deemed it as relevant that the incident as serious as that of robbery and attempted murder on the train had not been reported to the police or PRASA and, that the only time this incident was reported was when the claim was lodged. In consideration of this, the court drew an inference that this incident had been a recent fabrication. As stated above, Mr. Masibulele had not been cross-examined on what he had told the medical personnel at the relevant hospitals regarding the cause of the fall from the train. The SCA felt that this failure to cross-examine on this aspect, the High Court had committed a material misdirection when it found that his version had only became known a year later. 

Further, the High Court, based on Mr. Masibulele’s evidence that on the morning of the incident, he had was running late for work and that the train had not stopped at the Spier station, drew an inference that Mr. Masibulele had probably jumped out of the moving train at the Spier station which is why the records indicated that the incident occurred at Spier station. On this point, one may argue that had PRASA called the relevant ambulance services’ personnel at trial to testify and, engaged in a thorough cross-examination of Mr. Masibulele on this point in particular, PRASA would probably have escaped liability. This is because of the fact that the place of incident, Spier station, is the station nearer to Mr. Masibulele’s workplace; he had been running late for work on the day. Also, disembarking at his normal station, Lynedoch station, would have caused him to run even more late for work. The court held that at the High Court Mr. Masibulele was never afforded the opportunity to respond to PRASA’s hypothesis that because he was late, he therefore jumped out of the moving train. 

Furthermore, PRASA had not pleaded that Mr. Masibulele deliberately jumped from the train. Relying on its findings in Minister of Safety and Security v Slabbert, the SCA stated that a party has a duty to allege in the pleadings that material facts upon which it relies. It is impermissible for a Plaintiff, the court continued, to plead a particular case and seek to establish a different case at trial. It is equally impermissible, the discussion continued, for the trial court to have a recourse to issues falling outside the pleadings when deciding a case. 

On the drawing of inferences, the court held that as a general rule, a court may only draw inferences that are consistent with all the proven facts, and where one or more inferences are possible, it must satisfy itself that inference sought to be drawn is the most probable inference. It further held that failure to put a version even where it should not have been put, does not necessarily warrant that the witness’s version is a recent fabrication. 

Based on the foregoing, the appeal was upheld with costs. This appeal purely turned on the technical aspects and it is on this basis that it was upheld. 

Case discussion and analysis by: 

Mtho Maphumulo
Senior Associate
Litigation Attorney
Adams & Adams

Mtho Maphumulo
Senior Associate | Litigation Attorney