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[2016] ZASCA 39
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Pro Tempo v Van der Merwe (20853/2014) [2016] ZASCA 39; 2018 (1) SA 181 (SCA) (24 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 20853/2014
DATE:
24 MARCH 2016
Reportable
In
the matter between:
PRO
TEMPO AKADEMIE
CC
.......................................................................................
APPELLANT
And
C
S VAN DER MERWE obo H VAN DER
MERWE
..................................................
RESPONDENT
Neutral
Citation:
Pro Tempo v Van der Merwe
(20853/2014)
[2016] ZASCA 39
(24 March
2016).
Coram:
Navsa ADP, Wallis, Saldulker, Zondi JJA and
Kathree-Setiloane AJA
Heard:
10 March 2016
Delivered:
24 March 2016
Summary:
Delict – erection by school of steel rods on playground to
support recently planted saplings – school catering
for
learners who struggle with learning disabilities – child
impaled on steel rod after leaning or sitting on it –
appellant
negligent – considerations of public and legal policy do not
dictate exclusion of liability.
ORDER
On
appeal from
: The Gauteng Division of
the High Court, Pretoria (Strauss AJ sitting as court of first
instance).
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Navsa
ADP (Wallis, Saldulker, Zondi JJA and Kathree-Setiloane AJA
concurring):
[1]
On 2 September 2009, Jacobus Hercules Van der Merwe (Jaco) was 13
years old and in attendance at a school that caters for children
with
learning disabilities when he became impaled on one of five steel
droppers, each of which was placed alongside one of five
saplings
planted within the playground. The steel dropper tore through Jaco’s
rectum and bladder with obvious resultant pain
and discomfort and
consequently Jaco required medical attention and surgery. The
question in this appeal is whether the court below,
the Gauteng
Division of the High Court, Pretoria, correctly held Pro Tempo
Akademie CC (Pro Tempo), the close corporation that
owns and conducts
the school at which the incident occurred, liable for the damages
sustained by Jaco on the basis of negligence.
The respondent, Ms
Cornelia Van der Merwe is Jaco’s mother. In her capacity as his
guardian, she instituted action against
Pro Tempo in the court below
for recovery of damages sustained by Jaco. At the commencement of the
trial, it was agreed that the
court would decide only the merits of
the claim and that the question of quantum would be held over.
[2]
It is undisputed that the tree and dropper in question were situated
in a separate part of the playground, where the senior
learners at
the school, including Jaco, played games such as rugby and cricket.
Shortly before the incident referred to above Jaco
and other senior
learners were playing cricket on that field. The uncontested evidence
was that senior learners at the school would,
in the normal course of
play, run around the tree and dropper on which Jaco had become
impaled. The tree was approximately 30 centimetres
high and the
dropper extended 60 centimetres from the ground and thus protruded 30
centimetres above the tree.
[3]
From the evidence adduced in the court below, it is not entirely
clear how Jaco came to be impaled on the dropper. There was
the
evidence on behalf of Pro Tempo by Mr Johan Hartman Cilliers, who was
the headmistress’ brother and who performed certain
limited
tasks at the school. According to Mr Cilliers, after being informed
by Jaco’s fellow students about the mishap, he
found the latter
seated in one of the toilets, with a pool of blood and urine visible
on the bathroom floor near the toilet. Mr
Cilliers testified that
Jaco had told him that he had sat on the dropper. However, Jaco
himself was uncertain about how he had
come to be impaled. Jaco
testified that he had not been feeling well on the day in question
and said the following:
‘
[E]k,
daar, ek was gedisoriënteerd. So, ek was moeg. Ek het ‘n
hoofpyn gehad.
.
. .
Ek
weet ek het op ‘n
dropper
gesit.
Maar ek kan nie heeltemal onthou wat, hoe ek dit gedoen het, of wat
my gemaak het dat ek op dit, dit doen nie.’
[4]
Mr Cilliers testified further:
‘
So,
was daar enige verdere bloed op sy boude, by sy anus, wat u gesien
het? --- Nee. Ek dink, toe ek daar kom, het hy al afgevee,
. . . want
hy het,
hy het seker self nie regtig
besef wat aangaan nie.
En . . .
[tussenbei] . . .So, dit was, dit sou, sy anus was skoon.’ (My
emphasis.)
This
indicated that Jaco was traumatised and uncertain about how events
had unfolded, as testified to by him.
[5]
The headmistress at the relevant time, Ms Anneli Cilliers confirmed,
during her testimony, that she had completed an insurance
claim form
in which she had stated that Jaco had become impaled on the dropper
after he had leant against it. The following appears
in the
statement:
‘
Jaco
. . . het saam met sy maats krieket gespeel op die speelgrond. Hy was
besig met veldwerk en het moeg geword. Omdat dit ‘n
nuwe
terrein is, is daar klein boompies aangeplant vir latere skaduwee. Om
die boompie te ondersteun, is daar ‘n yster “dropper”
aan hom vasgemaak. Die boompie het egter ook ‘n lae ogiesdraad
omgehad (om hoenders uit die bedding rondom die boompie the
hou.)
Jaco het op die dropper geleun . . . Alhoewel daar ‘n
damespersonneellid op diens was, wou hy nie hê sy moes
hom help
nie. . . .’
When
asked whether the statement reflected what had in fact occurred, Ms
Cilliers answered in the affirmative. Although the respondent
and
Jaco disputed the presence of the chicken mesh, it was never
suggested that the chicken mesh would have impeded access to the
dropper. As recorded by the court below, it is disconcerting that
when Ms Cilliers was informed about the incident she did not
immediately go to the scene to see to Jaco.
[6]
Ms Mariaan van Rooyen, the first teacher on the scene who was
supervising younger children in a different part of the playground
when the incident occurred, testified as follows:
‘
Hulle
sê vir my, juffrou, kom help. Jaco het met sy boude in ‘n
paal gaan sit.’
Jaco
landed up in the bathroom, as aforesaid, because he did not want to
be tended by a female teacher. Mr Cilliers who was the
first to
examine Jaco, summoned Jaco’s mother, who took him to hospital.
[7]
At para 42 of the judgment of the court below the following appears:
‘
The
only evidence thus before this court of how the incident happened was
most probably that the minor child either sat on the dropper
or
leaned against the dropper and the dropper thereafter penetrated his
rectum and caused the injuries he sustained afterwards.
. . .’
[8]
The court below (Strauss AJ), also had regard to the further evidence
of the teacher, Ms van Rooyen and that of Mr Cilliers,
both of whom
considered the dropper protruding above a tree in a playground to be
dangerous. More particularly, they envisaged
that a child might fall
on a dropper and be injured. Other evidential detail is set out in
the judgment of the court below which
it is not necessary to repeat.
[9]
The court below considered the facts and reasoning in
Transvaal
Provincial Administrator v Coley
1925 AD 24
to be instructive.
The following appears in the headnote:
‘
Appellant
administration through its servants planted a number of young trees
upon a portion of the playground of a school under
its control, and
in order to protect the trees erected wooden stakes with sharp and
jagged points round each tree. These stakes
were pressed into the
ground and brought together at the top in the form of a pyramid. The
area covered by the trees had become
overgrown with grass, and in
that area a hole had been dug, and the earth heaped up at the side of
it, forming a mound two or three
feet in height. Respondent’s
daughter, a child of six years, when playing on the mound ran down it
and fell on one of the
stakes, which pierced her eye in such a way
that it had to be removed.’
[10]
In
Coley
, at page 28, the following is stated:
‘
.
. . .[I] have come to the conclusion that a prudent and careful man,
who gave his mind to the matter as such a person would naturally
do,
should have foreseen that the sticks with such sharp projections in
the neighbourhood of the mound where children would naturally
play,
were a source of danger to very young children and sooner or later
might result in injury. If the sticks had been placed
in the middle
of the playground where children are wont to play hockey, for
instance, it can hardly be doubted that that would
constitute
negligence. And, apart from the presence of the mound in the
immediate vicinity, there is also much to be said for the
view that a
prudent man should not have placed sticks where the accident
occurred, for although they were not on the cleared space
it was
admitted that they were on ground which formed part of the
playground.’
Innes
CJ had regard to the notorious fact, accepted by the appellant’s
witnesses, that children are impulsive
[1]
(at 25-26):
‘
She
was told by her teacher to play under a certain tree, but child-like
she wandered a little further into the playground and accompanied
by
a companion, began to run up and down the mound which has been
described in the evidence. She fell while running down and one
of the
stakes near the foot of the mound penetrated her eye. . . From these
facts a duty arose to prevent those stakes being a
danger to children
playing in the vicinity, if such danger ought to have been
apprehended. And the question whether danger ought
to have been
apprehended resolves itself into an enquiry whether a
diligens
paterfamilias
, a reasonably prudent
person, would have foreseen that they would be likely to cause harm –
in which case he would have been
bound either to remove them or to
take other steps to obviate the danger.’
[11]
The court below also had regard to the oft cited dictum in
Kruger
v Coetzee
1966 (2) SA 428
(AD) at 430E-G and sought to apply it:
‘
According
to this test negligence will be established if –
(a)
a
diligence
paterfamilias
in the position of the
defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this court for some 50 years.
Requirement
(a)
(ii)
is sometimes overlooked. Whether a
diligence
paterfamilias
in the position of the
person concerned would take any guarding steps at all and, if so,
what steps would be reasonable, must always
depend on the particular
circumstances of each case.’
[12]
Strauss AJ considered the submission on behalf of the appellant that
Coley
was distinguishable on the basis that in that case a
child was injured due to the fact that she had run over a mound,
whilst in
the present case Jaco had injured himself by sitting on a
dropper which could not have been foreseen, and rejected it. At paras
70 and 71 of its judgment the court below stated:
‘
The
defendant, I find, when planting the specific tree that caused the
damage and inserting the dropper next to the tree in the
general
playing field where children were known to play rugby, cricket and
other ball games, created a hazardous and dangerous
situation. I
find, that the foreseeability of damage was present, due to the fact
that it is general knowledge that if children
run in a specific area
where a dropper is protruding above a tree any of these children
could fall and injure themselves on the
protruding dropper. This was
also confirmed by two of the witnesses for the defendant.
I
find that, as set out in [
Coley
]
. . . a prudent man in the shoes of the defendant would not have
placed the dropper in the vicinity where children were known
to run
and play. The prudent man might also have secured this specific tree
by other means, less hazardous and or less potentially
harmful.’
[13]
In dealing with the appellant’s plea of contributory
negligence, Strauss AJ had regard to Jaco’s youthful inability
to control irrational and impulsive acts. She took into account that
Jaco was hyperactive, had learning disabilities and had suffered
some
sort of trauma because of his parents’ divorce and made the
following order:
‘
1.
[T]he defendant is 80 % liable to compensate the plaintiff in the
amount of damages the plaintiff is able to prove.
2.
[T]he defendant shall pay the plaintiff’s costs of the action,
finding in favour on the merits, which costs shall include
the costs
of senior counsel.’
It
is against these orders that the current appeal, with the leave of
the court below, is directed.
[14]
Before us it was submitted that the court below erred in not having
sufficient regard to wrongfulness as a requirement for
delictual
liability. It was contended in written heads of argument that in the
present case public policy considerations demanded
that ‘in
view of the most extra-ordinary and peculiar act of Jaco when he sat
on a dropper', liability should not be extended
to [the] Appellant’.
[15]
As pointed out by the Constitutional Court in
Carmichele
v Minister of Safety and Security & another (Centre For Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC), wrongfulness, as a requirement
for delictual liability, more particularly in relation to omissions
and the breach of a legal
duty, has been developed over the years in
our common law prior to the advent of our new constitutional
dispensation.
[2]
Wrongfulness
assumed greater prominence in relation to claims based on negligence
leading to pure economic loss.
[3]
[16]
In
Hawekwa Youth Camp & another v
Byrne
[2009] ZASCA 156
;
2010 (6) SA 83
(SCA), this court had to consider whether a teacher, and by extension
the responsible Minister, was liable when a child, during
a school
excursion, fell from an upper bunk bed with an inadequate protective
barrier. Brand JA said the following in relation
to the principles
concerning wrongful omissions (para 22):
‘
.
. . [They] have been formulated by this court on a number of
occasions in the recent past. These principles proceed from the
premise that negligent conduct which manifests itself in the form of
a positive act
causing physical harm to
the property or person of another is prima facie wrongful
.
By contrast, negligent conduct in the form of an omission is not
regarded as prima facie wrongful. Its wrongfulness depends on
the
existence of a legal duty. The imposition of this legal duty is a
matter for judicial determination, involving criteria of
public and
legal policy consistent with constitutional norms. In the result, a
negligent omission causing loss will only be regarded
as wrongful and
therefore actionable if public or legal policy considerations require
that such omission, if negligent, should
attract legal liability for
the resulting damages (see e g [
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
[2005] ZASCA 73
;
2006 (1)
SA 461
(SCA)] para 14; [
Local
Transitional Council of Delmas & another v Boshoff
[2005] ZASCA 57
;
2005 (5) SA 514
(SCA)] paras 19-20;
Gouda
Boerdery BK v Transnet
[2004] ZASCA 85
;
2005 (5) SA 490
(SCA) para 12).’ (My emphasis.)
[17]
In
Country Cloud Trading CC v MEC, Department of Infrastructure
Development, Gauteng
[2014] ZACC 28
;
2015 (1) SA 1
(CC) para 22,
Khampepe J reaffirmed what is set out in the first part of the quote
in the preceding paragraph:
‘
Wrongfulness
is generally uncontentious in cases of positive conduct that harms
the person or property of another. Conduct of this
kind is prima
facie wrongful.’
[18]
As to a legal duty arising where there is prior positive conduct, see
8(1)
Lawsa
2 ed para 65 at 103-104, where the following
is stated:
‘
A
duty may arise when the defendant has by lawful prior positive
conduct (
commissio
)
created a potential risk of harm to others. If the actor then omits
to take reasonable steps to prevent the risk from materialising
(
omissio
),
the duty is breached.’(Footnotes omitted.)
[19]
In
Le Roux & others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
[2011] ZACC 4
;
2011
(3) SA 274
(CC), Brand AJ writing for the majority explained the
wrongfulness enquiry as follows (para 122):
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms. Incidentally, to avoid confusion it
should be borne in mind that, what is meant by reasonableness
in the
context of wrongfulness has nothing to do with the reasonableness of
the defendant's conduct, but it concerns the reasonableness
of
imposing liability on the defendant for the harm resulting from that
conduct.’ (Footnotes omitted.)
[20]
In
Hawekwa
,
Brand JA warned against confusing the delictual elements of
wrongfulness and negligence and went on to state that, depending on
the circumstances, it may be appropriate to enquire, first, into the
question of wrongfulness, in which case negligence might be
assumed
and in other cases it may be convenient to do the opposite. In
Hawekwa
a substantial part of the contentions on behalf of the Minister was
devoted to the element of wrongfulness.
[4]
Brand JA dealt with wrongfulness before considering negligence and
stated the following:
‘
.
. . [I] am satisfied that wrongfulness had been established. In this
regard I am in full agreement with the following statement
by Desai J
in
Minister of Education & another v
Wynkwart NO
2004 (3) SA 577
(C) at
580A-C:
“
It
was not in dispute that [the respondent’s minor son] R was
injured at school while under the control and care of the appellants’
employees and it was fairly and properly conceded that teachers owe
young children in their care a legal duty to act positively
to
prevent physical harm being sustained by them through misadventure.
It was submitted that in this instance, as in many
other delict
cases, the real issue is ‘negligence and causation and not
wrongfulness’.”’
[21]
In
Coley
the
planting of wooden stakes in a play area was rightly seen as
constituting a sufficient basis to create a duty on the part of
the
Administration to prevent there being a danger to children in that
vicinity.
[5]
Coley
is not distinguishable from the present case. By placing a steel rod
within a playground where children engaged in ball games the
appellant created a dangerous situation. It did not take reasonable
steps to prevent a foreseeable risk of harm through misadventure
from
materialising. Section 28(1)(
b
)
of the Constitution dictates that every child has the right to
appropriate alternative care when removed from the family
environment.
Having regard to all the circumstances of the case,
including the fact that one is dealing with children who struggle
with learning
disabilities and that Jaco’s hyperactivity was
known to the school and considering the factors set out in para 19
above,
the conclusion is compelled that the appellant’s
submission that public policy considerations demand that liability
should
not be extended to the appellant is wholly unfounded.
[22]
The following order is made:
The
appeal is dismissed with costs including the costs of two counsel.
M
S NAVSA
Acting
Deputy President
APPEARANCES:
FOR
APPELLANT: J G Bergenthuin SC (with him P A Venter)
Instructed
by:
Van
Zyl le Roux Incorporated, Pretoria
Honey
Attorneys, Bloemfontein
FOR
RESPONDENT: G C Muller SC (with him N Erasmus)
Instructed
by
N
van der Merwe Attorneys, Pretoria
Phatshoane
Henney Attorneys, Bloemfontein
[1]
See
Knouwds
v Administrateur Kaap
1981 (1) SA 544
(C) at 553D-554D and the authorities there cited.
[2]
See
para 42.
[3]
See
J R Midgley and J C van der Walt ‘Delict’ in 8(1)
Lawsa
,
2ed at 112 para 68.
[4]
Para
20.
[5]
At
26.