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[2014] ZAGPJHC 69
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M v Minister of Police and Another (43362/12) [2014] ZAGPJHC 69 (24 March 2014)
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION JOHANNESBURG)
Case
No: 43362/12
24
March 2014
In
the matter between:
B[…]
M[…] obo MINOR
…..........................................................................................
Plaintiff
and
MINISTER
OF
POLICE
........................................................................................
1
st
Defendant
MEC
FOR BASIC EDUCATION – GAUTENG
…...............................................
2
nd
Defendant
JUDGMENT
FRANCIS
J
Introduction
1.
The plaintiff instituted an action for damages against the Minister
of Police being the first defendant and the MEC for Basic
Education
Gauteng being the second defendant on behalf of her minor son who was
injured by a fellow learner at the E[…]
T[…] P[…]
School (the school) on 14 June 2012. At the commencement of the
proceedings the plaintiff withdrew
her action against the first
defendant and tendered costs.
2.
During the proceedings the parties reached an agreement that should
this court find that the second defendant was liable, that
the
plaintiff should be awarded damages in the sum of R4 523 952.00.
It was also agreed that the plaintiff is the
mother and natural
guardian of T[…] M[…] (T[…]) and that the school
is a public school.
3.
It was contended in the pleadings that the members of the South
African Police Services (SAPS) were negligent in that they ought
to
have searched all the students entering the premises and if not at
least ought to have seen that M[…] P[…] (M[…])
was carrying a sharp object and they failed to do so and when the
minor was attacked they ought to have avoided the fight by taking
away the tomahawk and they failed to do so. It was
contended that the second defendant, its staff members, teachers
or
employees of the second defendant were negligent and/or wrongful in
that they ought to have provided a safe environment or security
for
the school children and they failed to do so.
The
evidence led
4.
The plaintiff’s first witness was K[…] M[…].
He testified that he was a learner at the school in 2012.
He knows
T[…] who was a learner at the school. On 12 June 2012
after they had written their examinations they went
to the tennis
school grounds during school hours when a fellow learner M[…],
assaulted him, T[…] and L[…].
M[…] slapped
him with an open hand on his face, pushed L[…] with his hand
on his face and slapped T[…] with
an open hand. They
were assaulted for no apparent reason. He was a grade 8
learner, T[…] and L[…] were
grade 9 learners and M[…]
was a grade 11 learner. M[…] was first taken to Mr
Ndebele’s office and they
also went there after they were told
to do so be an educator. Ndebele enquired from them what had
happened and they explained
that M[…] had assaulted them.
Ndebele than went to fetch documents for them to give to their
parents. When he
returned, M[…] tendered an apology so
that they would not be given the forms to take to their parents.
Ndebele wrote down
their statements and had asked them to write down
their names on it which they did. M[…] tendered an
apology which
was accepted by Ndebele. During the school breaks
most of the high school learners play soccer at the tennis grounds.
The tennis grounds serve as a playground. They had finished
writing exams at 10h00 and went to the grounds. The school
is a
combined school comprising of a high and primary school. The
playground is two lengths of the ground where soccer is
played.
During a normal school day they have two breaks. There are some
other children who are not learners at the
school who enter the
school premises through the holes in the palisade fence to play
soccer there. Those children do
not wear school uniform.
There are no teachers at the playgrounds during the breaks or any
other persons of authority there.
When the assault took place
there was no person of authority who was supervising them.
5.
M[…] testified that on 14 June 2012 after they had written
their exam paper at 10h00, they went to the tennis courts.
There are soccer grounds adjacent to the tennis courts. Most of
the grade 8 and 9 learners were at the tennis courts.
They were
watching a soccer game between the learners and the boys who had
entered the school premises in the holes in the palisade.
Those
boys are older than them. M[…] then assaulted T[…]
with an axe on his head during school hours long after
they had
written their exams. The incident happened at the tennis
court. There were no adults present when the
incident
happened. After M[…] had chopped T[…] with the
axe, it fell and M[…] picked it up and
ran away with it
holding the axe. M[…] was wearing a pair of grey
school trousers with a background jacket that
went over his knees,
black shoes and had a school bag over his shoulders and was not
wearing a shirt. M[…] was supposed
to have written an
exam with the grade 11 learners but did not do so. He had
assaulted T[…] whilst the other learners
were busy write their
exams. At the time of the incident there were no teachers
supervising or watching them or any person
of authority.
6.
During cross examination he said that after the first assault they
met an educator called Sephaka who had asked them if they
were also
involved in a fight and he took them to the office. He suspects
that Sephaka had seen the incident when M[…]
was taken to the
office by a certain boy. They had retaliated by assaulting M[…]
after he had assaulted them first.
Ndebele was going to give them the
forms to give to their parents so that they could accompany them to
the school to discuss it
and to prevent it from happening in the
future. They all shook hands to indicate that everything was
over. He and his
friends apologised. He said that M[…]
was wearing a long jacket and had hidden the axe under his jacket.
The
axe was concealed. He insisted that he did not see any
educators in the playing areas on 12 and 14 June 2012 and they were
not there. They were on the side of the classes at the school.
There was no person in authority and if there was such
a person he
would have stopped the fight. A person in authority is a person
who looks after the children so that they do
not fight. He was
not aware of patrollers who patrolled the school and there were no
such persons. If there were patrollers
he wanted to know
how other people entered the school through the holes. He
admitted that the police used to visit the school
but does not know
what the reason was for that. To his knowledge they did no
conduct drug raids of learners but he said he
could not dispute that.
No students were searched by the police.
7.
The second witness called by the plaintiff was J[…] K[…]
T[…]. He testified that he is a grade 10
learner at the
school and has been at the school since grade 4. He confirmed
that on 12 June 2012 he and his friends were
assaulted by M[…]
at the tennis grounds after they had written their exams.
There were no adult persons supervising
them at the time. He
does not know of patrollers and if there were patrollers patrolling
inside and outside of the school,
he would have known about them.
In June 2012 there was no educator supervising the children on
the playgrounds nor
did they supervise the children during the
breaks. On 14 June 2012 there was no one supervising the
children nor were there
any patrollers. He saw M[…]
assaulting T[…] with an axe after the children had written the
exams and were playing
on the tennis courts. He could not
estimate how many boys were playing but they were many. There
were also children
who do not attend their school who got into the
school through the holes in the palisade fences behind the school.
The
holes are not a distance away from the gate which is about
the length of a soccer field. The tennis court is a little bit
further
away. Whilst they were being chased by M[…]’s
friends, there were no teachers and patrollers who assisted them.
After M[…] had assaulted T[…], he ran away
through one of the holes and still had the axe on him. The high
school is on the one side and the primary school on the other side.
He said that there three holes which were there about
two to three
months before the incident.
8.
During cross examination he said that he does not know who had
reported the
incident of 12 June 2012 to
the educators but they were fetched and told that they were needed at
the office since they were involved
in a fight. He denied that
there were patrollers inside and outside the school and at the gates
and had never seen them.
He said that the repairs in the fence
were repaired from time to time but they would be broken again.
The repairs would take
place after a long time. He was present
on 14 June 2012 when M[…] assaulted T[…] with an axe.
He did
not see him carry the axe since he did not see him approaching
T[…] but saw it when he struck him. He was wearing a
long jacket with his hands in his pocket and assumed that the axe was
hidden. During re-examination he said that there are
patrollers
at the gate. There are two official entrances to the school.
The big gate at the high school that is used by vehicles
is been
guarded by the Community Police Forum (CPF). The CPF do
not patrol the school grounds. He does not know
of any other
incidents of boys fighting at the school except for the one
that he was involved in.
9.
The second defendant’s first witness was Christine Manyaka. She
is a principal at the P[…] primary school.
In 2012 she
was the acting principal at the school for 5 months prior to June
2012. She was unaware of the incident of 12
June 2012 which was
resolved between the boys and an educator. She was not present
at the school on 14 June 2012 and was
on leave attending an interview
for the principal’s post. She returned to school on the
Monday when the incident of
14 June 2012 was reported to her.
She went to the deputy principal of the high school, a Mr Mbatha and
had asked him about
what had happened. He referred her to Mr
Molefe who was the head of commerce in the high school section.
She investigated
the matter and spoke to Molefe who reported to her
what had happened. When asked what measures had been put in
place for
the safety of the learners and the school, she said that
they have a safety security policy and a disciplinary policy.
They
have a code of conduct for practices and procedures at the
school. The policy is to ensure that safety prevails at the
school
environment. This is communicated at the assembly about
what they can do and cannot do. The teachers in the classes
also talk about it. There are safety awareness campaigns and
they call the police. They teach the learners to tolerate
and
love one another and that they must comply with the regulations at
school. They are thought that there is no bullying,
fighting
and stealing. They have duty rosters where there are four
educators who monitor in the morning the assembly and
do late coming
control and ensure that the learners are safe in the student
environment. She said that they have a roster
document.
There are four educators and the roster contains different dates
about who should monitor. Dates are allocated
for educators who
are on duty. The document is amended yearly and they used the
old one when they amend it. There are
four educators assigned
for the high school for safety and to direct them about the duties
for the day and the
other educators who are
not on duty would assist with monitoring. They will be on duty
to ensure the safety of learners.
The roster is for the entire
school. The other learners go to the feeding scheme, some stay
in the classes, others in the
environment and others play on the play
grounds. They had about 1500 learners at the time and about 43
educators for both
schools in total. There is a
representative’s council of learners (RCL) which is like the
old prefect system.
There were more than 20 RCL’s who
were elected democratically. There are two learners per class
who are part of the
RCL. They are trained by the department and
the teachers location officer. They assist the educatprs and report
events to
the educators. They are the eyes and ears of the educators
at school. The school has an extra school support programme
(ESSP)
which is employed by the Gauteng Education Department.
Their function is to patrol the school to ensure safety and work with
the CPF. They patrol inside and outside the school and are
employed on a 24 hours basis. There are two shifts starting
from 6h00 to 18h00 and 18h00 to 6h00. There were four such
employees, two worked during the day and two during the evening.
Whilst she was acting as a principal, she knew the patrollers and
interacted with them. If they saw that something was wrong,
they would report it to her. Their school was not a problematic
school and this was the first incident since she started
there as a
deputy in 2008. There are two entrances at the school.
There is one from the primary school and one
from the high school.
There are guards at the gate and they have access control for any
vehicle coming in and they would
write down time, the date and the
person must sign. They patrol the school area for safety.
If there is something unusual,
they report this to the office.
The patrollers started in 2011 and were still in operation during the
incident.
10.
Manyaka testified that there is a problem with holes in the fences.
If the ESSP and grounds men observed a hole in the
fence, they would
fix it. There is a palisade fence where one or two bars would
be removed to enter and if this happened
late, they would fix.
They have a person who has a welding machine and he will be contacted
to fix it. Once one hole
has been fixed, another would be
opened. She is aware that she has the legal authority to
search students if she has a reasonable
suspicion. Since the school is not violent they had no
suspicion and they never searched
any learners. After 14 June
2012, they did a reinforcement at the assembly about tolerance, that
they must love one another
and the principles of ubuntu. They
did not do any random searches as she did not suspect anything.
During the exams
a timetable is drawn up with rules and regulations
that must be adhered to. The exams start at 9h00 and the
learners leave
at 10h00. They remain in class until 10h00 and then go
out. This is for safety reasons that they all leave together as
there
is nobody to monitor them and the teachers are busy
invigilating. The school has soccer grounds and tennis courts.
The tennis court is next to the palisade fence and the soccer fields
are near the gate which has access control and during teaching
time,
the gates are locked and only opened during the break. She was
not at school on 14 June 2012 but said that the practices
and
procedures she had put in place were in place and the learners knew
that even
if she was not there they had to
comply with it. She was asked whether she or
the
others would have been able to detect that M[…] came with an
axe to
school on 14 June 2012. She
said that there are many learners who go to school and they cannot
detect if they have weapons.
Nobody saw that he had a weapon in his
hand and the weapon was invincible. They have school uniform.
There are orphan vulnerable
children at the school and not all of
them have uniforms. In June it is very cold and some of the
learners do not have any
jerseys to wear and they allow them to wear
anything. A learner can wear a jacket to keep warm and they
were writings their
examinations. Their school is a no fee
school and they provide the learners with free transport and most of
them eat at school.
There are orphans and vulnerable children who
live on grants. The vulnerable parents are not working and some
are single
parents who do piece jobs and some children stay with
their grandparents and extended family and some are child headed
families.
The size of the school is the length of 3 to 4 soccer
fields and the primary school is the length of 3 soccer fields.
The
tennis courts are close to the palisades and it has walls on the
side and people at the access gate can view what is happening there.
An educator who parks his vehicle next to the tennis courts can see
what is happening there. She works with the police
and
the school has a adopt a cop policy. The police would come to
the school unannounced to see if everything was fine.
There is
a bush behind the school and the police would patrol the area.
If they found a learner there, they would bring the
learner to
school. The police assist them a lot. In 2011 the police
came to their school with her approval and explained
about drugs and
how to avoid crime. They did drug raids. Whilst she was the
acting principal the learners were not searched
since they had not
experienced violence and there was no need for them to do so.
The ESSP do not search students because
there was no need to do
so. There is a RCL for the high school and they
assist with leadership skills and monitoring.
They are trained
by the teachers and the department. They do what they are
thought at workshops. The primary school
has a prefect system
in place.
11.
During cross examination Manyaka said that there is a duty roster in
place for the teachers to do monitoring during the school
brakes and
to ensure the safety
of learners.
This contributes to the safety of learners. The 1500 learners
are not at the same place during the breaks.
The roster was
introduced for their safety. The two incidents happened when
the learners were writing their exams.
If they completed their
exams at 10h00, and had no other exams the learners would remain at
school until 14h45. There is
a second exam. She was asked who
would monitor the children between 10h00 and 14h45. She said
that they have a time table
and some would write until 10h00.
After that they would return to classes until the school closed for
the day. On 14
June 2012 when she was at school the deputy high
school principal and the school management team were on duty.
She said that
she did not have the roster to see who had managed the
children on 14 June 2012. It was put to her that two witnesses
testified
that no one had monitored them on 14 June 2012. She
said that the educators complied and they were on duty so they had to
comply. She said that although she was not at school, they did
comply with it. The patrollers and the CFP people were
not the
same but worked together. The
CFP
works with the patrollers inside the school. The patrollers
would patrol every day during the breaks and if they saw something
they would report it to the office. They would intervene and bring
the learners to the office. If there was no teaching and
learning they would patrol during the day. There are two
patrollers during the day and two at night. There are two
entrances and the main entrance is at the high school. The
entrance at the primary school is used mainly for buses and then
it
is locked and they use the main entrance. The ESSP wear any
clothes and they are not provided with uniform. The
CFP wears
orange uniform. They come if there is a need to assist and they
are not assigned any work at school. The
ESSP works inside the
school. The prefects only assist when there was for example a
window that was broken etc. It
was put to her that on 12 and 14
June 2012 there were no educators who monitored the children on the
playgrounds. She said
that on 12 June 2012 one educator had
intervened and she heard that the matter was resolved and they were
on duty.
She insisted that there were patrollers despite the
evidence of the plaintiff’s witnesses that there were none.
It
was put to her that there were no patrollers and no supervision of
the children had taken place on 12 and 14 June 2012. She
said
that they were patrolling and there was a report to an educator who
supervised and the educator interacted about the problem
that was
brought by the ESSP. The educators cannot be everywhere.
They move around the school and not all learners
go to play at the
sports fields ground. Some are in the classes and the others go
to the feeding scheme etc. They did
not count the number of
learners who were at the sports fields.
12.
The second witness called by the second defendant was Shirley Gqoba.
She is sergeant in the SAPS and is stationed at Mondeor
police
station. She is employed as a social crime prevention
co-ordinator and her job entails visiting the schools and asking
them
about the problems that they were facing. She has contact with
the head of the school. After the problem has been
explained to
her she would search the schools and would sit with the school safety
committees. She would conduct educational
programmes at the
school if the head of the school had asked for that. The school
is one of the schools under her jurisdiction.
They visit the
school from time to time and she is still doing so. She would enter
the school and go to the school principal’s
office as she must
first contact her. She would sit with the principal and talk
about the problems that the principal was
facing. She did not
encounter any problem at the school that she was aware of. She
has previously done searches
for drugs at the school before.
She does not recall that she was called about fighting or assault at
the school. She
was asked if she had arranged patrolling at the
school as co-ordinators. She said that if she could not go, she
would ask
the patrolling van to patrol around the school. She
tried to go to the school once a week. If she is near the
school
she will enter and inspect it to see if it was in order
without the principal’s invite. In some other cases
she
would go to the school when she is invited and the principal
would tell her to go and see if things were in order and at times
they would sit in the office and discuss problems and solutions.
13.
The third witness called by the second defendant was Montha
Monanyane.
She testified that she was an
ESSP patroller at the school since 15 November 2011. She worked
shifts at the school from 6h00
to 18h00 for two days and would then
be off for the next two days and would work night shift starting from
18h00 to 6h00 for the
next two days. She was a patroller on 14
June 2012 and was working day shift. There were two of them who
worked as
a patroller. One of them worked at the gate for
access control and she patrolled around the school. There were
two
patrollers on duty at a particular time. When she
patrolling she would look around the school. If there was a
group
of children standing around and she was suspicious, she would
go to them and enquire what was happening. If there were small
fights or problems she would report it to the principal.
****They were not allowed to search school children. They were
trained by the department of safety at the Mondeor police station
about what to do with crime and domestic violence. As
patrollers
they wore orange skippers with CPF written on it and
reflecting jackets with community patrollers written on it and had
boots and
jeans. The current patrollers at the school no
longer wearing uniform since the department does not have a
budget
for uniform. She was a patroller on 14 June 2012 and was
patrolling alone. She starts patrolling at the grounds and
then
go the tennis fields and around the school and then to the primary
school. On that day she did what she usually did
on a daily
basis. Whilst she was at the primary school after having passed
the test courts, a group of children reported
to her that children
were fighting at the tennis courts. She went to the tennis
court and found children at the gate.
They told her that the
children were at the clinic. She went there and found the injured
child and a doctor helped him. An
ambulance was summonsed and
the child was taken away. She did not see how the child was injured
and he had been injured at the
grounds. When she is at the
primary school she cannot see what was happening at the tennis
courts. She did not see
children carrying weapons. She was
asked whether from November 2011 to February 2013 she had witnessed
any incidents of violence
and she said that there were children who
fought and she had stopped it. They did not injure each other
and had fought with
their hands. This happened outside the
school premises after school. She knows Thabani who was in that
fight and she
does not remember the other boy. She does not
remember when that incident happened and no exam was written on the
day in
question. It happened in the middle of June 2012.
She went to them and stopped them and told them to go home.
14.
During cross examination she said that in June 2012 she was wearing
uniform and it would have been easy for learners to recognise
them if
they were present. She agreed that she was not at the
playground when the incident happened on 14 June 2012.
It
would take her about 15 minutes to patrol the entire school.
She would start at the playgrounds and move on. She
said that
she would patrol mostly when the children were outside and it would
depend when the school went out and it could be 2
or 3 times.
She repeated that one of the patroller remained at the gate and she
patrolled the school.
15.
The fourth witness called by the second defendant was Maria Molefe.
She is employed as an educator at the school.
She is the head
of the department and
is employed since
2001. She said that on 14 June 2012 she had just entered the
office to put away some exam papers during
the exams when children
came to the office and told her that one child had been chopped with
an axe by another. She went out of
the office and followed those
children and other children came along with the child and there were
other teachers. She asked
the other children and the teachers
to take the child to the clinic which was behind the school.
She was told that he had
been chopped by Mduduzi. She said that
on 14 June 2012 the learners were writing exams. The first
paper was written
at 8h30. There were 2 hours papers and 3
hours paper. After writing the exams those who finished their
papers would
go out not at the same time. If another paper had
to be written a siren would go off for them to return to write.
The
learners reported to her between 9h45 and 10h00 about the injured
boy. She said that exhibit E is roster for the educators
who
had to do certain assembly and gate duties in 2014. The first
column contains the dates. The second is for assembly
duty and
those responsible for the running of the assembly. Another
showed the gates where the educators who has to do there.
There
is also a column for the short and long break and there are also
teachers who look at the children who were eating and playing.
She said that the educators walk around during the breaks to
supervise and see if the children are safe and see if the outside
people are coming in and bringing outside things in. Exhibit F
is the roster for March 2014 and is a time table for the ESSP
patrollers. They do gate control and help to patrol the school yard
and move around. There was a similar duty roster for
2012 and
the educators did duty in terms of the roster. On 14 June 2012
they adhered to the roster. It was put to her
that evidence was
led that the teachers did not patrol and remained in the staff room.
She said that the teachers patrolled
and if one looked at the roster
there is a column for the managers who would see whether the teachers
were at the work. The
patrolling by teachers happened in 2012
and even on the day of the incident.
16.
During cross examination she said that on 14 June 2012 the incident
happened
whilst
the other children were still busy with the exams. It was put
to her that this meant that the educator on duty were
still busy with
the exams. She said that not all the educators were in the exam
rooms and there are ESSP that
helped with
patrols. She said that the educators on duty only go after the
exams to the playground to monitor. She was
asked whether if
the incident happened whilst the exam was not over, the duty
educators would not have gone on duty yet.
She said that she
was not sure of that and could not answer it. She said that she was
not present at the playgrounds when the incident
happened. She
could not say if the educator on duty was at the playground and she
could not answer the question. It
was put to her that the
evidence was that the educators were never on duty during the breaks
and at the playground. She said that
roster showed that there are
mangers of the educators who had to go to the playground. She
said that she does not remember
who the manager was because she does
not have the 2012 roster.
Analysis
of the evidence and arguments raised
17.
It is common cause that T[…], the plaintiff’s son and
M[…] were both learners at the school. On 12
June 2012,
M[…] had assaulted T[…] and two other learners by
slapping him. They reacted and slapped and kicked
M[…]
which resulted in all of them landed at an office where they saw
Ndebele. He wanted to give them letters
to take to their but
after M[…] had apologised for the incident and they had shaken
hands he decided against doing so.
It appears from the evidence
that was led that M[…] was taken to Ndebele’s office by
learners and that T[…]
and his friends were told by an
educator, a Sephaka that since they were involved in the fight they
had to go to the office.
18.
It is further common cause that two days later on 14 June 2012 after
some of the learners had written an exam, went to the tennis
grounds
where a soccer match was taking place at the tennis grounds.
This was at about 10h30 when M[…] who was wearing
a long
jacket, took out an axe and struck T[…] with it on his head.
M[…] had hidden the axe in one of his pockets
and none of the
witnesses had seen the axe before the assault took place. They
saw it after he had struck T[…] with
it. He then fled
from the scene and the school premises. T[…] suffered
head injuries which caused the plaintiff
to institute action for
damages against the defendants.
19.
A number of witnesses were called by both parties in these
proceedings. The plaintiff’s case is that the school
did
not provide any patrollers and educators to monitor the learners
during the school breaks and in particular on 12 and 14 June
2012.
The defendant contended that it provided patrollers and there were
educators who were rostered to supervise the learners
during the
school breaks
and
at assembly.
20.
The plaintiff sought to hold the second defendant liable on the
grounds that the second defendant, its staff members, teachers
or
employees of the second defendant were negligent and/or wrongful in
that they ought to have provided a safe environment or security
for
the school children and they failed to do so. The conduct of
the employees of the second defendant, teachers and/or staff
members
of the school were negligent and wrongful and caused the said child
to be injured.
21.
The requirements for liability in our law are set out in
Kruger v
Coetzee
1966(2) SA 428 (A). Holmes JA held at 430E:
“
For
the purposes of liability culpa arises if –
(a)
A diligens 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 diligens
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 upon the particular circumstances of each case.
No hard and fast basis can be laid down. Hence
the
futility, in general, of seeking guidance from the facts and result
of other cases.”
22.
This exposition of the requirements of liability was accepted in
Minister of Education and Another v Wynkwart NO
2004 (3) SA
577
(C) in which a grade 3 learner at a school with 900 learners and
32 educators was injured. At the time the learner was 9 years and
7
months old. He had climbed over a locked gate and had fallen
and injured himself. The learners were warned not to
use the
gate which was locked. The Court at 580 A to D stated as
follows:
“
It
was not in dispute that 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’ (See: BOE
Bank Limited v Ries
2002 (2) SA 39
(SCA). The conclusion of the
Court a quo is premised upon the core finding that the Appellants
failed to take ‘reasonable
steps to ensure that R, like all his
peers, left the school through the correct exit gate’. Mr
Gauntlett in my view
rightly, points out that the true enquiry is not
as to foreseeability but as to what constituted reasonable steps for
the Appellants
to take the circumstances, and whether these, if
taken, would probably have averted the harm”.
23.
In
Minister of Safety and Security v Van Duivenboden
2002 (6)
431 (SCA), applying
Kruger v Coetzee (supra)
, held (at 448F-G)
that the answer to element (a)(ii) of the said case:
“
will
depend upon what can reasonably be expected in the circumstances of
the particular case. That enquiry offers considerable
scope of
ensuring that undue demands are not placed upon public authorities
and functionaries for the extent of their resources
and the manner in
which they have ordered their priorities will necessarily be taken
into account in determining whether they acted
reasonably.
24.
The duty of care depends on the risks that school children are
subjected to. In
Rusere v The Jesuit
Fathers
1970(4) SA 537 (R) a group of
children between the ages of seven and ten were left unattended in
the school grounds and engaged
in a game using bows and arrows during
which an eight-year-old child sustained a serious injury to his eye.
It was held at
539F-H that at:
“
In
my opinion, however, the duty to keep children of this age under
constant
supervision
depends essentially upon the risks to which they are exposed in
their particular surroundings ….
To contend, however, that children of this age should never be more
than momentarily
out of sight of a responsible
person
even when they are in normal and familiar surroundings which are
devoid of features that could sensible be regarded as hazardous,
is,
I think, to exact too high a duty of care from the bonus
paterfamilias.”
25.
It is apparent from the authorities referred to above that where
learners are not kept under the constant supervision of educators
this is not in itself a breach of the duty of care owed to such
learners. It would depend on the circumstances of each case
and
to the risk that the learners were exposed to. One should be
careful not to place undue demands on public authorities
and
functionaries of their resources and the manner in which they have
ordered their priorities will necessarily be taken into
account in
determining whether they acted reasonably.
26.
The plaintiff contended that the second defendant ought to have
provided a safe environment or security for the school children
and
they failed to do so. The issue to be determined in this matter
is what reasonable steps should the second defendant
have taken in
the circumstances and whether, if the second defendant had taken
those steps, the harm complained of would probably
have been
averted.
27.
The plaintiff’s son was 15 years and 7 months old at the time
of the assault on him. In my view a learner at his
age need not
have to been kept under continuous supervision on the school grounds
unless there was some hazardous feature present.
The evidence
led before this court was that the school was not a violent school
and this was the first incident of its kind.
This was confirmed
by J[…] T[…] the plaintiff’s second witness and
the second defendant’s witnesses.
It was common cause
that the school has a Code of Conduct for both the learners and
educators and a safety policy at school.
Sergeant Gqoba
testified that the police met regularly with the safety committee of
the school. The school had adopted a
cop policy. The
school conducted regular safety awareness campaigns and learners
would on a regular basis be thought to be
tolerant of each other and
about the spirit of Ubuntu. When the incident of 12 June
2012 was brought to the attention
of Ndebele he set the disciplinary
code and procedure in place by wanting to hand to M[…] and
T[…] copies of letters
to give to their parents. He did
not proceed with it after they had apologised. The school had
an elaborate safety
and security policy in place.
28.
The plaintiff’s witnesses testified that the school did not
have any patrollers in place. This is obviously not
correct
since the evidence given by the second defendant’s third
witness Montha Monanyane that she was employed by the second
defendant as a patroller on 15 November 2011 to February 2013 was not
disputed or challenged. J[…] T[…] during
re-examination testified that
there
were patrollers but they were manning the main gate. Monanyane
testified about how she did the patrols. She was
doing this
alone and had to
patrol the combined
school which is some 7 lengths of a soccer field. At the time
of the incident of 14 June 2012 she was
patrolling at the primary
school when she was told about the incident. When she went to
the scene she found that they had
moved. If she was not a
patroller, it would mean that she lied about the incident. If
she lied and was not there it
is unclear how she would have known
about the incident. She struck me as an honest witness when she
testified and had no
reason to tell lies. She had stopped working at
the school in February 2013 and no longer had links with the school.
29.
The evidence given on behalf of the second defendant that it worked
closely in conjunction with members of the CPF and the police
was not
challenged. It is my finding that the school had four
patrollers at the school who were employed by the second defendant.
Two worked day shift and the other night shift. During the day
shift one of the patrollers manned the main gate and the other
did
patrol duties. The size of the school was about the lengths of
five soccer fields. There were only two gates leading
into the
school. There were holes made to the perimeter of the wall
which used to be closed by the school at the earliest
possible
opportunity. Much was made about this by the plaintiff but
nothing turns around this since, T[…] was assaulted
during
school
hours
by a fellow learner. The position may have been different if he was
assaulted by one of the boys who did not belong to the
school.
30.
Evidence was led by the second defendant that the school comprised of
1500 learners and about 43 educators. The school
had introduced
a roster where educators were assigned certain duties. Not all
the children played at the soccer and tennis
grounds. Some went
to the vendors, other to the soup kitchens, other remained in the
class rooms and the others played at
different places. The
school also had 20 learner council representatives who were the eyes
and ears of the school.
In addition to this as stated above
they had two patrollers who worked during the day and other at
night. The plaintiff disputed
that the educators or persons in
authority supervised the learners during the breaks. The
evidence led about the roster that
was in place was not seriously
challenged. An explanation was given why the 2012 roster was no
longer available. The
explanation was that the school would use
the existing roster to draw up a new one. That evidence was not
challenged.
It is so that none of the educators who were
assigned to do duty on 14 June 2012 were called. They
should ideally have
been called but since the 2012 roster was no
longer available it is not sure who should have been called.
Both Maria Molefe
and Christine Manyaka testified about the existence
of such a roster. J[…] T[…] conceded during cross
examination
that a Mr Sephaka who was an educator probably saw the
fight that had taken place on 12 June 2012 which was the reason why
they
were told to go to the office. He also conceded that some
of the educators used to sit next to the classes during the school
breaks. It is my finding that the school had educators who
supervised the learners during the breaks but on 14 June 2012
when
the incident took place at the tennis grounds there was no adult
supervision that had taken place. However it does not
follow
that the plaintiff has proven its case against the second defendant.
31.
Did the plaintiff establish that the second defendant and its
employees were negligent in that they ought to have provided a
safe
environment or security for the school learners and did they fail to
do so? It is common cause that none of the
witnesses saw
that M[…] had an axe on him since it was concealed. The
school had allowed children who could not afford
jerseys to wear
jackets etc. as protection to winter. It is clear from the
evidence led that no one would have been able
to have prevented M[…]
from assaulting the plaintiff. Neither a patroller or an
educator would have been able to do
so. As stated
earlier the school did not have a history of violence. No body
searches were conducted on
the learners when they went to school due
to the fact that it was not a violent school. The school had on
a regular basis
emphasised that bullying would not be allowed and
that there should be tolerance towards each other. The police
also confirmed
that the school had no history of violence so there
was no need to conduct body searches on the learners. The
incident of
14 June 2012 was the first of its kind at the school.
.
32.
In my view, the plaintiff did not establish on the evidence that a
failure by the second defendant to take reasonable steps
which, if
taken, would have prevented T[…] from being assaulted by
M[…]. It is also not clear what reasonable
steps the
second defendant should have taken to prevent harm to be caused to
T[…]. The plaintiff did not show that
other steps not
taken by the second defendant constituted reasonable measures which,
if applied, would have prevented M[…]
from doing what he did.
It was not the plaintiff’s case that the school should after
the incident of the incident of
12 June 2001 have foreseen that M[…]
was going to take revenge. There is no evidence before this
court that M[…]
was known to be a violent person or had
threatened to get even with T[…]. He had assaulted T[…]
and his friends
two days before the incident but got off worse
after he was assaulted and kicked by T[…] and his friends.
All the
parties involved in the first incident than made peace and
the matter was laid to rest.
33.
The school did provide the school children with a safe learning
environment. What should be taken into account is that
the
school did not have a history of violence. This was the first
violent incident that had happened at the school.
The
incident of 12 June 2012 was not that violent that should have raised
the alarm bells. The school does not cater
for affluent
learners. It is a combined school and is a non fee school.
It serves the poorest of the poor learners.
It had patrollers and
educators supervising learners. As stated earlier the
school has a disciplinary code and procedure
applicable to learners
and educators. It has a safety policy in place. Learners
were encouraged to love one another
and to be tolerant towards each
other. The contents of these documents were brought to all the
learners attention from time to
time during discussions in class and
during school assemblies. The numerous means implement by the
school in order to ensure
the safety of learners were extensive and
reasonable under the circumstances. It could not be expected of
the educators or
the second defendant to have ensured the safety of
each student by ensuring that each learner is kept under constant
surveillance.
34.
The primary objective of educators and schools is to educate.
The question of the security of learners is ancillary thereto
only by
virtue of them being in the custody of the head of the school. To
expect a school to ensure the full security of each and
every learner
during the entire school day will necessarily detract substantially
from the primary objective of educating.
35.
The plaintiff has failed to prove any grounds of negligence and or
wrongfulness on the part of the second defendant and or its
employees. The action stands to be dismissed.
36.
I do not believe that this is a matter where costs should follow the
result. An appropriate order is that each party is
to pay for
its own costs.
37.
In the circumstances I make the following order:
37.1
The action is dismissed.
37.2
Each party is to pay their own costs.
FRANCIS
J
JUDGE
OF THE HIGH COURT
FOR
PLAINTIFF: H B MARAIS SC WITH D J COMBRINK
INSTRUCTED
BY DUDULA ATTORNEYS
FOR
2
ND
DEFENDANT : R BEDHESI SC WITH M ZULU
INSTRUCTED
BY STATE ATTORNEY
DATE
OF HEARING: 10, 11, 12, 14 MARCH 2014
DATE
OF JUDGMENT :26 MARCH 2014