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[2016] ZAGPJHC 170
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N v Member of the Executive Council for Education Gauteng Province (42538/2012) [2016] ZAGPJHC 170 (17 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 42538/2012
DATE:
17 JUNE 2016
In the matter
between:
C
N
....................................................................................................................
Plaintiff
And
MEMBER OF THE
EXECUTIVE COUNCIL FOR EDUCATION
GAUTENG
PROVINCE
.........................................................................................................
Defendant
J U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1]
The plaintiff, acting in her own right and on behalf of her son, S N
(“
S
”),
instituted action against the Provincial Government (“
the
MEC
”), or (“
the
defendant
”), for damages as a
result of certain injuries sustained by S, a grade R learner on 23
February 2012.
THE
ISSUE FOR DETERMINATION
[2]
The trial was concerned with the merits only of the plaintiff’s
claim, the issue of the quantum of damages standing over
for later
adjudication. In essence, the plaintiff’s claim is that
the school or S’s class teacher or supervisor,
could have
prevented the incident, but had wrongfully and negligently failed to
do so.
SOME
COMMON CAUSE FACTS
[3]
Based on the pleadings, pre-trial conference minutes, as well as the
evidence led, the following facts can safely be accepted
as common
cause: S, a 5 year old, and a grade R learner at the I P
School, M S, S, sustained certain injuries on 23 February
2012.
S sustained injuries to his leg, which was fractured, and which
necessitated hospitalisation, treatment and surgery.
During the
course of the learners’ activities, in class or the school
playing area, S sneaked away, apparently without the
class teacher’s
awareness, and found himself in the school’s jungle gym or the
castle gym. It is not in dispute
that S was injured at the
castle gym. The class teacher at the time was Ms Busisiwe Khumalo
(“
Khumalo
”).
She has, regrettably, since died. The manner and nature in
which the evidence was presented in this trial,
as to how exactly S
was injured, was by far not a model of perfection. It was
largely hearsay and circumstantial evidence,
as shown below.
However, and crucially, the fact that S sustained the injuries whilst
at school, was not in dispute at all.
I must also hasten to
observe that the particulars of claim were also prepared with some
imperfection so much that, certain allegations
therein made, could
not be sustained by any evidence, which necessitated an amendment or
abandonment or concession of such allegations
during the trial and/or
in argument.
THE
WITNESSES
[4]
What further compounded matters, was the following: the
plaintiff, Ms C N, was the only witness in her case. She
presented as an unsophisticated person, with a standard 10 level of
education. She received a call from the school on the
day about
her injured son. She proceeded to the school. On arrival, S had
already been taken by his uncle to the local clinic.
As stated
before, the plaintiff’s evidence regarding the injury to her
son, was largely hearsay.
[5]
The principal of the school, Ms S M Mbuli (“
Mbuli
”),
gave a report to the plaintiff as to how S was injured. This was
during a meeting at the school. The report came from
the class
teacher, Khumalo. In broad terms, S was injured whilst playing
on one of the swinger operations situated in the
nearby jungle gym.
The plaintiff confronted Mbuli as to why S was not taken by the
school to the clinic. Mbuli said that
she was busy and had no
time to do so. The report given to the plaintiff by Mbuli, and
which was confirmed by Mbuli in her
evidence, on her version, came to
this: that on the day of the incident, S had asked the class
teacher, Khumalo, to go to
the toilet. The jungle gym where S
was injured, was for the use of grade R’s only, and was part of
the grade R’s
syllabus. Instead, S forced his way into the
locked and fenced off jungle gym, and injured himself.
[6]
However, the above version, differed substantially from what the
plaintiff was told by S, and another unidentified teacher.
S
told his mother that the learners were playing in the jungle gym.
He and another learner, X, were at the top of the swings.
X pushed S
which caused him to fall to the ground and was injured. The
plaintiff also denied the version of Mbuli that she
was aggressive
and confrontational during their meeting. The version of the
plaintiff that she was subsequently visited at
home by the above
named unidentified teacher, and given a similar report as that of S,
was not seriously challenged.
THE
PLAINTIFF’S EVIDENCE BRIEFLY
[7]
The plaintiff testified that, since her son was in grade R, she
expected that the school and teachers would look properly after
him.
In fact, the school conveyed to the parents that, when grade R’s
play, they ought to be supervised. This was so
since some of
the playing equipment at the jungle gym was situated high, and
surrounded by a thorny fence as well. She found
it hard to
accept that her son was injured at school.
[8]
The plaintiff was cross-examined. It was put to her that the school
regretted the unfortunate incident, which was unexpected.
When
it was put to her that the school authorities had however taken
proper measures to prevent such incidents, which proved in
vain, she
had no comment. She conceded readily that she was not present
during the incident. Based on her knowledge
of the school, the
jungle gym area was not fenced off as contended by the school.
The further cross-examination of the plaintiff
established further
common cause facts which I deal with later below. The plaintiff
denied emphatically that S returned to
the school after the incident
on 23 February 2012.
APPLICATION
FOR ABSOLUTION FROM THE INSTANCE
[9]
At the conclusion of the plaintiff’s case, an application for
absolution from the instance was launched. It was
opposed
strenuously. The application was refused by the court. The reasons
for such refusal now form part of this judgment.
APPLICATION
FOR ADMISSION OF HEARSAY
[10]
At the commencement of the trial, the defendant had applied for the
acceptance of the hearsay evidence of its only witness,
Mbuli. The
application was based on the provisions of sec 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1998 (“
the
Evidence Amendment Act
”).
The application was premised principally on the common cause fact
that the class teacher at the time, Khumalo, had
since died, and was
therefore obviously unavailable to testify in these proceedings.
Mbuli was therefore, to testify solely
on the report made to her
subsequently by Khumalo. See
Giesecke
and Dvrient Southern Africa (Pty) Ltd v Minister of Safety and
Security
2012 (2) SA 137
(SCA).
[11]
The application to lead the hearsay evidence of Mbuli was not
opposed. In fact, the parties agreed at the commencement of the
trial
that the hearsay evidence could be led. In the end, the evidence of
Mbuli must be assessed and evaluated as such. From
the further
evidence of Mbuli, it was not in dispute that: S was at school
on the day of the incident; he was with other
co-learners, under the
supervision of Khumalo; he was injured on the school premises
without Khumalo being aware, either
on the version of what he told
his mother, or the version of Mbuli, or that of the unidentified
teacher; all of which was hearsay
evidence; that S was taken to the
local clinic for treatment of his fractured leg; and that there was a
confrontation between his
mother and Mbuli subsequently. It was
further not in dispute that in 2012, the school had some 300
learners, of which some
30/40 were grade Rs, whith one teacher only
for grade Rs. The jungle gym situated not far S’s classroom,
about 70/78 meters
away, which was meant exclusively for the grade
Rs, was under repairs since something was wrong with one of its
swingers.
The key to the entrance gate of the jungle gym was
kept by Khumalo, whilst Mbuli also kept a duplicate.
[12]
The cross-examination of Mbuli, during which she made certain
concessions, was rather revealing. The concessions were
made,
in my view, quite correctly. She could not verify the veracity
of the report given to her by Khumalo. The teachers
themselves,
without outside assistance, undertook the repairs to the jungle gym.
There were not adequate or sufficient precautions
taken by the school
to guard against incidents such as the one under discussion,
especially whilst hosting young and vulnerable
and energetic and
curious learners, such as S at the school. Further that such very
young learners could easily engage in frolics
of their own during
school activities. Mbuli, whilst being emphatic that the school tried
its best in the circumstances to avoid
any injuries caused to
learners, and that the incident was the first of its nature, conceded
that the school being in a capacity
of
in
loco
parentis
,
could have done better. Grade Rs in particular, and even older
learners, must be supervised adequately since they turned
to play
anyhow on their own.
[13]
The further cross-examination of Mbuli, revealed that: whatever
supervision class teacher, Khumalo, had in place on that fateful
day,
could have resulted in a lapse, which made it possible for S to sneak
away from the other learners and Khumalo, since Khumalo
had a large
group of grade Rs to constantly monitor. As regards the
conflicting versions of Mbuli and S’s mother, whether
or not S
returned to the school after the incident, Mbuli conceded readily
that she had no documentary proof to support her assertions
that S
had in fact returned. In these circumstances, the mother’s
evidence must be accepted. In any event, not very
much turned on this
aspect. Mbuli conceded that it would be hard to accept her
version. The burglar bars to the gate
of the jungle gym,
through which S sneaked, on the version of the school, were properly
and carefully constructed to avoid such
incidents. The school
nevertheless accepted that Si cannot be blamed for such unfortunate
incident, in view of his tender
age of 5.
[14]
On the above evidence, with all its imperfections on both sides, the
pertinent question is this: whether any negligence
can be
ascribed to the school during the incident, and whether the school
breached any duty of care towards S and the plaintiff
in the
circumstances.
[15]
The often quoted and classical case is
Kruger
v Coetzee
1966 (2) SA 428
(A) at
430E-F. In
McIntosh v Premier,
KwaZulu-Natal and Another
2008 (6) SA 1
(SCA), at para [12] the Court said:
“
The
second inquiry is whether there was fault, in this case negligence.
As is apparent from the much-quoted dictum of Holmes
JA in Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E-F, the issue of negligence itself
involves a twofold inquiry. The first is: was the harm
reasonably foreseeable?
The second is: would the diligens
paterfamilias take reasonable steps to guard against such occurrence
and did the defendant
fail to take those steps? The answer to
the second inquiry is frequently expressed in terms of a duty.
The foreseeability
requirement is more often than not assumed and the
inquiry is said to be simply whether the defendant had a duty to take
one or
other step, such as drive in a particular way or perform some
positive act, and, if so, whether the failure on the part of the
defendant to do so amounted to a breach of that duty. But the
word ‘duty’, and sometimes even the expression ‘legal
duty’, in this context, must not be confused with the concept
of ‘legal duty’ in the context of wrongfulness
which, as
has been indicted, is distinct from the issue of negligence. I
mention this because this confusion was not only
apparent in the
arguments presented to us in this case but is frequently encountered
in reported cases. The use of the expression
‘duty of
care’ is similarly a source of confusion. In English law
‘duty of care’ is used to denote
both what in South
African law would be the second leg of the inquiry into negligence
and legal duty in the context of wrongfulness.
As Brand JA observed
in Trustees, Two Oceans Aquarium Trust at 144F, ‘duty of care’
in English law ‘straddles
both elements of wrongfulness and
negligence’
.”
See
also Neethling
et al
,
Law of Delict
7ed,
p 138, where it is emphasised that the test is “
(a)
a diligens parterfamilias in the position of the defendant would
foresee the reasonable possibility of his conduct injuring
another in
his person or property and causing him patrimonial loss; (ii) would
take reasonable steps to guard against such occurrence;
and (b) the
defendant failed to take such steps
”.
[16]
One of the contentions raised by Mbuli in the present matter was that
an incident such as under discussion had never occurred
at the
school. What comes to mind immediately is the question whether
such contention is reasonable and sufficient justification
for what
happened to S. In my considered view, it is not. In
Hawekwa Youth Camp v Byrne
2010 (6) SA 83
(SCA), the facts were briefly as follows: the
father and natural guardian of a minor, about 9 years old, and a
grade 3 learner
at a school, had accompanied a school group under the
control of his teachers on a two-day excursion. The group
arrived at
the camp where they were accommodated in bungalows.
During the early hours of the next morning, the minor was found on
the
cement floor of his bungalow. No one witnessed how the
minor landed up on the floor, but he was unconscious and appeared to
be having convulsions. He was taken to hospital where medical
examination revealed that he had suffered a fractured skull
with
underlying brain injuries which led to some degree of permanent brain
damage. In the course of dismissing the appeal
of the camp, and
finding in favour of the father and natural guardian of the minor,
the Court at para [29] of the majority judgment
said:
“
Another
argument raised on behalf of the Minister (the Minister of Education
in the Western Cape), was that the … school
had previously
used the same camp site for ten years;
that
the teachers involved had not been informed of any reported incident
where a child had fallen off an upper bunk; and that they
therefore
had no reason to think that it would happen on this occasion
.
Though this argument might be superficially attractive, I believe it
is flawed. Firstly, the reasonable teacher would
appreciate
that incidents might have gone unreported. Secondly, logic
dictates that once a risk has been recognised as inherently
foreseeable, such as, for example, the one created by an unfenced
swimming pool, the reasonable person will not disregard that
risk
simply because it had never materialised before.
”
(my
insertion and underlining)
[17]
In the context of the present matter, the following questions arise:
did the defendant and the school and the class teacher,
foresee the
occurrence of this incident? If so, what reasonable steps were
taken to prevent it? The first question
must be answered in the
positive, and the second, unfortunately, in the negative. This
is so because of the following:
S was in a class of 30/40 grade
R learners, with Khumalo as the only class teacher; the jungle gym
was near his classroom; Khumalo
was not aware how he was injured, on
either versions; the school had told parents, including the
plaintiff, that grade Rs
must not be in the jungle gym unsupervised;
the burglars to the gate of the jungle gym proved inadequate to
prevent a learner
from gaining entrance thereto; having regard
to the
ratio
of class teacher to learner, at the school, it was clearly not
reasonably possible for Khumalo to keep proper supervision (not
continuously) over all the learners under her supervision, all the
time; Mbuli conceded this much and said that it was an unfortunate
incident, and that all the school’s preventative measures,
could have been better but proved in vain; at the time of the
incident, the jungle gym was under construction or repairs undertaken
by the school itself; there was no evidence of any
school
patrols or supervision in the vicinity of the jungle gym; learners at
the age of S, 5 year olds, are considered, at least
in respect of
criminal capability, to be
doli
incapax
. In respect of delictual
claims, the position is stated by Neethling (
supra
)
at p 131, as follows:
“
According
to our law, a person may lack the necessary mental capacity (and he
is thus not accountable – culpae incapax) …
A child who
has not completed his ninth year (an infans) is always regarded by
the law as being culpae incapax (lacking capacity).
”
See
also
Jones NO v Santam Bpk
1965
(2) SA 542
(A), at 552A-C. The criticism levelled against the
plaintiff for not leading the evidence of S in the trial, was
therefore without
merit at all.
[18]
It is significant that the Court, in
Hawekwa
Youth Camp, (supra)
, per Brand JA, at
para [25] of the judgment said:
“
In this
case I find it convenient to deal with the question of wrongfulness
first, primarily because I believe the answer to be
self-evident.
Properly formulated the enquiry under this rubric is this: on
the assumption that the teachers in charge
of the group could have
prevented the harm that Michael suffered and that they had
negligently failed to do so, should they –
and by vicarious
extension, the Minister – as a matter of public and legal
policy, be held liable for the loss resulting
from such harm?
But for the confusion between wrongfulness and negligence which
transpires from the Minister’s heads
of argument, it appears to
me that wrongfulness had in fact been conceded. What is in
effect disputed is negligence. However,
be that as it may, 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 and 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
appellant’s employees and it was fairly and properly conceded
that teacher owe young children in their care and 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”.’
”
In
a recent decision of a full court in this division, and in the matter
of
Mgaga Beauty v MEC For Basic
Education
(case number A5066/2014), the
facts were briefly as follows: the plaintiff’s minor son,
a learner at a school, was hit
on the head with an axe by a
fellow-pupil. The plaintiff sued for damages in respect of the
injuries suffered by her son.
In the course of upholding the appeal
with costs (in favour of the plaintiff) at para [33] of the judgment
the Court said:
“
It
was submitted that Ms Manyaka and Ms Molefe
[members
of staff]
both
conceded that these were the steps required and attempted to persuade
the court that they had been taken by the school.
The school’s
safety and security policy also
provided
that its purpose was to ensure the safety of all persons on the
school premises in terms of the
South African Schools Act No 84 of
1996
and
the guidelines for the achievement of that purpose, including the
rules that were to be complied with by learners and educators,
supervision and control by educators and learners were in place.
”
(my
insertion and underlining)
In
LUR Vir Onderwys En Kultuur, Vrystaat v
Louw En ‘n Ander
2006 (1) SA 192
(HHA), it was held that in terms of
sec 60(1)
of the
South African
Schools Act 84 of 1996
, the State is liable ‘
for
any damage or loss caused as a result of any act or omission in
connection with any educational activity conducted by a public
school
and for which such public school would have been liable but for the
provisions of this section
’.
[19]
Based on all the above, as well as the legal principles referred to,
I conclude that the plaintiff has succeeded, on a balance
of
probabilities, in spite of the defendant’s contentions to the
contrary, to make out a case for the relief sought against
the
defendant. In any event, on the common cause factors, including
that S was about 5 years old, and injured at school,
the defendant
has not shown that, based on its statutory duty, it had taken all
proper and reasonable measures in order to ensure
the safety of S.
The occurrence of the incident cannot be said to have been too remote
for the defendant’s staff not
to have foreseen it. This much
was conceded by Mbuli. The costs which is a discretionary
matter, must follow the result.
[20]
Prior to concluding, one other unconscionable matter has to be
mentioned. It is that: at the end of closing argument,
counsel
for the plaintiff, who had argued his case based on oral submissions
only, undertook to provide the court with written
heads of argument
soon thereafter. However, as at the date of the preparation of
this judgment, this had not been done.
On the contrary, counsel
for the defendant had prepared thorough and helpful written heads of
argument. This kind of conduct
ought not to be countenanced by
the courts in the strongest possible terms. I need say no more.
ORDER
[21] The following order is made:
21.1
The
defendant shall be liable to the plaintiff for all proven damages as
a consequence of the injuries sustained by S at I P School
on 23
February 2012.
21.2
The
defendant shall pay the costs of the action.
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF P W MAKHAMBENI
INSTRUCTED
BY ATTORNEYS DENGA INC
COUNSEL
FOR THE DEFENDANT M W DLAMINI
INSTRUCTED
BY THE STATE ATTORNEY
DATE
OF HEARING 29 APRIL 2016
DATE
OF JUDGMENT 17 JUNE 2016