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[2019] ZAGPJHC 126
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MEC for the Executive Council for Education of the Gauteng Provincial Government v R D obo R K (A5004/2018) [2019] ZAGPJHC 126 (17 April 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A5004/2018
COURT
A QUO
CASE NO
:
2013/14863
DATE
:
17
th
April 2019
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
EDUCATION
OF THE GAUTENG PROVINCIAL GOVERNMENT
Appellant
and
R
,
D,
for and on behalf of
R
,
K
Respondent
JUDGMENT
Adams
J (Crutchfield AJ & Mdalana AJ concurring):
[1].
On Friday, the 30
th
of April 2010, at approximately 15:00 in the afternoon a metal soccer
goalpost, on the soccer field of Crystal Park High School,
fell onto
K R (‘K’) just before a soccer game between his school
team and a team from a neighbouring school. K and
two of his
teammates had just finished hanging the net to the goalpost, when it
fell onto him whilst he was attempting to jump
off the post on which
he had sat whilst hanging the net. The structure toppled onto K, who
sustained serious head injuries.
[2].
K’s mother, the
respondent in this appeal and the plaintiff in the court
a
quo
,
subsequently claimed delictual damages from the appellant, the
defendant
a
quo
, in
his official capacity as the person in charge of and responsible for
the school and its authorities. On the 9
th
of December 2016 the Gauteng Local Division of the High Court
(Mahalelo AJ) gave judgment on the liability / merits / negligence
aspect of the matter in favour of the respondent against the
appellant and held that the appellant is liable for the damages
suffered
by the respondent in her representative capacity as mother
and natural guardian of K as a result of the injuries suffered by K.
The judgment was based on a finding that the school was causally
negligent in relation to K’s injury as a result of the goalpost
falling onto him. The whole unfortunate incident, so Mahalelo AJ
found, should have been reasonably foreseeable by the school and
its
employees and they should have taken reasonable steps to guard
against it. They failed to take such steps and the court
a
quo
accordingly concluded that the appellant was negligent and that his
negligence was causally connected to the damages which the
respondent
suffered.
[3].
This judgment and the
findings by Mahalelo AJ are now before us on appeal, which is with
the leave of the Court
a
quo
.
According to the appellant’s notice of appeal, the appeal is
mainly against the factual findings by the trial court that
K was
injured whilst he was hanging the net to the goalpost. The appellant
contends that the court erred in rejecting the appellant’s
version that K and his friends were in fact swinging from the
goalpost, which caused it to tip over and fall on top of him. In
my
view, nothing really turns on this factual finding. As pointed out by
Mahalelo AJ in her judgment, irrespective of whether K
was hanging
nets or swinging from the poles, his injuries resulted from
negligence on the part of the school and its employees.
This finding,
which is a combination of factual and legal findings, is also
appealed against by the appellant.
[4].
The common cause facts in this matter are
the following: At the relevant time during 2010 K was a learner at
Crystal Park High School.
He was a member of the school’s
soccer team. On the afternoon of Friday, the 30
th
April 2010, K’s school team was scheduled to play a match
against Petit High School, a neighbouring school. Before the start
of
the game K and his team mates were on the soccer fields at Crystal
Park High School awaiting the arrival of the boys from Petit
High
School. At some point during this time whilst they were waiting for
the opposing team to arrive and whilst they were busy
warming up, K
was on the cross – bar of one of the goalposts, which was
described as loose standing in that it was not lodged
or dug into the
ground, but was held upright by its structure and form, which had the
two upright poles and the cross – bar,
constituting the main
goal post. To the back of the three-legged rectangle, which
constituted the actual goalpost, was a structure
that held it upright
by a base that was formed by three poles which lay on the ground.
[5].
In my view, this structure was clearly
unstable and the evidence for this conclusion can be found in the
mere fact that it toppled
over when disturbed by K’s jump when
he wanted to dismount himself from the cross – bar. Also, it
was the evidence
of one of the staff of the school that they (the
administrative assistants), whose duty it was to fit the nets to the
goalposts,
performed this task by tipping the goalpost over, meaning
that the goalposts were placed ‘face down’ and the staff
would then simply tie the net around the goalpost and the rear part
thereof. After the nets had been fitted, they would then lift
the
poles back into position. As I indicated above, the goalposts, two of
them, were positioned on the soccer field of the school
and any and /
or all school children, including K and his soccer team mates, had
unfettered access to the field and the goalpost.
The importance of
the aforegoing relates to the fact that a dangerous situation had
been created on the soccer field, to which
all the school children
had access.
[6].
This also means that the school should have
foreseen the reasonable possibility of this dangerous situation
injuring one of the
learners like K and causing him damages. It
cannot be otherwise. Objectively speaking, the goalpost, an unstable
steel structure
on a soccer field accessed by learners, which had the
potential to tip over when interfered with, posed a risk to the
school children.
The risk would have materialised when, for example,
the soccer children climbed onto the goalposts to fit the nets, as
was the
case, according to the plaintiff, on the day in question.
Similarly, the risk would have materialised by a child swinging from
the goalposts, as the defendant alleges K did on the day he was
injured. Either way, as was held by Mahalelo AJ, the risk of injury
to a learner was a real one and should have been foreseen by the
school. A loose standing steel structure on a soccer field would
also
have been an invitation to young children, for example, to ‘fool
around’ on or with the goalpost by tipping it
over. That is how
children are, and the school should have realised that and probably
did so. The goalpost was ‘an accident
waiting to happen.’
[7].
In fact, the school did foresee this
danger. This is the reason why, according to the evidence led on
behalf of the appellant, the
children were not allowed to hang the
nets. That, according to the practice at the school, was to be
attended to only by the ground
staff of the school. Furthermore,
written into the code of conduct of the school, to which all parents
and leaners subscribed,
including the respondent and her son, K, was
the following provision:
‘
I
am not allowed to play, hang on or misuse any of the equipment of the
school’.
[8].
The aforegoing, in my judgment, supports a
finding that the school probably realised, generally speaking, that
the sports and other
equipment posed a danger to learners. It also
confirms that the school specifically realised that the goalposts in
particular created
a dangerous situation and that they should take
precautions to prevent harm to learners resulting from the dangerous
situation.
[9].
In order to guard against this risk
materialising, the school had put in place certain procedures with
which its members of staff
were required to comply. Importantly,
school children on the soccer field, especially at or near the
goalposts, were required to
be supervised at all times. The nets,
when required for a game, were required by school policy and practice
to be fitted by the
ground staff, identified during the trial as a Mr
Moloi and a Mr Jabulani Malambe, and not by the learners themselves.
[10].
The question is this: Did the school comply
with its duty to ensure that learners at or near the goalpost were
supervised at all
times. The plaintiff’s version on this aspect
of the matter is that there were no members of staff supervising K
and his
friends whilst they were busy hanging the nets. The version
of the defendant, as per the evidence of Mr Malambe and to a limited
extent that of Mr Mashiyane, who was also a learner at the school and
a team member of K’s soccer team at the relevant time,
was to
the effect that K was not involved in the hanging of the nets. There
was no hanging of any nets on the day at Crystal Park
High School
according to the evidence of these two witnesses, as the game was
going to be played on the soccer field of the nearby
primary school.
K and his friends were being deviant by swinging on the cross –
bar of the goalposts, and, according to Mr
Malambe, he had warned
them not to do that, but they persisted after initially heeding his
warning. An important aspect of the
appellant’s version is that
K and his friends were not hanging the net. They were ‘delinquents’
up to no good.
I shall deal more fully hereunder with the evidence of
these witnesses as well as their reliability as witnesses.
[11].
In the interim, and for purposes of the
finding that the school failed to discharge its duty to supervise the
children near the
goalpost, I turn to consider the reliability of the
evidence suggesting that K and two of his team mates were not hanging
the net.
[12].
In my judgment, this portion of the
appellant’s case can and should be rejected, as was done by
Mahalelo AJ,
inter alia
for the reason that it flies in the face of a contemporaneous report
compiled by the coach of K’s soccer team at the time
(‘the
report’). He was Mr Mathibela, who has since died, and in his
report he stated as follows:
‘
I
left the soccer field at around 2:30 to welcome the visiting school
and explain to them that the other team must go to the primary
school. While I was explaining to the coach, two boys came running (M
T and P D) to report the incident. According to M, K had
himself
decided to fix the nets on his own. After they were done, K decided
to swing on the goal post and the post fell onto him.
Immediately
after the incident was reported I phoned the emergency services, the
parents and the principal’
[13].
This report, which was admitted by
agreement between the parties at the instance of the appellant,
proves conclusively, in my view,
that K and two of his teammates had
hung the net to the goalpost. It follows accordingly, that Mr
Malambe’s evidence on this
aspect should be rejected, which in
turn means that his evidence that he was watching the boys at the
crucial time shortly before
the incident occurred, can also safely be
rejected. There is another reason why the evidence of Mr Malambe and
Mr Mashiyane on
this aspect should be rejected. The reason proffered
by these witnesses for their claim that the nets were not hung was
that the
game was supposedly going to be played at the soccer field
of the primary school. The difficulty with this explanation is that
nowhere in their evidence and in the record of the proceedings in the
court
a quo,
is
an explanation given for the alleged change of venue. This, in my
view, makes the appellant’s version on this aspect inherently
improbable and it therefore stands to be rejected.
[14].
The report is also evidence that the coach,
Mr Mathibela, was not present when K was injured. We know from Mr
Moloi’s own
evidence that he was not near the scene of the
accident when it happened. I have indicated that Mr Malambe’s
evidence on
this point stands to be rejected. The effect of the
aforementioned in its entirety is a finding that the school failed to
ensure
that the learners, including K, were properly supervised at or
near the goalposts, which posed an inherent danger to K as a learner
at the school.
[15].
On this basis alone, the school and its
employees were negligent and are liable for the damages suffered by K
as a result of his
injuries.
[16].
The
locus
classicus
relevant to this issue is
Kruger v Coetzee
,
1966 (2) SA 428
(A). At paragraphs [E] and [F] at page 430 of the
judgment, Holmes JA pronounced on the applicable law as follows:
‘
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 results of other
cases.’
[17].
In the present case, having regard to the
facts alluded to above, there can be no doubt that a
diligens
paterfamilias
in the position of the
appellant would have foreseen the possibility of a loose standing
goalpost causing injury to learners who
play on or near it. Indeed,
the school appears to have conceded that they were conscious of the
possibility. Why else would the
school have directed that the nets
were to be hung onto the posts only by the ground staff? Furthermore,
why was the school so
eager to convey to the court
a
quo
that the learners were supervised
before the game when in fact and in truth they were left to their own
devices?
[18].
As to the existence of a duty to take
reasonable steps to guard against such an occurrence, the school was
well aware of the danger
created by the loose standing steel
structure on the soccer field. Yet, conscious of the potential danger
to the learners, the
school allowed them to be unsupervised on or
near the goalposts. In these circumstances, a
diligens
paterfamilias
in the position of the
school would not have shrugged his shoulders in unconcern; if there
were reasonable precautionary steps
that could have been taken, he
would have taken them. The appellant did take certain precautionary
steps. They wrote into the school’s
code of conduct that the
children should not play recklessly on or hang onto sports equipment.
The school also endeavoured to ensure
that the learners were always
supervised whilst on or near the goalposts. The question is, however,
whether the respondent, on
whom the onus rested, proved that there
were further steps that the school could and should reasonably have
taken. The respondent
had to establish this in order to prove that
the appellant failed in its duty to take care and was thereby
negligent.
[19].
On this aspect, I find myself in agreement
with the submissions by Mr Luvuno, Counsel for the respondent, that,
as a matter of logic
and common sense, the easiest and simplest way
for the school to have guarded against the risk of damage to the
person of K would
have been to secure the poles by affixing the
bottom portion to the ground. This, I imagine, could and should have
been done by
nailing steel pins into the ground over the base of the
structure. This relatively inexpensive procedure would, in my
judgment,
have prevented the foreseeable injury, which K sustained.
This, I need to emphasise, is in addition to the fact that, on the
appellant’s
own version, the damages could have been avoided
had the school ensured that the children were always supervised at or
near the
goalposts. In our view, there is sufficient evidence
relating to the possibility and the feasibility of the appellant
taking these
precautions, which no doubt would have safeguarded
against injury to learners and the resultant damages. Logic tells me
that there
ought not to have been any issues relating to the
possibility of and the cost of the school implementing and complying
with these
measures. In my view, we can safely say that it would have
been reasonable to expect the school to put these measures in place.
[20].
In the result, I am satisfied that there
were reasonable steps which the school could and should have taken.
The school failed to
do so. This means that negligence on the
school’s part was proven, and the trial court rightly ordered
the appellant to pay
the respondent’s damages, as proven.
[21].
This conclusion is based on facts that, in
my view, are unassailable in that they are either common cause facts
or facts in respect
of which the appellant’s version stands to
be rejected summarily. The converse is that, according to Mahalelo
AJ, the appellant
should also be held liable for the respondent’s
damages on the basis of the respondent’s version in its
entirety, which
implied a rejection of the version of the appellant
and his witnesses.
[22].
In that regard, the appellant’s case
appears not to take issue with the fact that on the version of the
respondent, liability
on the part of the appellant is a given. There
is merit in this approach. The reasoning being as follows. On the
plaintiff’s
version Mr Moloi, an employee of the school, had
instructed K and his teammates to go and hang the nets, which they
did unsupervised
by any responsible employee. In the light of the
dangerous situation created by the loose standing soccer goalposts,
Mr Moloi’s
instruction undoubtedly makes him, the coach and the
other ground staff negligent in that they had failed to discharge
their duty
to supervise the children whilst on the soccer field.
[23].
Mahalelo AJ accepted this version by the
respondent.
[24].
The manner in which the evidence stands to
be assessed and analysed when, as in this matter, the court below was
confronted by two
mutually destructive versions is set out
authoritatively by Eksteen AJP in
National
Employers' General Insurance Co Ltd v Jagers
,
1984 (4) SA 437
(E) at 440E-G:
'It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff's allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a
consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will
accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not favour
the plaintiff's case any more
than they do the defendant's, the plaintiff can only succeed if the
Court nevertheless believes him
and is satisfied that his evidence is
true and that the defendant's version is false.'
[25].
This appeal is directed at the above
factual findings made by Mahalelo AJ. It is therefore necessary to
revisit the authorities
on the approach of a court of appeal in a
case such as this. In
R v Dhlumayo &
Another,
1948 (2) SA 677
(A), at 706
Davis AJA stated:
'[8].
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse it where it is convinced that it is wrong.
[9].
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold
it.
[10].
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where
the record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.
[11].
The appellate court is then at large to disregard his findings on
fact, even though based on credibility, in whole or in part
according
to the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on
the matter.
[12].
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgment
can ever
be perfect and all – embracing, and it does not necessarily
follow that, because something has not been mentioned,
therefore it
has not been considered.'
[26].
In
S v
Francis
,
1991 (1) SACR 198
(A) at 204C
– E, Smalberger JA reiterated the position set out in
Dhlumayo
,
stating that in the 'absence of any misdirection the trial Court's
conclusion', including in that case its acceptance of the evidence
of
an accomplice, 'is presumed to be correct'. In order to succeed in an
appeal against factual findings, an appellant must convince
an appeal
court 'on adequate grounds that the trial court was wrong' when it
accepted the evidence in issue: and 'a reasonable
doubt will not
suffice to justify interference with its findings'.
[27].
With those basics in place, I now turn to
Mahalelo AJ's judgment and, in particular, her analysis of and
findings on the evidence
presented before her.
[28].
Mahalelo AJ was confronted with two
mutually destructive versions, one of which, as I have indicated
above, established negligence
on the part of the appellant while the
other may have done so. On the one hand, Mr N S (‘S’), a
teammate of K at the
relevant time, gave evidence that on Friday
afternoon, the 30
th
of April 2010, his soccer team from Crystal Park High School was
about to start a match against the team from Petit High School,
when
they realised that the nets had not been hung on the goalposts. They
then went to Mr Moloi, who instructed them to take the
nets from the
store room and to go ahead and hang them. K and two of their
teammates climbed onto one of the goalposts and hung
the net. K and
the other two boys then jumped off the cross – bar and during
that process the goalpost fell over onto K,
thus injuring him. He
further testified that there were no members of staff present when
the incident happened. Mr Malambe, the
witness confirmed, was not on
the scene when K was injured and he only arrived after the fact. His
evidence was also that Mr Moloi
remained at the room where the nets
were stored. Their coach, Mr Mathabela, had returned to his office
after the players had been
kitted out in preparation for the game. He
also confirmed that it was the duty of the ground staff to fit the
nets to the goalposts
in preparation for matches.
[29].
The two witnesses on behalf of the
appellant were N V (‘V’), who was also a teammate of K at
the relevant time, and
one of the general workers at the school, Mr
Malambe. Both of them testified that K was injured because he was
swinging on the
poles with two of his friends. They denied that K and
his two friends were hanging the net to the goalpost. Mr Malambe’s
evidence was that he saw K and the two other boys swinging on the
cross – bar and he reprimanded and warned them to desist
from
that action. Importantly, V heard and saw none of this.
[30].
The crux of Mahalelo AJ’s judgment,
after she had considered the credibility of the witnesses, some of
whom made a less favourable
impression on her than others, and the
probabilities, was this:
‘
I
have found that the incident happened as testified to by the
plaintiff’s witnesses. It is common cause that the goal posts
were not dug down. They were movable. On either version whether K was
swinging, putting up the net or warming up, fact of the matter
is
that he was on top of the goal post and his injuries are causally
connected to that event. The fact that the goal posts were
not dug
down in the ground clearly created a danger to the learners which the
defendant should have reasonably foreseen and taken
preventative
measures by ensuring that the learners were not given the nets to
affix on the goal posts without supervision. Furthermore,
the
defendant should have ensured that the goal posts were tightly
secured by digging them into the ground. The preventative measures
are in my view not unreasonable.’
[31].
Mr Dlamini, who appeared for the appellant,
attacked the factual findings of the trial court as well as the
conclusion that, on
the evidence, the respondent had succeeded in
establishing negligence on the part of the appellant.
[32].
His attack on the factual findings is based
on a number of alleged misdirections on the part of Mahalelo AJ. He
submitted that the
evidence of the respondent’s main witness,
S, who was a single witness, was ‘fraught with improbabilities’
and
illogical. The basis for this submission related in the main to
the detail of the physics around K’s fall. Mr Dlamini’s
argument dissected the manner in which K’s jersey got hooked
and caused him to pull the posts down. This argument is an extremely
artificial one. One should never lose sight of the fact that
accidents, like the one in which K was involved, happen in the ‘blink
of an eye’ and always unexpectedly. It is unrealistic to expect
a witness in those circumstances to give a ‘blow –
by –
blow’ account of every second of the event. The fact of the
matter is that K fell from the cross – bar and
at more or less
the same time the entire structure collapsed onto this head. In my
view, there is nothing illogical in S’s
evidence.
[33].
Mr Dlamini also argued that the appellant’s
version that K was not hanging nets when he fell, ought to have been
accepted
as probable. This was evidenced by the fact that the code of
conduct of the school prohibited the learners from affixing the nets.
Once again, this argument, in my view, is an artificial one and is at
variance with the probabilities, which favour the respondent’s
version.
[34].
In the circumstances, I cannot find that
Mahalelo AJ misdirected herself.
[35].
When trying the facts in a matter and when
faced with two mutually destructive versions of an incident, as is
the case in the matter
before us, the Court is required to decide
whether, on all the evidence, the plaintiff's version is more
probable than that of
the defendant. ‘More probable’ has
been defined as ‘more plausible’ and ‘more
natural’. The
court in
Govan v
Skidmore
,
1952 (1) SA 732
(N), stated
as follows:
‘
In
finding facts or making inferences in a civil case, it seems to me
that one may, as Wigmore conveys in his work on evidence …
by
balancing probabilities select a conclusion which seems to be the
more natural or plausible conclusion from amongst several
conceivable
ones, even though that conclusion may not be the only reasonable
one.’
[36].
As indicated above, I have significant
difficulty with the fact that the version of the appellant flies in
the face of the contemporaneous
report by the coach, Mr Mathibela,
the contents of which confirm that K and his two friends were fitting
the net at the time when
the accident happened. Closely linked to
this apparent incongruity in the appellant’s version is the
apparent absence of
an explanation, let alone an acceptable one, as
to why the venue for K’s team’s soccer match was
supposedly changed
to the soccer field of the primary school. This,
in my view, is a gaping hole in the version of the appellant and
detracts materially
from the probabilities of that version.
Additionally, it is somewhat improbable that K’s team would be
getting dressed at
the school’s soccer field, when the match
was to be played at the primary school’s grounds. If regard is
had to the
entirety of the aforegoing, I cannot but conclude that the
appellant’s version is inherently improbable.
[37].
Moreover, a reading of the record of the
evidence of Malambe leaves one with a feeling of unease, thus
rendering the version of
the appellant more improbable. His evidence
was that he had warned K and two teammates not to swing on the
goalposts, and they
heeded his warning and dismounted from the post.
Malambe had hardly walked two metres further, implying a few seconds
after he
had warned them not to swing on the posts, when ‘he
turned around’ and saw that the goalpost had fallen onto K.
This
story raises more questions than it answers. How is it possible
that K in a matter of mere seconds was able to remount the goalpost
and dislodge it to the extent that it collapsed onto him, without
Malambe seeing any of this?
[38].
Furthermore, it is improbable that K and
his friends initially heeded the warning not to swing on the goalpost
only to defy, almost
immediately, Malambe and his warning whilst he
was still present on the scene. There is a significant
lacuna
in Malambe’s testimony. His version is also an unnatural one
and not very plausible. In other words, it is an inherently
improbable version.
[39].
In the result, I can find no justifiable
basis to interfere with the factual findings of Mahalelo AJ. That
being so, they are presumed
to be correct. I also can find no basis
to criticise her conclusion that the probabilities favour the version
of the respondent.
I therefore agree with her that the respondent had
discharged the onus to establish that the appellant’s employees
were negligent
and their negligence was causally connected to the
injuries sustained by K and hence the damages incurred by the
respondent.
[40].
I also agree, as elaborated on above, that
even if the version of the respondent is not accepted as a whole,
there remains a factual
basis on which to hold the appellant
responsible for the injuries suffered by K on the school’s
soccer field on the 30
th
of April 2010.
[41].
In the circumstances, we are of the view
that the appeal against the order of the High Court should fail.
Order
In
the result, the following order is made:-
1.
The appellant’s appeal against the
order of the court
a quo
be and is hereby dismissed.
2.
The respondent’s costs of this appeal
shall be paid by the appellant.
__________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
I
agree
__________________________
A A CRUTCHFIELD SC
Acting Judge of the High Court
Gauteng
Local Division, Johannesburg
I
agree,
__________________________
M P MDALANA
Acting Judge of the High Court
Gauteng Local
Division, Johannesburg
HEARD
ON:
28
th
January 2019
JUDGMENT
DATE:
17
th
April 2019
FOR
THE APPELLANT:
Adv
M W Dlamini
INSTRUCTED
BY:
The
State Attorney, Johannesburg
FOR
THE RESPONDENT:
Adv
J Luvuno
INSTRUCTED
BY:
M
P Mngomezulu Incorporated