Jacobs v Chairman of the Governing Body of Rhodes High School and Others (7953/2004) [2010] ZAWCHC 213; 2011 (1) SA 160 (WCC) (4 November 2010)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 213
|

|

Jacobs v Chairman of the Governing Body of Rhodes High School and Others (7953/2004) [2010] ZAWCHC 213; 2011 (1) SA 160 (WCC) (4 November 2010)

REPORTABLE
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE No:
7953/2004
In
the matter between:
TANIA
MEGAN JACOBS

Plaintiff
and
THE
CHAIRMAN OF THE GOVERNING
BODY
OF RHODES HIGH SCHOOL

First Defendant
KEITH
LONG

Second Defendant
THE
MEMBER OF THE EXECUTIVE COMMITTEE
FOR EDUCATION, WESTERN
CAPE

Third Defendant
MAKHOZASANA
KUNENE

Fourth Defendant
JUDGMENT
DELIVERED  :  4  NOVEMBER  2010
CORAM : MOOSA, J
Heard
on:
2009:  May: 11, 12, 13, 14, 18, 19, 20, 21;
June:  01, 02, 04;  August:  03, 04, 05, 06, 12, 13;

October:  13, 14, 15, 19, 20;  November:  16, 17, 18,
19, 23, 24, 25, 26, 30;  December:  01, 02, 03;

2010:  March:  08, 09, 10, 11, 15, 16, 17;  June:
07, 08, 09, 10.
For
Plaintiff
:  Adv M L Sher et Adv U
Deetlefs
Attorney(s)
:  Parker &
Khan Incorporated (c/o Visagie Vos &
Partners)
For
Defendant          :
Adv JC Heunis SC et Adv R Jaga
Attorney(s)
:  State Attorney
REPORTABLE
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: 7953/2004
In the matter between:
TANIA MEGAN JACOBS Plaintiff
and
THE CHAIRMAN OF THE GOVERNING
BODY OF RHODES HIGH SCHOOL
…...............................................
First
Defendant
KEITH LONG
….................................................................................
Second
Defendant
THE MEMBER OF THE EXECUTIVE COMMITTEE
FOR EDUCATION, WESTERN CAPE
…...............................................
Third
Defendant
MAKHOZASANA KUNENE
…............................................................
Fourth
Defendant
JUDGMENT DELIVERED : 4 NOVEMBER 2010
MOOSA, J:
Introduction
The incident which formed the basis of the cause of action in this
matter had tragic, devastating and unfortunate consequences
for the
learner, the educator, the school principal and the school as a
whole. On the fateful day of the incident, the learner
bludgeoned
the educator with a hammer in the class in the presence of other
learners. Pandemonium and panic broke out amongst
the shocked
learners. Some of the learners rushed to the assistance of the
educator and prevented the learner from attacking
the educator
further. The incident seriously set back the efforts of the school
to heal the “
divisions of the past and improve the quality
of life of the learners”
. The efforts were found to be
wanting. The question on the lips of every concerned person was:
What went wrong? In an attempt
to answer that question, I will
examine the facts.
The Facts
Rhodes High School (Rhodes High), which, through the Chairman of the
Governing Body, is cited as First Defendant and against
whom the
action has been withdrawn, is a formerly “white” school.
Before the advent of the new democratic dispensation,
the school
became what was commonly known as a model “C” School and
opened its doors to learners of other racial
groups. After the
advent of democracy, the school became a fully fledged non-racial
school in accordance with the prescripts
of the democratic
Constitution. The school is located on the borders of what is known
as the Cape Flats. The Cape Flats houses
a large section of the
previously disadvantaged communities. The school, because of its
location, was a feeder school drawing
learners from areas in the
Cape Flats like Langa, Athlone, Guguletu, Mitchell’s Plain,
Khayalithsha, Mowbray etc. The learners
came from diverse cultural,
racial, religious and economic backgrounds. The most common problem
amongst the learners was the
single parent or “
absent dad
syndrome”
.
The learner, Bheki Kunene (Kunene), whose mother was cited as the
Fourth Defendant and against whom the action has been withdrawn,

comes from Langa. He grew up in a single-parent home. His father was
in prison. As a 13 year old learner, he showed great promise
and
potential. He was bright and intelligent. He was popular at school.
He had acting abilities and modelled on a part-time basis.
He was in
grade 8. There was evidence that he had social problems at home and
associated with friends who had a negative influence
on him. As a
result of the incident, he was charged with and convicted of
attempted murder and in terms of
section 290(1)(d)
of the
Criminal
Procedure Act, 51 of 1977
, he was referred to a Youth Centre as
defined in the Child Care Act of 1983. There is no evidence what
happened to the learner
after he was sentenced. I can safely assume
that his future had adversely been affected by the incident.
The educator, Tania Jacobs, who is the Plaintiff in this matter,
completed a BA degree and a Higher Diploma in Education. She
was
described,
inter alia
, as young, forceful, vibrant,
energetic, creative, committed, confident and full of ambition.
Others described her as brash,
abrasive, lacking power of
discernment and struggling with interpersonal relations and
dramatically fluctuating moods. It appears
that as a result of her
personality and youthfulness, she attracted resistance from other
conservative teachers who were set
in their ways and practices. It
also appears that the interaction between them was adversely
influenced by the age gap, new ideas
and different teaching methods.
The incident left her permanently scarred emotionally and
psychologically. She could no longer
continue with her teaching
career.
The principal, Keith Long, was cited as the Second Defendant. He
started his teaching career in 1980 and was appointed as the

principal of Rhodes High in 1999. He encountered personal problems
during 2001. He was severely traumatised during the middle
of 2001
and was receiving counselling for the trauma. On the morning of the
incident on the 27
th
September 2001 he was in his office
when Leslie Hutchings (Hutchings) brought Kunene to his office. She
told him that Kunene
had made some threats in his journal against
the Plaintiff and had refused to hand over the journal to her. He
told Hutchings
to leave Kunene with him. He then asked him to hand
the journal over to him, but he refused. He them forcibly wrested
the journal
from Kunene. The Second Defendant observed certain
“
serious things”
in the journal. He placed Kunene
in a chair outside his office and asked him to remain there while he
instructed his secretary
to call the police and Kunene’s
mother. When he returned to where he had left Kunene, he was gone.
He saw learners running
down the stairs shouting that Kunene was
attacking the Plaintiff. He ran to her class where he wrested the
hammer from Kunene.
On the morning of 27 September 2001, the Plaintiff was invigilating
her Grade 8D class which was writing a class test. She noticed
that
Kunene was not writing the test but was instead drawing in his
journal. She approached him, asked him to stop drawing, put
the
journal away and start writing the test. He said that it was too
difficult to write the test and continued drawing in the
journal.
She noticed a death certificate in the journal, made out to her. She
went to report the incident to Hutchings, who was
the Head of
Department (HOD). She, together with Hutchings, returned to her
class and called Kunene out of the class into the
corridor. He came
out with the journal. The Plaintiff tried to show Hutchings the
death certificate in Kunene’s journal,
but he grabbed the
journal from her hand. Hutchings said she must go into her class and
she will deal with the matter. Hutchings
took Kunene with the
journal to the Second Defendant and reported the matter to him. The
Second Defendant told Hutchings that
he would deal with the matter
and she should leave Kunene with him. She left Kunene with him at
his office and returned to her
class.
About 15 minutes later Kunene returned to class and retrieved his
schoolbag from the pigeonhole. At the time the Plaintiff was
sitting
at her desk in the class. She noticed him going to the door with his
bag. She saw him suddenly turning around and taking
something out of
his bag. The next thing she felt a blow to the back of her head on
the left-hand side. She felt a second blow
to the back of her head.
The third and fourth blows she deflected with her hand. At that
stage, some of the learners came to
her assistance and pushed her
out of Kunene’s way. Kunene tried to get another blow in, that
landed on her left knee. The
learners managed to get him out of the
class. There was absolute pandemonium in the class. After calming
the class, she was on
the way to the staff room to attend to her
injuries when she saw Kunene lunge at her with a hammer while he was
being restrained
by some teachers. She sustained head wounds which
required five stitches, two fractured bones in her wrist, a fracture
of the
bone that stretches from the wrist to the elbow and a swollen
left knee. She received medical treatment for these injuries and

spent three days in hospital.
The incident was a traumatic experience for the Plaintiff. Besides
suffering physical injuries, she also suffered from depression,
fear
and anxiety and experienced personality changes. She no longer
displayed the personality traits of self-confidence, self-assurance

and self-discipline. She was afraid to face the outside world alone.
She lost pride in herself. She returned to work soon after
the
incident, but she was not able to cope emotionally and
psychologically in the school or in a social environment. She was

diagnosed with depressive disorder and a delayed onset of
post-traumatic stress disorder (PTSD), which was directly
precipitated
by the incident of 27 September 2001. She eventually
gave up her teaching career and took a job as an administrative
clerk where
she functioned reasonably well. There is no doubt that
the incident had a marked effect on her physical and mental health,
her
well-being and personality and on her teaching career.
In and during 2001 before the incident, Kunene was found guilty of a
series of contraventions of the Code of Conduct. The incidents

giving rise to such contraventions stretched from 7 March 2001 to 27
September 2001 when he was expelled from Rhodes High. The
incidents
involved fighting, defiance and misbehaviour, defacing exam scripts,
leaving school premises without permission and
the final incident of
assault with a dangerous weapon for which he was expelled from
Rhodes High. For the other infractions he
received various periods
of detention. On 4 September 2001, Hutchings had had a meeting with
Kunene’s mother and grandmother
because of him leaving the
school premises without permission the previous day. Hutchings, with
the agreement of the family,
devised a plan of action for Kunene
which included daily reporting, entering into a formal contract and
counselling with Mandy
Turner (Turner), the School Counsellor. A
formal contract was concluded between Hutchings on behalf of Rhodes
High, on the one
hand, and Kunene and his family, on the other hand,
in terms of which various remedial measures were put in place.
Turner met
with Kunene on at least five occasions for counselling.
It appears that matters had improved and the counselling had
stopped.
The Action
Arising from the incident, the Plaintiff instituted action for
damages against The Chairman of the Governing Body of Rhodes High

School (the First Defendant), the Principal of Rhodes High, (the
Second Defendant), the Member of the Executive Committee for

Education, Western Cape (the Third Defendant ) and Makhozana Kunene,
the mother of Kunene (the Fourth Defendant). Before the
commencement
of the trial, the proceedings against the First and the Fourth
Defendants were withdrawn. The claim is confined
to the Second and
Third Defendants and, for the sake of convenience, they will be
referred to jointly as the Defendants. The
claim is based on delict
arising firstly, from the conduct of Second Defendant which, on 27
September 2001, allegedly resulted
in the assault on the Plaintiff
by Kunene and arising secondly, from the conduct of various staff
members of Rhodes High, prior
to 27 September 2001, in connection
with their dealings with Kunene and, more particularly, during the
course of various disciplinary
proceedings and their failure to deal
effectively with his social, domestic, and personal problems. The
former is confined to
the incident on the day in question and the
latter occurred in the context of a systemic failure over a period
of time. During
the course of the hearing, the Plaintiff abandoned
the complaint relating to the conduct of the educators arising from
the implementation
of disciplinary proceedings against Kunene.
On the basis of the pleadings, the following are the issues that
have to be determined by me:
(a) Whether there was a legal duty to take reasonable steps to ensure
that the Plaintiff was not harmed by Kunene and if so, whether
the
Defendants and/or their servants breached that duty;
(b) Whether the conduct of the Defendants or their servants was
culpable, that is, whether they were negligent and whether there
was
a causal connection between such negligent breach of duty and the
loss or damage suffered by the Plaintiff;
(c) Whether the Plaintiff suffered any loss or damage in consequence
of any wrongful and negligent breach of duty and if so, what
the
quantum of such damages is.
I will deal with each of these issues
in seriatim
The Legal Duty
I will evaluate the facts of this case to determine whether there
was a legal duty on the Defendants to prevent the harm which
befell
the Plaintiff.
It is well established in our law
that negligent conduct giving rise to damages will only be
actionable if it is “wrongful”.
With reference to
liability for negligent omissions, wrongfulness is dependent on the
existence of a legal duty to prevent the
harm suffered by the
Plaintiff
(Van Eeden v Minister of
Safety and Security
2003
(1) SA 389
(SCA) at 395H).
In assessing whether or not a legal duty
exists in a particular case, all the circumstances and relevant
factors of the case
are taken into consideration. The court then
determines whether it is reasonable to have expected the defendant
to take positive
steps to prevent the harm by making a value
judgment based,
inter alia,
upon its perceptions of the legal
convictions of the community and positive policy considerations (
Van
Eeden v Minister of Safety and Security
(supra)
at
395H-397C). Reasonableness in the context of wrongfulness is
different from the reasonableness of the conduct itself. The former

concerns the reasonableness of imposing liability, whereas the
latter concerns the question of negligence. In the context of

wrongfulness it would be better to qualify the legal duty “
as
the legal duty not to be negligent
” or put differently,
whether “
the negligent conduct is actionable”
(
Trustees, Two Oceans Aquarium Trust v Kantey & Templer
(Pty) Ltd
2006 (3) SA 138
(SCA) 144C – 145B).
It is a well established rule in our
law that liability does not usually arise from an omission in the
strict sense of the word.
There are, however, exceptions to the
general rule. Liability can attach to omissions where there is a
legal duty on a person
to act positively and he or she fails do so.
In terms of the common law, such legal duty arises when the omission
invokes moral
indignation and the legal conviction of the community
demands that such omission be regarded as unlawful and requires that
the
person who omitted to act positively be held liable to make good
the loss suffered by the victim (
Minister of Law and Order v
Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 320).
In
Minister van Polisie v Ewels
1975 (3) SA 590
(A) at 597
Rumpff CJ,
lays down the test as follows:
“
Dit skyn of dié stadium van ontwikkeling bereik is
waarin 'n late as onregmatige gedrag beskou word ook wanneer die
omstandighede
van die geval van so 'n aard is dat die late nie alleen
morele verontwaardiging ontlok nie maar ook dat die regsoortuiging
van
die gemeenskap verlang dat die late as onregmatig beskou behoort
te word en dat die gelede skade vergoed behoort te word deur die

persoon wat nagelaat het om daadwerklik op te tree. Om te bepaal of
daar onregmatigheid is, gaan dit, in 'n gegewe geval van late,
dus
nie oor die gebruiklike ‘nalatigheid’ van die bonus
paterfamilias nie, maar oor die vraag of, na aanleiding van
al die
feite, daar 'n regsplig was om redelik op te tree.”
Policy considerations play an important role in determining the
legal convictions of the community
.
In respect of the
standard of conduct and of safety required in the school
environment, since the advent of our constitutional
democracy, the
legal convictions of the community are reflected firstly, in the
Constitution of our country, secondly, in the
policy documents of
the Department of Education and thirdly, in the Constitution and
Code of Conduct of Rhodes High. A public
authority or a public
functionary has a positive constitutional duty to act in the
protection of the constitutional rights that
are enshrined in the
Constitution. This duty is in line with the principle that
Government and State actors must be accountable
for their conduct.
The conduct of a State functionary which is at variance with the
State’s duty to protect the rights
in the Bill of Rights,
would be an important factor to be considered in determining whether
a legal duty ought to be recognised
in a particular case (
Carmichele
v Safety and Security and Another (Centre for Applied Legal Studies
intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) 957A-958C and
Minister of
Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) at
445B-D and 446F-G.)
The Constitutional Court in
Rail Commuters Action Group and
Others v Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at para
[76]
p 400H, says the following in this regard:
“
The
principle that government and organs of state are accountable for
their conduct is an important principle that bears on the

construction of constitutional and statutory obligations, as well as
on the question of the development of delictual liability.”
The Constitutional court went on to say at para [78] as follows:
“
In determining whether a legal duty
exists whether in private or public law, careful analysis of the
relevant constitutional provisions,
any relevant statutory duties and
the relevant context will be required. It will be necessary too to
take account of their constitutional
norms, important and relevant
ones being the principle of effectiveness and the need to be
responsive to the people’s needs.”
Counsel for the Plaintiff, Mr
Sher
, submitted that the facts
and circumstances of this case justify the finding that the
Defendants owed the Plaintiff a legal duty
to prevent her from
suffering harm or damage at the hands of Kunene. Counsel for the
Defendants, Mr
Heunis
SC, argued that there are no policy
considerations that favour an extension of the Acquilian action in
the present case but,
submits that policy considerations all point
the other way. He said that the imposition of a legal duty in this
case will have
a chilling effect on the ability of the Department of
Education to carry out these constitutional duties and will
potentially
expose the State to limitless liability. In the case of
Minister of Safety and Security v Van Duivenboden
(supra)
the same argument regarding this “chilling” effect and
“floodgates” was advanced but the court rejected
such
argument.
In the determination of whether a legal duty exists on the facts of
this case, I will examine firstly, the relevant constitutional
and
statutory provisions; secondly, the policy documents of the
Department of Education and policy issues which impact on such
legal
duty; thirdly, the accountability of the Defendants as State
functionaries exercising public power; fourthly, the special

relationship that existed between the various
personae dramatis
and lastly, the reasonableness or otherwise of imposing liability on
the Defendants.
The particulars of the incident giving rise to this action are that
the Plaintiff was assaulted with a hammer in her class in
the
presence of her learners by Kunene, who was one of the learners.
Kunene was subsequently charged and convicted of attempted
murder.
In the circumstances her dignity was assailed, her life was
threatened and her freedom and security of person were undermined.

In terms of the Constitution, the fundamental human rights of the
Plaintiff that were infringed are: the right to life (sec 11),
the
right to dignity (section 10) and the right to freedom and security
of the person (sec 12) (
Carmichele v Minister of Safety and
Security
(supra)).
Rhodes High was a model “C” public school, which was
operated in terms of the
South African Schools Act, No 84 of 1996
(SASA) and the Western Cape Provincial School Education Act, No 12
of 1997 (WCPSEA). SASA makes a distinction between the governance
of
public schools, which is vested in the governing bodies, and their
management, which is vested in the Principal under authority
of the
Head of the Education Department. Similar provisions are contained
in the WCPSEA. The WCPSEA also provides that education
at schools in
the province shall vest in the member of the Executive Council
responsible for education and in this case in the
Third Defendant.
At all material times, the Second Defendant functioned, for all
intents and purposes, as a public school Principal
in the employ and
service of the Third Defendant. The Plaintiff was appointed at
Rhodes High in terms of section 20(4) of SASA,
pursuant to a written
contract concluded between her, on the one hand and the First and
the Second Defendants on the other, and,
for all intents and
purposes and at all material times she functioned as an educator at
Rhodes High in the employ and subject
to the control and authorities
of the Defendants.
Rhodes High, as a public school offering public education to the
community, is an organ of State. The educators of such school,
and
in particular the Defendants in charge of such school, as
functionaries of the State, were exercising public power and were

accountable for the implementation of the rights enshrined in the
Constitution and, more particularly, “
the right to freedom
and safety of the person to be free from all forms of violence from
either public or private sources in terms
of section 12 (1) (c) of
the Constitution”
.
In terms of section 60 (1) of SASA, the State is liable for any
damage or loss caused as a result of any act or omission in
connection with any school activity conducted by a public school and
for which such school would otherwise have been liable. In
terms of
section 60 (3), such claim must be instituted against the Third
Defendant. Similar provisions exist in WCPSEA, namely
sections 19
(1) and (2). There is a number of provisions in SASA and in the
regulations promulgated in terms thereof which speak
to the issue of
safety and security at public schools. There is also a number of
policy documents of the Defendants that speak
to the issue of safety
and security at public schools, for example, the
Procedural
Manual for Managing Safety and Security within WCED Institutions
.
The
Constitution and Code of Conduct of Rhodes,
also provide
for the safety and security of educators and learners alike. It must
be noted that the Principal is specifically
given various powers of
enforcement, and various responsibilities, by the Act and
Regulations to ensure the safety of a school’s
teachers and
students. It is therefore clear, given the range of powers and
duties that fall in the hands of the Principal, and
the fact that
management is vested in the Principal, it is he or she who carries
the primary responsibility in ensuring the safety
of the members of
the school community.
There was a special relationship between the Defendants and the
educators on the one hand, and the Defendants and the learners
on
the hand, and such relationships constitute one of the several
factors to be considered in determining the reasonableness
or
otherwise of an omission to prevent violence (
Van Eeden v
Minister of Safety and Security
(supra)
para [23]). In my
view the relationship between the Second Defendant and the Plaintiff
was sufficiently close to give rise to
a duty of care on the part of
the Second Defendant towards the Plaintiff. After Hutchings brought
Kunene to the Second Defendant
on the day in question following the
complaint of the Plaintiff, the Second Defendant assumed
responsibility of and control over
Kunene. The complaint related to
death threats that were made by Kunene against the Plaintiff. After
the Second Defendant accepted
responsibility of and control over
Kunene, he had to take reasonable measures to prevent harm to the
Plaintiff. It must furthermore
be noted that it has been expressly
recognised that where one is in control of a potentially dangerous
situation, thing or person,
one would normally be under a duty to
take care to prevent the risk from materializing. This is one of the
further specific circumstances
that courts have accepted as
influencing a decision as to the existence of a legal duty to act
(
Administrateur, Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A) 360, 361, 364).
I am of the view that it is reasonable and in the interests of
justice, equity and fairness, that the Acquilian action be extended

to include liability for any omission on the part of the Defendants
arising from the circumstances of the present case. I come
to this
decision in the light of the following circumstances: the
Constitutional imperatives, the various statutory provisions
and
regulations; the policy considerations, especially the policy
decision of the Department of Education to accept liability
for acts
or omission; the special relationship that existed between the
Defendants and the Plaintiff on the one hand and that
between the
Defendants and Kunene on the other, and finally, the responsibility
for and control over Kunene which the Second
Defendant assumed at
the time of the incident. I accordingly conclude that there was a
legal duty on the part of the Defendants
and their servants, to act
positively in order to ensure the security and safety of the
Plaintiff at the hands of Kunene and
the culpable breach of such
duty amounts to negligence, which is actionable in law.
The Breach of the Legal Duty
I have found the existence of a legal duty. I now have to examine
the facts to determine whether the Defendants and/or their
servants,
were negligent. The criterion for establishing negligence is
whether, on the particular facts of the case, the conduct
complained
of falls short of the standard of a reasonable person.
Holmes JA
in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-F held
that negligence arises for the purpose of liability 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.”
Applying the facts to the law, it may be convenient to divide the
grounds of negligence pleaded into two categories. The one
relates
to the acts and/or omissions of the staff of Rhodes High with regard
to Kunene’s conduct prior to 27 September
2001. The other
relates to the acts and/or omissions of the staff of Rhodes High
with regard to Kunene’s conduct on the
day of the incident. I
will evaluate the pre-incident conduct of the staff relating to
Kunene before evaluating the conduct of
the staff on the day of the
incident. In evaluating both sets of conduct, I will have to measure
the conduct of the respective
personae dramatis
against the
reasonable person in the same situation.
It is perhaps appropriate at this stage to make the observation that
the witnesses, other than the expert witnesses, were broadly
divided
into two camps: the ones that supported the Second Defendant and
were generally partisan towards him and those that supported
the
Plaintiff and were generally partisan towards her. Although they
generally gave credible evidence, I could not but help observe
that
they were, to some extent, biased towards the party that called them
as witnesses. This is obviously understandable in respect
of lay
witnesses. I did not get the impression that they were trying to
mislead the court, but I got the distinct impression
that some of
the witnesses were trying to colour their version through their
perceptions. In the circumstances of the case, I
do not think that I
have to make a credibility finding in respect of the witnesses, as
there are sufficient objective facts,
documentary evidence and
probabilities to enable me to reach my factual findings.
I was particularly impressed with the demeanour of two witnesses.
The one is Mogamat Arnold (Arnold). He was called as an expert

witness. He was the headmaster of Belgravia High School (Belgravia
High), which is situated on the Cape Flats. He had more than
40
years experience in the teaching profession and had held various
positions in the teaching hierarchy until he retired in 2007.
He
said that both Belgravia High and Rhodes High are not located far
apart and draw their learners from more or less the same
60 feeder
schools. He was an independent witness and it is clear from his
evidence that he was not batting for either camp. He
readily made
concessions to both sides, where such concessions needed to be made.
The other is Mr Jacobs, the father of the Plaintiff.
Although he was
emotionally affected by what had happened to his daughter, he tried
to be as objective as possible. As a witness
he acquitted himself
reasonably well under the circumstances.
From Kunene’s disciplinary record and his personal journal, it
is clear that he had disciplinary, behavioural, social and
personal
problems. These are also apparent from the Behavioural Contract
concluded between Hutchings and Kunene on 4 September
2001. It is
common cause that, in disciplinary proceedings, the choice and level
of sanction to be imposed according to the Code
of Conduct, could
vary depending on the circumstances. It could depend on the
particular view the educator takes of the infringement
in question.
Counsel for the Plaintiff, in my view, correctly conceded that the
educators were exercising a discretion.
Mr
Sher
in his argument conceded and, in my view correctly
so, that on a conspectus of the evidence as a whole, there was no
proof that
the manner in which Kunene was disciplined for his
various infractions, was of such a nature that it led to the assault
on the
Plaintiff. He essentially accepted that there was no causal
link between the manner in which Kunene was disciplined and the harm

caused to the Plaintiff. However, he said that Kunene had a host of
domestic and personal problems which manifested themselves.
If
Kunene was referred to Turner timeously and subjected to counselling
for his personal and social problems, the incident could
have been
avoided. He accordingly submitted that the Defendants are
vicariously liable for the negligent failure of their servants

namely, Hutchings and Gallie, in failing to obtain such assistance.
Mr
Heunis
, on the other hand, submitted that the Defendants,
and certain of the staff members, had taken reasonable measures and
they could
not reasonably have foreseen the possibility of Kunene’s
conduct harming the Plaintiff. The way I understand Mr
Sher
’s
argument is that Kunene’s social and personal problems at home
contributed to the cause of the assault on the Plaintiff
and if
those problems were addressed timeously by Hutchings and/or Gallie,
the attack on the Plaintiff could have been avoided.
Let us examine
that proposition.
The Conduct Prior to the Incident
The criterion for determining negligence is, whether in the
particular circumstances, the conduct complained of falls short of

the standard of the reasonable person. On the facts of this case,
the criterion is whether Hutchings and/or Gallie could have

reasonably foreseen harm befalling the Plaintiff at the hands of
Kunene as a result of them failing to refer him to Turner or
any
other agencies for purpose of counselling in connection with his
social and personal problems at home (
Sea Harvest Corporation
(Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd and Another
2000
(1) SA 827
(SCA) at para [21]).
Hutchings testified that she was involved with Kunene in the context
of pastoral care for addressing his behavioural problem.
During an
informal discussion with him, in or about May 2001, Kunene “
opened
his heart to her and confided in her”.
He told her how
unhappy he was at home. His father was in jail. She recalled him
saying that he wanted to be a gangster like his
dad. He said his
mother did not love him and he slept in the same bed with his
mother. He told her that he was the breadwinner
in the family. This
revelation concerned her. Gallie confirmed that, as far as she could
recall, this issue was raised in one
of the GET Band meetings. Mary
Debrick (Debrick), a former educator at Rhodes High, testified that
had she been given such information
about a learner, she would have
immediately referred him to Turner. In my view these revelations
should have flashed red lights
and urgent intervention should have
been considered as a reasonable measure.
On 19 June 2001, Kunene was referred to Hutchings by the Plaintiff
because he was uncooperative. It is not disputed that at this

meeting Hutchings learnt of the extent of the social and personal
problems of Kunene. It emerged that the mother was unemployed.
He
earned money as an actor and was the breadwinner at home. As an
educator, this was not acceptable to her. She regarded it
as a
social issue. She tried to set up three meetings with his mother,
but on each occasion the mother did not turn up for the
meeting. Due
to the lack of concern, Hutchings concluded that there was doubt on
the ability of the mother to care for Kunene.
She noted in her
records that Social Services be involved to investigate Kunene’s
role as breadwinner.
From those facts at her disposal, the only plausible inference one
could have drawn, is that Kunene had a serious social problem
and
was aspiring to become a gangster, like his father, with all its
attendant consequences. Hutchings as a reasonable person
should have
realised that urgent intervention was required and should have, at
least, in June 2001, if not in May 2001, have
referred Kunene for
evaluation and/or counselling to Turner and/or Social Services
and/or other agencies. Her failure to do so
fell short of the
standard of a reasonable person in her position.
I am strengthened in the conclusion by the evidence of the Second
Defendant in respect of the notes made by the Plaintiff in
Kunene’s
journal. He testified that while the Plaintiff’s comments in
Kunene’s journal showed that she cared,
what was required was
deeper intervention, such as professional help and the least that
should have happened was for him to be
referred to Turner. However,
substantially the same information that was contained in the
journal, to which the Plaintiff responded
in the form of the note,
was at the disposal of Hutchings on 19 June 2001. Surely then, she
too, on the Second Defendants own
logic, should also at least have
referred Kunene to Turner to deal with these serious personal and
social problems as revealed
in the diary and made aware to
Hutchings.
Hutchings only acted when she received a further complaint in or
about 4 September 2001 from the Plaintiff that Kunene had

destroyed an exam script and when she confronted him about it, he
left the school premises at 11:30 without permission. Hutchings
then
concluded a Behavioural Contract with the mother, grandmother and
Kunene. It is not clear why, the Plaintiff, as the class
teacher,
was not involved in such meeting and why she was not consulted in
the matter. It appears that she was not even aware
that a Contract
was concluded between them. Arnold testified that the class teacher
should have been involved in the negotiation
of such a contract. The
contract covers some of the concerns that she had expressed earlier
in 19 June 2001. Various remedial
measures were agreed to in order
to improve his social and personal issues at home. They were,
amongst others, that the mother
and grandmother find work; that
Kunene ceases his role as breadwinner until his life is more
structured; that a family meeting
will take place to address the
social and personal issues; that Kunene possibly be moved to stay
with his grandmother; that he
possibly be moved to the grade 8A
class if the situation did not improve. One of the other terms of
the Contract is that Kunene
attends counselling sessions with
Turner. But where the Contract fell short, was in the implementation
of Kunene’s referral
to Turner and/or the Social Services for
investigation and/or counselling in connection with his personal and
social problems
and, more particularly, that he was the family’s
breadwinner. The counselling sessions were ultimately confined to
Kunene’s
problems within the ambit of the school and his
relationship with the Plaintiff, and as such did not cover the most
pressing
social and personal issues.
Hutchings maintains that Kunene was indeed referred to Turner for
his personal and social problems at home as she, as an educator,
was
concerned about the fact that he was the family breadwinner. If
Turner had explored his role as a breadwinner, it is in all

probability that he would have disclosed to her the other social
problems that Hutchings was privy to. Turner however disavows
that
Kunene was referred to her for his personal and social problems. As
far as she was concerned Hutchings was dealing with
such issues.
It is my finding that the balance of the evidence supports the view
that when Hutchings referred Kunene to Turner, she did not
instruct
Turner to counsel for a specific purpose, i.e. to deal with his
personal and social problems, or his role as the breadwinner
of the
family. I come to this conclusion especially in the light of the
note Hutchings gave to Turner regarding the counselling
sessions in
which Turner is told merely to “chat” with Kunene:
“
Mandy, Please meet with Bheki (8D)
Kunene and chat x1 or x2 a week – can you arrange a definite
time with him please!! See
how it goes. P.S. get back to me. Thanks.
Lesley.”
The evidence is that Turner had five sessions with Kunene when they
were terminated at the instance of Kunene. There is no evidence
that
Hutchings enquired from Turner about these sessions. If she had done
so, it is probable that she would have discovered that
Kunene was
not being counselled for the purpose for which he had been referred
to Turner by her. The lack of proper instructions
and communication
by Hutchings to Turner concerning Kunene, in my view, fell far short
of that of a reasonable person in Hutchings’
position, and had
serious implications and impact on the reasonable measures that had
to be instituted to address the social
problems that Kunene was
inflicted with.
There was evidence that, at the time, there were resource
constraints in the Department of Education to obtain psychological

and social services for learners at schools. It could have taken up
to six months before Social Services or a school psychologist
made
contact for counselling after having been requested to do so. Arnold
testified that in serious cases one could call upon
a Mr Enfield
from the Department of Education, who would come to the school and
interview the learner and even visit the parents
at home to address
the problem. He said that, if a learner was experiencing serious
social problems, it was the school’s
duty to inform the
Department of Social Services for intervention in the case. However,
he qualified the statement by saying
that the State’s capacity
to deal with children with social problems was alarmingly inadequate
and in 2001 it was more
limited.
Turner testified that she and the Second Defendant had set up a
network of non-governmental organisations and other support services

in the school environment that Rhodes High could count on for
assistance. She was usually the go-between. She said that she had

achieved success with the network system and many learners who had
been involved in the network had their lives turned around.
There is
no reason why Kunene could not have benefited from a similar
referral with timeous and effective intervention. She said
that, in
hindsight, after reading the journal, it was clear to her that
Kunene was a disturbed boy in that he felt hatred towards
his
parents and was clearly mistreated at home. In June 2001, Kunene had
told Hutchings about those problems. Turner said that
the first
thing she would have done was to contact a Mr Johan Greeff, who is
the psychologist at the Newland’s School clinic
and would have
had Kunene psychologically evaluated. She said that she had another
more difficult learner in the Plaintiff’s
class namely, Marce
Louis, referred to Greeff with relative success.
Nugent JA
in
Minister of Safety and Security v Van
Duivenboden
(supra)
at 445I held as follows:
“
Action to avert reasonably foreseeable
harm is required only if in the particular circumstances the person
concerned ought reasonably
to have acted. When applied in relation to
public authorities, matters such as the extent of their available
resources and the
ordering of priorities will need to be taken
account of in determining whether the failure to act was negligent.”
The Constitutional Court in
Rail Commuters Action Group v Transnet
Ltd
(supra)
echoed the statement but added that an organ
of State will not be held to have reasonably performed a duty simply
on the basis of
an assertion that it had resource constraints but
satisfactory and sufficient details thereof will need to be given.
The undisputed evidence is that Hutchings was aware: that on 13
February 2001, Kunene was given a white slip for disrespecting
the
teacher; that on 7 March 2001, he was given a pink slip for fighting
with Bencil; that on 12 June 2001, he was given a green
slip for
fighting with Marche; that on 13 June 2001, he displayed repeated
defiance and misbehaved at the MTN Science Centre;
that in or about
19 June 2001 Kunene had serious social problems and that he aspired
to be a gangster like his father and that
it is a well known fact
that children who misbehave at school may frequently be doing so
because of other underlying social problems.
With such awareness and knowledge, Hutchings should reasonably have
foreseen that Kunene constituted a threat to educators and
learners
alike, and more particularly the Plaintiff, and should have taken
reasonable measures to refer him immediately to Turner
for
assessment and/or counselling in connection with his social
problems. Turner could have in turn called on the services of
Johan
Greeff for psychological evaluation and/or treatment of Kunene. She
could also have turned to Mr Enfield from the Department
of
Education, and/or the Department of Social Services for urgent
intervention. In that regard, the conduct of Hutchings, in
my view,
fell short of the standard of a reasonable person in her position
and was accordingly negligent.
Before I move on to the issue of causation, I wish to briefly deal
with the matter of Plaintiff’s allegation that Gallie
acted
negligently. I do not believe this is the case. At all material
times, Hutchings dealt with the problems involving Kunene.
On the
occasions when Gallie was confronted with a problem involving
Kunene, she referred him to Hutchings. I am of the opinion
that no
more was required of Gallie. On the evidence I cannot find any
negligence on the part of Gallie.
Causation of the Conduct Prior to the Incident
The next question to answer is whether the failure on the part of
Hutchings to act positively was the causal connection of the
harm
suffered by the Plaintiff at the hands of Kunene. In the law of
delict, causation involves two distinct inquiries. The first
leg is
a factual inquiry, namely, to determine whether the Defendants’
wrongful conduct was the cause, or contributed materially,
to the
Plaintiff’s loss. If it did not, no legal liability ensues. If
it did, the second leg is a legal inquiry, namely,
to determine
whether the wrongful conduct is linked sufficiently closely to the
harm for legal liability to ensue or whether
it is too remote for
legal liability to ensue (
International Shipping Co (Pty) Ltd v
Bentley
1990 (1) SA 680
(A) at 700E-J and
Minister of Police
v Skosana
1977 (1) SA 31
(A) at p 34).
In the determination of the factual inquiry, the usual test that is
applied is the
conditio sine qua non
test which is also known
as the “
but for”
test which is postulated as
follows: “
whether the wrongful conduct of the defendant is
a necessary
condition such that, but for such conduct, the
incident would not have happened
”. However, the
commonsense approach has not been excluded. Our Courts have differed
whether such test is to be objectively
or subjectively assessed. The
Constitutional Court has preferred the objective test (
Carmichele
v Minister of Safety and Security
(supra)
at 969) whereas
the Supreme Court of Appeal was of the view that the test should be
both objective and subjective (
Minister of Safety and Security v
Carmichele
2004 (3) SA 305
(SCA) at 329). Neethling, Potgieter &
Visser in
Law of Delict,
5
th
Edition (2006) at
page 130
et seq
has formulated the approach to the
determination of factual causation as follows:
“
It entails a retrospective analysis of
what would probably have happened if the alleged wrongdoer had acted
positively in light
of the available evidence and the probabilities
originating from human behaviour and related circumstances.”
Mr
Heunis
submitted that as far as the events before 27
September 2001 are concerned, there was no factual causation and
therefore there
could be no legal causation. Even if the court were
to find that factual causation was present, he submitted that the
harm was
not reasonably connected to the consequences of the
omission nor was it reasonably foreseeable and policy considerations
militated
against the finding that there was a legal link. I
disagree.
In the first place, if Hutchings had acted positively in or about 19
June 2001 when Kunene’s social problems first manifested

themselves by referring him to Turner, it is probable that
psychological intervention could have timeously been secured from

Johan Greeff to evaluate and assess Kunene psychologically and, if
necessary, Social Services could have been involved, as a
matter of
urgency, to evaluate and assess his socio-economic circumstances. It
is probable that, despite constraint on resources,
Turner, with her
professional and social network, could have instituted reasonable
measures to evaluate, counsel and treat Kunene
for his psychological
and/or social problems. While it cannot be said with certitude that
such intervention would have ensured
that the incident did not
occur, it is probable that such intervention would have at least
mitigated the harm suffered by the
Plaintiff at the instance of
Kunene on 27th September 2001.
In the second place, if Hutchings had acted positively in or about 4
September 2001 in approaching Turner personally and informing
her of
the socio-economic problems of Kunene and asked her to evaluate and
counsel him in connection with such problems instead
of sending her
a note to “
chat”
with him, it is probable that
Turner could have mitigated the previous omission by urgent
intervention. It is probable that even
such late intervention could
have at least mitigated the harm suffered by the Plaintiff at the
instance of Kunene on 27 September
2001.
In the third place, Arnold testified that on the basis of Kunene’s
disciplinary record and the intervention at the level
of the school,
there “
would be red lights flashing all the way”
and
were an indication that Kunene was facing serious social problems
and “
was crying out for help
”. He concluded that
from looking at the journal and the two death certificates that
Kunene was “
a seriously troubled boy”.
He said
formal contracts were applied in serious cases of misconduct.
In the circumstance, I conclude that the Plaintiff has established
the requirements for factual causation linking Hutchings’

omission to the harm suffered by her at the hands of Kunene, in
respect of the pre-incident conduct of the Defendants.
I now turn to the second leg of the enquiry namely, the legal
causation. For liability to ensue, there must be a reasonable
connection between the act and/or omission and the harm done. The
question of legal causation involves a value judgement which
is
based on policy considerations, reasonableness, fairness and justice
and which is described as the flexible criterion and
is aimed at
limiting the boundaries of liability. In
Smit v Abrahams
1994
(4) SA (A) at 18,
Botha JA
, in emphasising the flexibility of
the test for legal causation, said the following:
“
Daar
is net een ‘beginsel’: om te bepaal of die eiser se skade
te ver verwyderd is van die verweerder se handeling om
laasgenoemde
dit toe te reken, moet oorwegings van beleid, redelikheid, billikheid
en regverdigheid toegepas word op die besondere
feite van hierdie
saak.”
In making a value judgment on the facts of this case, I bear in mind
that Hutchings had the opportunity to act on 19 June 2001
and she
failed to do so. The opportunity presented itself once more on 4
September 2001 and although she acted, she did not act
effectively.
If she had acted effectively, it is probable that her previous
omission could have been mitigated to some extent.
The harm occurred
on 27 September 2001. In my view, the harm was not so remote in
time, place and cause that the Defendants could
reasonably escape
liability for Hutchings not acting positively to prevent the harm.
Taking into consideration the criterion
of reasonableness, fairness
and justice as well as policy considerations impacting on the
convictions of the community, I conclude
that the Defendants ought
to be held liable for the pre-incident conduct of Hutchings and such
conduct does not fall outside
the boundaries of legal causation for
the Defendants to escape liability. In the circumstances, I find
that the Plaintiff has
established the requirements of legal
causation in respect of the pre-incident conduct of Hutchings in her
capacity as a servant
of the Defendants.
The Conduct on the Day of the Incident
I now turn to discuss the conduct of the Second Defendant on the day
of the incident. The question to be answered is whether
he acted as
a reasonable person would have done when Hutchings brought Kunene to
him with his journal following a complaint by
the Plaintiff, or did
his conduct fall short of that of a reasonable person in his shoes?
There is some uncertainty firstly,
as to what he was told by
Hutchings when she brought Kunene to him and secondly, whether he
looked into the journal before or
after he had put Kunene in the
chair outside his office. The Second Defendant was somewhat
ambivalent about the first issue.
In his evidence in chief he merely
testified that he was informed that “
threats
”
were made, but under cross-examination conceded that Hutchings had
told him that “
death threats”
were made. I
therefore find that at the time Hutchings handed Kunene over to him,
he was aware of the fact that death threats
had been made by Kunene
against the Plaintiff.
With regard to the second issue, the Second Defendant testified that
he placed Kunene on the chair outside his office before
he looked
inside the journal. When asked whether he thought about the need to
protect the Plaintiff against Kunene, he replied
that he did not
deem him to be an immediate threat to her, otherwise he would not
have placed him on the chair outside his office.
He conceded that
children placed on that chair would on occasion get up and walk
away. At that stage he was also aware of the
fact that Kunene, after
some altercation with the Plaintiff because of the destruction of an
exam script, walked off the school
premises. It is because of this
incident that Hutchings, on 4 September 2001, concluded a
Behavioural Contract with Kunene
and his family.
The unchallenged evidence of the witness, Mr Jacobs, was to the
effect that in a discussion with the Second Defendant at the

disciplinary hearing, the Second Defendant had told him that he (the
Second Defendant) had wrested the journal from Kunene and
looked in
the journal and saw a death certificate. Because of this he told
Kunene to sit down and he asked someone to call the
police. It did
not cross his mind that Kunene might go back to the classroom and
attack the Plaintiff. If he had thought of this,
his actions would
have been different. In my view, the probabilities favour the
version that after Hutchings brought Kunene to
the Second Defendant
and told him about the death threats, he wrested the journal from
Kunene, looked at it, saw the death certificate,
and told Kunene to
sit in a chair outside his office as he did not want Kunene to know
that he was calling the police and his
mother.
With that backdrop, I will evaluate the conduct of the Second
Defendant on the day of the incident which must be measured against

the notional reasonable person in his place in order to determine
whether he was negligent or not. If his conduct fell short
of what a
reasonable person would have done in his circumstances then he would
be held to be negligent. At the time the Second
Defendant decided to
place Kunene, unsupervised, in a chair outside his office, he was
aware firstly, that on 3 September 2001
the Plaintiff had complained
to him that Kunene had destroyed an exam script and when she
confronted him, he walked off the school
premises without
permission; secondly, that following the complaint, Hutchings on 4
September 2001 called a meeting between herself,
Kunene and his
family at which the behaviour of Kunene the previous day was raised
and discussed and a Behavioural Contract was
concluded between them;
thirdly, that Hutchings on the day of the incident, following a
complaint from the Plaintiff, brought
Kunene to him and told him
that Kunene had made death threats against the Plaintiff, which he
(the Second Defendant) in his evidence
conceded were serious
allegations and does not happen every day; fourthly, that when he
tried to remove the journal from his
possession, Kunene resisted
such move and he (the Second Defendant) had to use force to
dispossess Kunene of the journal and
fifthly, that he saw the death
certificates and the image of blood running down the pathway in
Kunene’s journal and in
his own words described what he saw in
the journal as “
absolutely horrifying stuff - stuff
of
nightmares”.
Arnold testified that on the day the Plaintiff was attacked, if he
had been in the Second Defendant’s position, he would
not have
told Hutchings to leave, but asked her to be present while he
questioned Kunene about the death threats in the journal;
because of
the seriousness of the threat made against the teacher and a whole
history of disruptive behaviour on the part of
Kunene, he would not
have told him to sit outside his office and let him out of his sight
and control as he was in a rage and
could have attacked anyone; he
would not have looked into the journal without the presence of the
learner and preferably another
senior educator; that if he had
opened the journal and discovered that the death threat was to be
executed at 10:30 with a hammer
and a knife, he would immediately
have alerted the teacher that her life was in danger; that he would
have questioned the learner
about the contents of the journal and
the weapons in question; that he would have searched his bag in his
presence and that of
a senior educator and if he found the weapons,
he would have confiscated them.
In my view, the Second Defendant, by placing Kunene on a chair
outside his office unsupervised and by letting him out of his
sight
and control, should reasonably have foreseen the probability that
Kunene would slip away to his class and carry out the
imminent death
threats. The Second Defendant should have taken reasonable measures
to ensure that it did not happen by asking
him to wait in his office
in his presence or get a senior educator or any other person, like
Mr Cooper, the caretaker, to supervise
him and warn the Plaintiff
that her life is in danger and instituted measures to secure her
safety, while he arranged to call
the police and Kunene’s
mother. The failure to take these measures in order to avoid the
harm, in my view, constitutes
negligence on the part of the Second
Defendant.
Causation of the Conduct on the Day of the Incident.
Mr
Heunis
, in my view, correctly argued on the basis that
there was factual causation in the nature of an omission inasmuch as
the Second
Defendant’s action should have gone further than it
did .i.e. by arresting and detaining Kunene. He submitted, however,
that policy considerations, reasonableness, fairness and justice
militate against the court holding that there was legal causation.
Mr
Sher
submitted that, but for the Second Defendant’s
negligent omission and breach of his legal duty, the assault on the
Plaintiff
would not have happened. In the circumstances both Second
Defendant (as the servant) and Third Defendant (as the master), are
liable jointly and severally to the Plaintiff in such damages as the
Court may determine, the one paying the other to be absolved.
Unlike the conduct of Hutchings, that had indirectly led to the harm
suffered by the Plaintiff, but not sufficiently remote for
the
Defendants to escape liability, the conduct of the Second Defendant,
on the day of the incident, had a direct and proximate
cause to the
harm suffered by the Plaintiff. At the same time, it could not be
argued that it would have been too burdensome
in the particular
circumstances for the Second Defendant to have acted and take steps,
i.e. to ensure Kunene was under a watchful
eye once he had himself
taken control of the situation on the day of the incident. Applying
the principles enunciated above in
connection with both the factual
and legal causation, I conclude that the Plaintiff has established
the requirements of both
factual and legal causation on the part of
the Second Defendant for Defendants to be held jointly and severally
liable for the
harm suffered by her, the one paying the other to be
absolved.
Contributory Fault
The Defendants pleaded in the alternative that should the court find
that the assault on the Plaintiff was caused by the negligence
of
Second Defendant, then in that event the assault was caused partly
by the fault of Second Defendant and partly by the fault
of
Plaintiff in that she:
(a) paid insufficient attention to Kunene, particularly after having
read his journal, a fact which should reasonably have caused
her to
realise that he required more attention than she was giving;
(b) failed to inform the Second Defendant and/or Hutchings and/or
others in authority of the contents of the journal upon learning

thereof and in particular of the death certificate when in the
exercise of reasonable care, she should and ought to have done so
and
(c) failed to inform the Second Defendant and/or other persons in
authority that she had confiscated a hammer from Kunene prior
to the
assault as alleged in her particulars of claim.
In terms of Section 1(1)(a) of the Apportionment of Damages Act 34
of 1956:
“
Where any person has suffered damage
which is caused partly by his own fault and partly by the fault of
any other person, a claim
in respect of that damage shall not be
defeated by reason of the fault of the claimant, but the damages
recoverable in respect
thereof shall be reduced by the Court to such
extent as the Court may deem just and equitable having regard to the
degree in which
the claimant was in fault in relation to the damage.”
In the case of
South British Insurance Co Ltd v Smit
(3) SA
826 (A), with regard to the meaning of section 1(1) of the
Apportionment of Damages Act, the following is stated, at 836C:
''What the Court is required to do is to determine, having regard
to the circumstances of the particular case, the respective degrees

of negligence of the parties. In assessing 'the degree' in which the
claimant was at fault in relation to the damage' the Court
must
determine in how far the claimant's acts or omissions, causally
linked with the damage in issue, deviated from the norm of
the bonus
paterfamilias . In thus assessing the position, the Court will, as
explained above, determine the respective degrees
of negligence, as
reflected by the acts and omissions of the parties, which have
together combined to bring about the damage in
issue.''
In the case of
Jones NO v Santam Bpk
1965 (2) SA 542
(A), the
learned Judge largely followed the approach as taken in the
Southern
British Insurance Co Ltd
case and added, at 554G-555D, as
follows:
“
A determination of the degree of fault on the part of the
claimant does not by itself 'automatically determine the degree in
which
the defendant was at fault in relation to the damage'; the
Court must first also determine in how far the defendant's 'acts or
omissions, causally linked with the damage in issue, deviated from
the norm of the bonus paterfamilias'. It is on the basis of
comparison between the respective degrees of negligence of the two
parties (or several parties if there be more than one claimant
or
defendant) that the Court can determine in how far the fault or
negligence of each combined with the other to bring about the
damage
in issue.”
From the above two cases, to decide on an apportionment, it appears
the courts have to compare the respective degrees of fault
of the
Plaintiff and the Defendants. However, the relative degrees of the
causal significances of the parties’ acts would
not play a
direct role (see
Harrington NO and Another v Transnet Ltd and
Others
2007(2) SA 228 (C) at 253 and see also LAWSA Vol 8 (1) at
para. 169).
However, according to Midgley and Van der Walt in LAWSA Vol 8 (1) at
para 169:
“
The correct approach when evaluating
apportionment is for a court to make a just and equitable decision,
having regard to, but not
being bound by, the plaintiff’s fault
in relation to the loss.”
Before dealing with the two other grounds of contributory negligence
on the part of the Plaintiff as alleged by the Defendants,
I will
deal with the allegations surrounding the hammer that was allegedly
confiscated. The Plaintiff’s evidence was that
she had
confiscated a hammer from Kunene in or about August/September 2001.
According to her, she showed it to Hutchings, Elixir,
Gallie and the
Second Defendant and was told to give it to the caretaker. She
handed it to the caretaker. Hutchings, Elixir and
the Second
Defendant either did not recall such a report or denied such report.
Mr
Heunis
, while accepting that a hammer may have been
confiscated by the Plaintiff, submitted that the incident was not
reported to senior
management, and claimed that this failure
amounted to negligence.
It is common cause that the Defendants disavow any knowledge of this
incident. The Plaintiff volunteered this information. I
will assume
for now that the Plaintiff did not report the hammer to management.
Her conduct in confiscating the hammer and handing
it to the
caretaker, must be seen in the light of, firstly, her experience and
maturity at the time of the incident; secondly,
that the hammer in
question was found in Kunene’s possession, but was not used
for any unlawful purpose, nor was there
any evidence that it was
going to be used for such purpose and, thirdly, that the hammer was
confiscated and any possible threat
to the safety and security of
the school community was eliminated. It is all very well now, in
hindsight, to say that she should
have done more than simply
confiscating and handing the hammer to the caretaker. It has been
said by our courts that what is
reasonably possible cannot be tested
with the benefit of hindsight and the temptation to draw a
conclusion from
post ex facto
knowledge, must be avoided (see
Harves Corporation (Pty) Ltd v Duncan Dock Cold Storage
(supra)
in part [27] at 842F-H). Her conduct must be judged
in light of the situation prevailing at the time and taking into
consideration
the situation then, I do not think that her conduct in
confiscating the hammer and handing it to the caretaker, was
unreasonable
and inconsistent with a reasonable person in her
position. Mr Arnold testified that is he had found any weapons in
the possession
of a learner, he would likewise have confiscated the
weapon.
It is common cause that the learners at Rhodes High kept a journal
in which they recorded their personal day to day experiences.
The
contents of the journal were confidential, but the learner could
share the contents with the educator if he or she so wished.

Plaintiff testified that she had read the journal with Kunene’s
consent. She was concerned about his personal problems
and suggested
that he make a note in the journal of the issues that worried him.
She would read it and give him the necessary
advice. Kunene then
addressed a note to the Plaintiff in a question and answer format to
which Plaintiff responded with compassion
and empathy. She said that
it appeared to her that he was a troubled child. It does not appear
that she shared and discussed
this with any of her peers nor did she
refer him for counselling to Turner. Furthermore, as a State
functionary, she had a duty
to ensure the safety of the school
community and, more particularly, in her classroom. In these
respects, I am of the view that
she did not act as a reasonable
person in her position and as such was partly negligent.
I am of the opinion that there is a link between Plaintiff’s
omission and the harm that she ultimately suffered.
If
Plaintiff had referred Kunene directly to Turner when she initially
learnt of his personal problems from his diary, or at least

discussed these matters with her peers, or Hutchings, there is a
reasonable possibility that Turner could have instituted reasonable

measures to treat Kunene, and it is probable that such intervention
would at least have mitigated the harm ultimately suffered
by
Plaintiff.
The Plaintiff testified that she saw
a death certificate in the journal on the afternoon before the day
she was attacked. She
saw the certificate at the time when Kunene
and a classmate, Sibulelo, were cleaning the classroom as punishment
for things having
been thrown around in the class. She asked both of
them whether she should be concerned about it. They both assured her
that
it was merely a joke and there was nothing to worry about. She
accepted their assurances. There was some uncertainty whether she

saw the abridged death certificate or the unabridged death
certificate on that day. She testified that she saw the abridged
certificate. Kunene in his evidence at his criminal trial confirmed
that on 26 September 2001, she only saw the abridged death

certificate. However, Mr
Heunis
submitted that on the basis
of her admission to Brigadier G J Burger in respect of his analysis
of the contents of both the abridged
and unabridged death
certificates, it conclusively established, on the Plaintiff’s
own version, that she saw the unabridged
certificate on the day
before the incident. In the light of the evidence as a whole, I do
not think that evidence is conclusive.
The probabilities favour the
conclusion that the she saw the abridged certificate on 26 September
2001 and the unabridged certificate
on 27 September 2001. What
is clear is that she saw one of the certificates on the day before
the incident. It is also clear
that the Plaintiff reported the fact
that she saw the death certificate on 27 September 2001, ie the
following morning.
Arnold regarded the fact that the Plaintiff did not bring the death
certificate immediately to the attention of anyone, as serious.
It
must however be stated that the conduct of the Plaintiff must be
measured against a reasonable person in her position, with
her age,
experience and maturity and not that of Second Defendant, Hutchings
or Arnold. It is common cause that the Plaintiff
was a young and
inexperienced teacher and fresh out of University. She was in her
early 20’s and it was the second year
of her teaching career.
Gallie testified that the Plaintiff’s problems could not be
classified as major or serious problems
and were of the kind that
was experienced by most first year teachers. Such problems that the
Plaintiff had experienced would
be overcome in time with guidance
and mentorship.
In my view, she did not act unreasonably when she saw the death
certificate on the afternoon of 26 September 2001 and reported
the
matter on the morning of the next day. The reason for that
conclusion is twofold; firstly, she was assured by Kunene and

Sibulelo that it was only a joke and she had nothing to worry about
and secondly, taking into consideration her level of experience
and
maturity, reporting the matter the following morning, in my view,
was not unreasonable.
Counsel for Plaintiff submitted that
should I find that the Plaintiff was also to be blamed for the harm
that she suffered, then
the degree of fault should be heavily
weighted against the Defendants. Counsel for the Defendants, on the
other hand, submitted
that the Plaintiff’s degree of
negligence ought to be assessed at 90% and that of the Defendants at
10%. Taking all the
circumstances into consideration, I am of the
view that the major share of the blame must be directly attributed
to the Defendants,
who, by the exercise of reasonable care, could
have avoided the attack.
In respect of the extent of the Plaintiff’s negligence in
failing to inform her peers of the contents of Kunene’s
diary,
or to report it directly to Turner, I believe that one must take
into account the Plaintiff’s relative inexperience,
the
details of which I have set out previously above.
Furthermore,
it must be considered that Plaintiff did attempt to assist once she
had found out about Kunene’s personal problems.
She
tried to reach him through the confidential journal in the form of
questions and answers. It is quite clear from the contents
that she
tried to gain his confidence. Subsequently, when it appeared to her
that he was taking advantage of her empathy, she
adopted a sterner
approach. This led to him becoming obstinate and refusing to do his
school work. She also eventually did refer
him to Hutchings who had
regular afternoon counselling sessions with him to address his
problem, but that did not help. Her failure
to report the contents
of the journal, is understandable in the light of her testimony that
she was reluctant to reveal the contents
of the diary as she
honestly believed that it was confidential.
As far as the Second Defendant’s conduct on the day of the
incident is concerned, it must be noted that, in contrast to
the
Plaintiff, he was an experienced educator with at least 21 years of
service. He started teaching in 1980 and was appointed
as Head of
Department (HOD) at the Settlers High School in 1983. He held
various posts as Deputy Principal between 1987 and 1994.
Between
1994 and 1999 he was Senior Deputy Principal at Camps Bay High
School where he dealt with discipline at the school, social
problems
and substance abuse. In 1999 he was appointed as the principal of
Rhodes High. It also cannot be ignored, as I have
previously stated,
that the conduct of the Second Defendant was a direct and proximate
cause of the harm suffered by the Plaintiff,
unlike the pre-incident
conduct, which only had an indirect link with the harm ultimately
suffered.
As far as the conduct of Hutchings is concerned,
I am further of the view that she must take a greater proportion of
the blame
compared to the Plaintiff.
Hutchings was an
experienced educator with at least 18 years’ service. She
commenced teaching at the Plumstead High School
and then moved to
Rhodes High, where she taught for 17 years.
As
the Head of the GET band at Rhodes High she was responsible for
discipline at the school, while Second Defendant bore overall

responsibility for such discipline.. While the Plaintiff did fail to
inform Hutchings of the contents of the diary, it is common
cause
that it had been made available to Hutchings when Kunene “opened
his heart and confided in her” earlier that
year about his
personal and social problems.
Taking all the circumstances into consideration, I conclude that a
fair and equitable apportionment of fault is 80% in respect
of the
Defendants and 20% in respect of the Plaintiff. The proven damages
of the Plaintiff will accordingly be reduced by 20%
in terms of the
Apportionment of Damages Act No 34 of 1956.
Co-operation of organs of State
Before I finally consider the issue of quantum, I wish to briefly
deal with the argument raised by the Defendants’ counsel

during the course of proceedings and as contained in the Second and
Third Defendants’ Note in respect of section 41 of
the
Constitution of the Republic of South Africa, 1996. It was argued
that the Plaintiff has failed to comply with section 41
(1) (h) (vi)
of the Constitution, which provides that all organs of State within
each sphere of government
“
must –
(h) co-operate with one another in mutual trust and good faith by
- . . .
(vi) avoiding legal proceedings against one another.”
The short answer to this argument is that the Plaintiff brought the
proceedings in her personal capacity and not in the capacity
as an
organ of State. As such, I am of the opinion that there is no
question of the application of section 41 (1) (h) (vi) of
the
Constitution and the argument must therefore fail.
Quantum
I now turn to deal with the question of quantum. There appears to be
broad agreement with many of the elements of the quantum.
The
difference is essentially attributed to differences in assumptions
made by the experts of the Plaintiff and the Defendants.
To assist
the court in determining the quantum, the parties agreed to:
(a) Joint Minutes of the medical experts, namely Martin Yodaiken
(Yodaiken), Larry Loebenstein (Loebenstein) and Tuviah Zabow (Zabow)

for purpose of determining the future medical expences.
(b) A joint Minute between Ms Liza Hofmeyr (Hofmeyr), a consulting
psychologist and Human Resources Consultant and Hannes Swart
(Swart),
an Industrial Psychologist, for the purpose of determining the future
loss of earnings.
(c) Actuarial Reports by Alex Munro (Munro) in which he projects
three scenarios, the one is based on the information given and

assumptions made by Hofmeyr and the other two are based on the
information given and assumptions made by Swart. The actuarial
reports were accepted and handed in by consent of both parties.
Past Medical Expenses
The amount of R36 276.69 in respect of past medical expenses is
agreed upon between the parties and no further discussion need
to
detain us in respect of this item.
Future Medical Expenses
There is a difference of R39 960 which is in respect of insight
therapy and life-coaching therapy. The amount in respect of insight

therapy is R27 360 and the amount in respect of life-coaching is R12
600. It is not disputed that as a result of the attack the
Plaintiff
suffered certain bodily injuries for which she received treatment.
In addition thereto she suffered from depression,
fear, anxiety and
personality changes. She was diagnosed with Major Depressive
Disorder, Post-Traumatic Stress Disorder (“PTSD”)
and
Panic Disorder with Agoraphobia, following the trauma induced by the
attack on her with a hammer.
In a joint minute the medical experts agreed on the future medical
treatment except insofar as the insight therapy and life-coaching

were concerned. Both Loebenstein and Zabow agreed that such therapy
was not necessary whereas Yodaiken was of the opinion that
such
therapy was necessary and beneficial. Loebenstein, in his two
reports, initially agreed with Yodaiken that the Plaintiff
should
have coaching and insight therapy, but had a change of heart at the
time of the preparation of the joint minute. His reason
for having a
change of heart is not very convincing. He conceded that Yodaiken
was better qualified to express an opinion on
these issues than he
was. Yodaiken conceded that life-coaching is in many ways similar to
Cognitive Behaviour Therapy (CBT),
but it goes further and provides
the patient with exercises and practices which allow her to discover
her resources and how to
apply these resources. Yodaiken testified
that the Plaintiff has been “
through a range of different
experiences all of which I think have accumulated in her condition
and the insight [therapy] would
allow her to reflect on these and to
put them in a perspective in terms of her future”.
From an industrial psychologist’s point of view, Swart who is
qualified to express a view on life-coaching, is of the opinion
that
it is not necessary for the Plaintiff to undergo life- coaching. In
this respect, he agrees with Loebenstein and Zabow.
I agree with
them that to provide life-coaching would be tantamount to an
“
over-kill”.
I am of the view that, should the
Plaintiff receive insight therapy, it would be unnecessary also to
get life-coaching therapy.
I would therefore allow for insight
therapy but not for life-coaching therapy. In the circumstances the
amount of R27 360.00
in respect of insight therapy is allowed, but
the amount of R12 600.00 in respect of life-coaching therapy is
disallowed.
Loss of Earnings
In a joint minute dated 17 November 2009 prepared by Hofmeyr, the
expert of the Plaintiff, and Swart, the expert of the Defendants,

they set out the pre-morbid scenario and the post-traumatic
scenario. In respect of the two scenarios, the minute reflects their

points of agreement and their points of disagreement. With regard to
the pre-morbid scenario, both experts are in agreement that,
taking
into consideration the Plaintiff’s achievement, orientation
and dedication to teaching, it would be reasonable to
allow for both
progression and promotion. I agree. For calculation purposes, both
agreed to a retirement age of 65 years. For
the uninjured state in
my view a reasonable retirement age is 65 years, but for the injured
state I would regard 60 years as
a reasonable age to retire. I am
supported in this regard by Swart. However, for the injured state
allowance can be made in the
contingencies.
Taking into consideration the opinion of Mr Henry Wyngaard
(Wyngaard) from the Department of Education, the number of national

vacancies and shortage of educators, Hofmeyr is of the view that it
would be reasonable to allow for career progression of approximately

12 years. However, if suitable positions in the teaching profession
are not readily available, it could take up to 14 years.
Swart, on
the other hand, deferring to the views of Wyngaard, is of the
opinion that it is reasonable to allow for career progression

inclusive of promotion of at least 18 years. Having regard to the
fact that the Plaintiff is a woman and she is black for purposes
of
affirmation, and the Department of Education is committed to the
career progression of educators of historically disadvantaged

background, especially women, I think a career progression of 14
years as suggested by Hofmeyr is fair and reasonable. The difference

can be factored into the contingencies. At the time of the incident,
the Plaintiff was functioning as a teacher (Level 1); it
is
reasonable to assume that in her uninjured state with her ambition,
drive and dedication she would have secured permanent
employment as
a teacher (Level 7) and after five years she could have progressed
to senior teacher (Level 8), Head of Department
(Level 8) or master
teacher (Level 9).
With regard to the post-traumatic scenario, both parties are in
agreement that (i) the Plaintiff should not return to teaching

and, because of her view of the Department of Education, it is not
envisaged that she would consider employment with the Department;

(ii) treatment should be implemented as soon as possible and such
treatment should focus on optimal treatment for six months,
which
should enable her thereafter to re-enter the labour market whilst
continuing with treatment; (iii) she would have to opt
for initial
employment in a position where she would rely on her formal
qualification and experience as an educator namely, positions
such
as assistant publisher, supportive roles within an editorial
environment, consultant with a distance learning institution
or
roles focussed on curriculum development; (iv) it would be
reasonable to assume that she would earn R10 000 per month
for
the first six to twelve months; and (v) she would have entered the
labour market on C1 level and progress to C2.
However, both experts expressed certain reservations. Hofmeyr is of
the opinion that with optimal treatment the Plaintiff may
be able to
sustain employment on the C1/C2 levels, but would remain vulnerable
in her injured state. Because of emotional and
psychological
vulnerability, as well as pre-existing personality traits, further
career progression is deemed unlikely. She pegs
the salary range
from R120 000 to R180 000 per annum. She is of the opinion that
some allowance should be made for future
setbacks and if Koch’s
values are used, provision should be made for a caveat, as suggested
by Swart, of 40% to reflect
market trends. She also suggests that
some compensation for reduced career scope should be factored into
the equation. Swart
is of the opinion that in the event of
significant amelioration of the psychiatric concerns and the
acquisition of further tertiary
education, she would be able to
progress from level C1 to level C4, but expresses caution if Koch’s
values are used. In
that event he suggests the application of a
caveat of 40%. I agree with Hofmeyr that because of the Plaintiff’s
emotional
and psychological vulnerability, it is highly unlikely
that she would be able to progress to level C4 in her injured state.
This
could be factored into the contingencies if any one of Swart’s
scenarios is used.
Past Loss of Earnings
The difference in the past loss of earnings between that of the
Plaintiff and the Defendants is R26 120.38 as presented in their

Heads of Argument. The difference between scenario 1 (Hofmeyr) on
the one hand and scenario 2 (Swart) and scenario 3 (Swart)
on the
other hand, as presented in the Plaintiff’s Actuarial Report
of MC Consulting dated 18 November 2009 (MC Report),
is R34 400. The
first scenario is based on the version of Hofmeyr, whereas the
second and third scenarios, which are identical,
is based on the
version of Swart. In the interest of fairness to both the Defendants
and the Plaintiff, I will, for the purpose
of my calculation, assume
the correctness of the figures of the second and third scenario. The
calculation in respect of the
past loss of income is the sum of R414
500. This amount is made up of the sum of R702 900 in respect of the
uninjured state less
7,5% in respect of contingencies, which equals
R650 200 from which is deducted the amount in respect of the injured
state in
the sum of R235 700 and leaves a balance of R414 500. I
will, therefore accept, for our present purposes, that the
Plaintiff’s
past loss of earnings amounts to R414 500.
Future Loss of Earnings
For the purpose of calculating the future loss of earnings, Hofmeyr
projected one scenario and Swart projected two scenarios.
They are
reflected in the MC Report. For the purpose of my calculation, I
will accept the median between that of scenario 1 (Hofmeyr)
and
scenario 3 (Swart), namely scenario 2 (Swart) as reflected in the MC
Report. Hofmeyr and Swart in the joint minute agreed
on a number of
issues for the purpose of calculating the loss of earnings but also
differed on a few issues. The differences
in all probability account
for the final figures of the two scenarios. In view of the
Plaintiff’s prospect of promotion
and progression in her
uninjured state, I do not think that the postulated amount of R3 285
700, in respect of her earnings in
the uninjured state as reflected
in scenario 2 (Swart) of the MC Report, is unrealistic. The amount
of R2 996 200 postulated
in respect of her earnings in her injured
state for the same scenario as reflected in the MC Report, is
likewise not unrealistic.
While Scenario 2 employs a projected
career progression of 18 years, and I have already concluded a
progression of 14 years is
fair and reasonable, this difference may
be factored into the contingencies.
Before commenting on the final figures, I must evaluate the
contingencies. The Plaintiff made provision for 15% in respect of

the uninjured state whereas the Defendants made an allowance for
7,5%. It must be noted that both the Plaintiff and the Defendants

made an allowance of 7,5% in respect of the past loss of earnings.
It must also be borne in mind that the future loss of earnings

stretches over a much longer period and the vagaries and
vicissitudes of life impacting on such future period are much
greater.
In view thereof, I do not think that making allowance for
contingencies at the rate of 15% for the uninjured state is
unreasonable.
It is basically twice the allowance made in respect of
contingencies for the past loss of earnings.
For the injured state, the Plaintiff made an allowance of 25% for
contingencies, whereas the Defendants made an allowance of
10%.
Hofmeyr in her report recommended that a number of factors should be
taken into account when the court exercises its discretion
to impose
a suitable contingency allowance. In taking into consideration the
contingencies, it is reasonable to assume: (a) that
the Plaintiff’s
future emotional setbacks can impact on her work performance and
productivity within her work environment;
(b) that the Plaintiff
will remain emotionally and psychologically vulnerable in her
injured state and emotional and psychological
setbacks can impact on
her ability to sustain employment in any environment; (c) that she
can relapse and suffer once more from
Post Traumatic Stress Disorder
and/or Depressive Disorder which could adversely affect her ability
to generate an income; (d)
that the possibility of psychosomatic
factors aggravating her physical condition cannot be excluded; (e)
that the Plaintiff will
not be able to return to teaching; (f) that
career progression within any work environment will be dependent on
the availability
of opportunities as well as performance criteria
and progression to a more demanding role is less likely within her
injured state
and (g) that in the injured state it is anticipated
that an appropriate retirement age would be 60 years instead of 65
years.
Taking into consideration the above assumptions as well as the
nature, extent and duration of her emotional and psychological
sequelae
, I think that a contingency allowance of 25% for the
injured state is eminently fair and reasonable. The 10% contingency
proposed
by the Defendants in respect of the future injured state,
in my view, is extremely unreasonable. In the light of all
circumstances,
I conclude that the loss of future earnings of R545
750, making allowance for 25% instead of 30%, as reflected in
Scenario 2
(Swart) of the MC Report, is eminently fair and
reasonable.
General Damages
On the morning of 27 September 2001, the Plaintiff was attacked with
a hammer by a learner in her class in the presence of other

learners. As a result of the attack she sustained blunt trauma to
her head, wrist and knee. She was hit three times on her head,
once
on her left wrist and once on her left knee. She was treated at the
scene by para-medics before being admitted to hospital
for treatment
for her injuries. She sustained head wounds for which she required
five stitches, two fractured bones in her wrist,
fractured bone
between her wrist and elbow and a swollen knee. She spent three days
at the hospital before being discharged.
According to Dr R K Marks
the use of the wrist and forearm would have been painful for a few
months and pain in cold and rainy
weather might take up to two years
to abate. She also suffered from regular chronic headaches. In
addition to sustaining the
physical injuries, she also developed
emotional and psychological
sequelae
which were precipitated
by the attack. She suffered from Post Traumatic Stress Disorder
(PTSD), Major Depressive Disorder and
Panic Disorder with
Agoraphobia. These ailments had a crippling effect on her
functioning in the school as well as the social
environment.
Yodaiken in his report dated 10 October 2007 found that the attack
on the Plaintiff was serious and life-threatening to the extent
that
it left her emotionally and psychologically debilitated. He noted
that at the time of the attack she appears to have been
a fully
functioning, creative and enthusiastic teacher who enjoyed her
school and was fully engaged with the learners. Her emotional
and
psychological conditions were aggravated in December 2002 when she
was subpoenaed to give evidence at the criminal trial
of Kunene. She
developed panic attacks in anticipation of the trial. She required
constant attention from mental health professionals
to keep these
conditions under control. She developed similar symptoms in
anticipation of the present trial and her emotional
and
psychological conditions were once more aggravated when she was
subjected to robust cross-examination by Mr
Heunis
in this
matter.
The experts are in agreement that in her emotional, psychological
and psychiatric condition it is highly improbable that she
would be
able to return to work as a teacher. Dr Gardiner was of the opinion
that the Plaintiff’s prognosis in the long
term remained poor
and that her employability in the open market has certainly been
negatively affected. Dr Ambrosano, a psychiatrist,
was of the
opinion that the attack had a marked affect on her functionality and
personality and her entire demeanour and interaction
with others had
changed adversely. Hofmeyr was of the view that the Plaintiff
suffered significant loss of quality of life as
a result of the
attack and will remain an emotionally and psychologically vulnerable
person despite treatment. She was of the
opinion that the Plaintiff
should be compensated for significant past and future loss of
quality of life. She emphasised that
the impact of the attack on her
self-esteem, motivation, confidence, emotional well being, social
and occupational functioning
should not be underestimated.
Yodaiken in a subsequent report dated 30 March 2009, concluded that
the attack has had a far-reaching and chronic effect on her

personality and in her ability to function in life. According to
him, the degree of change that has taken place between the
evaluation in October 2007 and the one in March 2009 indicates that
it is unlikely the Plaintiff will easily return to her pre-morbid

level of functioning. Loebenstein, a clinical psychologist,
confirmed that the Plaintiff’s emotional functioning was

significantly impaired at the time of their consultation in November
2007, i.e. six years after the attack. The Plaintiff is a

professional person and has strived to achieve a professional
identity. She dedicated herself with passion to the teaching

profession. Her inability to return to teaching will deprive her of
an amenity for which she strived for in life.
By their very nature, general damages are not capable of being
accurately measured in monetary terms. However, the court has
a wide
discretion to make an award in respect of non-patrimonial damages.
In exercising such discretion a court must determine
a compensation
which is fair and just in the particular circumstances of the case.
Watermeyer, JA
in
Sandler v Wholesale Coal Suppliers Ltd
1941 (AD) 194 at 199 expressed the following dictum:
“
. . . it must be recognised that though
the law attempts to repair the wrong done to a sufferer who has
received personal injuries
in an accident by compensating him in
money, yet there are no scales by which pain and suffering can be
measured, and there is
no relationship between pain and money which
makes it possible to express the one in terms of the other with any
approach to certainty.
The amount to be awarded as compensation can
only be determined by the broadest general considerations and the
figure arrived at
must necessarily be uncertain, depending upon the
judge’s view of what is fair in all the circumstances of the
case.”
(See also
AA Mutual Insurance Association Ltd v Maqula
1978
(1) SA 805
(A) AT 809B.)
The court is not bound by one or more method of calculating general
damages, but has a wide discretion (see the headnote in
Southern
Versekering v Carstens N O
1987 (3) SA 577
(A)). While
comparative awards in other cases might be a useful guide, they are
not decisive. In
Protea Assurance Co Ltd v Lamb
1971 (1) SA
530
(A) at 535H-536A, the following dictum is instructive:
“
It should be emphasised, however, that this process of
comparison does not take the form of a meticulous examination of
awards made
in other cases in order to fix the amount of
compensation; nor should the process be allowed so to dominate the
enquiry as to become
a fetter upon the Court's general discretion in
such matters.”
It is settled law that damages can be recovered for psychological
sequelae
, provided that the plaintiff suffered a detectable
psychological injury (
Road Accident Fund v Sauls
2002 (2) SA
55
(SCA) at 61
I
-J).
The Plaintiff has claimed R400 000 in respect of general damages
whereas the Defendants are of the view that an award of R150
000
would be fair. Taking into consideration the nature, extent and
duration of the physical injuries, the emotional, psychological
and
psychiatric
sequelae
, the pain, suffering and loss of
amenities of life, I am of the view that an award of R350 000 would
be eminently fair and equitable.
The Award
In light of the findings, the total quantum of the award, before
apportionment, is as follows:
(i) agreed past medical expenses: R 36 276,69
(ii) future medical expenses : R 46 830,00
(iii) past loss of earnings : R414 500,00
(iv) future loss of earnings : R545 750,00
(v) General Damages : R350 000,00 R1 393 356,69
Less apportionment of 20% : R 278 671,00
Net Amount : R1 114 685,53
The Cost
The Plaintiff was substantially successful and there is no reason
why she should not be awarded her costs (
Griffiths v Mutual &
Federal Insurance Co Ltd
[1993] ZASCA 121
;
1994 (1) SA 535
(A) at 549)
.
In
this case there was apportionment of damages, in terms of section 1
of the Apportionment of Damages Act, No 54 of 1956, for
contributory
negligence. In the absence of a counterclaim, the Plaintiff who
recovered a substantial amount of damages is entitled
to all the
costs of the action irrespective of the reduction of such damages by
virtue of the apportionment
(
Norwich Union Fire Insurance
Society Ltd v Tutt
1960 (4) SA 851
(A) at 854)
.
The Order
In the premises the court grants judgment against the Second and
Third Defendants, jointly and severally, the one paying the
other to
be absolved for:
(i) Payment of the sum of R1 114 685,53 (one million one hundred and
fourteen thousand six hundred and eighty five rand and fifty
three
cents);
(ii) Interest on the aforesaid amount at the prescribed rate from
date of Summons to date of payment;
(iii) Defendants shall pay the Plaintiff’s costs of suit, which
costs shall include, but not be limited to:
(a) the costs upon the attendance of two counsel;
(b) the costs of the hearing of the special plea in 2007;
(c) the costs of obtaining a running transcript;
(d) the reasonable qualifying expenses and the costs of attendance at
court, if any, of the following expert witnesses (i) Ursula
Van Wyk;
(ii) John Gardiner; (iii) Dr Ambrosano; (iv) Martin Yodaiken; (v)
Liza Hofmeyr (vi) Alex Munro and (vii) Mogamat Arnold.