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[2012] ZASCA 63
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MEC for Education: Mpumalanga v Skhosana (523/11) [2012] ZASCA 63 (17 May 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 523/11
Not reportable
In the matter between:
MEMBER OF THE EXECUTIVE
COUNCIL
.........................................
APPELLANT
FOR EDUCATION: MPUMALANGA
and
ONICA SKHOSANA obo S
S
..................................................................
RESPONDENT
Neutral citation:
MEC for
Education: Mpumalanga v Skhosana
(523/11)
[2012] ZASCA 63
(17 May
2012)
Coram
: Nugent, Heher, Cachalia
JJA, McLaren and Petse AJJA
Heard: 3 May 2012
Delivered: 17 May 2012
Summary: Negligence – child
learner injured after device with protruding copper wires exploded in
his hands – whether
teacher ought to have foreseen harm.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Matojane J sitting as court of first instance):
The appeal is dismissed with costs of
two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (NUGENT JA AND McLAREN
AJA CONCURRING):
[1] This is an appeal from the North
Gauteng High Court (Matojane J) holding the Mpumalanga Provincial
Government vicariously liable
for the injuries sustained by a
twelve-year old Grade 5 school-learner, S S, on 15 August 2007. The
incident happened when a device
that S was playing with exploded
causing injuries to his forearms, stomach and legs. His mother, Ms
Onica Skhosana, acting in her
own right and on behalf of her son,
sued the Provincial Government, nominally represented by the MEC, for
her damages. Her case
was that S’s teacher could have prevented
the incident, but had wrongfully and negligently failed to do so.
[2] At the commencement of the trial
the learned judge separated the issues of liability and the quantum
of damages. The trial then
proceeded only on the matter of liability
while the question of damages stood over for later determination. At
the end of the plaintiff’s
case the defendant closed its case
without leading any evidence. The court upheld the claim and refused
the MEC leave to appeal
against its order. This court, however,
granted the necessary leave.
[3] The essential facts in this case
are not in dispute. They appear from the testimony of S and his
mother. His was the only evidence
regarding the circumstances in
which he was injured. He testified that before leaving for school on
the morning of the incident,
he asked his mother to give him a
battery for a ship-building school project. She gave one to him; it
was a small torch-battery.
She considered his request to be neither
dangerous nor unusual as learners were frequently requested to bring
appliances to school
for their projects.
[4] S arrived at his school –
the Tjhidelane Primary School in Mpumalanga. During a technology
lesson that morning, one of
his class-mates, M, was playing with a
device. Their teacher, Ms Pendile Mashiane, confiscated it and asked
M to accompany her
to the staff room, which she did. After a while, M
returned to the classroom alone, and took her seat for the remaining
lessons.
[5] The school-day ended at 13h30 in
the ordinary course. S and M made their way to the school exit, where
they were to wait for
their transportation. She had in her possession
a device described by S as a ‘battery-like device with two
wires’,
which she gave to him. She told him to connect the
device to the battery that he had for his ship-building project. But
he did
not do so immediately.
[6] At about 14h00 M’s mother
arrived in her car to collect her. They left, leaving S alone outside
the school-gate, where
he waited for his transportation. He had M’s
device and his battery with him. He connected the wires protruding
from M’s
device to his battery. This caused the device to
explode, which injured the boy.
[7] The evidence is perfunctory on
whether the device that exploded was of the same kind as the device
that had been confiscated
earlier. But in cross-examination it was
put to S that a teacher would testify that the confiscated device was
‘a bunch of
wires with at the end some copper things protruding
from this bunch of wires’. Although the teacher was not called
to testify,
what was put to S can be accepted as the defendant’s
version and is binding on the MEC.
1
[8] From a comparison of the
confiscated device, and the device that exploded later, it is
probable that they were of the same
kind. I did not understand Mr
Nonyane, who appeared for the MEC, to put this in issue. And being of
the same kind it follows that
both would explode if an electrical
current was passed through them. This too was common cause.
[9] Before us the only issue in
dispute was whether the teacher who found the apparatus in the
child’s possession was negligent
in failing to ensure that she
did not come into possession of another. And it was accepted,
correctly, that if negligence was established,
the teacher’s
conduct was also wrongful.
[10] To determine negligence the
courts employ the classic three-part test as formulated in
Kruger
v Coetzee
:
would a reasonable person, in the
same circumstances as the defendant, have foreseen the possibility
of harm to the plaintiff;
would a reasonable person have taken
steps to guard against that possibility;
did the defendant fail to take steps
which he or she should have taken to guard against it?
2
If each part is confirmed, then the
defendant is said to have failed to measure up to the standard of a
reasonable person, and is
consequently negligent.
3
[11] Mr Nonyane submitted that the
device that the teacher confiscated from M appeared innocuous, and
she could therefore not reasonably
have foreseen its potential
danger. Put another way, the object would not have alerted a
reasonable person to the fact that it
was explosive. On the other
hand Mr Ströh, who appeared for Ms Skhosana, contended that
a reasonable person in the teacher’s
position would have
recognised that if an electrical current was passed through an
unfamiliar battery-like object with wires attached
to it, harm could
possibly be caused.
[12] An electrical device is
inherently capable of being harmful, albeit not necessarily by
explosion. In my view, a reasonable
teacher who discovers such a
device – particularly one that is unusual – would be
placed on enquiry to establish whether
or not it is harmful by taking
steps to discover what the device is. Needless to say, once having
discovered it is, a reasonable
teacher would take further steps to
ensure that harm does not occur.
[13] I think it is clear that no such
enquiry was made – indeed it was the MEC’s case that no
enquiry was called for
– and in my view that omission was
negligent. Had enquiry been made it would have been discovered that
the confiscated device
was an explosive. And having made this
discovery, which I would think would have caused considerable alarm,
a reasonable teacher
would not merely have confiscated what had been
found, but would also have taken further precautionary measures to
establish the
source of the device so as to ensure that no other such
devices came into possession of the child – or indeed of any
other
child. That was correctly not placed in issue, nor was it
placed in issue that had that been done M would probably not have
been
in possession of the explosive, and the explosion would not have
occurred.
[14] It follows that the teacher was
indeed negligent in failing to establish what the device was, and her
negligence caused the
harm. In those circumstances the appeal must be
dismissed. The following order is made:
The appeal is dismissed with costs of
two counsel.
_________________
A CACHALIA
JUDGE OF APPEAL
HEHER JA (PETSE AJA CONCURRING):
[15] While I have an understanding for
the position of the child plaintiff in this case, sympathy cannot
supplement a lack of evidence.
[16] The evidence, read together with
the cross-examination by the defendant’s counsel, suggests that
a teacher, who may have
been either Ms Aphane or Ms Mashiane
initially confiscated what later proved to be an explosive device
because it was proving a
distraction during lessons. She apparently
took both the child M – who seems to have brought it to school
– and the
device to the staff room.
[17] The circumstances of its return
to M were completely unexplained. There is, for example, no evidence
(nor any justifying an
inference) that the same teacher was
responsible for both confiscation and return.
[18] Assuming in favour of the
plaintiff that the same person was involved, then the test for
negligence on her part requires
consideration of how a reasonable
teacher in the same circumstances would have behaved. The application
of that test presupposes
that the court is adequately apprised of the
circumstances.
[19] On all relevant aspects of the
matter I consider that the plaintiff’s evidence was inadequate.
I say this fully conscious
of the fact that some aspects might have
required the teacher to be called as a witness.
[20] The plaintiff’s case is
silent on the age, training, skills, experience and worldly knowledge
of the teacher concerned.
This might not matter as much in a more
sophisticated context but here one does not even know whether the
school environment was
urban or rural.
[21] Was the device such as reasonably
to convey to this teacher that it presented a possibility of harm to
a child? In this regard
the size, shape, get-up and construction of
the object in question are relevant. Could it be opened? Were there
any outward indications
of potential hazard? All that the evidence
tells us is a proposition put by counsel (apparently derived from Ms
Aphane) that when
she told M to hand the device over it looked like
‘a bunch of wires with some copper things protruding from the
bunch’
and she took it and put it in her pocket (which suggests
a limited size). This description of itself was not sufficient to
suggest
a potential danger to a person uninformed as to the nature of
explosives and how they might be detonated, for example, as the
evidence
suggests, by connecting the object to an ordinary small
torch battery. (It is not suggested that the object was dangerous in
its
physical characteristics, such as having sharp edges.) One does
not know whether the school was located in a mining area where the
fact of explosives and their general use are matters of common
experience. Nor was there evidence that the device in its general
appearance resembled a detonator or something of that nature.
[22] Assuming that the object was
sufficient to induce a suspicion of danger, there was no evidence of
opportunity for enquiry and
advice in the school environment in
question. In such circumstances, unless there were real grounds to
fear resultant harm, there
would have been no reason not to return
the object with an appropriate warning.
[23] The plaintiff’s case left
the court with unanswered questions on all these material aspects. I
do not consider that the
onus was discharged. Absolution from the
instance would have been the appropriate order.
_________________
J
A HEHER
JUDGE
OF APPEAL
APPEARANCES
For Appellant: P Nonyane
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein
For Respondent: J H Ströh SC
(with him J A du Plessis)
Instructed by:
O Joubert Attorneys, Pretoria
Bezuidenhouts Inc, Bloemfontein
1
Nkuta v Santam Assuransie
Maatskappy Bpk
1975 (4) SA
848
(A) at 853G-H.
2
Kruger v Coetzee
1966
(2) SA 428
(A) at 430.
3
J
Burchell
Principles of Delict
(1
ed) 1993 p 86.