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[2020] ZALMPPHC 100
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M.L.M obo M.T v MEC for Education, Limpopo Province (1853/2015) [2020] ZALMPPHC 100 (10 December 2020)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
10/12/2020
CASE
NO: 1853/2015
In the matter
between:
M[….]
L[….] M[….]
PLAINTIFF
Obo M[….]
T[….]
and
MEC FOR EDUCATION , LIMPOPO
PROVINCE
DEFENDANT
JUDGMENT
MAKGOBA
JP
[1]
The
Plaintiff instituted an action against the Defendant in her capacity
as mother and natural guardian of one T[….] M[….],
a
learner at [….] in NKOWANKOWA, Limpopo Province, arising out
of an alleged assault of the learner by an educator/ teacher,
one Mr
J J Nkuna. It is alleged that the learner sustained a serious eye
injury for which the Defendant as the employer of the
said educator
is vicariously liable.
[2]
The
Plaintiff's claim against the Defendant is for general damages,
medical expenses and loss of earning capacity. The merits and
quantum
were separated in terms of Rule 33(4) of the Uniform Rules of Court
and the trial proceeded on the issue of liability only.
Factual Background
[3]
The
Plaintiff called six witnesses to prove her case, namely T[….]
M[....] (the learner), M[....] M[....] (T[....]'s sister),
T[....]
S[....] (T[....]'s fellow learner), A[....] M[....] (T[....]'s
uncle), Lettie Mpho M[....] (T[....]'s mother) and P[....]
R[....]
(T[....]'s father). The Defendant called two witnesses, namely Mr
Joel Jan Nkuna, a teacher at [….] and Mrs Kensani
Mboweni, the
school principal.
[4]
T[....]
is presently 23 years old. At the time of the incident leading to the
present case he was 17 years old and a Grade 7 learner
at [….].
He testified that on the 3 March 2014 he was assaulted by a teacher,
Mr Nkuna. That there was noise at the locality
where he sat in the
classroom. After Mr Nkuna had hit one Njabulo he turned to him. Mr
Nkuna hit him on his hand with a plastic
pipe and in the process he
missed the hand and struck him on his left eye. When he complained to
Mr Nkuna that the latter injured
his eye, Mr Nkuna promised to give
him money to buy chips during break. T[....] did not report the
incident to anybody at school
and even at his home he did not report
the incident to his parents.
[5]
After
two weeks T[....]'s uncle came to T[....]'s home and noticed that
T[....] had an injury on his eye. The uncle then alerted
T[....]’s
parents who then for the first time noticed that their son was
injured on his eye. The following day T[....]'s
father, mother and
uncle went to [….]. According to T[....] it was on the 17
March 2014 when his parents and uncle came
to the school to enquire
about his injury. Mr Nkuna denied the alleged assault. However, Mr
Nkuna took T[....] to Dr Mongwe for
consultation and thereafter Dr
Mongwe referred him to Letaba Hospital for an eye specialist.
[6]
At
Letaba Hospital he was transferred to Mankweng Hospital for an eye
operation. According to T[....] the operation did not materialize
since no one from the school was willing to accompany him to the
hospital. He was given an amount of R500-00 by one Ms Mabuza,
a
teacher at the school, to buy food and medication. That on two
occasions Mr Nkuna gave his sister R500-00 to take to his parents
but
he did not know the reason thereof. Ever since the report was made at
the school, he did not feel free at school because other
learners
were laughing at him and he had to drop out of school. He did not
consider being registered at another school although
there were
available alternative schools in the vicinity.
[7]
Both
M[....] M[....] and T[....] S[....] were in the same class with
T[....] in 2014 when the alleged assault on T[....] took place.
Both
testified that Mr Nkuna hit T[....] on his eye with a brown plastic
pipe. Although M[....] stayed in the same home with T[....],
she
never noticed any injury on T[....]'s eye until their parents were
alerted by uncle A[....] M[....]. M[....] testified further
that on
two occasions Mr Nkuna called her to his office and gave her an
envelope to give to her parents but she did not know of
the contents
thereof. At home her father received the envelopes and she noticed
that there was money amounting to R 500.00 but
she did not know the
reason for offering such money.
[8]
M[....] testified that in the classroom
she was seated in a separate row in front of T[....]'s seat. T[....]
S[....] testified that
he was seated in the third row in front of
T[....]'s row. It is not clear from the evidence of these two
learners how they observed
the assault on T[....] who was behind them
in the classroom. None of them gave any evidence to the effect that
she or he turned
around in order to observe the assault on T[....].
[9]
Mr A[....] M[....] testified that on the
17 March 2014 he visited his sister, Mpho M[....] and when he saw
T[....], he noticed that
his eye was injured. He learnt from T[....]
that T[....] was assaulted by a teacher, Mr Nkuna, at school some two
weeks ago. He
alerted T[....]'s parents who according to him were not
aware of T[....]'s injury on the eye and were surprised. The three of
them
went to the school where they found the principal, Ms Mboweni,
and another teacher, Ms Mabuza. Mr Nkuna was then called to join
them. During their deliberation Mr Nkuna denied having assaulted
T[....]. According to A[....] M[....], there arose heated arguments
and anger amongst them and in the process Mr Nkuna ultimately
admitted the assault.
[10] They then went
back home leaving T[....] behind at the school. On arrival from
school later that day,
T[....] informed them that he was taken to Dr
Mongwe and was given medication. The following day the 18th March
2014 they went
back to school. The principal and Ms Mabuza took them
together with T[....] to Dr Mongwe who then referred T[....] to the
hospital.
According to A[....] M[....], Mr Nkuna only admitted having
assaulted T[....] because there was a heated argument and tempers ran
very high at that stage. He said that he did not know of any apology
tendered by Mr Nkuna and further that he was not aware of
any money
offered or given to T[....]'s parents as a token of apology.
[11]
Mrs Lettie Mpho M[....], testified that
she was alerted by his brother, A[....], that T[....] was injured on
his left eye. She confronted
T[....] who told her that he had been
assaulted by the teacher at school. The three of them went to the
school and held talks with
Ms Mboweni(principal) Ms Mabuza and Mr
Nkuna. At some stage during their deliberations their tempers ran
very high and then Mr
Nkuna admitted the assault although he denied
previously. They returned home. The following day they went to Dr
Mongwe who examined
T[....] in their presence and thereafter referred
him to Letaba Hospital. She stated that Nkuna was not there at Dr
Mongwe's consulting
rooms as he was said to be on sick leave. When
T[....] was transferred from Letaba Hospital to Mankweng Hospital it
was Mr Nkuna
who took him there on two occasions.
[12]
Mrs M[....] testified further that on
two occasions she received R500-00 from her daughter, M[....] who
alleged that it was from
Mr Nkuna. However, according to her she did
not bother to ask her what the money was for. Furthermore, on a
certain day after they
attended a meeting at the Circuit Office,
Messrs Nkuna, Malungana, Ngobeni and Xihlangu came to her homestead
and Malungana gave
her husband (P[....] R[....]) an amount of R500-00
alleging that it is from Nkuna who was apologizing for having
assaulted T[....].
[13]
Mr P[....] R[....] confirmed the version
of A[....] and Mrs M[....] that they were not aware of Thulan'is
injury until they were
alerted by A[....]. He confirmed further that
at the school Mr Nkuna denied assaulting T[....] but that after
heated arguments
and with tempers running too high he admitted the
assault. He testified that after T[....] was transferred from Letaba
Hospital
to Mankweng Hospital he could not meet up with his
appointments in that they did not have money to take him to the
hospital and
no one from the school was willing to assist them.
[14]
He received R500-00 from the school
alleged to be from Ms Mabuza but he himself did not know the purpose
of the money and did not
even ask. He confirmed Mrs M[....]'s version
that there were meetings held with the School Governing Body (SGB)
and the Circuit
Office in an effort to ask for compensation but they
could not reach any agreement. However, an amount of R500-00 was
handed over
by Malungana who said it was from Mr Nkuna and that the
latter was tendering an apology for having assaulted T[....].
Evaluation: Plaintiff's evidence
[15]
T[....] was not an impressive, truthful
and honest witness. He was hesitant even in giving his evidence in
chief. His counsel struggled
in leading him and had some difficultly
in extracting the story of what had actually happened to him that led
to the injury on
his eye. Under cross-examination he hesitated in
answering questions and gave longwinded answers to the simple
questions put to
him. His evidence is full of self contradictions.
[16]
The version of T[....] is improbable. As
at the date of the alleged assault on 3 March 2014 he was 17 years
old and was old enough
to have his own independent thinking and
intelligence. However after the alleged assault he did not report the
incident to the
school principal, more so that he was seriously
injured to an extent of a loss of sight of his left eye. He went on
to attend school
normally and did not report the injury to his
parents until the latter were alerted by T[....]'s uncle after a
period of two weeks.
His parents as well as his sister, M[....] did
not notice any injury to his eye although they stayed together in the
same house.
M[....] attended the same class with T[....] but for the
whole two weeks they went to school together without noticing the
injury.
[17]
T[....] testified that after the assault
he consulted Dr Mongwe twice, on 17 March 2014 and 18 March 2014.
This aspect is contradicted
by the clinical records kept by Dr Mongwe
which show that he was consulted only on the 18 March 2014. Dr Mongwe
noted that the
patient (T[....]) was allegedly hit with a plastic
pipe on the left eye. However T[....] stated that he did not tell Dr
Mongwe
what caused the injury on his eye. It is also noted by Dr
Mongwe that there is a cataract on T[....]'s left eye.
[18]
During cross-examination an allegation
appearing in paragraph 6.4 of the Plaintiff's particulars of claim
was put to T[....] for
his comment or confirmation. The statement
reads thus:
"6.4. Mr Nkuna pleaded with our
client before Mr Ngobeni and Mr Malungana who is a member of the SGB
to forgive him for
assaulting the minor child for no apparent reason
and gave our client an amount of R500-00 to buy grocery."
T[....]'s
response was that he had no knowledge of that.
[19]
I find the evidence of both M[....] and
T[....] S[....] to be unsatisfactory and unreliable. Both of them
occupied front seats in
the classroom whilst T[....] occupied the
back seat and some rows away from them. They were not in a position
to explain how they
could have witnessed what actually happened to
T[....] during the alleged assault. M[....] is biased in favour of
T[....] as her
brother. It is strange why after witnessing the
serious assault on T[....] she did not report to her parents. Her
statement that
she received envelopes containing R500-00 from Mr
Nkuna on two occasions is vague and without substance. She is not an
independent
witness to be relied upon.
[20] The evidence of
A[....] M[....] to a large extent agrees with the versions of both
parents of T[....].
However their evidence does not take this case
any further in that they did not witness the alleged assault on
T[....]. Their attempt
to give a version that Mr Nkuna ultimately
admitted assaulting T[....] is hopeless and farfetched. Mr Nkuna
denied the assault
and was corroborated by the principal, Ms Mboweni.
I make a finding that the three witnesses, all being the relatives of
T[....]
were biased and were driven by a motive to get compensation
from the [….] authorities.
Defendant's
Version
[21] Mr Joel Jan
Nkuna testified that he is presently the principal of [….]. As
at 3 March
2014 he was still a deputy principal. As one of those in
school governance he is aware that corporal punishment at school is
prohibited.
He denied that he assaulted T[....] with a plastic pipe
or at all on the 3 March 2014. On the 3 March 2014 he was teaching
creative
arts when he realized that some learners including T[....]
did not do their homework. He requested them to bring their homework
the following day. T[....] then started screaming in class and he
requested him to leave. However T[....] did not leave but apologized
and kept quiet.
[22] On the 17
March 2014 when in his office there came three people and T[....].
Upon giving them
chairs to sit he realized that they looked sad. When
he enquired one of those people said how can we be happy when our
children
are injured on their eyes. A heated argument ensued and
A[....] M[....] lifted a chair in an effort to hit Mr Nkuna
therewith.
The principal, Ms Mboweni entered Mr Nkuna's office and he
left the principal there with T[....] and his parents and uncle. He
was later informed by Ms Mboweni that there were allegations that he
assaulted T[....] in the classroom. At no stage did he ever
admit the
alleged assault nor apologise to anyone for the alleged assault. He
denied that he gave out any money to any person as
a token of apology
or sign of admission of the alleged assault.
[23]
On the 18 March 2014 and at the request
of Ms Mboweni, the principal, he took T[....] to Dr Mongwe for
medical attention. At Dr
Mongwe's consulting rooms he did not enter
the consultation room alone but in the company of T[....] and
T[....]'s father. Dr Mongwe
referred T[....] to Letaba Hospital for
an eye specialist. At Letaba Hospital T[....]'s father helped his son
to open a file and
the two went together to the doctor for
consultation. He only joined them thereafter. He further assisted
T[....] and T[....]'s
father to be transported to Mankweng Hospital
for futher treatment. Mr Nkuna denied that he tendered apology and
paid the sum of
R500-00 to T[....]’s parents through one Mr
Malungana.
[24]
The evidence of Mr Nkuna is clear,
coherent and straight forward. He answered all questions put to him
perfectly and without any
hesitation. He is in my view an honest and
reliable witness whose credibility is beyond reproach.
[25]
Ms Mboweni, the principal, testified and
corroborated the version of Mr Nkuna in all material respects. She
denied that Mr Nkuna
admitted the alleged assault at any stage.
Furthermore she denied that there was any money paid to T[....]'s
family as a sign of
apology or admission of the assault by Mr Nkuna.
[26]
Ms Mboweni testified that as at 3 March
2014 she was still the principal of Bombeleni Primary School. She
never received any report
of assault on T[....] until the 17 March
2014 when T[....]'s parents and uncle came to the school. On the 17
March 2014 while in
her office she heard a noise from Mr Nkuna's
office and she went there. When she entered she found a male person
holding a chair
trying to hit Mr Nkuna therewith. Mr Nkuna left the
office and when she enquired what was going on she was told that
T[....] had
been assaulted by Mr Nkuna. She asked those people to
leave and that she would attend to the matter. The following day she
requested
Mr Nkuna to take T[....] to Dr Mongwe for medical
treatment.
[27]
Dr Mongwe referred T[....] to an eye
specialist because according to Dr Mongwe, T[....] had a cataract in
his left eye. Mr Nkuna
and Ms Mabuza assisted in taking T[....] to
Letaba Hospital for treatment by an eye specialist. Several meetings
with the SGB and
Circuit Office were held at the insistence of
T[....]'s parents but nothing peaceful was achieved because T[....]'s
parents were
angry and persistant that they needed to be compensated.
Compensation could not materialize because Mr Nkuna never admitted
assaulting
T[....]. She denied that Mr Nkuna paid an amount of
R500-00 through Mr Malungana to T[....]'s father as a token of
apology. Ms
Mboweni testified further that T[....] was withdrawn from
the school by his father, who also directed that his son should stop
undergoing further medical treatment at Mankweng Hospital.
[28]
The evidence of Ms Mboweni is also
clear, coherent and corroborates the evidence of Mr Nkuna in all
material respect. She is a reliable
and honest witness.
Medical
Evidence
[29]
Both parties tendered medical evidence
in the form of clinical records and hospital records. The clinical
records tendered by the
Plaintiff were submitted as evidence with
consent of the Defendant and same was admitted into evidence as
Exhibit "A".
These clinical records are those of Dr Mongwe
who treated the learner, T[....], on the 18 March 2014. Dr Mongwe
recorded the following:
"Allegedly hit with
a
plastic pipe on left eye on
03/03/2014
Painful
and tearing
'L'
eye for± 2 weeks
'L'
Eye
-
Cataract,
No
lacerations or bruises on the Eyeball."
[30]
The Defendant, with consent of the
Plaintiff submitted the hospital records of Letaba Hospital and
Mankweng Hospital. Same were
admitted into evidence as Exhibit "B".
The following recording is made in respect of the Letaba Hospital
records:
"Diagnosis :
-
Traumatic cataract
Glaucoma
Clinical history:
Patient
came to us on Monday 24-03-2014 c/o poor vision of the left eye after
he was hit by an elbow of another learner accidentally
while playing
and sustained left eye injury on the 3/03/2014"
The
Mankweng Hospital records are as follows:
Main complaint:
Poor
vision left eye hit by someone with an elbow accidentally.
White spot inside left eye."
[31]
The clinical records by Dr Mongwe and
the hospital records of both Letaba Hospital and Mankweng Hospital
are mutually destructive
with regard to the history leading to the
cause of the injury to T[....]'s left eye. Consequently, this Court
is unable to make
a finding as to whether the injury was caused by
the hitting with a plastic pipe or the accidental hitting with an
elbow. No evidence
was led during the trial as to who gave the
history of hitting with a plastic pipe to Dr Mongwe and who gave the
history of hitting
with an elbow to the hospital medical team.
Onus of Proof
[32]
In an action of this nature the test is
that the Plaintiff should prove on a balance of probabilities that he
was assaulted and
that the injury sustained on his eye was as a
result of the assault by Mr Nkuna. The Plaintiff had to establish
first, the conduct
of the Defendant (i.e Mr Nkuna) of which she or he
complained; second the wrongfulness of that conduct; third fault on
the part
of Mr Nkuna; fourth that she or he suffered harm and fifth,
a casual connection between such harm and the Defendant's conduct
that
is the subject of its complaint
[1]
.
[33]
In the present case the onus is
obviously not as heavy as it is in a criminal case, but nevertheless
where the onus rests on the
Plaintiff and where there are two
mutually destructive stories, she or he can only succeed if she or he
satisfies the Court on
a preponderance of probabilities that her or
his version is true and accurate and therefore acceptable. This, the
Plaintiff has
failed to do in this case.
[34]
The guidelines for evaluating the
evidence of witnesses was given in
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others
[2]
wherein it was held that "to
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility
of the various factual witnesses;
(b)their reliability; and (c) the probabilities"
In
National
Employers' General Insurance Co Ltd v Jagers
[3]
it was said:
"Where
there are two mutually destructive stories, the plaintiff can only
succeed if he satisfies the Court on
a
preponderance of probabilities that
his
version is true and accurate and
therefore acceptable, and that the other
version
advanced by the defendant is therefore false or mistaken and falls to
be rejected. In deciding whether
that evidence
is
true
or not the Court will weigh up and test the plaintiff's allegations
against the general probabilities
...
"
[35]
On considering these conflicting
versions of the Plaintiff and Defendant's witnesses in the present
case, I find that the version
of the Defendant is more probable than
that of the Plaintiff.
Order
[36]
The Plaintiff has
failed to discharge the onus of proof on a balance of probabilities
and accordingly the claim cannot succeed.
In
the result the Plaintiff's claim is dismissed with costs.
EM MAKGOBA
JUDGE PRESIDENT OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 23, 24
& 27 November 2020
Judgment
delivered on
: 10
December 2020
For
the Plaintiff
: Adv.
M.J Mojela
Instructed
by
: T
Mamitwa Attorneys
c/o Shiviri Manzini Masetla Inc
For
Defendant
: Adv.MB
Madavha
Instructed by
: State
Attorney
[1]
See MTO Forestry (Pty) Ltd v Swart N.O
2017 (5) SA 76
(SCA) at para
12
[2]
2003 (1) SA 11
(SCA) at 14J - 15D
[3]
1984 (4) SA 437
(E) at 440E-G