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[2007] ZASCA 155
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MEC for Education, Western Cape Province v Strauss (640/06) [2007] ZASCA 155; [2007] SCA 155 (RSA); [2008] 1 All SA 440 (SCA); 2008 (2) SA 366 (SCA) (28 November 2007)
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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 640/06
In the matter between:
THE MEC FOR EDUCATION,
WESTERN CAPE PROVINCE
.......................
Appellant
and
EDITH STRAUSS
.......................
Respondent
CORAM
:
SCOTT,
MTHIYANE, CLOETE, HEHER JJA and MALAN AJA
HEARD
:
12
NOVEMBER 2007
DELIVERED
:
28
NOVEMBER 2007
Summary:
South
African Schools Act 84 of 1996
–
s 60
- Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (COIDA) – s
35 – educator doing part-time discus
training injured –
whether s 35(1) of COIDA applicable
Neutral citation:
MEC
for Education v Strauss
[2007] SCA 155 (RSA)
________________________________________________________________
JUDGMENT
________________________________________________________________
MALAN AJA:
[1] This is an appeal
with leave of the court a quo against the judgment of Van Zyl J
sitting in the Cape High Court in which he dismissed
with costs the
defendant’s special plea and ordered the defendant to pay the
costs of a Rule 33(4) application and the costs
of the postponement
of the hearing on 30 May 2006.
[2] The appellant, the
defendant in the court a quo, is the Member of the Executive Council
for Education in the Western Cape. The
respondent, the plaintiff in
the court a quo, was an educator
1
employed at the Paarl Girls’ High School. The plaintiff
instituted proceedings against the defendant, the governing body of
the school and two medical doctors claiming damages arising from an
incident that occurred on 12 February 2001 while she was engaged
in
training learners at the school to throw the discus. She was struck
on the forehead just above the left eye by a discus thrown
by a
learner participating in the training session and sustained serious
injuries as a result. Her claim against the governing body
and the
two medical doctors was subsequently withdrawn and she proceeded
against the defendant only.
[3] The plaintiff was
employed by the governing body of the school, a public school,
2
pursuant to a written contract effective from 1 January 2001 in
accordance with the provisions of s 20(4) of the Act (and not by
the
Head of Department in terms of the
Employment of Educators Act 76 of
1998
). In terms of her contract of employment the plaintiff accepted
the professional authority of the principal. It is alleged that the
plaintiff was obliged to ‘carry out lawful requests and/or
instructions of the school principal and/or the governing body
relating,
inter alia, to educational activities, including sports
training or coaching at the school’. She was obliged to provide
assistance
in respect of extra curricular activities as instructed by
the principal without any additional compensation. Clause 4.3 of her
contract
provides:
‘
Die
werknemer sal bystand verleen ten opsigte van buite-kurrikulêre
aktiwiteite soos deur die Hoof aan hom/haar opgedra sonder
enige
addisionele vergoeding.’
[4] The incident is
alleged to have occurred while the plaintiff was an educator at the
school and
‘
acting
upon the lawful instructions of the school principal conveyed to the
plaintiff by the sports’ head, to train or coach
learners in
discus throwing, for which the plaintiff would be remunerated by the
governing body as an independent trainer.’
(Paragraph 9 of the
particulars of claim).
In this paragraph a
contract of employment other than the contract annexed to the
particulars of claim is referred to.
[5] The plaintiff’s
claim against the defendant is founded on the latter’s own
alleged negligence and also, by virtue
of s 60 of the Act, on the
negligence of the principal of the school or its governing body. As
to the defendant’s own negligence,
it was alleged, for example,
that the defendant failed to provide safety nets around the discuss
circle (paragraph 10.4) and also
that he failed to ensure that nets
were provided by the principal, the governing body or the school
(paragraph 10.5). As to the plaintiff’s
reliance on s 60, it
was alleged that the ‘school principal, governing body and/or
Head of Department’ failed to ensure
that educators and sports
trainers or coaches were able to carry out their functions in an
environment where the risk of injury was
eliminated (paragraph 10.6)
or that they failed to take reasonable steps such as the provision of
safety nets to prevent injury to
the plaintiff (paragraph 10.7).
[6] Section 60 of the Act
provides:
‘
(1)
The State is liable for any damage or loss caused as a result of any
act or omission in connection with any educational activity
conducted
by a public school and for which such public school would have been
liable but for the provisions of this section.
(2) The provisions of the State Liability
Act, 1957 (Act 20 of 1957), apply to any claim under subsection (1).
(3) Any claim for damage or loss
contemplated in subsection (1) must be instituted against the Member
of the Executive Council concerned.’
[7] The plaintiff pleaded
that in terms of s 60(1) the State is liable for any damage or loss
caused as a result of any act or omission
in connection with any
educational activity conducted by a public school and for which such
public school would have been liable
but for the provisions of the
said section and added that any action had to be instituted against
the defendant.
[8] In the course of his
judgment Van Zyl J said that ‘any liability ascribed to the
defendant, in his official capacity as
the member of the executive
council who was responsible for education in the Western Cape, would
not arise from any negligence on
his part. It could arise only from
the provisions of section 60(1) … on which the plaintiff has
in any event placed reliance’.
I do not agree. Section 60,
although wide in scope, has a limited purpose: it exempts the school
or its governing body from liability
for damage or loss caused ‘as
a result of an act or omission in connection with any educational
activity’ and transfers
liability to the State. Public
education is the responsibility of the State. Hence the legislature
intended the State to be liable
for damage or loss caused by an act
or omission resulting from an educational activity for which the
school would otherwise have
been liable. The section, however, does
not preclude claims a person may have against the State based on
other grounds such as in
this case where reliance is also placed on
the defendant’s own negligence and he is cited as a wrongdoer.
The section simply
does not deal with such other claims. (I express
no view on the merits or otherwise of this claim.)
[9] The activity the
plaintiff was allegedly engaged in clearly falls within the
description of ‘educational activity’
used in s 60(1).
Van Zyl J correctly came to this conclusion: the plaintiff was acting
as alleged on the lawful instructions of the
school officials. The
liability transferred must furthermore result from ‘an act or
omission in connection with any educational
activity’. The acts
or omissions alleged by the plaintiff in paragraph 10 of her
particulars of claim and attributed to the
principal, the governing
body or the principal are all acts or omissions ‘in connection
with any educational activity’,
liability for which would be
transferred to the State had the school been liable. By pleading s 60
of the Act the plaintiff intended
to hold the State liable not only
as a wrongdoer but also by virtue of the liability thus transferred.
[10] The defendant filed
a special plea contending that s 60 did not avail the plaintiff. Two
grounds were relied on. The first was
that the plaintiff was
appointed in terms of s 20(4)
3
of the Act which provides that a public school may, subject to the
Act, the
Labour Relations Act 66 of 1995
and any other applicable
law, establish posts for educators and employ educators additional to
the establishment determined by the
Member of the Executive Council
in terms of
s 3(1)
of the
Employment of Educators Act 76 of 1998
. In
terms of
s 20(10)
s 60
is not applicable where the act or omission
complained of relates to the contractual responsibility of the school
as an employer
towards its staff.
4
The plaintiff’s claim lies in delict and the defendant
correctly did not persist with this contention. The second ground
relied
upon is
s 35(1)
of the Compensation for Occupational Injuries
and Diseases Act 130 of 1993 (COIDA) which precludes an action by an
employee for the
recovery of damages against his or her employer, as
a consequence of which the defendant is not liable for any damage for
which the
governing body would not have been liable. Although the
special plea is somewhat inelegantly worded, s 35(1) was relied upon
in argument
both in this and the court a quo as an independent ground
apart from the provisions of s 20 (4) of the Act.
[11] COIDA came into
operation on 1 March 1994 providing for a system of no-fault
compensation for employees who are injured in accidents
that arise
out of and in the course of their employment or who contract
occupational diseases. A compensation fund is established
5
to which employers are required to contribute
6
and from which compensation and other benefits are paid to
employees.
7
Employees meeting the requirements of the Act are entitled to the
benefits provided for and prescribed by COIDA.
8
COIDA
‘
supplants
the essentially individualistic common-law position, typically
represented by civil claims of a plaintiff employee against
a
negligent defendant employer, by a system which is intended to and
does enable employees to obtain limited compensation from a
fund to
which the employers are obliged to contribute.’
9
[12] At common law
10
an employee has to show that his or her employer acted negligently
thereby risking a finding that he or she was contributorily
negligent.
The employee claiming common-law damages from the employer
would also bear the risk of the employer’s insolvency or his
inability
to meet a judgment debt. While the employee ran the risk of
an adverse cost order if he or she was unsuccessful, a common-law
action
might lead to his or her recovering substantially more by way
of damages than under the compensation provided by COIDA. Section 35
abolished an employee’s common-law right to claim damages.
Section 35 COIDA is headed ‘Substitution of compensation for
other legal remedies’ and provides as follows:
‘
(1)
No action shall lie by an employee or any dependant of an employee
for the recovery of damages in respect of any occupational
injury or
disease resulting in the disablement or death of such employee
against such employee's employer, and no liability for compensation
on the part of such employer shall arise save under the provisions of
this Act in respect of such disablement or death.’
[13] Prior to the date of
the trial the defendant filed an application in terms of Rule 33(4)
for an order that the special plea raised
questions of law which
might conveniently be decided before any evidence was led and
separately from any other issue, and directing
that all further
proceedings be stayed until such questions had been resolved. Van Zyl
J granted the application holding that the
special plea should be
decided separately and that no evidence was required for this
purpose. I agree with this ruling. He, however,
ordered the defendant
to pay the costs of the application and of the postponement of the
trial on 30 May 2006 and dismissed the special
plea with costs. He
expressed the view that any liability of the defendant could only
have arisen from the provisions of s 60(1)
of the Act and said that
COIDA
‘
is
certainly relevant in that the plaintiff was, at the relevant time,
an employee who personally suffered an occupational injury,
with
resultant disablement, in an accident arising out of and in the
course of her employment. She would hence, under normal circumstances
and provided she complies with any requirements for a valid claim,
qualify for compensation from the Compensation Fund in terms of
such
Act. This does not mean, however, that the liability of the State in
terms of section 60(1) of the Act is excluded, or even
restricted, by
such claim.’
He said of s 60:
‘
It
is abundantly clear that the section was intended to have a
particularly wide and far-reaching ambit. The State unconditionally
accepts liability for “any damage or loss” resulting from
“any act or omission” relating to “any educational
activity” conducted by the public school and respect of which
that school would be liable if it were not for the provisions
of this
section. This constitutes general liability, with the State stepping
into the shoes of the school and taking over its responsibility
towards any party who or which might have suffered loss or damage as
a result of such act or omission.’
And added:
‘
Indeed,
the only reference to another statute in section 60 occurs in section
60(2), which stipulates that the provisions of the
State Liability
Act 20 of 1957
apply to any claim against the State in terms of
section 60(1).
This leads to the almost irresistible inference that
no reference to any other statute or law was intended. If the
legislature had
intended
section 60(1)
to be subject to the
provisions of
section 35(1)
of COIDA … it would undoubtedly
have said so.’
[14] The plaintiff
alleged in her particulars of claim that she was obliged to carry out
lawful instructions of the principal or governing
body relating to
educational activities, including sports training or coaching at the
school. She alleged further, in paragraph 9
of her particulars of
claim (quoted in paragraph 4 above) that the incident occurred when
the plaintiff was engaged in the training
or coaching of learners in
throwing the discus for which she was to be remunerated as an
independent trainer. It follows that the
incident fell within the
definition of an ‘accident’ as defined in COIDA.
11
This is so whether the incident occurred within the course and scope
of the plaintiff’s employment in terms of her written
contract
of employment pursuant to s 20(4) of the Act
12
or within the course and scope of her employment as an independent
trainer as alleged in paragraph 9 of the particulars of claim.
In
both cases she was an ‘employee’ and the governing body,
acting on behalf of the school, her ‘employer’.
In this
regard Van Zyl J correctly observed that it mattered not whether the
plaintiff’s agreement to render services as an
independent or
outside trainer could be classified as an amendment to her contract
of employment or as an additional agreement: in
rendering coaching
services she was on her own pleaded version acting on instructions of
the principal conveyed to her by the head
of sport at the school and
thus acting within the course and scope of her employment.
[15] It is correct, as
Van Zyl J observed, that s 60(1) has a particularly wide and
far-reaching ambit. He, however, added that if
it had been the
intention of the legislature to exclude the provisions of s 35 COIDA
from its scope the legislature would have expressly
so provided. This
observation was made in the context of the question whether the
reference to ‘any other applicable law’
in s 20(4) of the
Act includes a reference to COIDA. The argument, however, loses sight
of the express words of s 60(1) which renders
the State liable only
in circumstances where the school would have been liable - 'and for
which such public school would have been
liable'. If a school as
employer would not have been liable to an employee by virtue of the
provisions of s 35 COIDA neither would
the State be in terms of s 60.
This conclusion can be reached without reference to s 20(4) of the
Act and the question whether COIDA
is included in the words ‘any
other applicable law’. COIDA provides for compensation for
employees and s 35(1) expressly
excludes liability on the part of the
employer for damages in respect of any occupational injury or disease
resulting in disablement
or death. Since the school is not liable to
the plaintiff liability cannot be attributed to the State in terms of
s 60(1).
13
It follows that the special plea to the plaintiff’s particulars
of claim should be upheld in so far as she relies on s 60 of
the Act.
Nothing in s 36 of COIDA militates against this conclusion. Indeed, s
36 allows both a claim for damages against a third
party, ie a party
other than the employer, as a wrongdoer and also a claim for
compensation in terms of COIDA.
[16] In his judgment in
the court a quo Van Zyl J awarded the costs of the Rule 33(4)
application to the plaintiff remarking that
the application was
unnecessary ‘in that the issue of evidence was irrelevant for
purposes of considering the special plea’.
He added: ‘In
fact such application bordered on an abuse of the procedure of this
court and might even have justified a punitive
order as to costs had
Ms Williams generously not insisted on such order.’ I do not
agree. The parties were in agreement that
the special plea should be
dealt with separately but could not agree whether evidence was
required in respect of the issues raised
in it. Van Zyl J was
satisfied that the special plea could be decided separately and that
no evidence was required for that purpose.
In other words, on this
issue, he found in favour of the defendant but nevertheless gave an
adverse costs order against him. It is
not apparent from his judgment
why he described the application as one that bordered on an abuse of
procedure. The only basis advanced
in this court is the statement by
the plaintiff’s attorney that she ‘had omitted to include
in the minute [of the pretrial
conference of 12 May 2005] …
that the parties agree to disagree on the issue of oral evidence and
that the court be asked
for a ruling at the commencement of the
hearing on whether the special plea should be disposed of by way of
argument or after the
adduction of evidence.’ Whether such an
agreement was reached is in dispute but there is no suggestion that
the approach to
the court to determine the issue would have had to
take any particular form. In the circumstances it was prudent of the
defendant,
given the on-going dispute whether evidence was required
to adjudicate the special plea, to approach the court formally by way
of
notice of motion. The founding affidavit properly summarises the
pleadings and respective contentions of the parties. It shows that
the defendant requested the consent of the plaintiff for the disposal
of the legal questions as early as 5 May 2006 failing which
an
application would be made. The plaintiff’s attorney agreed to
the separation in a letter of 10 May 2006 but voiced her disagreement
whether the matter could be disposed of without evidence. As I have
said, there is a dispute of fact on what was agreed upon at the
pretrial conference. However, the plaintiff’s case is not that
it was agreed that an informal application without the need
for a
notice of motion and affidavit would be sufficient: the alleged
omission in the minutes of the pretrial conference merely refers
to
the fact that the court would be ‘asked’ at the
commencement of the hearing. How the court was to be ‘asked’
was, even on the version of the plaintiff’s attorney, not
agreed. The learned judge a quo was satisfied after ‘reading
the papers and hearing initial argument’ that the matter could
be disposed of without oral evidence. The defendant cannot be
faulted
for having elected to bring a formal application for a separation.
The relief prayed for in the application was granted.
Costs of the
application should therefore have followed the result and as the
court a quo misdirected itself this court is at large
to substitute
such an order on appeal.
[17] A replying affidavit
was clearly necessary and there can be no argument that the
comprehensive answering affidavit which was
filed on the afternoon
before the trial was late, and entitled the defendant to the costs of
the postponement on 30 May 2006.
The following order is
made:
The appeal is upheld
with costs including the costs of two counsel;
Paragraphs 1 and 2 of
the order of the court a quo are set aside and replaced with the
following:
‘
(a)
The special plea is upheld with costs including the costs of two
counsel and the plaintiff’s claim based on
s 60
of the
South
African Schools Act 84 of 1996
is dismissed;
(b) The plaintiff is
ordered to pay the costs of the
Rule 33(4)
application and of the
postponement on 30 May 2006, including the costs of two counsel.’
_________
Malan AJA
Acting Judge of Appeal
Concur:
Scott JA
Mthiyane JA
Cloete JA
Heher JA
1
An
‘educator’ is defined in s 1 of the South African
Schools Act 84 of 1996 (the ‘Act’) as meaning ‘
any
person, excluding a person who is appointed to exclusively perform
extracurricular duties, who teaches, educates or trains other
persons or who provides professional educational services, including
professional therapy and education psychological services,
at a
school’.
2
Section
1 of the Act. Every public school is ‘a juristic person, with
legal capacity to perform its functions in terms of
this Act’
(s 15). Governance of a public school is vested in its governing
body which ‘may perform only such functions
and obligations
and exercise only such rights as prescribed by the Act’(s
16(1)). The professional management of the school
is in the hands of
the principal, ex officio a member of the governing body (s 23(1)),
who carries on his duties under the authority
of the Head of
Department (s 16(3)). The functions of governing bodies are set out
in s 20.
3
Section
20(4): ‘
(4) Subject to this Act,
the Labour Relations Act, 1995 (Act 66 of 1995), and
any
other applicable law
, a public school may
establish posts for educators and employ educators additional to the
establishment determined by the Member
of the Executive Council in
terms of section 3 (1) of the Educators' Employment Act, 1994.’
4
Section
20(10) reads: ‘Despite section 60, the State is not liable for
any act or omission by the public school relating to
its contractual
responsibility as the employer in respect of staff employed in terms
of subsections (4) and (5).’ See
LUR
vir Onderwys en Kultuur, Vrystaat v Louw en n Ander
2006
(1) SA 192
(SCA) para 7.
5
Section
15.
6
Section
87.
7
Section
16.
8
Section
22.
9
Jooste
v Score Supermarket Trading (Pty) Ltd
1999
(2) SA 1
(CC) para 15.
10
Jooste
v Score Supermarket Trading (Pty) Ltd
above
para 13.
11
Section
1 defines it as ‘an accident arising out of and in the course
of an employee's employment and resulting in a personal
injury,
illness or the death of the employee.’
12
Section
1 COIDA contains the relevant definitions: 'employee' means ‘a
person who has entered into or works under a contract
of service or
of apprenticeship or learnership, with an employer, whether the
contract is express or implied, oral or in writing,
and whether the
remuneration is calculated by time or by work done, or is in cash or
in kind, and includes - (a) a casual employee
employed for the
purpose of the employer's business …’. The plaintiff
was remunerated as an independent trainer (cf
ER24
Holdings v Smith NO and Another
2007 (6) SA
147
(SCA) para 10). An 'employer' ‘means any person, including
the State, who employs an employee …’. The plaintiff
is
an ‘educator’ (see s 1(1) of the Act and
s 1
of the
Employment of Educators Act 76 of 1998
) and the ‘public
school’ is her employer in terms of the
s 3(4)
of the latter
Act.
13
Cf
Road Accident Fund v Monjane
[2007]
SCA 57 (RSA) para 12.