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[2013] ZAKZDHC 32
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Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013)
15860/08-LN/CD
13
JUDGMENT
CASE NO
15860/08
DATE
17 MAY 2013
In the matter between
SIMPHIWE SHANGE
......................................................................................
PLAINTIFF
and
MEC FOR EDUCATION, KWAZULU-NATAL
.............................................
DEFENDANT
JUDGMENT
PILLAY J
Did Mr Biyela the Deputy Principal of Gcwaluwazi High
School in Eshowe strike the plaintiff accidentally with his belt,
which he
used to beat another learner? If he did, what amount should
the Court award in damages to the plaintiff? These are the two
questions
the Court has to decide in this action for damages against
the MEC for Education, Kwazulu-Natal.
The evidence for the plaintiff was that in June 2003 he was in Grade
9. A temporary teacher Ms Ngema was invigilating a test. She
instructed the class to take their bags to the front of the classroom
to prevent cheating. One learner had left his bag on the
window. Mr
Biyela entered the classroom and beat that learner, who was
Nhlakhanipo Ntuli.
Another learner, Spamandla Nzuza also known as Jomo who sat behind
the plaintiff, started laughing. Mr Biyela turned to beat him.
Mr
Biyela swung his belt over his shoulder several times. On one
occasion it struck the plaintiff in his right eye.
Clutching his eye the plaintiff stood up crying out in pain. Other
learners drew Mr Biyela’s attention to the plaintiff.
Mr Biyela
told the plaintiff to accompany him to his office. There he
administered Vaseline to the plaintiff’s injured eye.
He also
wrote an apology and explanation in the plaintiff’s homework
book, which was the means used to communicate with learners’
parents.
The plaintiff returned to the class shortly before the period ended.
He did not write the test. The plaintiff experienced pain
for about
two weeks. He did not report it to his grandmother with whom he lived
because she was already distressed by a recent
death in the family.
He mentioned it to his aunt who has since passed away.
He also expected Mr Biyela to enquire from him how he was recovering.
If Mr Biyela had done so, the plaintiff would have taken
up Mr
Biyela’s earlier offer to be attended to by a doctor. Mr Biyela
did not follow up on the injury he inflicted on the
plaintiff. That
year the plaintiff passed Grade 9.
The following year he enrolled for subjects in which he was not
interested simply to be with his friends. Within a week he realised
he had made a mistake. He switched to subjects in which he was more
competent. But he failed Grade 10. His mother, who had left
Eshowe at
the beginning of 2003 to seek employment in Cape Town, questioned his
performance. His grandmother reported that he slept
a lot and did not
eat well.
About this time the plaintiff went to Swaziland to attend to his
uncle’s graduation. He had planned to video the proceedings.
When he tried to see through the lens of the video camera using his
right eye, he found that he could not see at all. Until that
moment
he did not realise that the vision in his right eye was severely
impaired.
His mother instructed the plaintiff to see a doctor in Eshowe. The
general practitioner at the local hospital reported to the plaintiff
that he had a serious problem, but not one that the hospital could
treat. Unhappy that the plaintiff was unable to get proper treatment
in KwaZulu-Natal and concerned about his vision, the plaintiff’s
mother brought him to her in Cape Town.
There he was referred to an ophthalmic surgeon, Dr R Scholtz, who
found that the plaintiff’s right pupil was sluggish and
that he
had suffered chronic inferior retinol detachment. On 18 July 2005 the
plaintiff started treatment with a right retinol
detachment repair. A
second surgery was performed to remove the retinol fibrosis. The
third surgery was needed to remove the oil
and residual fibrosis.
Over two years between 2005 and 2007 the plaintiff had 14 visits with
Dr Scholtz for treatment and to monitor his progress. On
his last
examination on 13 February 2013, Dr Scholtz noted that the plaintiff
complained of no pain or discomfort to areas to the
right eye. On
examination he found that the retina was stable.
Dr Scholtz’s prognosis was that the plaintiff could experience
sudden further deterioration, which might indicate a re-detachment
of
his retina. This would incur further surgery and cost, which would
escalate at a rate of seven percent per annum since
his last
report on 31 January 2006. Dr Scholtz testified that the plaintiff’s
injury was consistent with being struck by
a belt; he conceded that
it could have been caused in some other way.
Ms Liane Durra, a clinical psychologist took over from
Ms Mellisa Melnick who became unavailable to testify. Ms
Durra
confirmed the diagnosis of Ms Melnick that the plaintiff
suffered from chronic depression and anxieties attributable to his
visual
impairment and its consequences for his future career
prospects. He was anxious that he had not completed his secondary and
tertiary
education.
Dr Hannes Swart an industrial psychologist prepared three reports on
the plaintiff, the last being on 3 April 2013. Because of
the
interruption to his secondary education the plaintiff’s income
had been curtailed by four years. Initially
Dr Swart was unable to prognose whether the plaintiff would complete
school or require tertiary education. However, in his last
report he
compared the examination results of two of the plaintiff’s
peers with each other and against the class average.
This led him to
conclude that the plaintiff would have completed Grade 12 and
would probably have acquired some tertiary education,
although not
necessarily a degree or a diploma. The plaintiff’s peers had
completed Grade 12 and were employed one at the
KFC and the other was
a paramedic, a career which required some tertiary education.
Dr Swart and Ms Durra suggested that the plaintiff might have passed
in 2003 in the year in which he sustained the injury because
he had
acquired marks in the first half of the year to hold him in good
stead for the second half of that year. He failed in Grade
9,
probably because he did not have a similar boost as in the previous
year. Moreover, Grade 9 would have been more difficult.
His visual
impairment which caused headaches would also have contributed to his
poor academic performance.
Although his performance in 2002 in Grade 8 showed that he was not a
high achiever before the accident, Dr Swart urged the Court
not to
put much store in school examination results because of the general
difficult conditions under which learners performed.
The plaintiff explained that in 2009 he had difficulty working
independently as his concentration was impaired. He had also
contracted
tuberculosis and was on treatment but this did not affect
his studies. This was the evidence for the plaintiff.
The defendant relied on the single evidence of Mr Biyela. His
evidence which lasted a few minutes was that he never resorted to
corporal punishment. He specifically denied injuring the plaintiff.
That was the defendant’s case.
The plaintiff’s version must be accepted for the following
reasons. It was corroborated in material respects. Although the
plaintiff should have called Mr Khanyile, his classmate to testify
about the assaults before testifying himself, his own evidence
is
sufficiently detailed and weighty. Furthermore, the experts testified
that his narrative of the background to his injury was
consistent and
coherent despite the lapse of time.
The plaintiff also presented as a credible witness. He was relaxed in
the beginning but became emotional when he testified about
his
anxieties, about his career prospects and inability to socialise with
his friends who are now ahead of him in their careers.
He remarked
that it made him cry to learn that Mr Biyela denied injuring him.
Cross-examined about his homework book, he replied that he could not
find it. He probably used it to start up a fire when at the
end of
the year he realised that he had no use for it. At that time, of
course, he had not contemplated litigation and had not
even made the
connection between his injury and the symptoms he was experiencing.
All the witnesses testified in English. In the case of the plaintiff,
his mother, Mr Khanyile and Mr Biyela, English was their
second
language. As a result the court had the benefit of assessing their
evidence without the it being filtered through an interpreter.
An aspect of the plaintiff’s case that was troubling was the
delay from June 2003 to December 2004 to seek medical assistance
and
to launch this application. His explanation was that initially he did
not connect his headaches and the inability to concentrate
to his eye
injury. Furthermore, he did not want to trouble his grandmother. If
he was lying, it would have been easier for him
to have pegged the
date of the injury to 2004 closer to getting medical attention. What
is not in dispute is that he did receive
medical attention for the
injury to his eye. His version was also too detailed to be contrived
and corroborated.
In contrast, Mr Biyela had a motive to be untruthful. He was
prohibited by law from assaulting learners. If he did assault
learners
not only would he be in trouble personally and his job in
jeopardy but the department could be held liable for damages in
delict,
as it has been.
Furthermore, his evidence was uncorroborated. He also proffered no
evidence or explanation as to why no other witnesses were available
to support his version. There was Ms Ngema the temporary teacher. If
his version were true he was free to call any of the learners
in that
class of more than 40 in 2003.
A bare denial is easy to maintain to stonewall further interrogation.
The risk of course is that a more credible version trumps
a bare
denial with equal ease. Compared to Mr Biyela’s bare denial the
plaintiff’s version is reasonably probably true
on the question
of liability.
On causation the court questioned the plaintiff to establish whether
his poor academic performance in 2004 could be attributed
to his
mother parting from him to work in Cape Town or his contracting
tuberculosis and later HIV. He
responded confidently that none of these factors impinged on his
studies. He was used to being raised by his grandmother. He took
his
tuberculosis medication as instructed and was completely cured. He
was also tested at the time for HIV and he was not positive
then.
After he left school his depression and anxieties led him to alcohol
abuse.
What is not disputed is that the injury to his eye had to be treated
in Cape Town over two years. Consequently he could not be
in school
to complete his secondary education. He was also too old to return to
school by the time his treatment had been completed.
Without Grade 12
his job prospects were also impaired. These factors feed into the
quantum to be awarded.
As far as the probabilities go regarding his career prospects and
performance henceforth, I take note of Mr Swart’s observation
that he should not be judged necessarily by his academic performance.
Assessing his performance in the witness box, his poor academic
results belied his ability and maturity. He struck me as a person
determined to advance himself academically and career wise. He
testified to that effect. He has come to realise that his lack of
education, secondary and probably tertiary, is an impediment
to his
psychological wellbeing. He has had some guidance in that regard and
has weaned himself off alcohol abuse. It must be remembered
also that
he was in his late teens when he strayed from being the obedient
child that he testified to being whilst he lived with
his
grandmother.
Although there is no certainty as to how his future might unfold, and
much depends on his own will to turn his life around, the
contingencies applied in calculating his quantum will account for
these uncertainties. As for the quantum, the plaintiff’s
experts were not seriously challenged. In the absence of evidence to
the contrary, their expert evidence must be accepted.
The actuarial report was admitted to the extent that the methodology
for calculating loss of earnings and future medical expenses
was not
disputed. The plaintiff has applied a steep contingency of 30 percent
against his future loss of earnings. This is appropriate
given
objectively the vicissitudes in the job market and subjectively the
uncertainties in the plaintiff’s capabilities.
With regard to general damages I agree that this is a reasonable, if
not conservative amount. A thoughtless and accidental act
by an
official has had such devastating consequences for a learner. I hope
that educators realise that not only is it unlawful
to practice
corporal punishment but it is simply unconscionable that they do so
in total disregard of the devastating, dignity-denying,
life-changing
impact their conduct has on learners, on our fiscus and ultimately on
society.
In conclusion, I find on the merits in favour of the plaintiff. On
quantum I find that the plaintiff has proved his losses. The
order
that I grant is the following:
The plaintiff is awarded his claims for:
past and future loss of earnings in the amount of R3 601 050
calculated as follows as per the draft order:
Uninjured Tertiary
Injured
Loss
Past loss
R 381,700
Less 10%
R 343,530
R 343,530
Future loss
R 6,174,500
R1,520,900
Less 30%
R 4,322,150
R 1,064,630
3,257,520
R 3,601,050
future eye operations as calculated by the actuary Mr Munro in
the amount of R8 500.
future psychotherapy sessions calculated by the actuary Mr Munro in
the sum of R57 200.
general damages of R180 000.
school fees, payable to Abbotts College in the amount of R86 506.
The total amount payable in terms of the 5 claims above amounting to
R3 933 256 shall be paid into the plaintiff’s attorneys
trust
account, the details of which are in the draft order.
The defendant shall pay interest at 15.5% on the amount of
R3 933 256 from 31 May 2013.
The defendant is ordered to pay the costs of the plaintiff, such
costs to also include:
The costs of the expert witnesses for preparing reports and for
their qualifying costs for testifying.
The cost of travel from Cape Town to Durban and return for
Dr Scholtz, Ms Durra and Dr Swart.
The costs of accommodation in Durban for one night for Ms Durra
and Dr Swart.
The costs of return flights, a hired car and accommodation in
Durban for four nights for the plaintiff’s attorney and
counsel.
The costs of travel from Cape Town to Durban and return for the
plaintiff and his mother.
Any costs attendant on recovering these amounts.
COURT ADJOURNS
IN THE KWAZULU NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO : 15860/08
HEARING : 13-17 MAY 2013
DATE : 17 MAY 2013
In the matter between
SIMPHIWE SHANGE PLAINTIFF
and
MEC FOR EDUCATION, KWAZULU-NATAL DEFENDANT
BEFORE THE HONOURABLE MADAM JUSTICE PILLAY
ON BEHALF OF PLAINTIFF : ADVOCATE BRIGMAN
ON BEHALF OF DEFENDANT : ADVOCATE F ABRAHAMS
REPORT ON RECORDING
Generally clear recording.
Only judgment was requested for transcription.