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[2006] ZAWCHC 41
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Strauss v MEC for Education Western Cape Province (9684/03) [2006] ZAWCHC 41; 2007 (4) SA 127 (C); (2007) 28 ILJ 367 (C) (8 September 2006)
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case No: 9684/2003
In the
matter between:
EDITH
STRAUSS
Plaintiff
and
THE MEC
FOR EDUCATION, WESTERN CAPE PROVINCE
Defendant
JUDGMENT: 08 SEPTEMBER 2006
VAN ZYL
J:
INTRODUCTION
[1] This is an application by the defendant, in terms of rule 33 (4)
of the rules of this court, that the questions of law raised
in the
defendant's special plea be decided separately from any questions of
law or fact in the action pending between the parties.
This court is
obliged to grant such application and to order that all further
proceedings be stayed until such questions have been
disposed of,
unless it appears that they "cannot conveniently be decided
separately".
[2] The parties were in agreement that the special plea should be
dealt with separately, although they could not agree whether evidence
was required in respect of the issues raised therein. After reading
the papers and hearing initial argument from both parties, I
was
satisfied that the special plea should indeed be decided separately
from any other issues raised in the pleadings. I was likewise
satisfied that evidence was not required for this purpose. What did
cause me concern was why the defendant saw fit to bring this
application at all, thereby incurring unnecessary costs. Whether or
not evidence should be led in support of, or to counter, a special
plea is irrelevant for purposes of making a decision in terms of rule
33(4). I shall return to this aspect later.
[3] Ms R Williams SC, assisted by Ms T Golden, appeared for the
plaintiff, and Mr J C Heunis SC, assisted by Ms N Bawa, for the
defendant.
The court expresses its appreciation to them for their
presentations on behalf of the respective parties.
BACKGROUND
[4] The plaintiff is an educator in the employ of the governing body
of the Paarl Girls' High School ("the school") in
terms of
a written contract of employment signed by her on 20 March 2001 but
effective from 1 January 2001. In terms of clause 4.3
of such
contract she was required, without additional remuneration, to assist
with extra-curricular activities allocated to her by
the principal of
the school. This included educational activities in the form of
sports coaching.
[5] On 12 February 2001, while the plaintiff was engaged in coaching
high school learners in the athletics field event known as discus
throw, she was struck on the forehead, just above the left eye, by a
discus thrown by a learner participating in the said coaching
session. She was seriously injured, suffering brain damage,
concussion, a "whiplash" injury of the neck, a fracture of
the left orbital socket and an eye injury. As a result she was
rendered permanently disabled and suffered extensive damages
amounting,
in monetary terms, to R683 000,00, being the amount of her
claim against the defendant.
[6] In her amended particulars of claim the plaintiff attributed her
injury and resultant damages to the alleged negligence of the
defendant in that the discus circle on the sports field was not, at
the time of the incident, enclosed with safety nets. It would
appear
from the facts, however, that the failure to provide safety nets was
in fact attributable to an omission by the school, which
had a duty
to ensure the safety of the persons involved in or present at the
coaching session in question. The plaintiff was, at
the time, in the
employ of the school as a so-called "independent" or
"outside" coach ("buite-afrigter"),
for which the
school remunerated her. As such she was not acting in terms of clause
4.3 of her employment contract with the school,
but in terms of an
agreement with the school to render services as an "independent"
or "outside" athletics coach
at an agreed remuneration.
[7] Whether this agreement constituted an amendment to her contract
of employment, or whether it should be regarded as a supplementary
or
additional agreement, be it oral or tacit, between her and the school
is, in my view, of no consequence for purposes of considering
the
special plea. It appears to be common cause that she was, in
rendering coaching services as aforesaid, acting on the instructions
of the principal of the school, as conveyed to her by the head of
sport at the school. As such she might not have been acting in
her
capacity as an educator, but she was certainly engaged in an
educational activity at the behest of the relevant school officials.
[8] It follows from the aforesaid 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) of the
South African Schools Act
84 of 1996 ("the Act"), on which the plaintiff has in
any event placed reliance. Under the heading "Liability of
State",
this section is expressed in the following terms:
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.
THE SPECIAL PLEA
[9] The special plea raised by the defendant is to the effect that
section 60(1) of the Act is not applicable in that it is subject
to
the provisions of section 20(10) the Act, which reads as follows:
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).
[10] Section 20(4) of the Act deals with the right of a public school
to establish posts for educators and to appoint educators to
such
posts in addition to those determined in terms of section 3(1) of the
Educator's Employment Act
138 of 1994. Section 20(5) provides
for a similar right regarding the establishment of posts for
non-educational staff in addition
to those established in terms of
the
Public Service Act
103 of 1994. Of some significance, for
present purposes, is that both these subsections are expressly made
subject to the
Labour Relations Act
66 of 1995
and "any
other applicable law", in addition to the Act under discussion.
[11] Inasmuch as the school had employed the plaintiff in terms of
section 20(4) of the Act, the defendant averred, the omission
complained of related to her contractual responsibility as an
employee. The defendant was hence not liable in terms of section
60(1)
of the Act.
[12] The defendant relied also on section 35(1) of the
Compensation
for Occupational Injuries and Diseases Act
130 of 1993 ("COIDA")
as an "applicable law" to which section 20(4) of the Act
was subject and which precluded
an action by the plaintiff against
the school. It reads as follows:
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.
The term "occupational injury" is defined in section 1 of
COIDA as "a personal injury sustained as a result of an
accident". The definition of "accident" in the same
section is "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".
MAIN SUBMISSIONS ON BEHALF OF THE DEFENDANT
[13] The main argument put forward by Mr Heunis on behalf of the
defendant was that the plaintiff had, at the relevant time, been
in
the employ of the school as an athletics coach in terms of the
provisions of section 20(4) of the Act. Inasmuch as this subsection
was subject to "any other applicable law", section 35(1) of
COIDA should be applied as an "applicable law". As
an
employee the plaintiff was hence entitled to compensation from the
Compensation Fund for her injuries and disablement, and was
precluded, by the provisions of section 35(1) of COIDA, from claiming
damages against the school. This means that the school was
not liable
for such damages, so that section 60(1) of the Act was not
applicable. Consequently the State, and hence the defendant,
did not
attract liability.
[14] As for the first leg of the special plea, namely that relating
to the applicability of section 20(10) of the Act, Mr Heunis
indicated during the course of argument that he was no longer relying
on its provisions.
MAIN SUBMISSIONS ON BEHALF OF THE PLAINTIFF
[15] In her argument on behalf of the plaintiff Ms Williams submitted
at the outset that, inasmuch as the parties had agreed that
the
special plea should be decided prior to the consideration of the
merits of the case, the application in terms of rule 33(4) was
unnecessary. It certainly was not necessary for purposes of obtaining
a ruling from this court whether or not evidence should be
led in
regard to the special plea. For this reason the defendant should be
ordered to pay the costs of the application, including
the costs
occasioned by the postponement of this matter on 30 May 2006 and
including the costs of two counsel. In addition Ms Williams
submitted
that the defendant's application to strike out certain portions of
the answering affidavit, with which application the
defendant did not
proceed, should be dismissed with costs.
[16] Much of the further argument presented by Ms Williams dealt with
the dispute between the parties as to the nature of the agreement
between the plaintiff and the school in respect of her
extra-curricular coaching duties. More particularly Ms Williams
submitted
that the parties were not in agreement as to whether the
plaintiff's appointment as an independent or outside coach was an
appointment
in terms of section 20(4) of the Act. The plaintiff
insisted that the special plea could not be adjudicated upon without
the presentation
of evidence on this dispute.
[17] As for the leg of the special plea still relied on by the
defendant, Ms Williams submitted that section 35(1) of COIDA was not
applicable and did not exclude the defendant's liability in terms of
section 60 (1) of the Act. If the legislature had intended to
make
the said section subject to COIDA it would have said so. She
accordingly requested that the special plea be dismissed.
CONSIDERATION OF THE SPECIAL PLEA
[18] Interesting and innovative as the argument put forward by Mr
Heunis may be, there is no merit in it. Although the Act may not
be a
model of well-structured and comprehensible legislation, its meaning,
in the various sections referred to in the papers and
in argument, is
clear. The school in the present matter is a public school as defined
in section 1. Section 15 determines the status
of every public school
as "a juristic person, with legal capacity to perform its
functions in terms of this Act". Section
16(1), in turn, vests
the governance of every public school in its governing body, which
"may perform only such functions and
obligations and exercise
only such rights as prescribed by the Act". In terms of section
16(3) the professional management of
a public school is in the hands
of the principal, who is, in terms of section 23(1)(
b
) of the
Act,
ex officio
a member of the governing body. He carries out
his functions, however, under the authority of the head of the
relevant education
department ("the department").
[19] The functions of governing bodies are set out in section 20 of
the Act. Section 20(1)(
i
) and (
j
) respectively empower
a governing body to recommend, to the head of the department, the
appointment of educators (teaching staff)
and non-educators
(administrative staff) at the school. The department then has the
authority to make the required appointments from
the ranks of those
persons recommended by the governing body. Both categories of
appointments are subject to the
Labour Relations Act
66 of
1995
. They are also, respectively, subject to the
Employment of
Educators Act
76 of 1998
and the
Public Service Act
103 of
1994. The persons thus appointed are generally described as
"departmental appointees" in that they are employed and
remunerated by the relevant department of education.
[20] Sections 20(4) and (5) give governing bodies the power to
establish posts for educators (teaching staff) and non-educators
(administrative
staff) in addition to those established by the
department. The establishment of such posts, and the appointment of
persons to fill
them, are, as mentioned previously (par [10] above),
subject to the Act, the
Labour Relations Act
66 of 1995
and
"any other applicable law". This appears not only from the
provisions of
sections 20(4)
and (5), but also from
section 20(6)
,
which expressly stipulates that persons thus appointed must comply
with the same legislative requirements as those with which
departmental
appointees must comply. The persons appointed to the
additional posts created by a governing body may be described as
"governing
body appointees" in that they are in the employ
of, and remunerated by, the governing body.
[21]
Section 20(10)
, on which the defendant initially relied (see par
[9] and [14] above), provides for a limitation on State liability in
terms of section
60(1) of the Act. The limitation, however, has a
narrow scope in that it excludes liability only in respect of an act
or omission
by the school arising from its contractual responsibility
as employer in respect of governing body appointees employed in terms
of
sections 20(4) and (5) of the Act. It can hence not be applicable
in the present matter in that the plaintiff's cause of action,
as set
forth in her particulars of claim, is not contract, but delict.
Although both contractual and delictual liability are included
in the
wide-ranging provisions of section 60(1) of the Act, section 20(10)
expressly caters only for a school's contractual liability
towards
governing body appointees. This relates, for example, to the school's
obligation to pay such persons their salaries or other
forms of
remuneration to which they may be entitled. See
Technofin Leasing
& Finance (Pty) Ltd v Framesby High School and Another
2005
(6) SA 78
(SE) at 92I-93C and 95D-E;
LUR vir Onderwys en Kultuur,
Vrystaat v Louw en 'n Ander
2006 (1) SA 192
(SCA) par [12]-[13]
at 196E-197B. See also the discussion of the latter case by P J
Visser in
2006 (69) THRHR 523-528.
[22] In view hereof it is not necessary to determine whether or not
the agreement between the plaintiff and the school relating to
her
coaching duties falls under the provisions of section 20(4) of the
Act. Inasmuch as the definition of an educator in section
1 of the
Act excludes "a person who is appointed to exclusively perform
extracurricular duties", it is certainly arguable
that she was
not acting in her capacity as a governing body appointee in terms of
section 20(4). This section would, however, become
relevant only if
the liability of the State in terms of section 60(1) were limited by
the application of section 20(10) of the Act.
Since I have rejected
such suggested limitation, the section 20(4) issue falls away.
[23] I turn now to the main argument raised by Mr Heunis. The Act
relating to compensation for occupational injuries and diseases
(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.
[24] The major difficulty facing the defendant in this regard is the
express wording of section 60(1) of the Act. The words used
must, of
course be given their ordinary grammatical meaning and must be
construed in their proper context. See
Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) par [89]-[90] at 526G-528D;
Technofin Leasing &
Finance (Pty) Ltd v Framesby High School and Another
(cited in
par [21] above) at 91C-D.
[25] When one applies these guidelines to the wording of section
60(1) its meaning becomes clear and unequivocal. 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 a public school and in 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.
[26] The only restrictions to this liability are contained in section
20(10), with which I have already dealt (par [21] above), and
section
60(4) of the Act. The latter section excludes liability for damage or
loss arising from "any enterprise or business
operated under the
authority of a public school for purposes of supplementing the
resources of the school". For present purposes
it is not
relevant, although it would appear that the defendant did in fact
initially rely on it before abandoning it in an amended
plea.
[27] Significantly section 60(1) differs from other sections of the
Act, such as sections 20(1)(
i
) and (
j
) and sections
20(4), (5) and (6) referred to above (par [19]-[20] above), in that
it is not made subject to any other statute or
law. 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, as averred by the defendant, or
for that matter to any other legislative provisions, it would
undoubtedly have said so.
[28] In this regard section 60(1) of the Act has been described as an
"umbrella provision" directed at establishing State
liability in the circumstances referred to in such section. See
Louw
en 'n Ander v LUR vir Onderwys en Kultuur, Vrystaat, en 'n Ander
2005
(6) SA 78
(O) par [13] at 85B-C (
per
Cillié J):
Artikel 60(1) is 'n sambreelbepaling wat daarop gerig is om
aanspreeklikheid by die Staat te vestig in die omstandighede waarna
in
die artikel verwys word. Opvoeding in 'n openbare skool is in die
eerste instansie 'n Staatsverantwoordelikheid. Daarom maak dit
sin
dat die Wetgewer die Staat verantwoordelikheid wil laat aanvaar vir
skade of verlies wat veroorsaak word as gevolg van 'n daad
of versuim
wat voortspruit uit 'n opvoedkundige aktiwiteit by 'n openbare skool.
See also the
Technofin
case (par [21] above) at 92I-93C, where
Pickering J observed that section 60 "is couched in the broadest
of terms and the State's
liability is expressed in the most general
language". Indeed, in the "wide language" of the
section there was nothing
to indicate that it was restricted to
delictual liability.
CONCLUSION
[29] It follows that Mr Heunis has not succeeded in persuading me
that the defendant's special plea should be upheld. He has likewise
not persuaded me that the parties should bear their own costs
relating to the rule 33(4) application, the striking out application
or the postponement of 30 May 2006. I have already remarked (par [2]
above) that the rule 33(4) application was clearly unnecessary
in
that the issue of evidence was irrelevant for purposes of considering
the special plea. 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 am, however, satisfied that the defendant should pay the
costs of the rule 33(4) application and the costs occasioned
by the
postponement on 30 May 2006, when the matter could not proceed
because the rule 33(4) papers had to be amplified. In both
cases the
plaintiff is entitled to the costs of two counsel. The defendant must
also pay the costs of the striking out application
with which it did
not proceed. In that case, however, the costs of two counsel are not
justified.
[30] In the event I make the following order:
The special plea is dismissed with costs, including the costs of two
counsel.
The defendant is order to pay the costs of the rule 33(4)
application and of the postponement of 30 May 2006, once again
including
the costs of two counsel.
The application to strike out is dismissed with costs.
D H VAN ZYL
Judge of the High Court