Minister of Education and Another v Wynkwart (A1036/02) [2004] ZAWCHC 1; 2004 (3) SA 577 (C) (14 January 2004)

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[2004] ZAWCHC 1
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Minister of Education and Another v Wynkwart (A1036/02) [2004] ZAWCHC 1; 2004 (3) SA 577 (C) (14 January 2004)

Republic of South Africa
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(Cape
of Good Hope Provincial Division)
Case
No:
A1036/02
In
the matter between
THE MINISTER OF EDUCATION First Appellant
HIGHLANDS
PRIMARY SCHOOL
Second
Appellant
and
PETER
WYNKWART
Respondent
(obo
R.W.)
JUDGMENT DELIVERED on 14
January 2004
DESAI,
J:
The respective appellants herein are
the Minister of Education for the Western Cape and a Mitchells Plain
school, the Highlands Primary
School. The respondent is the father
of one R.W
(“R”).
The
events giving rise to this appeal occurred on 9 April 1990. On the
said date
R.
fell
off an unused, locked gate at his school and allegedly sustained very
serious injuries. More than a decade later it was contended
before
Ngwenya
J
that the
appellants
are liable
ex
delicto
in damages to the respondent because
R.’s
injuries were occasioned by their negligence. The trial court
eventually found in favour of the respondent and, with the leave of
the court, it is that judgment which is the subject of this appeal.
Mr
J
J Gauntlett SC,
who
appeared together with Mr
J
P White
on behalf of the appellants, submitted that in their view the
judgment and orders could not stand as the trial court had erred in
certain fundamental respects.
Even
if
Gauntlett
SC
is correct in respect of the first issue raised by him, this court
still has to consider the other issues which arise in this appeal
in
order to determine what finding and order should be substituted. I
accordingly refer only briefly to this aspect. The parties
expressly
agreed that there was to be a separation of issues with the merits of
the respondents’ claim being adjudicated separately
from the
quantum
of his claim. It was argued that the trial court lost sight of this
aspect by making an express finding that the appellants were
liable
“for
damages sustained by R. as a result of him leaving the school via …
the unused gate …”
and
further, that
“as
a result of which he sustained serious fatal [sic] injuries which
left him permanently disabled and quadriplegic”
.
Furthermore, the final paragraph of the judgment reads as follows:
“Judgment
is entered for the plaintiff with costs”
.
Gauntlett
SC
contended that the court had no capacity to make such findings and
went beyond what it was asked to decide. The judgment is perhaps
somewhat incautiously formulated. However, upon a proper reading of
the judgment as a whole the findings which are binding on the
appellants go no further than that
R.
sustained personal injuries when attempting to climb over a locked
gate in the fence surrounding the school grounds; and that they
were
sustained in circumstances rendering appellants liable in delict for
such damages as may be proved to flow from the injuries.
Questions
regarding the extent and
sequelae
of
the injuries remained open for the purposes of assessing the
quantum
of damages.
The
next issue raised by appellants counsel is of greater significance
and relates to the court
a
quo’s
approach to the issue of negligence. It was not in dispute that
R.
was injured at school while under the control and care of the
appellants’ employees and it was fairly and properly conceded that
teachers owe young children in their care a legal duty to act
positively to prevent physical harm being sustained by them through
misadventure. It was submitted that in this instance, as in many
other delict cases, the real issue is
“negligence
and causation and not wrongfulness”
.
(See
BOE
Bank Limited v Ries
2002(2)
SA 39 (SCA) at 46H.
)
The conclusion of the court
a
quo
is premised upon the core finding that the appellants failed
“to
take reasonable steps to ensure that R., like all his peers, left the
school through the correct exit gate”
Gauntlett
SC
,
in my view rightly, points out the true inquiry is not as to
foreseeability but as to what constituted reasonable steps for the
appellants to take in the circumstances, and whether these, if taken,
would probably have averted the harm.
Mr
W
G Burger SC
,
who appeared with Mr
P
Tredoux
on behalf of the respondent, did not really contest the correctness
of the aforementioned statements of principle. He submitted
that a
proper analysis of the facts must form the basis on which this issue
should be decided. In effect, he argued that in the
circumstances of
this matter it was reasonably foreseeable that some pupils could and
would climb over locked gates and that reasonable
steps could have
been taken to avert the harm. I shall revert to this argument in due
course.
The
factual background of this matter is to a large extent not in
dispute.
The
Highlands Primary School is located on the corner of Eisleben and
Highland Roads at Woodlands in Mitchells Plain, Western Cape.

Eisleben Road is a particularly wide and notoriously dangerous road.
At the time of this incident
R.
was
a Grade 3 pupil at this school. He was then 9 years and 7 months
old. The school had a total staff complement of 32 teachers
and
about 900 pupils.
R.
was one of 36 pupils in a
Miss
Nelson’s
class. The school itself was surrounded by a wire mesh perimeter
fence with six gates. Pupils could eggress the school grounds
through three of the said gates. These were the gates marked 1, 4 and
5 on the sketch plan handed up in evidence. (Exhibit “A”).
Gate
1 is on the western side leading to Ajax Way and gate 4 is on the
southern side leading to blocks of flats in which some pupils
lived.
Gate 5 and the locked gate 6 are on the eastern side leading to
Eisleben Road. Gate 5 is situated near to traffic lights.
Gate 6
was permanently locked. The decision to lock the gate was made some
years earlier because of perceived danger to pupils
crossing Eisleben
Road at that point. There was a teacher on duty at gate 1 at the end
of the school day; there were no teachers
on duty at gate 4 and
pupils using gates 1 and 4 were not escorted to these gates by
teachers. Gate 5 – leading to Eisleben Road
– was controlled
differently. There were teachers on duty at the said gate as well as
scholar patrols to assist the pupils crossing
at the traffic lights.
The locked gate 6 was closer to
R.’s
house than gate 5 and on the day in question
R.
made his way to gate 6 onto which he climbed, caught his trousers and
fell to the ground. At assemblies the pupils were regularly
warned
of the dangers of climbing over the school fences and gates – which
were approximately 1,8m in height – and instructed
not to do so.
There
are some differences in the evidence. The court
a
quo
indicated that it was reaching its finding on either evidential basis
but also found that
R.’s
version of his movements from the moment he left Miss
Nelson’s
classroom
was to be preferred to that of Miss
Nelson
.
Burger
SC
submitted that the preference for the latter’s evidence was
entirely correct and that Miss
Nelson’s
evidence was unreliable in certain material respects. The court,
however, did not expressly state its reasons for the preference
and
made no adverse findings in respect of the reliability, credibility
or demeanour of Miss
Nelson
.
The
aforementioned finding appears to be based upon an assessment of the
probabilities as appears from the following passage in the
judgment:
“
Had he left other
pupils while he was already on his way to gate 5, more pupils would
have seen him taking a different direction.
So would Mrs Nelson. In
any event, it would not have made sense to leave the queue and
proceed to gate 4 once closer to gate 5.
Furthermore, those pupil
patrol [sic] on duty would have prevented him from doing so.”
The
evidence does not necessarily support this conclusion. According to
Miss
Nelson
she escorted her entire class towards a marshalling point near gate
5. From there pupils who did not leave via gate 5 were free
to move
towards the gates which they intended to use. It appears from other
evidence that the pupils then rushed out in different
directions. At
this stage almost 900 pupils were moving through the schoolyard
towards the three gates in use. In the circumstances,
if the
teachers or other pupils had seen
R.
moving in the direction of gate 6 they are likely to have thought
nothing of it. Miss
Nelson
would not have seen
R.
take a different direction if she had already returned to her
classroom. Miss
Nelson’s
version
that she escorted her class to gate 5 every day, and had been doing
so for 9 years, is corroborated by the other teachers.
It is more
probable that the same routine was followed on that day.
Furthermore,
R.
was 9 years old when the incident occurred and he suffered a serious
trauma on that day. His evidence was given some 11 years later.
On
the other hand, the evidence tendered by the appellants is that of
senior teachers of many years standing.
Of
lesser significance is the other discrepancy with regard to whether
Miss
Nelson
sent
R.
to
buy
”slap
tjips”
(as it is referred to in Cape Town) on a roll. On Miss
Nelson’s
version she sent him to buy potato crisps or sweets at a tuck shop on
the school’s premises.
R.’s
version is that Miss
Nelson
sent him two or three times a week to buy the chip rolls at a shop
some distance away from the school. He had to climb over gate
4 and
walk about 15 minutes to get to the shop. The court
a
quo’s
finding in this regard was the following:
“
The evidence reveals …
that he was his teacher’s blue-eyed boy. He testified that she
used to send him to the tuck shop during
school hours.
This
she vehemently denied”.
The
latter conclusion is inconsistent with the evidence. Miss
Nelson
admitted sending
R.
to the tuck shop but denied sending him outside the school to buy the
chip rolls. I refer to this chip roll saga as it was one of
the
principal aspects relied upon by
Burger
SC
to demonstrate the unreliability of Miss
Nelson
as a witness. He argued that her evidence in this regard was not
supported by the caretaker who had no recollection of one of his
assistants going to buy chip rolls for teachers. His inability to
remember such details eleven years later is hardly surprising.
It is
also most unlikely that a Grade 3 teacher would allow a pupil two or
three times a week to absent himself for over half an
hour from class
and return climbing over a 1,8m gate, carrying chip rolls. In any
event, in my view this evidence takes the matter
no further.
The
issue not expressly addressed by the court
a
quo
is
the extent to which the respondent omitted to discharge the
onus
of proving that there were reasonable steps which the appellants
should have taken to guard against the injury to
R.
,
but failed to take.
Burger
SC,
who appears to have been aware of this omission, argued that there
was “abundant” proof of an actual awareness of the real
possibility
that some pupils could and would climb over locked gates
or over the fence and get hurt in the process. That, together with
slack
supervision of the pupils and a lack of discipline, created a
danger of harm sufficiently serious and real to be guarded against.

Reasonable steps, he argued, could have been taken by placing a
teacher at
“potential
danger points”
.
The
requirements for liability in our law are set out in
Kruger
v Coetzee
1966(2) SA 428 (A). Holmes JA
held at
430
E
:
“For
the purposes of liability
culpa
arises if –
a
diligens
paterfamilias
in the position of the defendant –
would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing
him patrimonial loss; and
would take reasonable steps
to guard against such occurrence; and
the defendant failed to take
such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement (a)(ii) is sometimes overlooked.”
In
a more recent judgment the court in
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
applying
Kruger
v Coetzee
supra
,
pertinently held that the answer to element (a)(ii) of the said case
“
will depend upon what can
reasonably be expected in the circumstances of the particular case.
That enquiry offers considerable scope
for ensuring that undue
demands are not placed upon public authorities and functionaries for
the extent of their resources and the
manner in which they have
ordered their priorities will necessarily be taken into account in
determining whether they acted reasonably”
(at
448 F-G).
It
is apparent from the authorities referred to by counsel that where
pupils are not kept under the constant supervision of teachers
this
is not in itself a breach of the duty of care owed to such pupils.
The degree of supervision required depends on the risks
to which the
pupils are exposed.
The
court
a
quo
referred at length to
Knouwds
v Administrateur Kaap
1981(1) SA 544 C.
In that case dangerous machinery was in use on a playing field where
pupils were playing and running. The risk posed by the machinery
was
held to be such that the pupils ought to have been kept under
constant supervision. The court found that the caretaker was
exercising
no supervision at the time at all and further there was no
good reason for the dangerous machinery to have been in operation
during
school hours.
Applying
the
dictum
in
Ruser
v The Jesuit Fathers
1970(4)
SA 537, Friedman J
,
(as he then was) held
“
Dit is so dat dit onnodig is
vir skoolpersoneel om kinders wat in hulle sorg is elke oomblik van
die dag onder toesig te hou. Die
mate van toesig wat van hulle
verwag word hang natuurlik af van die risiko waaraan hulle
blootgestel word.”
The
facts in the
Knouwdes
case are quite clearly distinguishable from this case. The reasoning
in the judgment also tends to support a different conclusion
herein.
In
the
Ruser
case a group of children between the ages of 7 and 10 were left
unattended in the school grounds and engaged in a game using bows
and
arrows during which an 8 year old child sustained a serious injury to
his eye,
Beck
J
(as he then was), held (
at
539 F-H
)
that:
“
In my opinion, however, the
duty to keep children of this age under constant supervision depends
essentially upon the risks to which
they are exposed in their
particular surroundings. … To contend, however, that children of
this age should never be more than momentarily
out of sight of a
responsible person even when they are in normal and familiar
surroundings which are devoid of features that could
sensibly be
regarded as hazardous, is, I think, to exact too high a duty of care
from the
bonus
paterfamilias
”
The
House of Lords in
Camarthenshire
County Council v Lewis
1955
(1) All ER 565
(HL)
held
that a failure to keep a school gate which led to a busy thoroughfare
locked or effectively latched constituted negligence by
the local
education authority.
Unlike
the
Camarthenshire
case
in this matter gate 6 was permanently locked as it granted access to
the busy, and possibly dangerous Eisleben Road. The perimeter
fence
and gates were safety measures.
R.
found
himself in “normal and familiar” surroundings which were devoid
of features that could be regarded as hazardous. The
appellants
had not introduced hazards. In addition thereto, as previously
indicated the pupils were regularly warned of the dangers
of climbing
over the school’s gates and fences. Furthermore, there was a
properly considered system of teacher, and even scholar
patrol,
supervision to manage the daily egress of approximately 900 pupils
simultaneously from the three gates in use.
The
degree of supervision to be exercised in a particular case would
depend upon a great variety of circumstances. It appears from
the
authorities referred to herein that a pupil of
R.’s
age
need not be kept under continuous supervision on the school grounds
unless there is some hazardous feature present. To guard
against the
possibility of a single pupil slipping away, climbing over a gate or
fence and suffering injuries would require that
each pupil should be
kept under continuous supervision. It would not be reasonable to
expect the appellants to have taken such steps
in this instance.
In
my view the respondent did not establish on the evidence a failure by
the appellants to take reasonable steps which, if taken,
would have
prevented
R.
from slipping away from his class and climbing over the locked gate
which he had been repeatedly warned not to use. Nor did respondent
show that other steps not taken by the appellants constituted
reasonable measures which, if applied, would have prevented
R.
doing what he did.
In
the result the appeal succeeds with costs, which costs are to include
the costs of two counsel and the costs of the leave to appeal.
The
order of the court
a
quo
is set aside and substituted with the following:
“The
plaintiff’s claim is dismissed with costs.”
--------------------
Desai
J
I agree.
--------------------
H J
Erasmus J
I agree.
--------------------
Yekiso
J