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[2024] ZANCHC 85
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R.A v Head of Department of Education, Northern Cape Province and Others (966/16) [2024] ZANCHC 85 (6 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
PERSONAL INJURY – School –
Apportionment
–
Learner
falling from bus – State, represented by HoD and MEC for
Education found liable with the bus service –
No evidence
presented to enable assessment of negligence or fault of
defendants – Liability of HoD and MEC to compensate
plaintiff is statutory, not delictual – Absent fault or
negligence on part of HoD and MEC, there cannot be apportionment
of liability with bus service – No apportionment of
liability –
South African Schools Act 84 of 1996
,
s 60(1).
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO: 966/16
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
R[...]
A[...]
Plaintiff
and
THE
HEAD OF THE DEPARTMENT OF EDUCATION,
NORTHERN
CAPE PROVINCE
First Defendant
FRANS
HAEL t/a FRANS HAEL BUSDIENSTE
Second Defendant
DE
CONDUCAO (DAWID) DE KOKER
Third Defendant
THE
A[...] PRIMARY SCHOOL
Fourth
Defendant
THE
MEMBER OF THE EXECUTIVE COUNCIL OF
THE
NORTHERN CAPE DEPARTMENT OF EDUCATION
Fifth
Defendant
Heard
on:
15 March 2022
Delivered
on: 6 September 2024
JUDGMENT
RAMAEPADI
AJ
INTRODUCTION
1
This case concerns a matter affecting a
significant number of learners in this country, and a majority of
whom are from disadvantaged
backgrounds – the transportation of
learners from home to school and back (“learner
transportation’’).
2
In particular, the case concerns the liability of
the State in terms of section 60(1) of the South African Schools Act,
84 of 1996
(“the Schools Act’’) for damage or loss
caused as a result of an act or omission in connection with any
educational
activity conducted by a public school.
3
It is not in dispute that by virtue of section
60(1) of the Schools Act, the State, represented in this case by the
first and fifth
defendants (the HoD and the MEC for Education in the
Northern Cape) is liable for the delictual damages suffered by the
plaintiff
on 3 May 2006 when she was pushed or fell from a moving
Nissan bus with registration letters and numbers B[...] 2[...] N[...]
(“the
Bus’’), which was operated by the second
defendant and driven at the time by the third defendant (“the
accident’
’
).
4
The issue of liability was decided in favour of
the plaintiff on 15 May 2019 in terms of a Consent Order. In terms of
the Consent
Order, it was ordered
inter
alia
, that:
4.1.
The
First and Fifth Defendants, on the one hand and the Second Defendant,
on the other hand, are thereby declared to be joint wrongdoers
in
terms of Section 2(2) of the Apportionment of Damages Act, 34 of
1956, and the court would make a just and equitable apportionment,
having regard to the degree in which each joint wrongdoer was at
fault in relation to the damages suffered by the Plaintiff.
[1]
4.2.
The
First and Second Defendants, jointly and/or severally the one paying
the other to be absolved, accepts 100% liability towards
Plaintiff in
respect of her agreed and/or proven damages arising out of an
incident which occurred on 03 May 2006.
[2]
4.3.
The
quantum is postponed
sine
die
.
[3]
5
Subsequent thereto, and on 14 March 2022, the
quantum of the plaintiff’s claim was settled. In terms of the
Consent Order,
it was ordered
inter
alia
, that the first, fifth and second
defendants, jointly and/or severally the one paying the other to be
absolved, would pay to the
plaintiff the sum of R10 000 000.000 (Ten
Million Rand).
6
Accordingly, all that remains of this case, is the
question of a just and equitable apportionment of the plaintiff’s
claim.
7
Adv Sibeko SC who together with Adv Merabe
appeared for the first and fifth defendants urged me to declare that
the second defendant
is 60% at fault for the accident, whereas the
first and fifth defendants are 40% at fault. He contended that a
60/40 apportionment
in favour of the first and fifth defendants would
be a just and equitable apportionment in the circumstances of this
case.
8
Adv Coetzee SC who appeared on behalf of the
second defendant on the other hand, contends differently. He contends
that the first
and fifth defendants’ liability in terms of
section 60(1)
of the
South African Schools Act is
not delictual in
nature, but statutory, which is not dependent on fault on the part of
the first and fifth defendants. He contends
that absent any
requirement of fault on the part of the first and fifth defendants,
then there is no need for any fault apportionment
herein.
Accordingly, so he contends, the only just and equitable relief in
the circumstances is that there should be no apportionment.
9
Accordingly, the only issues for determination in
this case are: first, whether to apportion fault between the first
and fifth defendant
on the one hand and the second defendant, on the
other. Second, the percentages of the apportionment.
10
In the discussion below, I deal with each of the
issues summarised above. Before doing so, it is necessary to first
make a brief
observation about the condition of learner
transportation in the country and various instruments regulating
land-based public transport
and in particular, learner transportation
services. Thereafter, I analyse the pleadings and then, the
applicable legislative framework.
OVERVIEW OF LEARNER
TRANSPORTATION
11
It is common knowledge that thousands, if not
millions of learners across the country leave their homes every
morning to attend
school in areas outside their communities. They do
so by means of transport facilities dedicated for the conveyance of
learners
to and from school, some of which are registered and
subsidised by the relevant provincial Education departments, whilst
others
are not. Nonetheless, they assist learners in accessing
education.
12
A majority of these learners are from
disadvantaged communities who go out of their communities for what
they perceive as a better
education offered by the schools in the
affluent areas, or simply because there are no schools in their
communities to accommodate
them.
13
It is mainly the unregistered scholar transport
services that are often characterised by overloading, unroadworthy
vehicles, non-compliance
with the transport laws and, the general
non-adherence to the policies and guidelines for the transportation
of learners.
14
Section
85(2)(b) of the Constitution mandates the National Department of
Transport (the DoT) to develop and implement transport
policy. On 23
October 2015 the DoT promulgated the National Learner Transport
Policy (the National Policy),
[4]
which was developed in collaboration with the Department of Basic
Education and other stakeholders. The National Policy recognises
the
need to have a uniform approach to scholar transportation, and the
fulfilment of the constitutional mandate of the DoT to provide
a safe
and efficient transport system.
[5]
15
The
National Policy is applicable to the transportation of learners from
grades R to 12, including learners with disabilities as
defined in
the
South African Schools Act, and
aims to improve access to quality
education by providing safe, decent, effective, integrated and
sustainable learner transport.
[6]
16
In some instances, provincial education
departments have been providing transport to learners who do not have
access to their nearest
schools. The purpose of this is to improve
access to education and to ensure that learners reach their schools
in a healthy and
safe condition in order to enable effective
learning.
17
The
National Policy envisaged that its implementation would be undertaken
in line with the provisions and principles of cooperative
governance
as set out in
section 41(1)(h)
[7]
of the Constitution of the Republic of South Africa, 1996 (“the
Constitution
’’
).
In terms of this framework:
17.1
National government will oversee implementation of the Policy in
consultation with the relevant stakeholders,
including provinces,
municipalities and school governing bodies (SGBs).
17.2
Institutional mechanisms made up of provincial departments of
transport and education, SGBs, municipalities
and law enforcement
authorities, will be established at provincial level to foster
integrated planning, effective monitoring and
delivery of learner
transport services. These mechanisms will endeavour to achieve the
objectives set out in the Policy; and
17.2
Planning of learner transport must be discussed by provincial and
municipal planning structures to ensure
that it is integrated with
provincial strategies and municipalities in terms of provincial land
transport frameworks and integrated
transport plans (ITPs). These
must take into account road safety measures, transport infrastructure
and operational matters that
have an impact on the delivery of
learner transport services.
Categories of
learner transport services
18
There are two categories of learner transport
services. The first category is the dedicated learner transport
services, which consists
of four (4) sub-categories.
18.1.
First, the subsidised group, which is made up of a
group of operators who are providing a dedicated learner transport
service and
are receiving subsidy either from the Department of Basic
Education (DBE) and/or DoT. Learners are picked up and dropped off at
designated points.
18.2.
Second, non-subsidised group, which is made up of
operators who are providing a dedicated learner transport service,
but are not
receiving subsidy.
18.3.
Third, Class i, which is made up of operators who
enter into contractual agreements with parents and perform
door-to-door services.
18.4.
Fourth, class ii, which is made up of operators
who have special arrangements with learners. The learners organise
themselves into
groupings and are picked up and dropped off at
designated points. Learners pay fares on a per trip basis.
19
The second, is a category of non-dedicated
services, which consists of two groups.
19.1. The
first, is the subsidised group, which is made up of a group of
operators who are providing general public
transport services and are
transporting learners with special subsidised tickets.
19.2. The
second, is the non-subsidised group, made up of a group of operators
who are providing a non-dedicated learner
transport service and are
transporting learners without any government subsidies.
20
Irrespective
of the category in which they fall,
i.e.
whether
subsidised or non-subsidised, dedicated or non-dedicated, all learner
transport services are a necessary and integral part
of the right to
education guaranteed to everyone by section 29(1)(a) of the
Constitution.
[8]
In
Juma
Musjid
,
[9]
the Constitutional Court described the right to basic education as
follows:
“
[The
right to a] basic education is an important socio-economic right
directed, among other things, at promoting and developing
a child’s
personality, talents and mental and physical abilities to his or her
fullest potential. Basic education also provides
a foundation for a
child’s lifetime learning and work opportunities. To this end,
access to school – an important component
of the right to a
basic education guaranteed to everyone by Section 29(1)(a) of the
Constitution – is a necessary condition
for the achievement of
this right.’’
[10]
21
It is on the backdrop of this framework, having
regard to the facts of this case, that I turn to consider the issues
presented in
this case.
FACTUAL BACKGROUND
22
The facts of this case are fairly uncomplicated.
They emerge from the pleadings filed off record and are mainly common
cause between
the parties.
22.1.
On 3 May 2006 the plaintiff (R[...] A[...]) who
was at the time, a grade 5 learner at the A[...] Primary School (“the
Schoo
l’’
or “the fourth defendant”) was pushed or fell from a
moving Nissan bus with registration letters and
numbers B[...] 2[...]
N[...] (“the Bus’’), which was operated by the
second defendant and driven at the time
by the third defendant (“the
accident’
’
).
22.2.
At the time of the accident aforesaid, the
plaintiff together with the other learners of the School were being
conveyed as passengers
in the Bus from the School to their respective
destinations in New Town, Postmasburg.
22.3.
It is the plaintiff’s case that the
conveyance of the learners by the second defendant:
22.3.1.
was
in terms of a contract concluded between the
Department of
Education, Northern Cape Province (“the Department’’)
and the second defendant.
22.3.2.
in
the alternative, the plaintiff pleads that the conveyance of the
learners by the second defendant was at the request or instance
of
the Department in fulfilment of its obligations to enable learners to
attend school and to be able to travel from their places
of residence
to school and back;
22.3.3.
was a school activity as envisaged in
section 60
of the
South
African Schools Act; and
22.3.4. in terms of
section 60(1) of the Schools Act, the State is liable for any
delictual damage or loss caused as a result of
any act or omission in
connection with any school activity conducted by a public school and
for which such public school would
have been liable but for the
provisions of section 60.
22.3.5. in the further
alternative, and in the event that the conveyance of the learners to
and from the School was not a school
activity, then and in that
event, it is the plaintiff’s case that:
22.3.5.1.the School is
liable jointly with the first defendant (the HoD, Northern Cape
Department of Education) to the plaintiff
for any delictual damages
or loss caused as a result of any act or omission in the conveyance
of the plaintiff and other learners
at its behest or as a result of
its request;
22.3.5.2.the second and
third defendants owed a legal duty to learners, including the
plaintiff, who were conveyed by the
second defendant from the School
to their respective destinations,
22.3.5.2.1.not to convey
primary school learners, including the plaintiff, in an overloaded
bus, alternatively not to load and convey
more learners (passengers)
than the available sitting capacity of the bus;
22.3.5.2.2.not to allow
learners to stand in the bus during trips when the bus was not in a
fully stationary position;
22.3.5.2.3.not to allow
learners, specifically primary school learners, to approach the door
of the bus before it was completely
stationary;
22.3.5.2.3.not to allow
learners to stand up from their seats and approach the door of the
bus before it was completely stationary;
22.3.5.2.4.not to allow
learners or any passenger to operate the mechanism that opens and
closes the doors of the bus;
22.3.5.2.5.not to allow
learners to stand at the front of the bus where the door and
mechanism that opens and closes the bus-door
is situated;
22.3.5.2.6.not to allow
learners to open the door of the bus whilst the bus is in motion,
more so when other learners and/or passengers
are standing at the
door of the bus or in close proximity to the door;
22.3.5.2.7.not to allow
the learners to exit the bus or jump from the bus whilst it is in
motion, alternatively before it has come
to a complete stop;
22.3.5.2.8.not to allow
learners to be subjected to negligent conduct in the driving of the
bus or in the manner the bus is conducted
when the learners are on
board that could cause them harm when providing public transport to
the learners to and from school.
22.4.
It is the plaintiff’s case that the first
and fifth defendants (the HoD and the MEC), alternatively the first
and fourth defendants
(the HoD and the School), owed the learners of
the School, including the plaintiff, who were being conveyed by the
second defendant
from school to their respective destinations a legal
duty:
22.4.1. to ensure
that the primary school learners, including the plaintiff were
conveyed in a manner that was safe;
22.4.2. not to
allow learners to be conveyed by means of a bus service if their
safety could not be determined and controlled
or managed;
22.4.3. to ensure
that learners were not subjected to negligent conduct in the driving
or the manner in which the bus is conducted
when the learners are on
board, that could cause them harm when being conveyed from school;
22.4.4. to ensure
that proper and adequate transport was made available for the
conveyance of primary school learners, including
the plaintiff;
22.4.5. to ensure
that proper control was exercised to ensure that the bus or vehicle
transporting the primary school learners,
including the plaintiff,
was not overloaded;
22.4.6. to ensure
that measures were taken to exercise proper control over primary
school learners (during trips) to prevent
the learners from harming
themselves or causing harm to other learners when they were
transported by means of second defendant’s
bus from school.
22.5.
Plaintiff further pleads that it was foreseeable
that a learner, including the plaintiff, carried on the bus would
suffer harm and
damages if:
22.5.1. the bus was
overloaded with learners, alternatively if more learners were
transported than seats were available on
the bus so that a learner or
learners would have to stand during the trip;
22.5.2. learners,
specifically primary school learners, were allowed to stand near or
at the door of the bus when it was not
in a completely stationary
position (standing still);
22.5.3. learners,
specifically primary school learners, were allowed to approach the
door of the bus before it was not in
a completely stationary position
(completely standing still);
22.5.4. learners
were allowed to stand up from their seats and approach the door of
the bus whilst it was not completely stationary,
but in fact in
motion;
22.5.5. learners or
any other passenger were allowed to operate the mechanism that opens
and closes the doors of the bus whilst
it was in motion;
22.5.6. learners
were allowed to stand at the front of the bus where the door as well
as the mechanism that opens and closes
the bus's door is situated
whilst the bus was in motion;
22.5.7. learners
were allowed to open the door of the bus whilst the bus is in motion,
more so when other learners and/or
passengers are standing at the
door of the bus or in close proximity of the door;
22.5.8. learners
were allowed to exit the bus or jump from the bus whilst it is in
motion, alternatively before it has come
to a complete stop;
22.5.9. not to
allow learners to be subjected to negligent conduct in the driving of
the bus or in the manner the bus is conducted
when the learners are
on-board and being conveyed that could cause them harm and damages
when providing public transport to the
learners to and from school;
22.5.10.
to
ensure that the primary school learners, including the plaintiff were
conveyed in a manner that was safe;
22.5.11.to ensure that
the learners were not subjected to negligent conduct in the driving
of the bus or in the manner the bus is
conducted when the learners
are on board that could cause them harm and damages when being
conveyed by bus from school;
22.5.12.to ensure that
proper and adequate transport were made available for the conveyance
of the primary school learners, including
the plaintiff;
22.5.13.to ensure that
proper control was exercised to ensure the bus or vehicle
transporting the primary school learners, including
the plaintiff,
was not overloaded;
22.5.14.to ensure that
measures were taken to exercise proper control over primary school
learners to prevent the learners from
harming themselves or causing
harm to other learners when they were being transported by means of
the second defendant’s
bus from school.
22.6.
It is further the plaintiff’s case that the
accident was the direct consequence of the defendants’ breach
of the legal
duty they owed to learners of the School, including the
plaintiff;
22.7.
After the accident the plaintiff was taken to
hospital by ambulance for medical treatment of the injuries she
sustained in the accident,
where she was hospitalised from 3 May 2006
to 10 May 2006, whereafter she was transferred for rehabilitative
treatment;
22.8.
As a result of the accident, the plaintiff
sustained a fracture of her right tibia and fibula, neurovascular
damages and subsequently
had to undergo a Trans Femoral amputation of
her right leg. The full nature and extent of the injuries sustained
by the plaintiff
in the accident are set out in the medico-legal
report of Dr JF Greyling (Orthopaedic Surgeon).
22.9.
The plaintiff’s aunt in her capacity as
Curator -Ad-Litem to the plaintiff whilst she was still a minor,
lodged a claim against
the Road Accident Fund (“the RAF’’).
The plaintiff’s claim was limited to R25 000.00.
23.
Initially, the first and fifth defendants denied
liability on the basis
inter alia
,
that the transportation of the learners to and from school was not a
‘school activity’ for purposes of section 60
of the
Schools Act, whilst the second and third defendants’ simply
denied liability without further elaboration.
24.
The first, second and fifth defendants no longer
persist with their denial of liability to compensate the plaintiff
for the damages
she suffered as a result of the accident. Hence the
two Consent Orders, which by agreement between the parties were made
orders
of this Court.
Should the damages
awarded to the plaintiff be apportioned between the defendants?
25.
As already indicated above, despite conceding to
the first and fifth defendants’ liability in terms of section
60(1) of the
Schools Act to compensate the plaintiff for the
delictual damages she sustained in the accident, Adv Sibeko SC
contended that the
Court should apportion the plaintiff’s
damages between the first and fifth defendants on the one hand and
the second defendant,
on the other hand. In summary, his argument for
why the damages recoverable by the plaintiff should be apportioned
between the
defendants runs as follows:
25.1.
On the 15
th
of May 2019 Justice Mamosebo made the following
order in this matter:
“
2.
The First and Fifth Defendants, on the one hand and the Second
Defendant, on the other hand, are thereby
declared
to be joint wrongdoers in terms of Section 2(2) of the Apportionment
of Damages Act 34 of 1956, and the court would make
a just and
equitable apportionment, having regard to the degree in which each
joint wrongdoer was at fault in relation to the damages
suffered by
the Plaintiff
.’’
[My underlining]
25.2.
In paragraph 7.7 of the particulars of claim, the
plaintiff averred that ‘the second defendant and its employee
owed a legal
duty to learners, including the plaintiff, who were
conveyed by the second defendant’s Nissan Bus from the School
to designated
destinations
inter alia
,
not to allow learners to be subjected to negligent conduct in the
driving of the Nissan Bus or in the manner the Bus was conducted
when
the learners were on-board and being conveyed that could cause them
harm and damages. . .; not to allow learners, specifically
primary
school learners, to stand near or at the door of the Bus when it was
not completely stationary; not to allow learners to
exit the Bus or
jump from the Bus whilst it was in motion, alternatively before it
had come to a complete stop; not to allow learners
to open the door
of the Bus whilst the Bus was in motion, more so when other learners
and /or passengers were standing at the door
of the Bus or in close
proximity to the door of the Bus . . .’
25.3.
In response to the averments in paragraph 7.7 of
the particulars of claim, the second defendant pleaded a bare denial,
without explaining
the bases of the denial.
25.4.
But for the conduct of the driver of the Bus (the
third defendant) in failing to supervise the learners who were being
conveyed
in the Bus, the accident would not have occurred.
25.5.
There is a continuous duty on the part of the
school to supervise the learners.
25.6.
Section 60 of the Schools Act though imposing
strict liability on the State, it does not absolve the second
defendant from liability.
25.7.
This matter implicates section 29(1) of the
Constitution – the right to basic education and is therefore a
constitutional
matter.
25.8.
Section 172(1)(b) of the Constitution confers wide
discretionary powers on a court deciding a constitutional matter
within its powers,
to make an order that is just and equitable.
25.9.
An order that will be just and equitable in the
circumstances of this case, is an order declaring that the first,
second and fifth
defendants are jointly liable to the plaintiff for
the damages sustained in the accident that occurred on 3 May 2006
and, apportioning
the damages 60/40 in favour of the first and fifth
defendants.
26.
Adv. Coetzee on behalf of the second defendant on
the other hand, contends that:
26.1.
The first and fifth defendants’ liability
for the damages suffered by the plaintiff is not delictual in nature
but is statutory.
Once the strict conditions of section 60 of the
Schools Act are met, then the first and fifth defendants become
liable for the
full extent of the loss or damage suffered by the
plaintiff.
26.2.
The position of the first and fifth defendants is
analogous to that of the Road Accident Fund under the Road Accident
Fund Act,
1996. Liability is not based on fault on the part of the
first and fifth defendants.
26.3.
Section 60(1) of the Schools Act was enacted to
protect victims who suffer delictual damages at the hands of indigent
schools that
may not be able to compensate the victims for the loss
suffered.
26.4.
Because the first and fifth defendants’
liability is not based on any fault on their part, then they cannot
be joint wrongdoers
together with the second defendant.
26.5.
Since apportionment is based on fault, in the
absence of fault, then there is nothing to apportion.
26.6.
The only factor which the Court should take into
account in exercising its discretionary powers in this case, is
section 60 of the
Schools Act, which imposes strict liability on the
State for delictual or contractual damage or loss caused as a result
of any
act or omission in connection with any school activity
conducted by a public school.
26.7.
Adv Coetzee SC contends that the only just and
equitable relief the Court may grant is that there should be no
apportionment and
that each party should pay their own costs.
THE FIRST ISSUE IN
THE CASE: SHOULD THE COURT APPORTION THE DAMAGES BETWEEN THE
DEFENDANTS?
23.
It may come as a surprise in light of the Order of
15 May 2019 that apportionment is still an issue for determination by
the Court.
This is for the reason that in terms of paragraph 2 of the
Order of Justice Mamosebo, the court has already declared the first
and fifth defendants on the one hand and the second defendant, on the
other hand, to be joint wrongdoers in terms of section 2(2)
of the
Apportionment of Damages Act, 34 of 1956 (“the Apportionment of
Damages Act’’). Further, the court has
already pronounced
itself on the question of apportionment of damages, having regard to
the degree in which each joint wrongdoer
was at fault in relation to
the damages suffered by the plaintiff. This is plain from paragraph 2
of the Order.
24.
Despite the wording of paragraph 2 of the Order of
Justice Mamosebo, it is doubtful that the Order intended to make a
‘declaration’,
in the sense of deciding, that the first
and fifth defendants on the one hand and the second defendant, on the
other hand, are
joint wrongdoers for purposes of section 2 of the
Apportionment of Damages Act without first determining the fault
element.
25.
This is for the reason that delictual liability in
our law is based on fault. This is made clear in various judgments of
our courts.
25.1.
In
Thoroughbred
Breeders’ Association
,
[11]
the SCA made clear that delictual liability in our law is based on
fault.
“
Although
our law recognises an action for damages for breach of a statutory
duty where the statute was intended to give a right
of action (See
McKerron
The
Law of Delict
7
th
ed at
276), where it does not the Courts may yet hold that the breach may
be evidence of negligence. Compare
Rawles
v Barnard
1936
CPD 74
at 77 and
Olitzki
Property Holdings v State Tender Board and the Premier of the
Province of Gauteng
(SCA,
28.3.2001, as yet unreported,- at para [13]). Our Courts have not by
judicial decision built up a new branch of the law of
civil wrongs
relating to breach of statutory duties imposed by legislation akin to
the English Factories Acts. It may well be that
for that reason our
Legislature decided to omit from the definition of ‘fault’
in the Act a reference to breach of
statutory duty such as was found
in the English 1945 Act.
Furthermore,
liability for delict in our law is based in general on fault
,
unlike in English law where in an appreciable number of torts strict
liability exists.
That
would explain why our Legislature omitted any reference to other acts
or omissions which give rise to strict liability
and
was content to make
apportionment
available only in cases where fault in its ordinary sense was
present
,
subject only to the inclusion of contributory negligence for the
reason given in the next paragraph. Moreover, as Lord Diplock
said
(at 674H) in
Boyle
v Kodak Ltd (supra)
it
is difficult to apportion the respective shares of responsibility for
damage of parties who were not blameworthy in any way and
who are
only regarded as being at ‘fault’ because of the
application of strict liability to their case. We therefore
do not
think that the differences between the definitions of ‘fault’
appearing in the English and South African Acts
indicate an intention
on the part of our Legislature to make the Act apply not only in the
context of actions
ex
delicto
but
also of those
ex
contractu.’’
[12]
[My
underlining]
25.2.
The
same view was expressed by the Constitutional Court in SATAWU.
[13]
“…
[
T]he
Apportionment Act is based on an apportionment of fault, in
particular negligence
,
and is thus inapplicable to cases of strict statutory liability
…”
[14]
25.3.
In
South
British Insurance Co Ltd
,
[15]
the then Appellate Division made clear that ‘apportionment’
is about determining the respective degrees of negligence
of the
parties in the following terms:
“
Prima
facie
,
therefore, the Legislature used the word ‘fault’
throughout the section as embracing a negligent act or omission
causally linked with the damage in issue. The ‘damage’
referred to in the expression ‘at fault in relation to
the
damage’ is, of course, the damage mentioned earlier in para 1
(a) namely damage caused partly by the claimant’s
fault and
partly by the fault of another. In that initial stage of the enquiry
causal negligence is the only criterion: in order
to bring his case
within the section at all, the claimant must first show that the
damage which he has suffered was at least partly
caused by the
negligence of another. That is to say,
the
word ‘fault’ in the first portion of para. 1 (a)
undoubtedly means negligence causally linked with the damage
.
Because of the provisions of para. 1 (b), ‘fault’ may be
so linked irrespective of who had the last opportunity to
avoid the
consequences of the other’s fault. Para. 1 (b) eliminates the
‘last opportunity’ rule as a criterion
of sole cause.
Despite such a last opportunity in the one party, the other party’s
fault is, in terms of para. 1 (b), to
‘be regarded’ as
having partly caused his damage.
Here
again the word 'fault' means negligent act or omission and is again
in terms causally linked with the damage.
So
also, where sub-sec. (2) – which obtains ‘in any case to
which the provisions of sub-sec. (1) apply’ –
mentions
‘persons at fault’ (
persone
wat skuld het’
)
the reference is to persons whose negligent acts or omissions are
causally linked with the damage in issue.
In all cases falling
within para. 1 (a), the damages recoverable by the claimant
‘
shall
be reduced by the court to such extent as the court may deem just and
equitable having regard to the degree in which the claimant
was at
fault in relation to the damage’.
Although the paragraph
thus refers only to the claimant, it is, I think, plain from a
consideration of the section as a whole that
what the Court has to
measure is the conduct of all parties whose fault caused the damage
.
Postulating a single defendant, the determination of the ‘degree
in which the claimant was at fault in relation to the damage’
will also automatically determine the degree in which the defendant
was at fault in relation to the damage.
It
follows from all the foregoing that, when the Court reaches the stage
of apportionment, it is
ex
hypothesi
dealing
with ‘fault’ – that is to say, a negligent act or
omission – which is causally linked with the damage
in issue
.
. .
In
directing the Court to have ‘regard to the degree in which the
claimant was at fault in relation to the damage’ (
met
in agneming van die mate van die eiser se skuld met bettreking tot
die skade
’
)
the Legislature, in my opinion, requires the Court to assess the
degree of the claimant’s negligence in relation to the
damage
which has been caused by the combination of that negligence and the
negligence of the defendant. That is not to say that
the Court is to
embark upon the impossible task of determining degrees of causation.
What the Court is required to do is to determine,
having regard to
the circumstances of the particular case, the respective degrees of
negligence of the parties. In assessing ‘the
degree to which
the claimant was at fault in relation to the damage’ the Court
must determine in how far the claimant’s
acts or omissions,
causally linked with the damage in issue, deviated from the norm of
the
bonus
paterfamilias
.
In thus assessing the position, the Court will, as explained above,
determine the respective degrees of negligence, as reflected
by the
acts and omissions of the parties, which have together combined to
bring about the damage in issue.’’
[16]
26.
The case-law referred to above are
ad
idem
that apportionment is really about
the determination of the respective parties’ degree of fault or
negligence which brought
about the damage. It is for this reason that
I do not see how the court could have determined in paragraph 2 of
the Consent Order
of 15 May 2019 that the first and fifth defendants
on the one hand and the second defendant, on the other, are joint
wrongdoers
for purposes of the Apportionment of Damages Act, when it
had not determined their respective degrees of negligence which is
causally
linked with the damage.
27.
As Adv Coetzee correctly put it, the assessment or
determination of the defendants’ respective degrees of
negligence for the
purpose of apportionment cannot be thumb-sucked.
It must be based on the evidence before the court. In this case, no
evidence was
presented, which could have enabled the court to
determine, let alone to assess the negligence or fault of the
respective defendants.
This makes it even more difficult to imagine
how the court could have been able to determine that the first and
fifth defendants
on the one hand and the second defendant, on the
other hand, were both negligent and that their negligence was
causally linked
to the plaintiff’s damages.
28.
It is
no answer to suggest that the Court should determine the defendants’
respective degree of negligence or fault based
on the pleadings. That
is impermissible. The role of pleadings is to define the issues, but
do not constitute admissible evidence,
[17]
especially in a case like this, where liability is disputed on the
pleadings. The court could not in the circumstances have determined
the negligence or fault of the defendants based on the pleadings.
29.
Presumably, what paragraph 2 of the Consent Order
of 15 May 2019 was intended to convey, therefore, was that the
plaintiff’s
pleaded case is that the first, second and fifth
defendants are jointly and/or severally liable for the damages she
sustained in
the accident. I say ‘presumably’ because
this is not what paragraph 2 says. Paragraph 2 suggests something
different.
It suggests that the court has made a ‘declaration’
or a determination that the first, second and fifth defendants are
joint wrongdoers in the sense that their conduct or omission was
causally linked to the plaintiff’s damages. I say the court
could not have done that without evidence.
30.
However, to the extent that paragraph 2 of the
Consent Order of 15 May 2019 was intended to determine the
defendants’ negligence
in relation to the damages suffered by
the plaintiff in the accident, then the court was clearly wrong in
making a determination
on the negligence of the defendants without
evidence. It appears that the court simply gave in to a request by
the parties to make
the draft order an order of court, in
circumstances where the court should not have done so.
31.
A
court is not under an obligation to endorse a draft order or a
settlement agreement simply because the parties so request. Before
making a draft order or settlement agreement an order of court, the
court must first be satisfied that the order it is about to
make, is
legally competent. This was made clear by the Constitutional Court in
Eke
v Parsons
,
[18]
where Madlanga J cautioned courts against a practice of being
mechanical in the adoption of the terms of a settlement agreement
as
follows:
“
This
in no way means that anything agreed to by the parties should be
accepted by a court and made an order of court. The order
can only be
one that is competent and proper. A court must thus not be mechanical
in its adoption of the terms of a settlement
agreement. For an order
to be competent and proper, it must, in the first place, ‘relate
directly or indirectly to an issue
or lis between the parties’.
Parties contracting outside of the context of litigation may not
approach a court and ask that
their agreement be made an order of
court. On this
Hodd
says:
‘
(I)f
two merchants were to make an ordinary commercial agreement in
writing, and then were to join an application to court to have
that
agreement made an order, merely on the ground that they preferred the
agreement to be in the form of a judgment or order because
in that
form it provided more expeditious or effective remedies against
possible breaches, it seems clear that the court would
not grant the
application.’
That is so because the
agreement would be unrelated to litigation.
Secondly, ‘the
agreement must not be objectionable, that is, its terms must be
capable, both from a legal and a practical
point of view, of being
included in a court order’. That means its terms must accord
with both the Constitution and the law.
Also, they must not be at
odds with public policy. Thirdly, the agreement must ‘hold some
practical and legitimate advantage’.’’
[Footnote
omitted].
32.
In this case, the court made an order that is
legally incompetent. It declared the first and fifth defendants to be
joint wrongdoers
with the second defendant and, directed that the
plaintiff’s damages should be apportioned between them based on
their respective
degrees of fault in relation to the damages. There
are two fundamental problems with paragraph 2 of the Order, which
make it unimplementable.
32.1.
First, as correctly contended by Adv Coetzee SC,
the liability of the first and fifth defendants to compensate the
plaintiff in
this case is statutory, not delictual in nature. For
this reason, so it is argued, the first and fifth defendants cannot
be joint
wrongdoers with the second defendant. This contention finds
support in various judgments of our courts.
32.1.1
In
Smith
v Road Accident Fund
,
[19]
the SCA in a similar vein found that the Road Accident Fund (“the
Fund’’) in that case cannot be a joint wrongdoer
with the
negligent driver because its liability is statutory in nature.
“
That
statute (Apportionment of Damages Act) does not, . . .create a cause
of action in s 2(1). What it does is to provide a means
of sharing
the burden of damages between joint wrongdoers in delict.
Prima
facie
,
the Fund is not such a wrongdoer when an unidentified driver or owner
is involved because its liability is essentially statutory,
proof of
delict alone being, by reason of the regulations to the Act, wholly
insufficient to establish a cause of action against
it. . .
The
Fund cannot be a joint wrongdoer with the negligent driver
.”
[20]
32.1.2
The position of the Fund is pretty much analogous
to that of the first and fifth defendants in this case. The liability
of the first
and fifth defendants to compensate the plaintiff for the
damages sustained in the accident is purely statutory in nature. It
derives
from section 60(1) of the Schools Act. For this reason, the
first and fifth defendants cannot be joint wrongdoers with the second
defendant in relation to the damages suffered by the plaintiff in the
accident.
32.1.3
Similarly,
in
Mosholi
v Putco (Pty) Ltd
[21]
,
the High Court found that since the liability of the Road Accident
Fund for the compensation of victims of road accidents is statutory,
not delictual in nature, and for that reason, is not a joint
wrongdoer for purposes of the Apportionment of Damages Act.
32.2.
I did not understand Adv Sibeko SC on behalf of
the first and fifth defendants, to dispute that the liability of his
clients to
compensate the plaintiff for the damages she sustained in
the accident is purely statutory in nature, not delictual. Once it is
so, then it follows that they cannot be joint wrongdoers with the
second defendant because there is no fault or negligence on their
part, which is causally linked to the damages suffered by the
plaintiff.
32.3.
Second, because apportionment is based on fault in
its ordinary sense the purpose of which is to measure each of the
parties’
degree of fault or negligence, absent ‘fault’
or negligence on the part of the first and fifth defendants as it is
the case here, then there cannot be apportionment of liability
between the first and fifth defendants on the one hand, and the
second defendant on the other hand.
33.
This Court cannot give effect to paragraph 2 of
the Consent Order of 15 May 2019 by apportioning liability between
the defendants
in circumstances where no factual or legal basis
exists for the apportionment.
34.
Confronted
with these difficulties, Adv Sibeko SC sought refuge in this Court’s
powers under section 172(1)(b) of the Constitution
when deciding a
constitutional matter within its powers to make an order that is just
and equitable. Relying on the Constitutional
Court judgments in
Hoerskool
Ermelo
,
[22]
and
EFF
[23]
,
Adv Sibeko SC argued, correctly so in my view, that this Court’s
powers to make a just and equitable order is not limited
to
declarations of invalidity. The remedial powers under section
172(1)(b), so the argument continued, are wide enough to include
an
order apportioning liability between the defendants.
35.
That is so as a statement of law. The power of a
court in terms of section 172(1)(b) of the Constitution to make a
just and equitable
remedy was elegantly explained by the
Constitutional Court in
Hoerskool
Ermelo
, as follows:
“
The
power to make such an order derives from s 172(1)(b) of the
Constitution. First, s 172(1)(a) requires a court, when deciding
a
constitutional matter within its power, to declare any law or conduct
that is inconsistent with the Constitution invalid to the
extent of
its inconsistency. Section 172(1)(b) of the Constitution provides
that when this court decides a constitutional matter
within its
powers it ‘may make any order that is just and equitable’.
The litmus test will be whether considerations
of justice and equity
in a particular case dictate that the order be made. In other words
the order must be fair and just within
the context of a particular
dispute.’’
[24]
36.
Adv Sibeko SC placed heavy reliance on the
following statement by Jafta J in the EFF decision (
supra
)
in support of the argument that this Court has wide powers under
section 172(1)(b) to order apportionment of damages between the
defendants:
“
The
power to grant a just and equitable order is so wide and flexible
that it allows courts to formulate an order that does not
follow
prayers in the notice of motion or some other pleading. This power
enables courts to address the real dispute between the
parties by
requiring them to take steps aimed at making their conduct to be
consistent with the Constitution . . .”
[25]
37.
It is
well established that making a just and equitable remedy in terms of
section 172(1)(b) of the Constitution involves the exercise
of a
discretion in the true sense. This was confirmed by the SCA in
Special
Investigating Unit v Phomella Property Investments (Pty) Ltd.
[26]
“
This
court has confirmed that the discretion exercised under s 172(1)(b)
of the Constitution is a true one:
‘
The
exercise of a remedial discretion under s 172(1)(b) of the
Constitution . . . constitutes a discretion in the true sense.
It may be interfered with on appeal only if [the appeal court] is
satisfied that it was not exercised judicially, or had been
influenced by wrong principles or a misdirection of the facts, or if
the court reached a decision which could not reasonably have
been
made by a court properly directing itself to all the relevant facts
and principles. Put simply, the appellants must show that
the High
Court’s remedial order is clearly at odds with the law’.”
[27]
38.
The fact that the discretion under section
172(1)(b) is wide and flexible, does not mean that the court is at
liberty to make an
order which is unreasonable or at odds with the
law. The discretion under section 172(1)(b) must be exercised
judicially and in
accordance with the facts and the law.
39.
Based on the facts and the law, the liability of
the first and fifth defendants in this case is not based on fault or
negligence
on their part. It is statutory in nature. As I have
already demonstrated above, apportionment is about sharing liability
based
on each party’s degree of fault or negligence in relation
to the damages suffered by the plaintiff.
40.
Without fault or negligence on the part of the
first and fifth defendants, then there cannot be any apportionment of
liability between
the first and fifth defendants on the one hand, and
the second defendant on the other. An order for apportionment of
liability
would plainly be at odds with the law.
41.
More fundamentally though, there is simply no
basis in fact, for any apportionment. There is no evidence before the
Court that would
form a basis for the apportionment. Even on the
pleadings, the fault or negligence aspect of this case is disputed by
both defendants.
42.
Once it is so, then it follows that there is no
basis whatsoever for apportionment of liability between the
defendants. Any order
for apportionment as suggested by Adv Sibeko SC
will self-evidently not be in accordance with justice. It will be
based on a misdirection
on the facts and the law.
ORDER
43.
In the result I make the following order:
1.
There is no apportionment of liability between the
first and fifth defendants on the one hand, and the second defendant
on the other
hand.
2.
Each of the defendants shall bear their own costs.
M J Ramaepadi
Acting Judge of the High
Court of South Africa, Northern Cape Division, Kimberley
APPEARANCES
For
the First and Fifth Defendants:
Adv.
L T Sibeko SC
Adv.
J Merabe
Instructed
by:
STATE
ATTORNEY
Kimberley
For
the Second Defendant:
Adv.
W J Coetzee SC
Instructed
by:
JOHAN
KOTZE ATTORNEYS
C/o
ENGELSMAN MAGABANE INC
Kimberley
[1]
Consent
Order of 15 May 2019 para 2
[2]
Ibid
para
3
[3]
Ibid
para
6
[4]
Government
Notice No. 997 published in Government Gazette No. 39314 of 23
October 2015 “the National Policy’’)
[5]
s
2 of the National Land Transport Act, 5 of 2009 (“the NLTA”)
provides:
“
The
purpose of this Act is –
(a)
to further the process of transformation and
restructuring the national land transport system initiated by the
Transition Act;
(b)
to give effect to national policy;
(c)
to prescribe national principles, requirements,
guidelines, frameworks and national norms and standards that must be
applied uniformly
in the provinces and other matters contemplated in
section 146 (2) of the Constitution; and
(d)
to consolidate land transport functions and
locate them in the appropriate sphere of government.”
[6]
para
1.3 and 1.6.1 of the National Policy
[7]
section
41(1)(h) of the Constitution provides:
“
All
spheres of government and organs of state within each sphere must
cooperate with one another in mutual trust and good faith
by –
(i)
fostering friendly relations;
(ii)
assisting and supporting one another;
(iii)
informing one another of, and consulting one
another on, matters of common interest;
(iv)
coordinating their actions and legislation with
one another;
(v)
adhering to agreed procedures; and
(vi)
avoiding legal proceedings against one
another.’’
[8]
s
29 of the Constitution provides:
“
(1)
Everyone
has the right –
(a) to
a basic education, including adult basic education; and
(b) to
further education, which the state, through reasonable measures,
must make progressively available and
accessible’’.
[9]
Governing
Body of the Juma Musjid Primary School & Others v Essay N.O. and
Others
(Centre
for Child Law and Another as Amici Curiae
)
[2011]
ZACC 13
;
2011 (8) BCLR 761
(CC) “
Juma
Musjid’’
[10]
Id
at para 43
[11]
Thoroughbred
Breeders’ Association v Price Waterhouse
2001
(4) SA 551 (SCA)
[12]
Id
at para 17 of the majority judgment of Marais JA, Farlam JA and
Brand AJA
[13]
SATAWU
and Another v Garvas and Others
2013
(1) SA 83
(CC) “
SATAWU’’
[14]
Id
at para 74
[15]
South
British Insurance Co Ltd v Smit
1962
(3) SA 826 (A)
[16]
Id
at 835-836
[17]
See
for example,
Road
Accident Fund v Taylor and Related Matters
2023
(5) SA 147
(SCA) at para 30
[18]
2016
(3) SA 37
(CC) para 25-26 “
Eke’’
;
see also
Airports
Company South Africa v Big Five Duty Free (Pty) Ltd and Others
2019
(2) BCLR 165
(CC) at para 13 “
ACSA’’;
Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019
(4) SA 331
(CC) at para 25;
Mafisa
v Road Accident Fund
2024
(4) SA 426
(CC) at para 42;
Maswanganyi
v Road Accident Fund
2019
(5) SA 407
(SCA) at paras 15-16
[19]
2006
(4) SA 590 (SCA)
[20]
Id
at para 10
[21]
2011 (5) SA 38 (GNP)
[22]
Head
of Department, Mpumalanga Department of Education and Another v
Hoerskool Ermelo and Another
2010
(2) SA 415 (CC)
[23]
Economic
Freedom Fighters and Others v Speaker of the National Assembly and
Another
2018
(2) SA 571 (CC)
[24]
Hoerskool
Ermelo
at
para 96
[25]
Id
at para 211
[26]
2023
(5) SA 601
(SCA)
[27]
Id
at para 12;
Central
Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd and
Others
2022
(5) SA 56
(SCA) at para 43