SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA


IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE NUMBER: 4242/2016
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
Signature:
Date : 24/02/2025

In the matter between:

R[...] M[...] PLAINTIFF

AND

MEC F OR THE DEPARTMENT
OF EDUCATION, LIMPOPO DEFENDANT
_________________________________________________________ _________
JUDGMENT
_________________________________________________________ _________
STRöH JA

[1] The Plaintiff (R[...] M[...] ) instituted an action for damages and compensation
against the M ember of the Executive Council of Education , Limpopo (hereinafter
the Defendant ), claiming an amount of :

1. R 20 000,00 (Twenty Thousand Rand) for Estimated Past Medical Expenses ,

2. R 150 000,00 (Hundred and Fifty Thousand Rand) for Estimated Future
Medical Expenses,

3. R 1 500 000,00 (One Million Five Hundred Thousand Rand) for Past and
Future Loss of Earning

4. R200 000,00 (Two Hundred Thousand Rand) for Damages for Loss of
Amenities

5. R 350 000,00 (Three Hundred and Fifty Thousand Rand) for Damages for
Pain and Suffering, Disfigurement, Shock and Discomfort as a result of
damages suffered due to the school ’s negligence.

At the commencement of the trial (as agreed between the parties ) the merits were
separated from the quantum and only the issues relating to the Defendant’s liability
are adjudicated upon. Quantum of damages, if it arises is postponed sine die.

[2] The Plaintiff in her Particulars of Claim, stated that an accident/incident occurred
when she slipped in the field of play whilst practicing for a Netball match and
sustained a fracture of her right arm.

[3] In h er Particulars of Claim, the Plaintiff submit that the Defendant failed to comply
with the Regulations for Safety Measures at Public Schools,1 in the event of an
activity by the school , amongst other things :


1 Regulation 8A(2) Published under Government Notice 1040 in Government Gazette 22754 of
October 2001 and amended by GN R1128 in Government Gazette 29376 of 10 November 2006
‘(i) A public school must take measures to ensure the safety of learners during
any school activity , including –

(a) Insuring against accidents, injuries, general medical experiences,
hospitali sation and theft that may occur, depending on the availability of funds ;

(b) Ensuring where reasonab ly practicable , that learners are under
supervision of an accom panying educator at all times;

(c) Requesting parents or other adults to assist in the supervision of learner .’

[4] The Plaintiff stated in her Particulars of Claim, that the state (Limpopo
Department of Education) is liable for any damages of loss caused as a result of any
act or omission in connection with any education activity conducted by a public
school and for which such public school would have been liable for provisions under
the State Liability Act .2

[5] The Plaintiff in her Particulars of Claim, stated that the school breached it ’s
statutory duties and acted negligent ly in one or more of the following respects:

5.1 ‘it failed to insure against accident, injuries and general expenses that
may occur, depending on the funds;

5.2 It failed to insure that where reasonable and practicable that learners are
under supervision of an accompanying educator at all times, more parti cularly
with the Plaintiff ;

5.3 It failed to request the parents and or other adults to assist in supervision
of learners;

5.4 It failed to take and implement the necessary measures to ensure the
safety of learners more particularly with the Plaintiff;

2 Act 20 of 1975

5.5 It failed to insure that the learner is not injured on the school premises;

5.6 It failed to take reasonable and necessary steps to prevent the accident
from occurring when it could have or should have done so;

5.7 It failed to take the necessary steps to repair and or maintain the said
netball field to a playable condition;

5.8 It failed to assist or care for the learner after the accident even though she
was still under its care.

Alternatively to the above mentioned breached by the school:

5.9 The employee or employees responsible for control and supervision of
learners during school breaks failed to ensure that there was sufficient control
and supervision on the 30th July 2015;

5.10 The employee responsible for control and supervision of learners o n the
30th July 2015 failed to exercise such control and supervision, alternatively
failed to effectively exercise such control and supervision when, in the
circumstances, they could and should have do so;

5.11 The employees responsible for control and supervision of learners failed
to inspect the fi eld of play or area if it was in such condition that it was not
dangerous for learners to practice and ultimately avoid harm;

5.12 The employee(s) responsible for control and supervision of learners
failed to take reasonable precautions to prevent injury to learners,
alternatively failed to ensure that such precautions were adhere to when, in
the circumstances, they could and should have done so;

5.13 The employee(s) responsible for control and supervision of learners
failed to prevent the aforesaid dangerous activity taking place when, in
circumstances, they could and should have done so .’

[6] In the amended Plea (dated the 20th October 2020 ) the Defendant pleaded to the
Plaintiff’s amended Particulars of Claim (dated 4th January 2020) as follows:

6.1 ‘Netball is a contact sport;

6.2 the Plaintiff had knowledge of the risk in playing Netball;

6.3 the Plaintiff appreciated the ambit of the risk; and

6.4 the Plaintiff consented to the risk ;

6.5 the Plaintiff misconstrued the Regulations ( Regulation 8A(2)) and avers
that the Regulation make provision for the school to take insurance , subject
to availability of funds, against accidents, injuries, general expenses,
hospitalization, theft that m ay occur as a measure to ensure safety of learners
during school trips activities.

6.6 the school grounds were well maintained and still are.

6.7 the Plaintiff was visited by the former Principal of the school at the hospital
and even at home;

6.8 the principal even paid some of the hospital bills from the school coffers;

6.9 the Defendant pleads that the Plaintiff relies on a breach of duty of care,
however, the Plaintiff fails to set out facts that could or should have been
foreseen by the Defendant. ’

Common Cause

[7] During the open ing remarks in the trial it was conceded that :

1. The Defendant is the MEC of Education, for Limpopo,

2. The Plaintiff was at the time of the incident , a learner at D[...] K[...]
Secondary School (hereinafter the ‘ school’) ,

3. The injury sustained by Plaintiff was not in dispute,

4. The Plaintiff complied with Section 3 of Act 40 of 2002,3

5. The school ground w here the incident/accident occurred was not in dispute
and,

6. The School had a legal duty or duty to care.

Issues in Dispute

[8] (i) Causation - What caused the injury to the Plaintiff ;

(ii) Whether the Defendant had a statutory duty to prevent the injury, taking
into account how the incident happened;

(iii) Whether the Defendant failed in its duty to prevent;

(iv) Whether the Defendant was negligent

It is the Plaintiff ’s case that she ‘tripped ’ and fell. The Defendant ’s case is that Netbal l
is a contact sport and that the school grounds w ere well maintained. The Cambridge,
Collins and Oxford Dictionaries define Tripping/Tripped as to lose balance or fall
because the foot hits against something, or to fall over, to stumble on, or to slip on

3 Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
something , and Uneven surface/ground as ‘not smooth, level flat, straight or
continuous. ’

Evidence in the Trial

Plaintiff ’s Evidence

[9] The Plaintiff testified that she was in Grade 11 (eleven) when the
incident/accident occurred. She confirmed that she was a member of her school
Netball team at the time. The day prior to the incident , the Netball team of which she
was a member played against another school and won. Following this occurrence,
the following day the team, including herself , where in the classroom when they were
requested to go practice Netball at the Netball sport grounds.

[10] The Plaintiff testified that on the day of the incident when she practiced at the
Netball grounds , they (she and her Netball teammates) were not under supervision .

[11] Regarding the injury sustained by the Plaintiff, her evidence was that she tripped
and fell down and injured her right arm.

[12] The Netball grounds ’ condition according to the Plaintiff’ s evidence are the
following and are quoted verbatim, ‘the ground was uneven ground; the color of the
ground was red with patches of grass and even some stones. Evidence was
presented by the Plaintiff with pictures confirming the red ground, patches of grass
and some stones. ’

[13] During cross examination the Plaintiff conceded that she only started playing
Netball in Grade 10. When asked to whom she complained about the unevenness of
the Netball ground, her answer was the teacher. Regarding the question of the red
soil and what is wrong with the red soil, she replied r ed soil is slippery .

[14] She also testified that the ‘squad ’ (Netball team) usually clean the Netball
ground before they play. She testified that at the day of the incident, and I quote
verbatim, ‘they (Netball team) did not clean the Netball ground due to short noticed .’

[15] The Plaintiff further testified that she ‘tripped ’ due to the uneven surface and the
grass. It was also her evidence that she was not assisted by the teacher after the
injury , it was her evidence that she was assisted by other Netball players.

[16] The court asked the question whether the Plaintiff was tripped by somebody
when playing Netball to which the Plaintiff replied and I quote verbatim , ‘No, I was
only tripped by the uneven ground .’

[17] During re -examination the Plaintiff ’s evidence was that they (Netball team)
usually clean the Netball grounds the day before they play (practice). They use a
spade and rake to level the playing field. She further confirm s on the day of the
incident there was no time to clean the Netball grounds before they went on to play
netball.

Evidence by the Plaintiff ’s Netball teammate

[18] During her testimony she confirm ed that she played with the Plaintiff in the same
Netball team and that they were instructed by the sport teacher on the day of the
incident to go practice Netball. She also described the Netball surface as red soil,
patches of grass and some small stones. When asked about the ‘level of ground ’ she
replied , ‘uneven .’ She could not assist the court by describing how the incident
happened.

[19] In cross examination she confirms that she only saw when the Plaintiff had
already fallen. She could not tell the court why the Plaintiff fell.

[20] She also testifies that they usually clean the Netball field themselves before they
play.

Evidence of B R M[...]

[21] This witness confirms to be family of the Plaintiff and more specifically his niece.
B R M[...] confirm that he only visited the school on the 7th August 2015 and that was
also the date that he took the pictures . His reason for taking so long to take the
pictures after the incident happened , was because he stayed in Gauteng.

[22] B R M[...] said he visited the school where the Plaintiff was injured and spoke to
the school principal regarding the incident/accident. B R M[...] was asked and I quote
verbatim, ‘When they took you to the Netbal l ground , what did you observe regarding
the descri ption of the playground? ’ B R M[...] answer ed, ‘The playground they
showed him there was so me grass, some stones and some slopes , small slopes .’

[23] The witness was asked if he took a picture of the entire sport ground or just a
certain section of it, to which he testified that the picture show the Netball ground that
was indicated to him.

[24] In cross examination , B R M[...] was asked where in th e picture one can see the
date on which the pictures were taken. M[...] was unable to show the court, the date
the pictures were taken. He said that the school principal showed him where the
incident happened however his evidence was that he was not accompanied with the
principal to the playground . It is also his evidence that he was alone when he took
the pictures .

[25] M[...] ’s evidence was also that on the day that he met with the school principal ,
Mr Mashaba was not present .

[26] During cross examination M[...] was asked what the reason was for why the
principal did not accompany him to the sportsground , to which he replied and I quote
verbatim, ‘after the school principal explained what happened he was satisfied. ’
However , when he saw the playing field he was not satisfied anymore .

[27] He also testified that the playground is outside the school ground and that the
pictures he took and showed the court did not indicate the date the pictures were
taken. When aske d the question and I quote verbatim, ‘You cannot say someone
tempered with the ground?’ , to which M[...] replied , ‘correct .’ He further confirm ed
that Mr Mashaba (Sport Teacher) was not present at the time that he met with the
principal . He decided that after the meeting with the principal, not to speak to Mr
Mashaba.

[28] In re -examination M[...] said the school principal showed him (from inside the
fence ) where the sportsgrounds were . The p icture (number ed 4) was used by the
witness to show the fence he was referring to. In the picture (numbered 3 ) the court
could s ee there w ere some patche s of grass on the sportsground . The witness was
asked how did he know where to take the pictures of where the incident happened ,
to which h e replied , that there was a Netball pole and he referred to picture
numbered 1.

[29] When the court asked and I quote verbatim : ‘Where on the pictures is the other
pole. A Netball court has two pole s?,’ he replied , ‘Upon arrival the second pole was
not there .’ He was also asked by the court, ‘Why did the Plaintiff not show you w here
the Plaintiff fell?’ to which he replied , ‘Due to her condition , she was not in a good
position .’ The last question the court asked this witness was and I quote verbatim,
‘You were not sure where the incident , area where incident happened? ’ to which he
replied , ‘It could be like that , they showed me the playing ground and they showed
where the Netball was played. ’

[30] During re -examination in respect of the Picture and the Pole, t he Plaintiff’s legal
representative asked and I quote verbatim, ‘Is it that the picture only show one
Pole? ,’ to which the witness replied , ‘The position I took and time (it is so depict on
pole) the school must be depicted from that photo .’ He was also asked , ‘If you have
taken a different picture , would it have depicted more than one pole ?’, to which he
replied , ‘that did not come to mind that the other pole should be depicted. ’

[31] It is appropriate even at this stage of my judgement to note and comment on the
significance of the evidence of the Plaintiff and her teammate with regards to the
surface of the Netball ground. Both testify that the surface was ‘uneven, red soil with
patches of grass. ’ This entails that the surface of the Netball grounds was an issue. It
is against this background that at the closure of the Plaintiffs ’ case I dismissed the
Defendant ’s application for absolution from the instance and called upon the
Defendant to lead their evidence in rebuttal of the prima facie version of the
Plaintiff ’s.

Defendant’s evidence

Mr Mashaba

[32] The Defendant started with their case and decided to call Mr Mashaba. He
confirmed that he remember ed the incident that occurred on the 30th July 2015 . He
was asked to testify ‘in his own words ’ what happened and his evidence was and I
quote verbatim, ‘It was a Wednesday, Sports day and they (he together with the
teachers) control the learners, those we allow them to go play .’

[33] He testified that they ( he together with the teachers) control the learners by
calling them one by one and if a player is unknown to them, they don’t allow the
player to go and play.

[34] Mr Mashaba also testified that when the group arrived at the gate, they (he
together with the teachers) gave the group a ball and I quote verbatim, ‘we will
follow. ’ They (he together with the teachers) were still at the gate controlling the
players when the Plaintiff together with the group arrived back at the gate with a
hand that was dislocated.

[35] It was also Mr Mashaba’s evidence that the school had two fences namely, the
smaller fence for the school buildings and a gate with a bigger fence for the
playground.

[36] Mr Mashaba explained that after the incident , they phoned the parents of the
Plaintiff and an ambulance was arranged to take the Plaintiff to the hospital where
the mother met the Plaintiff.

[37] The witness (Mr Mashaba) further testified that the learners practice Netball in
their sport attire. When asked and I quote verbatim, ‘It seems that Plaintiff fell before
getting into her sports attire? ’ to which he replied , ‘We were not there when she fell
however, she still had her school clothes on. ’

[38] He also testified , ‘…they went to the hospital and was welcomed by the mother
and doctors and that the principal went to the family to talk to the child. ’

[39] When considering the repair of the Netball field , it was Mr Mashaba’s
evidence that the Lepelle Nkumbi Local Municipality repaired the field , in the
beginning of the year and he also denied that learners helped to repair the field
during the year.

[40] When considering the red soil, stones, unevenness and patches of grass,
the evidence of the witness was , that they cannot do anything about the red color of
the soil, but they would not allow the learners to play if there are humps and stones
on the field. He further testified that if there was grass, the grass was at the level of
the ground .

[41] He also testified , and I quote verbatim, ‘that the Netball fi eld was playable.
Netbal l is a contact sport and if a learner plays rough , you have to stop them . If the
surface is slippery it doesn’t mean the ground is uneven. ’

[42] His further evidence was that before learners play, they look around the ground
to see if something is wrong before they play. They also look for places that is
dangerous for them.

[43] When he was asked about the pictures taken and shown in court, his initial
response was and I quote verbatim, ‘Let me not be part of the picture .’

[44] When asked to look at the picture s, the witness responded and I quote verbatim,
‘Who was with the person taking photographs, photographer throw stones on
ground, I don’t know ground with one pole, is it playable .’

[45] He also testified to the fact that the Plaintiff was still in her school uniform and
not in her sport attire which was an indication to him that , she was not on the sport
field when the injury occurred.

[46] During cross examination the witness testified that the 30th July 2015 was a
Wednesday.

[47] The witness denied they ( Plaintiff and her teammates) played against another
school , the day prior to the incident.

[48] The witness was confronted with the fact that the following questions were not
asked to the Plaintiff to respond to :

‘(i) you and the other colleagues were controlling the gate?;

(ii) plaintiff was injured wearing school uniform ?;

(iii) before play look if ground was playable ?.’

[49] The witness denied that the incident occurred due to the uneven playing ground.

[50] The witness was also asked during in cross -examination , how could he testify
that the ground was not playable to which he responded and I quote verbatim , ‘I
can’t say, they were playing. I don’t know what happened. ’

[51] The witness further testified that in the morning , prior to the time the learners go
and play Netball , they (he and the teachers) checked the ground and he testified that
they also , do not force learners to play.

[52] It is the witness ’ testimony that they (the learners) only play Netball on
Wednesdays and that t hey cannot play on other days because there is transport to
be arranged for the children when they play netball .

[53] The witness testify that in the morning of the incident, they (he and teachers)
cleaned the sports ground. The witness was confronted with the fact that the legal
representative for the Defendant did not inform the Plaintiff that Mr Mashaba was
going to testify that they (he and teachers) cleaned the sportsground, the morning
prior to the time the Plaintiff and her teammates will be practicing on the Netball
ground .

[54] The Court asked if the learners were allowed to play Netball alone, to which the
witness replied , ‘no.’

[55] Ms Ma shaba was the Netball coach . The witness also testified that she was at
the gate when the incident happened together with the rest of the sport committee.

[56] When the witness was asked once more if they (Netball team) could play alone
on the Netball field , witness denied this and stated that the coach was also the
referee.

[57] The witness also testified that there was only one Netball field at the school.

[58] When asked by the Court and I quote verbatim, ‘Don’t you think you must go
with a student to the Netball field? ’ the witness replied, ‘It is necessary, we gather
here at the gate, all of a sudden they disappear to the ground site. ’

[59] The Plaintiff’s legal representative confronted the witness with the question of
why controlling the gate by Mr Mogodi and Mr Makaba was never asked to the
Plaintiff to respond to.

Applicable Legal Principles

[60] The test for negligence is : whether the reasonable person in the position of a
Defendant in a matter would have foreseen the reasonable possibility of his conduct
injuring another and causing him patrimonial loss, and if so, whether the reasonable
person would have taken reasonable s teps to guard against the occurrence of harm.
The test was formulated as follows by Holmes JA in Kruger v Coetzee :4

‘For the purpose of liability culpa arises if –

(a) A diligens paterfamilias in the position of the defendant -

(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss, and

(ii) would take reasonable steps to guard against such occurrence;
and

(b) the defendant failed to take such steps. ’

[61] What steps would be rea sonable are dependent upon the facts and the
circumstances of the case. In Ngubane v South African Transport Services ,5 the
Court said:

‘Once it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have taken
measures to prevent the occurrence of the foreseeable harm. The answer
depends on the circumstances of the case. There are , however , four basic
considerations in each case which influence the reaction of the reasonable
man in a situation posing a foreseeable risk of harm to others: (a) the degree
or extent of the risk created by the actor’s conduct; (b) the gravity of the
possible consequences if the risk of harm materiales; (c) the utility of the
actor’s conduct; and (d) the burden of eliminating the risk of harm .’

[62] In McIntosh v Premier, KwaZulu Natal6 Scott JA held:

4 Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E-F
5 Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 776 E -1
6 McIntosh v Premier, KwaZulu Natal 2008 (6) SA 1 (SCA) par 12

‘The second enquiry is whether there was fault, in this case negligence. As is
apparent from the much -quoted dictum of Holmes JA in Kruger v Coetzee
1966(2) SA 428 (A) at 430 E -F the issue of negligence itself involves a twofold
inquiry. The first is: “was the harm reasonably foreseeable? ” The second is:
“would the diligens paterfamilias take reasonable steps to guard against such
occurrence and did the defendant fail to take those steps? ” The answer to the
second inquiry is frequently expressed in terms of a duty. The foreseeability
requirement is more often than not assumed and the inquiry is said to be
simply whether the defendant had a duty to take one or other step, such as
drive in a particular way or perform some or perform some or other positive
act, and, if so, whether the failure on the part of the defendant to do so
amounted to a breach of that duty . But the word ‘duty’, and sometimes even
the expression ‘legal duty ’ in this context, must not be confused with the
concept of ‘legal duty ’ in the context of wrongfulness which, as has been
indicated, is distinct from the issue of negligence. I mention this because this
confusion was not only apparent in the arguments presented to us in this case
but is frequently encountered in reported cas es. The use of the expression
‘duty of care ’ is similarly a source of confusion. In English law ‘duty of care ’ is
used to denote both what in South African law would be the second leg of the
inquiry into negligence and legal duty in the context of wrongful ness. As Brand
JA observed in Trustees for the Time Being of Two Oceans Aquariu m
Trust v Kantey & Templer (Pty) Ltd7 at 144 F, ‘duty of care ’ in English law ,
‘Straddles both elements of wrongfulness and negligence .’

[63] In Cecilia Goliath v Member of the Executive Council for Health, Eastern
Cape8 the Supreme Court of Appeal held: ‘In Sardi v Standard and General
Insurance Co Ltd ,9 Holmes JA simplified this concept by explaining that it is
inappropriate to resort to piecemeal processes of reasoning and to split up the
enquiry regarding proof of negligence into two stages. He emphasized that there is
only one enquiry, namely whether the Plaintiff, having regard to all of the eviden ce in

7 (545/2004) [2005] ZASCA 109; [2007] 1 All SA 240 (SCA); 2006 (3) SA 138 (SCA) (25 November
2005)
8 (085/2014) [2014] ZASCA 182 (25 November 2014) para 11
9 1977 (3) SA 776 (A0 at 780C -H
the case, has discharged the onus of proving, on a balance of probabilities, the
negligence averted against the defendant. In that regard the learned Judge of Appeal
stated:

“As INNEs, C.J., pertinently insisted in Van Wyk v Lewis,10 “It is really a
question of inference .” It is perhaps better to leave the question in the realm of
inference than to become enmeshed in the evolved mystique of the maxim.
The person against whom the inference of negligence is so sought to be
drawn, may give or adduce evid ence seeking to explain that the occurrence
was unrelated to any negligence on his part. The Court will test the
explanation by considerations such as probability and credibility, see
Rankisson & Son v Springfield Omnibus Services (Pty) Ltd .11

In consideration , the Court has to decide whether, on all of the evidence and the
probabilities and the inferences, the Plaintiff has discharged the onus of proof on the
pleadings on a preponderance of probability, just as the Court would do in any other
case concerning negligence.”

[64] The legal question of factual causation is whether the wrongful conduct or
omission was a factual cause of the loss. In Lee,12 the Court described that enquiry
as follows: ‘The enquiry as to factual causation generally results in the application of
the so -called ‘but for ’ test, which is designed to determine whether a postulated
cause can be identified as a causa sine qua non of the loss in question. This test is
applied by aski ng whether but for the wrongful act or omission of the defendant the
event giving rise to the loss sustained by the plaintiff would have occurred .’

[65] In Bentley ,13 the Court, Corbett CJ enunciated that enquiry:

‘The enquiry as to factual causation is generally conducted by applying the
so-called ‘but for ’ test, which is designed to determine whether a postulated
cause can be identified as a causa sine qua non of the loss in question. In

10 1924 AD 438 at p.445, lines 8 -9
11 1964(1) SA 609 (N) at p.616D.
12 Lee v Minister of Correctional Services 2013 (2) SA 144 CC
13 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA
order to apply this test one must make a hypothetical enquiry as to what
probably would have happened but for the wrongful con duct of the defendant.
This enquiry may involve the mental elimination of the wrongful conduct and
the substitution of a hypothetical course of lawful conduct and the posing of
the question as to whether upon such a hypothesis the plaintiff’s loss would
have ensued or not. If it would in any event ensued, then the wrongful conduct
was not a cause of the loss; alter, if it would not have ensued .’

[66] In Lee v Minister of Correctional Services ,14 the Court held : ‘In the case of
‘positive ’ conduct or commission on the part of the defendant, the conduct is mentally
removed to determine whether the relevant consequence would still have resulted.
However, in the case of an omission the ‘but-for’ test requires that a hypothetical
positive act be inserted in the particular set of facts, the so -called ‘mental removal of
the defendant’s omission .’ This means that reasonable conduct of the Defendant
would be inserted into the set of facts. However, as will be shown in detail later, the
rule regarding the application of the test in positive acts and omission cases is not
inflexible. There are cases in which the strict application of the rule w ould result in an
injustice, hence a requirement for flexibility. The other reason is because it is not
always easy to draw the line between a positive act and an omission. Indeed , there
is no magic formula by which one can generally establish a causal nex us. The
existence of the nexus will be dependent on the facts of a particular case .’

[67] In Lee v Minister of Correctional Services ,15 the Court held:

‘Application of the ‘but for’ test is not based on mathematics, pure science or
philosophy. It is a matter of common sense, based on the practical way in
which the ordinary person’s mind works against the background of the
everyday -life experiences .’

[68] The criteriu m of wrongfulness ultimately depends on a judicial determination of
whether, assuming all the other elements of delictual liability are present, it would be
reasonable to impose liability on a defendant for the damages flowing from specific

14 2013 (2) SA 144 CC
15 2013 (2) SA 144 CC
conduct. Whethe r conduct is wrongful is tested against the legal convictions of the
community which are, ‘by necessity underpinned and informed by the norms and
values of our society, embodied in the Constitution .’

[69] In Stellenbosch Farmers’ Winery Group Ltd & Another v Martell et Cie
Others16 Nienaber JA held: ‘To come to a conclusion on the disputed issues a court
must make findings on

(a) the credibility of various factual witnesses.
(b) their reliability; and
(c) the probability

As to (a), the court’s finding on the credibility of a particular witness depends on its
impression about the veracity THE WITNESS. That in turn will depend on a variety of
subsidiary factors, not necessarily in order of importance, such as

(i) the witness’ candor and demeanor in the witness -box,

(ii) his bias, latent and blatant,

(iii) internal contradictions in his evidence,

(iv) external contradictions with what was pleaded or put on his behalf or
with established fact or with his own extra curial statements or actions,

(v) the probability or improbability of particular aspects of his version,

(vi) the calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events.

As to (b ), a witness’ reliability will depend, apart from the fa ctors mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the

16 (427/01) [2002] ZASCA 98; 2003(1) SA 11 SCA
event in question and (ii) the quality, integrity and independence of his recall thereof.
As to (c ), this necessitates an analysis and evaluatio n of the probability or
improbability of each party’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and ( c) the court will then, as a final step, determine whether
the party burdened with the onus of proof has succeeded in discharging it. The hard
case, which will doubtless be rare one, occurs when a court’s credibility finding
compel it in one direction and its evaluation of the general probabilities in another.
The more convincing the former, the less convincing will b e the latter. But when all
factors are equipoised probabilities prevail. ’

[70] The Supreme of Appeal, in Gouda Boerdery Bk v Transnet Ltd17 the Court
held:

‘[12] It is now well established that wrongfulness is a requirement for liability
under the modern Aquilian action. Negligent conduct giving rise to loss, unless
also wrongful, is therefore not actionable.

But the issue of wrongfulness is more often than not uncontentious as
plaintiff’s action will be founded upon conduct which, if hel d to be culpable,
would -be prima facie wrongful. Typically this is so where negligent conduct
takes the form of a positive act which causes physical harm. Where the
element of wrongfulness gains importance is in relation to liability for
omissions and pure economic loss. The inquiry as to wrongfulness will then
involve a determination of the existence or otherwise of a legal duty owed by
the defendant to the plaintiff to act without negligence: in other words to avoid
negligently causing the plaintiff harm. This will be a matter for judicial
judgment involving criteria of reasonableness, policy and, where
appropriate, constitutional norms (own emphasis). If a legal duty is found
to have existed, the next inquiry will be whether the defendant was negligent.
The test to be applied would be that formulated in Kruger v Coetzee ,18
involving as it does, first, a determination of the issue of foreseeability and,

17 (314/03) [2004] ZASCA 85; [2004] 4 All SA 500 (SCA); 2005 (5) SA 490 (SCA) (27 September
2004) para 12
18 1966 (2) SA 428 (A) at 430 E -F
second, a comparison between what steps a reasonable person would have
taken and what steps, if any, the defendant actually took. While conceptually
the inquiry as to wrongfulness might be anterior to the enquiry as to
negligence, it is equally so that without negligence the issue of wrongfulness
does not arise for conduct will not be wrongful if there is no negligence.
Depending on the circumstances, therefore, it may be convenient to assume
the existence of a legal duty and consider first the issue of negligence. It may
also be convenient for that matter, when the issue of wrongfulness is
considered first, t o assume for that purpose the existence of negligence. The
courts have in the past sometimes determined the issue of foreseeability as
part of the inquiry into wrongfulness and, after finding that there was a legal
duty to act reasonably, proceeded to dete rmine the second leg of the
negligence inquiry, the first (being foreseeability) having already been
decided. If this approach is adopted, it is important not to overlook the
distinction between negligence and wrongfulness. ’

Causation

[71] The element of causation consists of factual causation and legal causation. The
former is based on the relevant facts whether is a break in the chain of events that
caused the harm. Legal causation on the other hand determines whether damage
that occurred is t oo remote to reasonably be imputed to the defendant.

[72] The courts, in determining factual causation have employed the conditio sine
qua non theory or the ‘but for ’ test. In Minister of Police v Skosana19 the Court
held:

‘causation in the law of delict involves two distinct enquiries, namely (a)
whether the defendant’s wrongful act was a cause in fact of the plaintiff’s loss,
and (b) if so, whether and to what extent the defendant should be held liable
for the loss sustaine d by the plaintiff this latter enquiry often being referred to
as the question of the remoteness of damage) …. The enquiry as to factual

19 1977 (1) SA 31 (A) 34 F
causation generally results in the application of the so -called but -for test,
which is designed to determine whether a postulated cause can be identified
as a causa sine quo non of the loss in question. This test is applied by ask ing
whether but for the wrongful act or omission of the defendant the event giving
rise to the loss sustained by the plaintiff would have occurred … in order to
apply this test one must make a hypothetical enquiry as to what
probably would have happened but for the unlawful act or omission of
the defendant (own emphasis) . In some instances, this enquiry may be
satisfactorily conducted merely by mentally eliminating the unlawful conduct of
the defendant and asking whether, the remaining circumstances being th e
same, the event causing harm to plaintiff would have occurred or not. If it
would, then the unlawful conduct of the defendant was not a cause in fact of
this event, but if it would not have occurred, then it may be taken that the
defendant’s unlawful act was a cause. This process of mental elimination may
be applied with complete logic to a straightforward positive act which is wholly
unlawful… ’

[73] In Dlamini v Member of the Executive Council, Department of Education,
Mpumalanga Provincial Goverment20 the court held: ‘the legal duty or duty of care
towards learners by the school exists or is inferred by the nature of the relationship
between the school, parents and learners… ’

Application of the Law on 1. The legal principles; and
2. The evidence given in the trial

[74] Before we start applying the legal principles to the evidence lead by all the
witnesses in this trial, it is important to look at the court case quoted in this
judgement, Stellenbosch Farmers’ Winery Group Ltd & Another v Martell et Cie
Others .21 The Honorable Judge Niena ber JA held: ‘To come to a conclusion on
disputed issues, a court must make findings on

(a) the credibility of various factual witnesses.

20 (885/2016[2017] ZAGPPHC 814, para 22
21 (427/01) [2002] ZASCA 98; 2003(1) SA 11 SCA
(b) their reliability; and
(c) the probabilities .’

[75] In this trial as already mentioned, the Plaintiff testified together with her
teammate and the photographer. It is the Defendant’s view that only the sport
teacher is required to testif y.

[76] As the presiding Judge in this matter , I was able to make a finding on the
witnesses ’ (Plaintiff and her teammate ’s) credibility by looking at the witness’ candor
and demeanor in the witness box, to which I was impressed by the way that both
these two ladies handle d the questions put to them by their legal representative s and
the cross -exam ination by the defence. They were calm and their answer was clear
and without a doubt true. There was no bias, latent and blatant internal contradiction
in their evidence regardin g the day of the incident as wel l as to how the incident
occurred. The quality of their evidence, their integrity and the independence of the
recall of the incident on the 30th July 2015 was clear.

[77] The Plaintiff and her teammate ’s evidence correlated with one another regarding
the following aspects:

(i) The N etball team were instructed in class to go and practice netball on the
netball grounds.

(ii) Regarding the surface, both described the surface as red soil, patched of
grass and stones.

(iii) As to the question to describe the level of the ground (Netball
ground ), both replied uneven .
(iv)
(v) They also testified that prior to practice during the school year, they
(netball players) will clean the Netbal l field themselves.

[78] The teammate ’s evidence was not helpful as to how the Plainti ff fell. This is
further confirmation of the reliability of this witnesses ’ evidence as to the rest of the
aspect regarding the incident.

[79] The evidence of the photographer was not as pure as that of the Plaintiff and her
teammate. One was getting the impression that the evidence of this witness was to
sense a bit bias.

[80] The Defence ’ witness, Mr Mashaba , was not your ideal witness to say the least.
His attitude was not that of a teacher (educator) one would expect to see in the
witness -box. He sometimes was reluctant to answer questions and even if he
answered a question there were some questions that were answered w ithout clarity
and precision .

[81] The Plaintiff must prove delictual liability of the Defendant in order to be
successful with this action. It is trite that a delictual claim for damages should have
all the elements of a delict namely: an act ( actus reus) that is unlawful or wrongful,
that was performed negligently (fault, in particular culpa ) and that was the cause of
the harm incurred.22 In order to determine negligence , one has to decide whether or
not the reasonable person in the position of a Defendant , would have foreseen the
reasonable possibility of his conduct injuring another and causing him/her
patrimonial loss, and if so, whether the reasonable person would have taken
reasonable steps to guard against the occurrence of harm. This test was formulated
by Holmes JA in Kruger v Coetzee .23

[82] To answer the question as to whether or not a reasonable person in the position
of the Defendant would have foreseen the reasonable possibility of his conduct
injuring another and causing him/her patrimonial loss , one can just look at the
answer given by the teacher Mr Mashaba when he was asked and I quote verbatim :
‘Don’t you think you must go with student to the Netball field? ” to which he replied , “It
is necessary, we gather here at the gate, all of a sudden they disappear to the
ground site .’ His answer ‘it is necessa ry’ and ‘all of a sudden they disappear to the

22 Neethling JP, Potgieter JM and VisserPJ: The Law of Delict (2010) p 34 ff.
23 1966 (2) SA 428 (A) at 430 E -F
ground site ’, is clear that he did foresee the reasonable possibility of an injury
(patrimonial loss) to the Plaintiff. Mr Moshaba answered the question by stating that :
‘all of a sudden they disappear ’, is an indication that they were not supposed to
leave the gate and go alone to the netball grounds.

[83] In Ngubane v South African Transport Services 24 the court said :

‘Once it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have taken
measures to prevent the occurrence of the foreseeable h arm. The answer
depends on the circumstances of the case. There are, however , four basic
considerations in each case which influence the reaction of the reasonable
man in a situation posing a foreseeable risk of harm to others: (a) the degree
or extent of the risk created by the actor’s conduct; (b) the gravity of the
possible consequences if the risk of harm material izes; (c) the utility of the
actor’s conduct; and (d) the burden of eliminating the risk of harm. ”

[84] It is clear the court is of the opinion that a reasonable man would have foreseen
the possibility of harm as set out in par a 82 of this judgement.

[85] The question to be answered now is the four basic considerations mentioned in
Ngubane v South African Transport Services .25 The first consideration according
to Ngubane26 is, ‘the degree or extent of the risk created by the actor’s conduct .’ The
risk created by the Defendant (Mr Mashaba) was to give the ball to the Plaintiff and
her teammates at the gate.

The Second consideration is, ‘the gravity of the possible consequences if the risk
material izes.’ The Defendant ’s (Mr Mashaba ’s) evidence was that , ‘Netball is a
contact sport .’ This is indicative of the gravity of the consequences if the risk
material izes.


24 Ibid n 5
25 Ibid n 5
26 Ibid n 5
The Third consideration is ‘the utility of the actor’s conduct .’ The Defendant ’s (Mr
Mashaba ’s) evidence , and I quote verbatim : ‘controlling the gate and learners only
allowed to play Netball if recognized by the coach ’, is confirmation by the Defendant
not allowing learners to play Netball if they are not part of the team. The act of giving
the ball before the learners arrive at the Netball ground to the learners cannot be
seen as a positive conduct.

The Fourth consideration is, ‘the burden of eliminating the risk of harm .’ This falls
directly or solely on the Defendant , if one looks at the answer given to the court by
the Defendant (Mr Mashaba) in his evidence (para 42) when asked about the Netball
ground ’s surface , he replied , ‘that before learners play, they look around the ground
to see if something is wrong before they play. They also look for places that is
dangerous for them .’ Having the above four considerations in mind it is clear that the
reasonable man in the situation of the Defendant would not have acted in the way
the Defendant acted.

[86] In Kruger v Coetzee27 the court used the word s, ‘diligens paterfamilias ’ in the
position of the Defendant. Indicating that Defendant is in the shoes of the parent
when attending to children at school and school activities.

[87] Regarding duty of care Scott JA held in McIntosh v Premier, KwaZulu Natal ,28
‘The answer to the second inquiry is frequently expressed in terms of a duty. The
foreseeability requirement is more often than not assumed and the inquiry is said to
be simply whether the defendant had a duty to take one or other step, such as drive
in a particular way or perform some or perform some or other positive act, and, if so,
whether the failure on the part of the defendant to do so amounted to a breach of
that duty. But the word ‘duty’, and sometimes even the expression ‘legal duty ’ in this
context, must not be confused with the concept of ‘legal duty ’ in the context of
wrongfulness which, as has been indicated, is distinct from the issue of negligence. ’
I mention this because this confusion was not only apparent in the arguments
presented to us in this case but is frequently encountered in reported ca ses. The use
of the expression ‘duty of care ’ is similarly a source of confusion. In English law , ‘duty

27 1966 (2) SA 428 (A) at 430 E -F
28 2008 (6) SA 1 (SCA)
of care ’ is used to denote both what in South African law would be the second leg of
the inquiry into negligence and legal duty in the context of wrongf ulness. As Brand
JA observed in Trustees, Two Oceans Aquariu m Trust29 at 144 F, ‘duty of care ’ in
English law : ‘Straddles both elements of wrongfulness and negligence .’

[88] It is not necessary in this matter to consider all the elements applicable when
discussing the concept of legal duty. In the pleadings the Plaintiff in paragraph 8
discussed the liability of the state which include paragraph 8.9 which I quote
verbatim, ‘By reason of the foregoing the employee referred to above, owed the
Plaintiff a legal duty to provide control and supervision of learners that would create
and maintain a safe environment, to exercise such control and supervision without
negligence and to take reasonable precautions to prevent physical harm being
sustained by the Plaintiff while attending schoo l’, to which the Defendant admits this
duty in his Plea.

[89] As mentioned before in this judgment it is trite factual causation asks the
question of whether the wrongful conduct or omission was a factual cause of the
loss.

[90] In Lee v Minister of Correctional Services30 as already quote d in this
judgement the court held: ‘The enquiry as to factual causation generally results in the
application of the so -called ‘but for ’ test, which is designed to determine whether a
postulated cause can be identified as a causa sine qua non of the loss in question.
This test is applied by a sking whether but for the wrongful act or omission of the
defendant the event giving rise to the loss sustained by the plaintiff would have
occurred .’

It was further held by the court that, ‘Application of the ‘but for’ test is not based on
mathematics, pure science or philosophy. It is a matter of common sense, based on
the practical way in which the ordinary person’s mind works against the background
of the everyday -life experiences. ’31

29 Ibid n 7
30 Ibid n 12
31 Ibid n 12

[91] The question as to what caused the injury and fac tual cause of loss, the answer
is clear from the evidence of the Plaintiff , that being of the Netball surface being
‘uneven ’ causing the Plaintif f to trip and getting injured.

[92] If one applies the ‘but for’ test on the evidence lead, the question that needs to
be considered is:

‘but if the teacher was present at the netball grounds at the time of the
incident/accident would the Plaintiff also have tripped and injured herself ?’ To
answer this question, the consideration should not be ‘if the teacher would
and could have prevented the Plaintiff in falling to the ground, by assisting her
physically not to fall to the ground.’ To answer this question, consideration
should be given to the Plaintiff’s and her teammate’s evidence which states
that, ‘they cleaned the Netball ground prior to playing.’ If the teacher was
present , at the time that the Plaintiff and her teammates arrived at the Netbal l
ground, they would have cleaned the Netball ground first (and levelled the
playing field) before they started pla ying, as testified by the Plaintiff and her
teammate, which was not the case on the day of the incident/accident.

[93] In light of the above, I consider whether the Plaintiff has on a balance of
probabilities, discharged the onus of proof that rests with her. In Selmolele v
Makhado32 the court said that the approach to the question of whether the onus has
been discharged was dealt with as follows:

‘Ultimately the question is whether the onus on the party, who asserts a state
of facts, has been discharged on a b alance of probabilities and this depends
not on a mechanical quantitative balancing out of pans of the scale of
probabilities but, firstly on a qualitative assessment of the truth and/or inherent
probabilities of the evidence of the witnesses and, secondly , an ascertainment
of which of two versions is the more probable .’


32 Selamolele v Makhado 1988 (2) SA 372 (V) at 374J -375 B
[94] In Maitland and Kensington Bus Co (Pty) Ltd v Jenningswhere33 Davis J
said:

‘For judgement to be given for the Plaintiff the Court must be satisfied that
sufficient reliance can be placed on his story for there to exist a strong
probability that his version is the true one .’34

[95] After considering all the evidence given by the Plaintiff and Defendant and the
subsequent Heads of Arguments of their legal representative s, I am satisfied that
sufficient evidence has been given by the Plaintiff that her version is the true one and
as a result proved that the Defendant (which consists of the school, teachers and/or
employees of the school ) are delictual liable for the injury sustained by the Plaintiff .
Consequently, I find the Defendant liable to compensate the Plaintiff , all of the
Plaintiff’s proven damages arising from the injuries sustained by her on the 30th July
2015.

In the circumstances the following order is made :

1.The merits and quantum of this action are separated in terms of the
provisions of rule 33(4) of the Uniform Rules of Court,

2.The Defendant ‘s application for absolution from the instance is dismissed
with costs,

3.The Defendant is ordered to compensate all of the Plaintiff's proven or
agreed damages arising from the injuries she sustained on 30 July 2015,

4.The Defendant is ordered to pay the Plaintiff's taxed or agreed costs for the
determination of the issue of liability on a High Court scale, up to and
including 10 December 2024, which costs shall include employment of two

33 Maitland and Kensington Bus Co (pty) Ltd v Jenningswhere 1940 CPD 489 at 492
34 It was further stated in Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147
(A), at 157 D that the evidence present by the burdened party much be such that the court can say
that “[w]e think it is more probable than not” for the burden to be discharged. However, if the
probabilities [in relation to the evidence of all parties] are equal, then the burden has not been
discharged by the burdened party.”
counsel' fees, where applicable, and for atten ding court on:

4.1. 19 September 2019,
4.2 27 January 2020 (including collapse / reservation fees for 28 & 29
January 2020),
4.3. 28 February202 2,
4.4 14th March 2024,
4.4. 21 October 2024,
4.5 22 October 2024,
4.6. 09 December 2024, and
4.7 10 D ecember 2024.

The abovementioned costs shall be paid directly into the trust account of the
Plaintiff 's Attorneys, the details of which are as follows:

ACCOUNT NAME: N. NKALA ATTORNEYS
BANK: FIRST NATIONAL BANK
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 6[…]
BRANCH CODE: 250-130
REFERENCE No : NKA/CVL/ M[...] /05161117

In the event that costs are not agreed, the Plaintiff agrees as follows:

6.2 That a notice of taxation shall be served on the Defendant 's attorneys of
record, and

6.3 The Plaintiff shall allow the Defendant 7 (seven) court da ys to make payment
of the taxed costs.

7.The quantum hearing of this action is postponed sine die .



JD STRÖH
ACTING JUDGE OF THE HIGH COURT


Appearance:

For the Plaintiff: Adv P.M. Leopeng
Instructed by : Nkala Attorneys c/o Makwala & Mabotja Attorneys, Polokwane

For the Defendant: Adv M.E. Ngoetjana
Instructed by: State Attorney, Polokwane

Dates Heard: 9 -10 December 2024
Date Reserved: 10 December 2024
Date Delivered: 24 February 2025