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[2019] ZASCA 10
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Parktown High School for Girls v Hishaam and Another (93/2018) [2019] ZASCA 10; 2019 (4) SA 188 (SCA) (14 March 2019)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 93/2018
In
the matter between:
PARKTOWN
HIGH SCHOOL FOR
GIRLS APPELLANT
and
EMERAN
HISHAAM FIRST
RESPONDENT
OBO
EMERAN
NAQEEB SECOND
RESPONDENT
Neutral
citation:
Parktown
High School for Girls v Hishaam & another
(93/2018)
[2019] ZASCA 10
(14 March 2019)
Coram:
Cachalia,
Leach and Tshiqi JJA and Mokgohloa and Rogers AJJA
Heard:
25
February 2019
Delivered:
14
March 2019
Summary:
Liability
of the State under s 60 of the South African Schools Act 84 of 1996
(the Act) – whether an injured party is obliged
to sue the
State and the school – whether a fashion show, organised by the
Representative Council of Learners as a fundraising
event was a
‘business or enterprise’ as envisaged in s 60(4) of the
Act.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Matojane J sitting as court
of first instance):
The
appeal is upheld with costs including the costs of two counsel. The
order of the court a quo is set aside and replaced with
the following
order:
‘
(i)
The defendant’s special plea is upheld.
(ii)
The plaintiffs’ claim is dismissed with costs.’
JUDGMENT
Cachalia
JA (Leach and Tshiqi JJA and Mokgohloa and Rogers AJJA
concurring)
[1]
This appeal arises from an incident at a public school where a young
member of the public was injured on the school’s
premises while
attending a fashion show. The boy’s father seeks to hold the
school liable for his son’s injuries. He
says that the school
negligently breached its legal duty to ensure the safety of members
of the public at the school. The school
denies liability and filed a
special plea alleging that the action should have been instituted
against the provincial government
and not the school. The parties
agreed that the special plea would be heard separately. The Gauteng
Division of the High Court,
Johannesburg (Matojane J) accordingly
ordered the separation under Uniform rule 33(4).
[2]
The court a quo dismissed the special plea, but granted the school
leave to appeal to this court. The appellant is the Parktown
High
School for Girls (the School) against whom the action was instituted.
The respondents are Mr Hishaam Emeran and his son Mr Naqeeb
Emeran, who was injured in the incident. They were the plaintiffs in
the court a quo and oppose the appeal.
[3]
The facts are uncomplicated. There were two fashion shows held in a
hall on the school premises on the day of the incident;
one in the
afternoon and the other in the evening. Both were organised by the
Representative Council of Learners (the RCL) established
at the
School under s 11 of the South African Schools Act 84 of 1996 (the
Act). The entrance fee was R40, for the afternoon show
and R70, for
the late show. Naqeeb paid to attend the evening show and entered the
School property.
[4]
There were concrete tables with circular tops, which were permanent
features, for use of members by the public and learners
on the School
grounds. The respondents alleged that the circular tops of the tables
were not fixed to their stands. Naqeeb leaned
on one of these table
tops resting loosely on its stand. This downward pressure caused it
to flip over and fall to the ground,
crushing his right hand. In a
nutshell the respondents’ case is that the School was negligent
in not taking reasonable steps
to avoid a foreseeable occurrence of
this nature and that it is accordingly liable for damages suffered by
the father in his personal
capacity for medical expenses and by
Naqeeb for his future loss of earnings and general damages.
[5]
The Act governs the liability of public schools such as the appellant
in these circumstances. In terms of s 60(2) of the Act,
the
State
Liability Act 20 of 1957
[1]
applies to a claim under
s 60(1)
, which the parties accept also
applies to this claim. This means that the general principles of
vicarious liability, which apply
to the liability of the State for
the delicts of its employees, also apply to public schools. In the
words of
s 60(1)
(a)
:
‘
Subject
to paragraph
(b)
,
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 this
section.’
It
is common cause that the fashion show was a ‘school activity’
as contemplated by this provision.
[2]
[6]
Section 60(1)
(b)
also bears some relevance. It reads as
follows:
‘
Where
a public school has taken out insurance and the school activity is an
eventuality covered by the insurance policy, the liability
of the
State is limited to the extent that the damage or loss has not been
compensated in terms of the policy.’
It
is common ground too, that the school obtained public liability
insurance to cover it for claims in respect of its ‘operations
and activities’. In this regard and in response to the
respondents’ summons, the School issued a third party notice
in
which it claimed an indemnity from the third party, its insurance
broker, in the event of the court finding it liable for Naqeeb’s
injury. This was because the broker allegedly had failed timeously to
notify a claim to the insurer, which resulted in the latter
repudiating the claim. That issue is not before us, but I shall
return to it later in this judgment.
[7]
Once it is established that the claim falls within the ambit of s
60(1) of the Act, which I have said this claim does, s 60(3)
says
that the claim must be instituted against the Member of the Executive
Council (MEC) concerned, as representing the State.
It is the
School’s case, as formulated in the special plea, that the
fashion show, being a ‘school activity’
within the
meaning of this section, fell within the ambit of s 60(1) and that
the respondents ought, therefore, to have sued the
State, instead of
the School.
[8]
Section 60(4), however, exempts the State from liability where the
negligent conduct occurs ‘in connection with any
enterprise
or business operated under the authority of a public school for
purposes of supplementing the resources of the school
as contemplated
in section 36
. . .’. (Emphasis added.) Section 36(1) deals with activities
conducted under the auspices of the ‘school governing
body’
to supplement resources supplied by the State for the purpose of
improving the quality of the education of its learners.
The question
is whether the State was exempt from liability in accordance with s
60(4).
[9]
In their particulars of claim the respondents alleged that their
claim was instituted pursuant to the provisions of s 60(4)
of the
Act, which, they say, supports their contention that the School, and
not the MEC, was the correct defendant. Their case
is that the
fashion show was an ‘enterprise’ operated under the
School’s authority for the purposes of supplementing
its
resources as contemplated in s 36 of the Act. And, therefore, that
the State is excused from liability. The respondents thus
contend
that they have correctly sought to hold the School alone liable for
the delict. Their submission found favour in the court
a quo. This
was the only issue separated under rule 33(4). The remaining issues
relating to the merits and quantum were to stand
over until the
special plea was disposed of. The separated issue is therefore the
only issue on appeal before this court.
[10]
For a claim to fall within the ambit of s 60(4) and thereby exclude
the State’s liability, the following five requirements
must be
met: (i) the act or omission giving rise to the claim must be in
connection with (ii) a business or enterprise (iii) operated
under
the authority of the school (iv) for the purpose of supplementing the
resources of the school (v) under the auspices of the
school
governing body.
[11]
The central issue in dispute is whether the fashion show was an
‘enterprise or business’, neither of which is defined
in
the Act. It is common cause that it was not a business. Both parties
rely on a dictionary meaning of an ‘enterprise’,
which is
a noun meaning ‘a project or undertaking, especially one that
requires boldness and effort’
[3]
to support their preferred meaning. The word also refers to an
initiative in business, a business unit, a company or firm.
[4]
The School submits that in usual parlance a school activity, as
defined in the Act – whether it has a fundraising component
or
not – simply does not fall within this meaning. The
respondents, on the other hand, focus on the boldness and effort that
went into the organisation of the fashion show to support their
contention.
[12]
I accept that a fashion show organised by a student body may well be
an ‘enterprising’ initiative in the sense
of its
boldness, innovation and effort. But the word is used as an adjective
in this sense and not a noun. When used as a noun
to describe a
project or an undertaking, as it is in s 60(4), an ‘enterprise’
usually refers to business initiative
undertaken by a commercial
entity. The RCL is quite clearly not a business or enterprise within
any meaning of the section. And
the fact that it organised a fashion
show to raise funds does not make it an enterprise.
[13]
The requirement for the business or enterprise to be operated under
the authority of the school also undermines the respondents’
interpretation. The authorisation must relate to the purpose of the
enterprise or business, which is to supplement the resources
of the
school as contemplated in s 36 of the Act
.
As
mentioned earlier, s 36 deals with the responsibility of the
governing body of a public school to supplement its resources in
order to improve the quality of education the school provides to its
learners.
[5]
In this regard s
36(4)
(a)
(ii)
of the Act permits a governing body, with the approval of the MEC, to
conduct any business on school property to supplement
the school
fund. No mention is made of an enterprise in this context, but I do
not think anything turns on this.
[14]
What is clear, however, is that the activities with which s 36 of the
Act are concerned relate only to supplementing the school’s
resources by a business under the authority of the governing body and
not to all fundraising activities of the school. Activities
organised
by the learner body such as a cake sale, matric dance party, a sale
of raffle tickets, or an amateur fashion show with
which we are
concerned, would neither need the authority of the governing body,
nor fall within the range of fundraising activity
which s 36
contemplates. There was no evidence in this case that the governing
body had anything to do with the fashion show. Indeed
the School’s
evidence was to the contrary. In addition the School’s
uncontested evidence was that the funds collected
from the fashion
show represented a liability in its books, which the School owed the
RCL and which the RCL could use as it deemed
appropriate, for example
to support an HIV-Aids charity, if it so decided.
[15]
In summary the fashion show was therefore not a business or
enterprise within the meaning of s 60(4), neither was it organised
for the purpose of supplementing the School’s resources; And
even if some or all of the proceeds were ultimately used to
supplement the School’s resources this was not done as
contemplated in s 36.
[16]
So, properly understood, it is apparent that 60(4) read with s 36
exempts the State from liability only where the activity
in question
giving rise to the delict was conducted by a ‘business or
enterprise’ under the authority of the School’s
governing
body. By enacting this provision the lawmaker was seeking to limit
the liability of the State for civil wrongs perpetrated
by
independent contractors for example – businesses or enterprises
– contracted by the governing body for the purpose
of
supplementing a school’s resources. This too accords with the
general rule of our law that a principal is not liable for
the
delicts of independent contractors unless the principal is also at
fault. Of course, it may be that if the MEC grants authority
for the
school governing body to contract an entity for this purpose, this
may not absolve the State from liability, but that is
not a matter I
need consider. There may also be other instances where a school
itself embarks on some business or enterprise to
supplement its
resources within the meaning of s 60(4), but the fashion show
organised by the RCL quite clearly did not.
[17]
It follows that by accepting the interpretation of s 60(4) that the
respondents sought to give to it, the court a quo erred
in dismissing
the special plea. Once it is accepted that the special plea ought to
have been upheld the appeal must succeed. The
next issue is whether
the claim should be dismissed in its entirety. This would be the
result if we conclude that the School is
correct in its contention
that it was incorrectly cited as a party in these proceedings.
[18]
I have already pointed out that s 60(1) read with s 60(3) of the Act
makes the State liable in respect of any claim arising
from a school
activity. The fashion show was a school activity. And, on the
assumption that the School’s negligent omission
in failing to
fix the table tops was connected with the fashion show, the
respondents were obliged to institute these proceedings
against the
MEC. This much is clear from these provisions. It seems clear too
that if a party is obliged to sue the MEC it must
follow that only
the State can be held liable in these circumstances.
[19]
What then are we to make of s 60(1)
(b)
,
which says where a school has obtained public liability insurance the
liability of the State is limited to the extent that the
damage or
loss has not been compensated in terms of the policy? Does it suggest
that the school is also liable? I think not. The
provision goes no
further than providing that the MEC is liable only to the extent that
the injured party has not been compensated
by the school’s
insurer. There is no suggestion that the school may also be held
liable where the MEC is liable.
[20]
In any event in the instant case the insurer repudiated the School’s
insurance claim as a result of which no compensation
was paid to the
injured party. The School has joined the broker as a third party with
a view to claiming damages if it is held
liable, but this contingent
claim does not engage s 60(1)
(b)
.
This means that on the facts of this case the MEC alone is liable for
any damage or loss that the respondents may prove arising
from the
incident.
[21]
There may be instances where a claim is cognisable against a public
school and not the MEC. But that would only be where the
claim does
not fall within the ambit of s 60. The consequence of finding that
the MEC alone should have been cited, I regret to
say, is that the
respondents have indeed instituted these proceedings against the
wrong party. It follows that the respondents’
claim against the
School must be dismissed.
[22]
The following order is made:
The
appeal is upheld with costs including the costs of two counsel. The
order of the court a quo is set aside and replaced with
the following
order:
‘
(i)
The defendant’s special plea is upheld.
(ii)
The plaintiffs’ claim is dismissed with costs.’
______________
A
Cachalia
Judge
of Appeal
Appearances
For
the Appellant: D T v R Du Plessis SC (with him J Dorning)
Instructed
by: M C Turnbull Attorneys, Kensington
Honey
& Partners Incorporated, Bloemfontein
For
the Respondent: M Chaitowitz SC (with him Z G Ncantsa)
Instructed
by: Joseph’s Incorporated, Johannesburg
McIntyre & Van der
Post Attorneys, Bloemfontein
[1]
Section 1
of the
State Liability Act
reads
:
‘
Any
claim against the State which would, if that claim has arisen
against any person, be the ground of an action in any competent
court, shall be cognizable by such court, where the claim arises out
of any . . . wrong committed by any servant of the State
acting in
his capacity and within the scope of his authority as such servant.’
[2]
In terms of s
1(1)
of the
South African Schools Act 84 of 1996
‘school activity’
means any official educational, cultural, recreational or social
activity of the school within
or outside the school premises.
[3]
South African
Concise Oxford Dictionary 10 ed (2002) at 385.
[4]
Collins Dictionary
9 ed 2007.
[5]
Section 36(1).