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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 20392/2015
In the matter between:
R[...] T[...] N.O.
obo the estate of the late E[...] T[...] First plaintiff
R[...] T[...] Second plaintiff
G[...] N[...] M[...] Third plaintiff
M[...] M[...] Fourth plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL,
WESTERN CAPE DEPARTMENT OF EDUCATION First defendant
MINISTER OF EDUCATION Second defendant
Coram: Van Zyl, AJ
Heard on: 7-9 October 2025; 4-6 November 2025; 17-18 March
2026
Order granted: 18 March 2026
Reasons delivered: 30 March 2026
Summary: Delict – absolution from the instance – drowning of learners during
school camp – on particular facts, defendants unable reasonably to foresee – if
foreseen, then reasonable steps taken to prevent – no evidence upon which a court,
reasonably applying its mind, could find that the defendants were negligent
___________________________________________________________________
ORDER
1. Absolution from the instance is granted.
2. Each party shall pay their own costs.
REASONS
VAN ZYL, AJ:
Introduction
1. On the night of 13 October 2014 an unimaginable tragedy occurred. Two
Grade 12 learners from the Luhlasa High School drowned while on a school
camp at the Rotary camp site in Strandfontein . Their names were B[...] T[...]
and O[...] M[...], and their untimely deaths have left a gaping hole on the lives
of their loved ones. B[...] was 18 years old at the time of his death, and O[...]
was 17.
2. The learners’ parents, as plaintiffs, claimed damages from the defendants on
the basis of the alleged negligence of the staff at the school, resulting in the
death of their children.
3. The defendants applied for absolution from the instance at the close of the
plaintiffs’ case. On the well-established test for absolution , this court had to
consider whether there is evidence upon which a court, applying its mind
reasonably to such evidence, could or might (not should or ought to) find in
favour of the plaintiff s. This test was reaffirmed by the Supreme Court of
Appeal in Gordon Lloyd Association v Rivera and another:1
“The test for absolution to be applied by a trial court at the end of a plaintiff's case
was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at
409G-H in these terms:
'... (W)hen absolut ion from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence led by plaintiff
establishes what would finally be required to be established, but whether
there is evidence upon which a Court, applying i ts mind reasonably to such
evidence, could or might (not should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruta Flour Mills (Pty)
Ltd v Adelson (2) 1958 (4) SA 307 (T)'
This implies that a plaintiff has to make out a prima facie case - in the sense that
there is evidence relating to all the elements of the claim - to survive absolution
because without such evidence no court could find for the plaintiff … As far as
inferences from the evidence are concerned, the inference relied upon by the plaintiff
must be a reasonable one, not the only reasonable one …. The test has from time to
time been formulated in different terms, especially it has been said that the court
must consider whether there is 'evidence upon whi ch a reasonable man might find
for the plaintiff' … - a test which had its origin in jury trials when the 'reasonable man'
was a reasonable member of the jury …. Such a formulation tends to cloud the
issue. The court ought not to be concerned with what som eone else might think; it
should rather be concerned with its own judgment and not that of another
'reasonable' person or court. Having said this, absolution at the end of a plaintiff's
case, in the ordinary course of events, will nevertheless be granted s paringly but
case, in the ordinary course of events, will nevertheless be granted s paringly but
when the occasion arises, a court should order it in the interests of justice."
4. A prima facie case is sometimes referred to as sufficient evidence or prima
facie evidence. Prima facie evidence is evidence which requires an answer
from the oth er party in relation to every element of the claim ,2 and in the
absence of an answer from the other side, it can become “ conclusive proof”.
1 2001 (1) SA 88 (SCA) para 2. Emphasis supplied.
2 See South African Local Authorities Pension Fund Msunduzi Municipality 2016 (4) SA 404
(SCA) para 32.
It is used to refer to the probative value of the proponent’s case after
discharging its burden of proof, but before the opponent has rebutted it.3
5. I granted absolution after hearing argument. Various peripheral issues were
debated between the parties but the central issue for determin ation boiled
down to whether the defendants should have foreseen the drowning , and
whether they should have taken steps – other than those in fact taken – to
prevent the tragedy.
6. The plaintiffs’ claim was formulated as one for emotional shock, trauma, post-
traumatic stress, depression, and funeral expenses. The defendants’ counsel
argued that it was not sufficient merely to infer emotional harm to the parents
because of the incident . The pleadings had to allege that the defendants
should have foreseen the emotional impact of their conduct on the parents , in
other words, that a duty o f care was owed to the parents as well as the
learners. Without such an explicit allegation, the claim lacks a necessary
element to establish liability. The plaintiffs’ counsel, in turn, emphasized that
claim arose from the wrongful and negligent causing of the death of their
children. The duty of care arose in relation to the persons placed under the
control and supervision of the defendants, namely the learners. The damages
suffered by the parents flowed directly and legally from that primary wrong. 4
While the plaintiffs may not have explicitly stated that the defendants ought to
have foreseen harm to the parents, the foreseeability of harm to the learners
inherently include d the possibility of harm to their parents, given the close
relationship between them.
7. Whilst the particulars of claim admittedly did not make this specific averment,
the defendants never raised an exception o n this ground. I was not inclined
3 See S v Boesak 2001 (1) SACR 1 (CC) para 24 ; Ex parte Minister of Justice: In re: R v
Jacobson and Levy 1931 AD 466 at 478–9.
Jacobson and Levy 1931 AD 466 at 478–9.
4 In Ahmed "The Infl uence of Reasonableness in Determining Delictual or To rt Liability for
Emotional Distress or Mental Harm in American and French Law" PER / PELJ 2023(26) –
DOI, the author states that: “Negligently inflicted emotional distress may be sustained directly
by the plaintiff (the "primary victim") or indirectly by a third person (the "secondary victim").
Cases involving emotional harm arising from the risk of harm to others are often referred to
as bystander cases, where the third person is a plaintiff in his own right and the emotional
harm usually results from witnessing or hearing of a disturbing event.
to grant absolution on the basis of th e defendants’ technical argument. I
tended to agree w ith the plaintiffs’ counsel’s submissions in this respect. In
any event, all of the relevant issues were thoroughly covered in the evidence
as well as in argument, and both parties were agreed that the question on
application for absolution was the issue of the defendants’ alleged negligence
in relation to the drowning. In Minister of Safety and Security v Slabbert 5 the
Supreme Court of Appeal held as follows:
“[11] A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial court to
have recourse to issues falling outside the pleadings when deciding a case.
[12] There are, however, circumstances in which a party may be allowed to rely on
an issue which was not covered by the pleadings. This occurs where the issue in
question has been canvassed fully by both sides at the trial . In South British
Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd,3 this court said:
‘However, the absence of such an averment in the pleadings would not necessarily
be fatal if the point was fully canvassed in evidence. This means fully canvassed by
both sides in the sense that the Court was expected to pronounce upon it as an
issue'.”
8. As indicated, this court was expected to pronounce , for the purposes of
absolution, on whether the plaintiffs had furnished evi dence upon which it,
reasonably applying its mind to such evidence, could find that the defendants
were negligent in failing to prevent the learners’ deaths. I accordingly
proceed to consider this issue.
The relevant evidence
9. Ony two persons were able t o give factual evidence as to what transpired on
the fateful day. They were Mr Saki (the deceased learners’ friend, and camp
attendee), and Mr Jobela ( teacher at the school, and one of the educator
attendee), and Mr Jobela ( teacher at the school, and one of the educator
attendees at the camp). They were called by the plaintiff.
5 [2010] 2 All SA 474 (SCA) at paras 11-12. My emphasis.
10. The plaintiffs subpoenaed Mr Jobela to give evidence on the events of the
day and night. The defendants’ counsel indicated at the time that the
defendants had themselves intended to call Mr Jobela, as he was the only
person with first-hand knowledge of the entire period in question. As he was
ultimately called by the plaintiffs, the defendants’ counsel duly cross -
examined Mr Jobela on the factual events, as well as on the steps taken to
ensure that the learners remained safe.
11. Mr Saki testified that he and his fellow Grade 12 learners attended the Matric
revision camp organised by the school . They did not know beforehand that
there was a pool but they were, on arrival, expressly and repeatedly
instructed not to swim . They were directed to be in bed by 22:00, because
they had a full academic programme. No time had been set aside for
swimming. Mr Saki was in the same room as B[...]. O[...] was in another
room. They all knew that they were to follow camp rules.
12. Late at night, when the teachers we re gone, they heard noise coming from
outside, like people who were enjoying themselves. They went out and
discovered some learners were already swimming and they joined them. No
teachers were present. On their return to their rooms , when it became too
cold to swim, they discovered that O[...] and B[...] were missing and went
searching for them. They woke the parents who were at the site, in charge of
cooking, to assist in the search. Mr Saki speculated that some of the learners
had been waiting for t he teachers to leave the site, and then went to swim.
He was of the view that if teachers had been present, the incident could have
been avoided.
13. Mr Jobela testified that he arrived at the camp site with the last group of
learners to arrive from the scho ol around 18:00. The learners had been
supervised from 12:00 that day, when they had gathered at the school to
board the taxis that would take them to the camp. The school had during
board the taxis that would take them to the camp. The school had during
previous years used the same camp site, and Mr Jobela was no t aware of
any previous incidents there. The camp assisted learners in their preparation
for the Matric exam, and had previously yielded good results. The camp
programme supervision roster indicated that Mr Jobela and other educators
were responsible for supervising students from 22:00 to 12:30 the next day.
However, Mr Jobela left the camp at 00:20 that night, because there was no
provision for teachers’ accommodation. There were a camp manager and a
security guard on duty, and there were parents on site who assiste d in the
kitchen. These persons remained at the camp for the night.
14. Mr Jobela expressly warned the learners not to go swimming. This was done
during dinner, and again later the evening when he went to check on them.
He did rounds at 22:00 to ensure that everyone was in bed. At 23:30 he did a
further check, and everything seemed quiet. Many of the learners were
already asleep. He left the camp at 00:20, by which time everything was still
in order. The camp manager, security guard, and some of the pare nts
remained on site.
15. While the camp rules prohibited swimming at night, Mr Jobela admitted that
the swimming pool area was accessible to students. The pool was fenced,
but it is not clear from the evidence whether the gate to it was locked. The
fence wa s about 1.2 metres high. Mr Jobela, prior to leaving the site,
informed the camp manager that the children were not allowed to walk
around during the night. He stated that a security guard was instructed to
prevent learners from moving around the campsit e or accessing the pool, but
he could not verify whether these instructions were followed after he left. Mr
Jobela said t hat no students went to the swimming pool while he was
present. He could not account for what happened after he had left the camp
at 00:20. He was informed the following morning that two boys were missing.
16. It appeared from the other evidence presented by the plaintiffs that O[...] and
B[...] were known both a t home and at school as disciplined and well -
mannered children. O[...] was a good swimmer, and the pool was not very
deep.
mannered children. O[...] was a good swimmer, and the pool was not very
deep.
Did the plaintiffs’ evidence establish a case for the defendants to answer?
17. The classic test for negligence was formulated in Kruger v Coetzee ,6 which
held that liability for negligence arises if a reasonable person in the position of
the defendant would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss, and would
take reasonable steps to guard against such occurrence and the defendant
failed to take such steps. The reasonable person is not an actual person but
is the personification of society’s perception of the acceptable standard of
conduct under certain circumstances. The reasonable person is the typical
average member of society w ho is not exceptionally gifted, cautious or
sophisticated, but who is nevertheless not careless or injudicious when taking
chances.7
18. The plaintiffs’ case was that the defendants f ailed properly to supervise the
learners at the camp, “particularly during swimming periods”, and choosing a
campsite with a swimming pool that posed risks. The y failed to foresee the
potential danger of drowning, and they failed t o take reasonable steps to
guard against it.
19. The evidence established that no provision had been ma de in the timetable
for any swimming. The pool was out of bounds at all times.
20. It was accepted for the purposes of argument that the defendants were in
loco parentis at the time of the incident. In Rusere v The Jesuit Fathers8 such
responsibility was explained as follows:
“The duty of care owed to children by school authorities has been said to be to take
such care of them as a careful father would take of his children. This means no more
than that schoolmasters, like parents, must observe towards their charges the
6 1966 (2) SA 428 (A) at 430E-G.
7 Harrington NO and another v Transnet Ltd t/a Metrorail and others [2010] 2 All SA 220 (SCA)
paras 34-35. Wrongfulness, which is distinct from negligence, is not constituted in all cases
paras 34-35. Wrongfulness, which is distinct from negligence, is not constituted in all cases
by the infringement of a legal interest. It is also present when a person who is under a legally
recognised duty to act, fails to do so. This position is qualified by the principle that the re is no
general duty to prevent loss from occurring. Whether an omission is wrongful will depend on
whether the particular omission offends against the legal convictions of society at large: see
Nelson Attorneys v Smit N.O and others [2025] ZASCA 162 (24 October 2025) paras 43-48.
8 1970 (4) SA 537 (R) at 539D.
standard of care that a reasonably prudent man would observe in the particular
circumstances ….”
21. In Rusere, a child of 8 years sustained an injury to his eye when, during an
hour of unsupervised free time between a game of soccer and evening
prayers, he and some 26 other little boys of his age group commenced to
play a game of 'cowboys and Indians' resulting in his being struck in the eye
by a grass arrow. It was submitted on behalf of the boy that it was negligent
on the part of the school au thorities to allow children between the ages of 7
and 10 to play in the school grounds for any appreciable length of time
without the presence of some responsible person to keep them under
surveillance. The court held as follows in this respect:9
“… the duty to keep children of this age under constant supervision depends
essentially upon the risks to which they are exposed in their particular surroundings.
No doubt, a reasonable man who is in charge of a number of young children at the
seaside would be g uilty of negligence if he were not to keep them under constant
observation. To contend, however, that children of this age should never be more
than momentarily out of sight of a responsible person even when they are in normal
and familiar surroundings whi ch are devoid of features that could sensibly be
regarded as hazardous, is, I think, to exact too high a duty of care from the bonus
paterfamilias.”
22. In Gora v Kingswood College and others10 the plaintiff was struck in the eye
by a fellow learner after havi ng been left unsupervised in a classroom for an
hour. The learners were 15 years old. In discussing the issue of negligence
(ultimately finding none on the part of the school ) the court referred11 to what
was stated in Minister of Education and another v Wynkwart NO:12
“In Minister of Education and Another v Wynkwart NO supra Desai J, with whom
Erasmus J and Yekiso J concurred, stated at 582G – I:
9 Rusere supra at 539F-G.
10 2019 (4) SA 162 (ECG).
9 Rusere supra at 539F-G.
10 2019 (4) SA 162 (ECG).
11 At para 29.
12 2004 (3) SA 577 (C) at 582G-I. My emphasis.
'In a more recent judgment the Court in Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA), applying Kruger v Coetzee (supra), pertinently
held (at 448F – G) that the answer to element (a)(ii) of the said case —
"will depend upon what can reasonably be expected in the circumstances of
the particular case. That enquiry offers considerable scope for ensuring that
undue demands are not placed upon public authorities and functionaries for
the extent of their resources and the manner in which they have ordered their
priorities will neces sarily be taken into account in determining whether they
acted reasonably.”
'It is apparent from the authorities referred to by counsel that where pupils are not
kept under the constant supervision of teachers this is not in itself a breach of the
duty of care owed to such pupils. The degree of supervision required depends on the
risks to which the pupils are exposed.'”
23. In S v Bochris Investments (Pty) Ltd and another13 the Supreme Court of
Appeal considered the issue of negligence in the context of a culpa ble
homicide charge. 14 While on a family outing at a resort, a 9 -year old child,
Ryan, dived into the pool to show his father that he could touch the bottom.
When he had not surfaced after about 10 seconds, his father dived in. He
found Ryan jammed in an ou tlet pipe near a corner of the pool at the deep
end. His body was doubled up, and only his hands and feet were visible at
the entrance to the pipe. The father tried to pull Ryan out, but it was only
later that the boy was extracted from the pipe. He had drowned.
24. The State’s case was that the unguarded opening to the outlet pipe was
potentially dangerous to pool users while the filtration plant was in operation;
the accused’s employee was in control of the swimming pool, which was
open to the public (inclu ding children), and as such he had a duty to do all
that was reasonably requisite to ensure the safety of users . Such employee,
that was reasonably requisite to ensure the safety of users . Such employee,
and thus the accused, realised or ought to have realised that the unguarded
13 1988 (1) SA 861 (A).
14 See S v Bochris supra at 865H-I: “The criterion of lia bility for culpa in both civil and criminal
cases is reasonable foreseeability. In a case of culpable homicide, the question is whether
a diligens paterfamilias in the position of the accused would have foreseen the possibility of
death resulting from his conduct.”
opening was dangerous: he ought to have foreseen th at, unless reasonable
steps were taken to prevent it, death to users could result.
25. As in the present matter, there was no direct evidence of the way in which the
child had met his death, and the court had to rely on inferences from the
evidence tendered. It accepted that Ryan dived down to the bottom of the
pool and seated himself on the floor with his back to the opening to the outlet
pipe in such a way as to block it with his posterior. The pressure of the water
above him forced his buttocks into the pi pe where he was trapped. The
likelihood is that his seating himself at the opening was a deliberate, not an
inadvertent, act. The Supreme Court of Appeal held as follows:15
“The crucial question arises in regard to (3): ought Joubert to have realised that the
unguarded opening was dangerous - more specifically, ought he to have foreseen
that, unless steps were taken to guard it, death could result to a user of the pool?
In considering this question, one must guard against what Williamson JA called 'the
insidious subconscious influence of ex post facto knowledge' (in S v Mini 1963 (3)
SA 188 (A) at 196E -F). Negligence is not established by showing merely that the
occurrence happened (unless the c ase is one where res ipsa loquitur), or by
showing after it happened how it could have been prevented. The diligens
paterfamilias does not have 'prophetic foresight' . (S v Burger (supra at 879D).)
In Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon
Mound) 1961 AC 388 (PC) ([1961] 1 All ER 404) Viscount Simonds said at 424 (AC)
and at 414G - H (in All ER):
'After the event, even a fool is wise. But it is not the hindsight of a fool; it is
the foresight of the reasonable man which alone can determine
responsibility.’
It would seem that the only possible way in which death could have resulted from the
fact that the opening was unguarded, was death by drowning. The fact that Ryan
fact that the opening was unguarded, was death by drowning. The fact that Ryan
drowned shows that death can be caused where there is a comb ination of
circumstances such as that in the present case; … I do not think that the diligens
paterfamilias would have foreseen that freakish combination of circumstances. On
the evidence, it was not reasonably foreseeable that a child would try, the buoyancy
of the human body notwithstanding, to sit on the floor of the pool against the
15 See S v Bochris supra at 866I-867H. My emphasis.
opening. (It may be that a child sitting across the opening with part of his buttocks on
either side of it, would be pinned against the wall by the weight of the water above
him, but this is speculation for which there is no support in the evidence.) … Nor do I
think that the diligens paterfamilias would have appreciated the magnitude of the
forces involved, or the mechanism by which an accident of this kind could happen.
Without such appreciation the possibility of death could not reasonably have been
foreseen.
It can be accepted that, as the prosecutor put it to Joubert in cross -examination,
children, being naturally inquisitive, 'always poke their hands and feet and noses into
things that a normal person would not do'. Nevertheless, it was not Norman's
evidence that such conduct could result in death, and in my view that was not a
reasonably foreseeable consequence.”16
26. In the present matter, O[...] and B[...] were, respectively, 17 and 18 years old.
Apart from the fact that they had drowned, there is no evidence from which
the exact circumstances of their deaths could be gleaned. We do not know
whether the learners climbed over the fence or whether they could access the
pool via the gate. The pool was not deep. O[...], at least, knew how to swim.
We do not know whether they slipped and fell into the water, whether they
were trampled in a throng of swimmers, whether there was roughhousing
going on in which they were force d under the water, or whether they simply
could not keep themselves afloat.
27. The defendants’ counsel emphasized that their actions in going to the pool
were nevertheless deliberate and independent, and the school could not
reasonably foresee or prevent their disobedience. It was common cause that
the teachers had supervised the pupils throughout the day, ensured that they
were in bed by 22:00, conducted checks at 23:30, and left the camp at 00:20
when all appeared quiet. The swimming pool was fenced, and t he camp
when all appeared quiet. The swimming pool was fenced, and t he camp
manager and security were informed to monitor the area . The learners had
been repeatedly warned against going to the pool. They knew it was
forbidden. Borrowing from Wynkwart NO,17 the “ … degree of supervision to
16 See also Minister of Safety and Security and anther v Rudman 2005 (2) SA 16 (SCA) paras
66-67.
17 Wynkwart NO supra at 583H-I.
be exercised in a particular cas e would depend upon a great variety of
circumstances. It appears from the authorities referred to herein that a pupil
of R's age need not be kept under continuous supervision on the school
grounds unless there is some hazardous feature present. To guard ag ainst
the possibility of a single pupil slipping away, climbing over a gate or fence
and suffering injuries would require that each pupil should be kept under
continuous supervision. It would not be reasonable to expect the appellants
to have taken such steps in this instance.”18
28. Wynkwart NO involved a 9 -year old child, but these sentiments apply, in my
view, to the present matter.
29. Even if the defendants had foreseen the possibility of the learners’ deaths,
the question arises what further steps could have been taken to prevent it.
The camp manager and security guard were on the premises, as were the
parents who saw to the cooking. They were, by all accounts, asleep by the
time the learners went to the pool. Even if a teacher was present, he or she
would, if asleep, have been unable to prevent the tragedy. Mr Saki conceded
that even if a teacher had in fact stayed on the premises, such teacher would
have been able to accept that the learners would obey the rules, and not go
swimming. This was especially so in relation to O[...] and B[...], who were
known as well-mannered and responsible young men.
The learners’ ages
30. The defendants argued, somewhat by way of an afterthought, that because
B[...] was 18 years of age at the time, it was debatable whether any legal duty
was still owed to him on the basis of the school being in loco parentis . The
plaintiffs argued that the defendants’ reliance on the age of the learners was
misplaced. While age is a relevant factor, it does not negate the duty of care
where the learners are placed in a controlled environment under the
supervision of the school. The context in which the relationship arises is
18 My emphasis.
determinative. The learners were participating in a school programme,
subject to rules and schedules, and u nder the authority of educators. They
were not acting as independent adults in an uncontrolled environment.
31. I was prepared to accept the plaintiffs’ argument for the purposes of the
absolution application. In Minister of Education and another v Wynkwart
NO19 the court held:
“It was not in dispute that the respondent’s minor son R was injured at school while
under the control and care of the appellants’ employees and it was fairly and
properly conceded that teachers owe young children in their care a legal duty to act
positively to prevent physical harm being sustained by them through misadventure.
It was submitted that in this instance, as in many other delict cases, the real issue is
’negligence and causation and not wrongfulness’.”
32. This is the approach I took in considering this application. The learners’ ages
at the time of the incident were merely one of the factors relevant in
determining whether a prima facie case of negligence had been established.
33. I have already discussed the fact that the lea rners had expressly been
forbidden to swim, that no provision had been made for swimming during the
period that they were to be at the camp, and that they knew that they were
expected to adhere to the rules, which had been impressed upon the
repeatedly. T he plaintiffs’ children were known as polite and obedient
learners, from whom no trouble was expected. In Gora20 the court held as
follows:
“ … this is not a case involving young children under the age of 10 years. Plaintiff
and Moore were 15 -year-old pup ils who could be expected to act maturely and
responsibly in the safe environs of the classroom. In my view therefore it was not
reasonably foreseeable that an incident such as the present would occur and the
conduct of the school employees in leaving the class unattended did not amount to
negligence.”
19 Wynkwart NO supra at 580A-C.
negligence.”
19 Wynkwart NO supra at 580A-C.
20 Gora supra para 40.
34. These sentiments are, in my view, applicable in the context of the facts in the
present case.
Evidence from the defendants?
35. In Van Zyl NO obo A.M v MEC for Health, Western Cape Provincial
Department of Health21 the full bench of th is Division, dealing with an appeal
where absolution from the instance was granted, noted the following:
“Before concluding my remarks of the law on the subject, I must stress that rules of
procedure are made to ensure that justice is done between the parties, and so far as
is possible the court should not allow rules of procedure to be used to cause an
injustice. If the defence is something peculiarly within the knowledge of the
defendant, and the plaintiff has made out some cas e to answer, the plaintiff should
not likely be deprived of his remedy without first hearing what the defendant has to
say. A defendant who might be afraid to go into the box should not be permitted to
shelter behind the procedure of absolution from the instance.”
36. In the present matter, the plaintiffs themselves furnished Mr Jobela’s
evidence. As indicated, Mr Jobela had been the defendants’ intended
witness on the facts, and he was thoroughly examined and cross -examined
on the material events. He gave e vidence on what the school had expected
form the learners, and on the measures taken to warn the learners to keep
away from the pool. It appeared from the evidence provided by the plaintiffs
that there was no other person who could shed light on how the i ncident
occurred. The court accordingly had the benefit effectively of hearing the
defendants’ case at the outset. There was, following his evidence, nothing
more “ peculiarly within the defendants’ knowledge ” which could provide
evidence in support of a finding of negligence on the part of the defendants.
Conclusion
21 [2023] 1 All SA 501 (WCC) para 11. My emphasis.
37. This court ha s much sympathy for the plaintiffs – as a parent, one cannot
fathom their pain. Their legal representatives did everything possible in
preparing and presenting their case prope rly and fully. On careful and
unemotional consideration, however, the evidence does not go far enough to
sustain a finding of negligence against the defendants. Once one gets past
the understandable parental reaction of searching for a culprit, it becomes
clear that , on the available evidence, the school could not have done
anything differently to prevent the incident, save for posting someone at the
pool itself to stand guard for the duration of the night. This could, on the
authorities, not reasonably have been expected of the defendants.
Costs
38. The plaintiffs suffered a tragedy. Despite the defendants being successful in
this application, I was not inclined to make a costs order against these
parents. Counsel for the defendants indicated, in answer t o a question from
the court in this respect, that the latter would not insist on a costs order in
their favour.
Order
39. In the premises, I granted the application for absolution from the instance,
with each party to pay their own costs.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the plaintiffs: Ms L. X. Dzai
Instructed by: Reid-Kathemba Attorneys
For the defendants: Mr E. de Villiers-Jansen SC
Instructed by: The State Attorney