M v Member of the Executive Council for Education , Eastern Cape Province and Another (2367/2014) [2020] ZAECPEHC 23 (21 July 2020)

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

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

Case No.: 2367/2014

Date Heard: 24 June 2020

Date Delivered: 21 July 2020

In the matter between:

P[…] S[…] M[….]

Plaintiff

and

THE MEMBER OF THE EXECITIVE COUNCIL

FOR EDUCATION, EASTERN CAPE PROVINCE First

Defendant

OLIVIA DAWN SWANEPOEL

Second

Defendant

JUDGMENT

RONAASEN AJ:

Introduction

[1] This case concerns an incident (“the incident”) which

occurred at the S[…] P[…] School, Port Elizabeth (“the school”) on 2 August 2013. How the incident occurred is in issue between the parties.

[2] The plaintiff has instituted action against the defendants in her

personal capacity and in her representative capacity as mother and natural guardian of her minor son L. It is common cause that L was injured as a result of the incident.

[3] It is, further, common cause that at all times material to this action:

3.1. L was a grade 2 learner at the school;

3.2. the school was a public school established in terms of the South

African Schools Act, 84 of 1996 (“the Act”); and

3.3. the second defendant was an educator as defined in the Act, in the

employ of the first defendant, and had been employed as such at the school in excess of 20 years.

[4] During the incident L was injured and suffered a burn injury on his

left bicep and elbow joint when boiling water from a kettle spilled on him. The plaintiff alleges that by virtue of L being a learner at the school the defendants were under a legal duty to take positive measures to prevent physical harm from being sustained by L while he was under their care and control. The defendants are alleged, negligently, to have breached this legal duty as a result of which she and L suffered damages. It is these damages that she seeks to recover by way of this action.

[5] At the instance of the parties, at the outset of the trial, in terms

of an agreed draft order, I directed that the question of the defendants’ liability for any damages the plaintiff and L may

have suffered first be determined, separately from the question of the extent of any such damages. The trial proceeded only on the separated issue of the possible liability of the defendants.

Statutory background

[6] This action proceeds against the first defendant on the basis of the provisions of section 60(1)(a) of the Act, which provides as follows:

“Subject to paragraph (b), the State is liable for any delictual or contractual damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which such public school would have been liable but for the provisions of this section.”

[7] If a claim falls within the ambit of section 60(1)(a) of the Act a claimant is obliged in terms of section 60(3) to institute the claim against the first defendant. See Parktown High School for Girls v Hishaam and Another 2019 (SA) 188 (SCA) at [7].

[8] It is not in dispute that the incident occurred in connection with a school activity and that the exception provided for in section 60(1)(b) of the Act is not applicable in this case.

[9] The second defendant is joined as a defendant in terms of the common

law.

The plaintiff’s case

[10] The plaintiff alleges that by virtue of L being a learner at the school the first and second defendants owed him a legal duty of care to ensure that he did not suffer any harm through misadventure while he was under their supervision.

[11] L was the principal witness on behalf of the plaintiff. His evidence accorded with the plaintiff’s case as pleaded and, in summary, was to the following effect:

11.1. at the time of the incident he was a grade 2 learner at the school. He is currently a grade 9 learner at D[…] P[…] High School in Uitenhage;

11.2. the second defendant was his class teacher;

11.3. the classroom was not large and learners’ schoolbags were placed in the front of the classroom to allow for walking space between learners’ desks;

11.4. the incident occurred shortly before second break. The second defendant had boiled water in a kettle, which, at the time, was positioned on the floor at the front of the classroom;

11.5. the second defendant used the kettle to make herself a beverage to consume during break time;

11.6. on this occasion the second defendant had asked L to bring her the kettle, after the water had boiled, which entailed him having to carry the kettle, filled with boiling water, across a portion of the classroom to the second defendant’s desk;

11.7. whilst in the process of carrying the kettle he tripped over a schoolbag, boiling water spilled onto his left arm and he was burnt. This occurred before the learners had left the classroom for break;

11.8. the second defendant told him that during the break he was to rinse his arm under a tap;

11.9. on his return to the classroom after the break the second defendant had put cream on his injured arm;

11.10. after school he went home with his school transport. At home he was met by his mother, the plaintiff, who arranged for the treatment of his injury.

[12] In the particulars of claim the plaintiff alleges that the defendants, in breach of their legal duty of care, were negligent in that they failed to take positive measures to prevent L from sustaining physical harm while he was under their supervision, as they caused:

12.1. a kettle to be placed in a classroom in circumstances where it was not safe to do so; and

12.2. L to carry the kettle filled with boiling water in circumstances where a reasonable person would have foreseen that harm may come to L.

[13] In cross-examination L stood his ground and disputed the defendants’ version (with which I deal, below) as it was put to him. He confirmed that he was aware of the rule that learners were not allowed in the classroom during break.

[14] The plaintiff also gave evidence, which was confined to the events that occurred on L’s return home and his medical treatment. She was unable to contribute anything in evidence in respect of the separated issue, which I am required to determine.

The defendants’ case

[15] The defendants, correctly so, conceded that they owed L a legal duty of care to ensure that he did not suffer any harm while he was under their supervision.

[16] The first defendant in his plea denied a breach of the duty of care and specifically denied that:

16.1. a kettle was placed in the classroom in circumstances where it was not safe to do so;

16.2. L had been required to carry a kettle filled with boiling water;

16.3. there was any negligence on the part of the first defendant.

[17] At the commencement of the action the second defendant was legally represented independently from the first defendant. At the trial, however, she was represented by the same legal team representing the first defendant.

[18] A strangely worded plea was delivered on behalf of the second defendant by her erstwhile attorney, which amounted to a general denial of the averments made by the plaintiff in the particulars of claim. No version as to how the incident had occurred was proffered in her plea, although a version was to some degree foreshadowed in the first defendant’s plea. Thus, her version of events first came to light at the trial. The plaintiff’s counsel endeavoured to make much of this during cross-examination. I shall deal with this aspect more fully when evaluating the evidence.

[19] The only evidence adduced by the defendants was that of the second defendant. Her evidence can be summarised as follows:

19.1. at the time of the incident she was L’s class teacher;

19.2. she had been an educator at the school in excess of 20 years;

19.3. the classroom was relatively small and had to accommodate a large number of learners. To enable her to move between the learners’ desks their schoolbags were placed at the front of the classroom;

19.4. the incident occurred during the course of first break. She recalls this as she had supervision duty to perform during second break;

19.5. on the day concerned the learners in her class, including L, had been dismissed for first break and they had left her class to enjoy their lunch and play on the playground. The learners were aware of the rule that during break they were not to return to the classroom;

19.6. the classroom door was kept open so that she could observe events on the playground;

19.7. given that she had supervision duty during second break she had elected to stay in the classroom during first break;

19.8. she kept a kettle in a cupboard in the classroom. On that day she removed the kettle, added sufficient water to it to make herself one cup of coffee and placed the kettle on the floor of the classroom at a convenient plug point and switched it on to boil the water for her coffee;

19.9. during the break L returned to the classroom, tripped over a schoolbag knocked over the kettle and was burnt on his left arm;

19.10. her husband is a fireman. He had provided her with a first aid kit to use in emergencies and instructed her in its use. She took an appropriate bandage from this kit and applied it to L’s injured arm. Contemporaneously she asked a colleague, the other grade 2 educator, to telephone L’s mother, the plaintiff to advise her of the incident.

[20] In cross-examination the second defendant:

20.1. disputed L’s description of the incident;

20.2. denied that she had simply dismissed L and told him to rinse his arm under a tap. She had demonstrated her concern for him by making him sit with her during her second break supervisory duties;

20.3. conceded that she had access to a staffroom and two kitchens where she could have made coffee for herself, rather than in the classroom;

20.4. stated that she had fully instructed her erstwhile attorney as to her version of the incident and was unable to explain why he had pleaded on her behalf in the manner described above. She disputed that her evidence was unreliable, in the circumstances.

Legal principles

[21] In Le Roux v Dey 2011 (3) SA 274 (CC) the Constitutional Court at [122] confirmed that in the context of the law of delict:

21.1. the element of wrongfulness must ultimately depend on a judicial determination of whether - assuming of course that 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 conduct; and

21.2. the judicial determination of that reasonableness would in turn depend on considerations of public and legal policy in accordance with constitutional norms.

[22] The following passage from Minister of Education and Another v Wynkwart N.O. 2004 (3) SA 577 (C) at 580A-C is apposite in the context of schools:

“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’.”

[23] The abovementioned passage was cited with approval in Hawekwa Youth Camp v Byrne 2010 (6) SA 83 at [25] in dealing with the question of wrongfulness in the context of school activities and where the imposition of a legal duty on educators to act positively to prevent harm from coming to learners in their care was found to be reasonable.

[24] This court in Gora v Kingswood College and Others 2019 (4) SA 162 (ECG), with reference to the abovementioned authorities at [7] found that it was correctly conceded by the defendants in that case

that teachers at a school owed the learners in their care the legal duty to act positively to prevent physical harm being sustained by them through misadventure.

[25] On the strength of the abovementioned authorities and their correct application it must be accepted that public and legal policy, in accordance with constitutional norms, make it reasonable to place on teachers at a school the legal duty to act positively to prevent physical harm coming to learners in their care. Therefore, the real question to be determined in this matter is not wrongfulness, but whether the second defendant had negligently breached the duty of care she owed L to prevent him from sustaining harm through misadventure, in which event the second defendant, and by vicarious extension, the first defendant, would be liable for any loss sustained by the plaintiff and L.

[26] The separate test for the determination of negligence is the one formulated by Holmes JA in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-H. According to this test negligence will be established if:

“(a) a diligens paterfamilias the position of the defendant:

(i) would foresee the reasonable possibility of his conduct injuring

another 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.

This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so what steps would be reasonable, must always depend upon the particular circumstances of each case.”

[27] In Gora this court in considering the circumstances in which a teacher would be regarded as having negligently breached the duty of care owed to children under his/her supervision adopted the reasoning in the following passage from Wynkwart at 582G-I:

“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 necessarily 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 that 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.”

[28] Pickering J in reaching the conclusion he did in Gora referred to the following passages from Rusere v The Jesuit Fathers 1970 (4) SA 537 (R):

At 539D:

“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 standard of care that a reasonably prudent man would observe in the particular circumstances.”

At 539F-G:

“In my opinion, however, the duty to keep children of this age (i.e. children between the ages of 7 and 10) 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 guilty 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 which are devoid of features that could sensibly be regarded as hazardous, is, I think, to exact too high a duty of care from the bonus paterfamilias.”

[29] The case of Knouwds v Administrateur Kaap 1981 (1) SA 544 (C) is also illustrative. In that case a lawnmower was being used on the grounds of a school just before school started in the morning. The plaintiff’s 8-year-old daughter was injured when she fell on the lawnmower while she and a friend were racing each other. Friedman J held that having regard to the well-known conduct of young children it should have been foreseeable to those involved that the children could for one reason or another have stumbled into the lawnmower and that the risk to which the children were exposed that day was such that they should have been kept constantly under supervision. With reference to Rusere, Friedman J held that while it was unnecessary for school employees to have the children in their care and under supervision for every moment of the day, the degree of supervision expected from the school personnel naturally depended on the risks to which the children were exposed.

[30] Against the background of the abovementioned authorities Pickering J, in Gora, came to following conclusion at [36]:

“It emerges clearly from the above authorities that the fact that pupils are not kept under the constant supervision of the teachers is not a breach of the duty of care owed to the pupils and that the degree of supervision depends on the risk to which they are exposed in their particular surroundings.”

Application of principles

[31] The abovementioned principles must be applied to the version I accept as to how the incident occurred and L was injured to establish whether the duty of care owed to L was negligently breached. As stated only L and the second defendant gave evidence as to how the incident occurred.

[32] In my view, and for the reasons more fully set out below, a consideration of the evidence in this matter does not lead me to the conclusion, first, that the probabilities are evenly balanced and, second, that the version presented by the plaintiff through the evidence of L is more credible than the version of the second defendant. This is not a situation where I am unable to come to a definite conclusion on the evidence. Rather than two mutually destructive versions I am confronted here with two irreconcilable versions. The distinction between mutually destructive versions and irreconcilable versions is aptly made in the recent judgment of the full bench of this court in Padayachee v The Road Accident Fund [2020] ZAECGHC (9 June 2020) at [17-19].

[33] A consideration of the probabilities in this matter leads me to the conclusion that the truth probably lies in the version of the second defendant rather than in that of L. In this regard the following considerations are relevant:

33.1. the second defendant gave the impression of an experienced and concerned educator;

33.2. the second defendant was not prone to exaggeration in her evidence;

33.3. the evidence of the second defendant that she kept a first aid kit in her class, which had been provided by her fireman husband, who had instructed her in its use, was not challenged;

33.4. given the availability of a first aid kit it is probable and, in fact, likely that the second defendant would have utilised it to attend to the injury sustained by L;

33.5. the credibility of the second defendant in regard to her treatment of L’s injury adds credence to her version that:

33.5.1. the kettle was kept in a cupboard and was only used when the learners were absent from the classroom at breaktime;

33.5.2. she got a colleague to telephone L’s mother to advise her of the incident;

33.5.3. the incident occurred during first break;

33.5.4. she kept L with her during second break;

33.6. L’s evidence that the second defendant had told him to rinse his arm under a tap and thus essentially abandoned him to his fate was improbable, implausible and exaggerated. This, for me, placed a question mark on the balance of his evidence.

[34] The criticism levelled at the second defendant during cross-examination that her version as to how the incident had occurred had not been ventilated in the pleadings, and was therefore unreliable is, unfounded. She stated that she had given the same version to her first attorney. The fact that her version was not set out in the plea delivered on her behalf is rather the result of inept legal representation and cannot be attributed to her.

[35] Having accepted the second defendant’s version of events I must decide on that version whether the second defendant breached her legal duty of care to L, which duty the defendants, quite correctly, conceded existed in this case.

[36] The essential questions to be determined are whether the second defendant, first, should have foreseen the reasonable possibility of her conduct in using a kettle to make herself a beverage during break time in the absence of the learners could lead to the occurrence of the incident and, second, whether she took reasonable steps to avoid

such occurrence.

[37] The consideration of these questions must avoid an application of the wisdom of hindsight. In my view the two questions posed must be answered in favour of the second defendant, as:

37.1. she must have foreseen the possibility of injury to a learner through the use of a kettle, that is why she kept the kettle in a cupboard and only used it during break time when the learners were absent from the classroom;

37.2. she waited until break time and after the learners had left the classroom to make her beverage;

37.3. she only placed the amount of water in the kettle required to make her beverage;

37.4. learners were not expected to return to the classroom as it was a rule that they were not to do so during break time;

37.5. L’s return to the classroom was an unexpected event and not in the form of a regular occurrence;

37.6. using the kettle during break time in the absence of the children did not expose L, or indeed any other learner, to any great degree of risk;

37.7. it was not, in the circumstances, expected of the second defendant to maintain the constant type of vigilance she would ordinarily maintain while the learners were in the classroom or, for instance, on a school outing.

[38] I am thus satisfied, on the accepted evidence, that the second defendant did not negligently breach the duty of care she owed L.

Conclusion

[39] The plaintiff has therefore not satisfied the onus she bears to establish that the defendants are liable for any loss she and L may have suffered as a result of the injuries L sustained during the incident. I accordingly make the order that follows.

Order

[40] The defendants are absolved from the instance. The plaintiff is directed to pay the defendants’ costs.

O H RONAASEN

ACTING JUDGE OF THE HIGH COURT

Appearances:

For Plaintiff: Adv B Ndamase instructed by Zolile Ngqeza Attorneys,

Port Elizabeth

For Defendants: Adv I Dala instructed by the State Attorney, Port Elizabeth