Member of The Executive Council of Gauteng Responsible for Education v Rabie

• Jurisdiction: South Africa
• Judge: Jones J, Leeuw J, Lacock J
• Judgment Date: 07 February 2008
• Docket Number: A758/06
• Hearing Date: 07 February 2008
• Court: Transvaal Provincial Division
• Citation: 2008 JDR 0228 (T)

Jones J:

[1] In 2003 Christian Rabie, a minor child, was a grade 8 learner at Waterkloof High School in Pretoria. During the course of the morning of 31 July 2003 he participated in a game being played in the school grounds during and shortly after morning break. The game entailed a child getting on to a cricket net which had been pulled tight by other children, and then being tossed up into the air and afterwards being caught in the net when he came to land. Christian was tossed into the air. But he was not caught in the net when

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Jones J

he came to land. He fell to the ground and sustained serious head injuries.

[2] The result was that Christian's father, the plaintiff a quo, claimed delictual damages from the school authority. He claimed for medical and hospital expenses incurred in his personal capacity by reason of Christian's injuries, and, in his capacity as Christian's father and natural guardian, he also claimed for loss suffered by Christian for future medical expenses, future loss of earnings, and general damages.

[3] The trial came before Combrinck J on 2 May 2006. At its commencement he made an order by consent that the issue of the quantum of damages be separated from the issue of liability in terms of rule 33(4). On 15 May 2006 he gave judgment in favour of the plaintiff, and made a declaratory order that the defendant was liable in respect of the plaintiff's claim in his personal capacity and his representative capacity. This order was based on three findings of fact –

(a)

that the staff of the school were negligent in the respects alleged by the plaintiff in his particulars of claim, and that their negligence was causally connected to the damage which the plaintiff alleged that he had suffered;

(b)

that, in raspect of contributory negligence, there was no evidence in support of the defendant's contention that there was negligence on the part of the plaintiff; and

(c)

that the defendant had also failed to prove that there was any contributory negligence on Christian's part.

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Jones J

These findings are now before us on appeal. For convenience, I shall refer to the appellant - the Member of the Executive Council of Gauteng responsible for education - either as the defendant or 'the school', and to the respondent on appeal as the plaintiff.

[4] It was common cause at the trial that the defendant was vicariously liable for any wrongful conduct of the school employees which gave rise to the damage. The cause of action alleged in the particulars of plaintiff's claim was primarily directed at the school's duty to keep learners under supervision. It began with an allegation that the employee responsible for professional management of the school was able to arrange effective control and supervision of learners on the grounds of the school during breaks and at other times when they were not in class, and that the school's employees generally were responsible for the control and supervision of learners whilst they attended school and participated in school activities. These allegations were admitted. So was an allegation that" it was foreseeable that learners could be injured in unsupervised activities, and that the plaintiff and Christian would suffer damages in the event of Christian being injured. The plea also admitted that the employees of the school owed the plaintiff and Christian a legal duty

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to provide control and supervision of learners that would create and maintain a safe environment;

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to exercise control and supervision without negligence; and

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to take reasonable precautions to prevent physical harm being sustained by Christian whilst attending the school.

This admission was subject to two further allegations:- (a) that both the plaintiff and Christian had a duty to prevent Christian - from engaging in dangerous activities that may cause harm, and (b) that the defendants duty to the plaintiff and Christian was to prevent Christian from engaging in foreseeable dangerous activities that would cause foreseeable harm.

[5] The particulars of claim then described the events of 31 July 2003. The allegation was that during break on that date and on the school premises, grade 11 learners commenced with and participated in a dangerous activity which entailed individual learners being thrown high into the air by means of a - cricket net. During the course of this activity Christian was thrown high into the air and fell to the ground sustaining serious injuries. Paragraph 7 alleged that Christian was injured due to the negligent breach of the legal duty previously referred to above, committed by the school's employees, who were allegedly negligent in the following respects:

7.1

The employee or employees responsible for the control and supervision of learners during school breaks failed to ensure that there was sufficient control and supervision on 31 July 2003;

7.2

The employees responsible for control and supervision of

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learners on 31 July 2003 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 done so;

7.3

The employees responsible for control and supervision of learners during breaks on 31 July 2003 failed to properly perform their functions, alternatively failed to ensure that learners returned to their classrooms after break when, in the circumstances, they could and should have done so;

7.4

The employee responsible for the control of out of bound areas failed to prevent the aforesaid dangerous activity in an out of bound area on 31 July 2003 when, in the circumstances. he/she could and should have done so;

7.5

The employees 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 adhered to when, in the circumstances they could and should have done so;

7.6

The employees responsible for control and supervision Of learners failed to prevent the aforesaid dangerous activity taking place when, in the circumstances, they could and should have

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done so.

[6] The plea does not deny the occurrence of the dangerous activity which gave rise to Christian becoming injured, but alleged that it took place after break when the learners were expected to have been in their class rooms, and that it took place at a place where learners were forbidden access unless under the supervision of a sport's coach. The plea alleges that Christian and the other learners who participated in the dangerous activity knew that they should not have done so in terms of the school's rules and regulations, and that their participation in the dangerous activity could cause them harm. The grounds of negligence are denied, and the defendant pleaded further to them in the following terms:

9.2

Employees of the defendant are deployed around the school perimeter every school break- to ensure that the learners adhere to the school rules and regulations;

9.3

Some of the school rules and regulations are that

9.3.1

They must ensure that learners like Christian do not access the area behind the cricket screen next to the cricket clubhouse;

9.3.2

That they do not engage in dangerous activities;

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9.4

The said perimeter control educators and or any other educator observed nothing during that period that ought to or could have alerted them that Christian, after the break, could engage in an activity that might cause him harm.

[7] The facts pleaded in paragraph 9 of the plea were common cause. These facts and the facts admitted by the defendant in the pleadings confine the issues considerably. There is not much in dispute. Indeed, it seems to me...