Five mornings out of seven every week, thousands of parents send their children off to school. What a parent is never prepared for is the child not returning later that afternoon. The recent tragedy at Hoërskool Driehoek, where a walkway in the school collapsed – claiming 4 lives and wounding 20 other scholars has led to many questions arising pertaining to who is legally responsible for the lives of children whilst they are at school.
This tragic event has led us to reflect on past cases of deaths occurring at schools. One case that immediately jumps to mind is that of Michael Komape, whose mother, Rosina Komape, unfortunately dealt with the horrific reality reality of receiving that phone call that would alter her life forever. Michael, aged 5, had drowned in a school pit toilet.
The Komape family is from the village of Chebeng in the Limpopo province. A place that is vastly different from the big cities of South Africa. Here, as is the norm in rural communities throughout South Africa, the people have to travel great distances just to access amenities that we take for granted. The state of sanitation in their public schools is shocking, to say the least. The children use pit toilets which are, at best, covered by corrugated iron cubicles erected on a concrete base. And these are the ‘lucky’ few, some schools have no toilet facilities to speak of.
On the fateful day, Michael went to the toilets at his school during break without any supervision. When he didn’t return, the school principal contacted his mother, Rosina Komape, who then came to the school and was informed by one of Michael’s former classmates that he had fallen into the pit toilet. This was just after midday. Michael’s body was only retrieved from the toilet at about 16h00. A post-mortem examination revealed that he had died “due to aspiration of foreign material which is consistent with drowning.” This is a gruesome cause of death that no person wants to think about or imagine. But we have to, because Michael was not the last child to die in this manner, or as the result of negligence on behalf of a school or education department.
On the 12th of March 2018 at Luna Primary School in Bizana, Eastern Cape, like Michael, another 5-year-old, Lumka Mketwa, drowned in a pit toilet situated at her school premises. The circumstances that led to her death were very similar to the 2014 death of Michael but even more shockingly her body was only discovered the following day, meaning that she lay in the pit toilet overnight. This story has gained media traction with many questioning how to allocate the blame. “Where was the teacher when this happened? Should the child not have been accompanied to the toilet?” are amongst the more common and understandable questions being raised by the public.
In this regard, the recent judgment by Judge Gerrit Muller of the Limpopo High Court dealt with liability in circumstances such as this. The Komape family as the plaintiffs in the case, instituted five claims against the Minister of Basic Education, the Limpopo Department of Education, the principal and the School Governing Body of Mahlodumela Primary School, where Michael had only been a pupil for three days when his death occurred. The first claim was delictual in nature. Delictual claims require fault in the form of either intention or negligence. The claim was for damages for emotional trauma and shock experienced by each of the family members. The second claim, that has everyone talking, was for R2 million for grief suffered by the plaintiffs as immediate family members. The 3rd, 4th and 5th claims were for the past and future medical expenses as a result of the family’s impaired mental health caused by the shock and trauma that came with the death, the funeral expenses and Rosina’s loss of income respectively.
The first two claims were dismissed. With regards to the first claim, the court explained that damages were not recoverable for normal grief or sorrow following bereavement. The court was requested to develop the common law to award damages for grief even if this did not give rise to detectable or recognised psychiatric injury, which the court did not find reason to do as this would “lead to bogus and unwarranted proliferation of claims for psychiatric injuries and pave the way for limitless claims for every conceivable cause of grief whether insignificant [or not] without expert psychiatric evidence.”
Despite the dismissal of the first two claims, the family brought another claim relying on Section 7(2) of the Constitution which places positive obligations on the state to “protect, promote and fulfil” fundamental rights. The family used this section to claim Constitutional damages on the basis that the defendants failed to discharge their various duties of care to protect Michael. They claimed that they were reasonable to expect that Michael would be protected from harm whilst in the school’s care and also argued that the death was foreseeable and could have been prevented by improving the conditions of the school toilets. Whilst the financial claim based on this was denied by the court , the court did grant an interdict ordering the state to comply with the obligations placed on it by the Constitution and install proper sanitation facilities at rural schools. The Department of Education has to furnish the court with details pertaining to the targeted schools and the time it will take to complete this mammoth task.
The family received a total of R125,372.65 for claims three, four and five.
The deaths of Michael Komape and Lumka Mketwa and the children from Hoerskool Driehoek have left many parents concerned about the safety of their own children.This leads to the ultimate question – who is responsible for a child’s safety when they are at school? Furthermore, who is liable when injury or even death ensues?
Looking at the in loco parentis principle might be a good starting point to get answers. According to this principle, the teacher and school take over the parent’s duties and responsibilities, when the child is in their care. The Constitution, as the supreme law of the land, places upon teachers, schools and even the School Governing Body, the obligation to ensure the safety of their learners. So too does the common law. Further, section 15 of the South African School’s Act 84 of 1996 states that, as a juristic person, each public school can be held legally liable in a case where a learner under the care of the school is injured under circumstances where there was not proper policy to protect the learner against injury. If there is a failure in this duty, the School Governing Body, the principal and its teachers can potentially be held legally liable.
In the case of Wynkwart NO v Minister of Education and Another 2004 (3) SA 577 and Jacobs v The Chairman of the Governing Body of Rhodes High School, the Principal and the MEC, the father of a 9-year-old who had been injured when he fell off an unused and locked school gate while attempting to climb over it, took the matter to court. The school averred that the scholar had been warned on numerous occasions (during orientation and assemblies) to not use this particular gate. Although the initial judgment, where the father was awarded damages (because the school didn’t just have the duty to warn but to also ensure that danger is averted), was overturned on appeal, as the court held that unreasonable demands could not be placed on schools, this case is still a good example of how a school can be held liable for injury to a scholar who is under their care.
South African case law leads one to the conclusion that not only do schools have a duty to warn their students about potential dangers, but they also have the duty to act and ensure that such danger is averted.
For further info and advice pertaining to this topic please do not hesitate to contact us.
Written by Megan Harrington-Johnson (Managing Partner) and Enhle Mtolo (Candidate Attorney) at HJW Attorneys