8 May 2006
Thirteen years after an incident in which a then 11-year-old learner lost
the sight of one eye resulting from a stone hitting him, the Cape High Court
has now ruled that the educator on duty that day could not be held
responsible.
The incident took place at Hoekplaas Primary School near Uniondale, where
after the father of Marcel Kleinhans, the injured learner, has since sued the
Western Cape MEC for Education for a total of R1.4 million in damages.
According to evidence before the court, a nine-year-old learner threw a
stone during a break at the farm school on 13 April 1993. He apparently threw
the stone to indicate where a rugby pole should be placed before learners began
playing a game of rugby.
The stone hit Marcel in the eye. He was 11 years old at the time. He now
wears a glass eye.
Hoekplaas, a farm school, had 16 learners and one teacher at the time, Mrs
Virginia Burts, who also acted as principal. Ms Justice Rosheni Allie found on
Thursday, 4 May 2006, that the plaintiff had failed to prove negligence on the
part of the school or the Education Department.
She found that the plaintiff did not lead any evidence as to what reasonable
steps that the educator could have taken to prevent the occurrence of the
incident. All concerned conceded that it was a rocky terrain, situated in the
Karoo, and accepted that it was impossible to clear the area and remove every
stone on the school grounds.
The judge found that it was unreasonable to keep learners in a confined area
as was suggested by the plaintiff, to cordon off an area of the school, and
limit their freedom of movement during break-time.
She found that it was unreasonable to expect educators to constantly
supervise learners during every break-time, and took into account the fact that
the farm school only had one member of staff.
The plaintiff conceded that the teacher could not have had all the children
within her field of vision at any one time. The judge found that the duty to
care for the learners was no more than what a reasonably prudent person would
observe in the particular circumstances.
Judge Allie granted an order for absolution from the instance and dismissed
the case with costs.
Advocate N Visser appeared for Marcel Kleinhans. Advocate JP White appeared
for the MEC for Education.
MEC Cameron Dugmore said, "I welcome the judgment. It gives clarity to
issues of liability at school level. I have asked the Department to give me a
full report of the current circumstances of Marcel Kleinhans."
Enquiries:
Gert Witbooi
Cell: 082 550 3938
E-mail: gwitbooi@pgwc.gov.za.
Issued by: Department of Education, Western Cape Provincial Government
8 May 2006
