This is an appeal that arises from an incident at a public school where a young member of the public was injured on the school’s premises while attending a fashion show.
Naqeeb Emeran (“Naqeeb”) attended a fashion show at Parktown High School for Girls, which was organized by the Representative Council of Learners (“RCL”). There were concrete tables with circular tops, which were permanent features, for use of members by the public and learners. It was alleged that the circular tops of the tables were not fixed to their stands and when Naqeeb leaned on one of these tabletops, the downward pressure caused it to flip over and fall to the ground, crushing his right hand. Naqeeb’s father instituted action against the school for negligently not taking reasonable steps to avoid a foreseeable occurrence of this nature and accordingly, it was liable for damages suffered by him (in his personal capacity for medical expenses) and by Naqeeb, for his future loss of earnings and general damages.
In terms of section 60(2) of the South African Schools Act (“the Act”), the State Liability Act 20 of 1957 applies to a claim under section 60(1) of the Act. This means that the general principles of vicarious liability, which apply to the liability of the State for the delicts of its employees, also apply to public schools. Once it is established that a claim falls within the ambit of s 60(1) of the Act, section 60(3) states that the claim should be instituted against the Member of the Executive Council (MEC) concerned, as representing the State.
Naqeeb’s father argued that section 60(4) of the Act exempts the state from liability where the negligent conduct occurs “in connection with any enterprise or business operated under the authority of a public school for purposes of supplementing the resources of the school as contemplated in section 36.” Section 36(1) deals with activities conducted under the auspices of the ‘school governing body’ to supplement resources supplied by the State for the purpose of improving the quality of the education of its learners.
For a claim to fall within the ambit of s 60(4) and thereby exclude the State’s liability, the following five requirements must be met: (i) the act or omission giving rise to the claim must be in connection with (ii) a business or enterprise (iii) operated under the authority of the school (iv) for the purpose of supplementing the resources of the school (v) under the auspices of the school governing body.
The central issue in dispute was whether the fashion show was an ‘enterprise or business’, neither of which is defined in the Act. It was common cause that it was not a business. Both parties relied on a dictionary meaning of an ‘enterprise’ which means, “a project or undertaking, one that requires boldness and effort to support their preferred meaning or an initiative in business, a business unit, a company or firm.” The School submitted that ‘school activity’, as defined in the Act, does not fall within this meaning. On the other hand, the respondents argued that the fashion show, organized by the RCL, was an enterprise within the meaning of the section and therefore, that the school should be liable and not the MEC.
Section 36 of the Act deals with the responsibility of the governing body of a public school to supplement its resources in order to improve the quality of education the school provides to its learners. However, the activities with which s 36 are concerned, relate only to supplementing the school’s resources by a business under the authority of the governing body and not to all fundraising activities of the school.
Section 60 (4), read with s 36 of the Act, exempts the State from liability only where the activity in questions (giving rise to the delict) was conducted by a ‘business or enterprise’ under the authority of the school’s governing body.
The Supreme Court of Appeal (“SCA”) accepted that a fashion show organised by a student body may well be an ‘enterprising’ initiative in the sense of its boldness, innovation and effort. However, an ‘enterprise’ usually refers to a business initiative undertaken by a commercial entity. Despite the fact that a fashion show was organized to raise funds, the RCL is clearly not a business or enterprise, within any meaning of the section. The SCA further held that the school’s governing body had nothing to do with the fashion show and thus, it not regarded as an activity under the auspices of the school governing body to supplement its resources.
In conclusion, the SCA stated that, by virtue of s 60(1) of the Act, Naqeeb’s father ought to have sued the Member of the Executive Committee (MEC) and not the school. This means that, on the facts of the case, the MEC alone is liable for any damage or loss that Naqeeb and his father may prove arising from the incident.
This case highlights the importance of Section 60 of the Schools act which provides for state liability for any acts and omissions of schools in certain circumstances.
Written by Jordan Dias and Celeste Frank