Pro Tempo v Van der Merwe (20853/2014) [2016] ZASCA 39; 2018 (1) SA 181 (SCA) (24 March 2016)

/ / News, 2018, Criminal Law


This case is an appeal from a judgment handed down by the Gauteng Division of the High Court, Pretoria. The question in this appeal is whether the Appellant, Pro Tempo Akademie CC (a close corporation which owns and operates a school for children with learning disabilities) was correctly held liable for damages sustained by a student of the aforementioned institution, then 13-year-old Jacobus Hercules Van der Merwe (“Jaco”). The Respondent is Ms Cornelia Van der Merwe, in her capacity as his guardian.

On 2 September 2009 and whilst on the school premises, Jaco became impaled on a steel dropper that was placed alongside a sapling planted within the playground in which learners would generally congregate during their designated lunch period, resulting in substantial damage to his rectum and bladder, necessitating medical surgery.

During testimony presented in the Court a quo, Jaco admitted to sitting on the aforementioned steel dropper, however, the High Court found the Appellant liable for damages. The question to be determined before the SCA was whether the High Court erred in not having sufficient regard to the element of wrongfulness as a requirement for delictual liability.


Upon argument presented before the SCA, the Appellant contended that the High Court failed to sufficiently establish the delictual element of wrongfulness on the basis of there being no foreseeability of danger or harm from the insertion of the steel droppers and, furthermore, that public policy demanded that the extraordinary act of Jaco sitting on the steel dropper should not extended liability therefor to the Appellant.

In response to the above, the SCA found that acting High Court Judge Strauss (“Strauss”) in the Court a quo had correctly considered the reasoning and judgment as handed down by the Appellate Division in the matter of Transvaal Provincial Administrator v Coley, a case that addressed substantively comparable factual events. Pertinently, the Court in the Coley matter proposed a general test for the establishment of delictual negligence, intimating that same may be established in circumstances where a diligence paterfamilias (being a reasonably diligent person) would have reasonably foreseen the possibility of his conduct causing harm to another and that said person would take reasonable steps to guard against such occurrence, yet failed to do.

Further consideration was had by Strauss to the matter of Kruger v Coetzee, wherein the test for negligence as expounded upon in the Coley matter was again utilised.

Following the application of the aforementioned negligence test in an effort to establish wrongfulness on the part of the Appellant, the High Court ultimately determined that placing a steel dropper next to a tree “where children were known to play…ball games created a hazardous and dangerous situation” and, pertinently, “that the foreseeability of damage was present”, a finding with which the SCA concurred.

With regards to the contention that public policy required the High Court to refrain  from imparting liability upon the Appellant for Jaco’s actions, the SCA referred to Hawekwa Youth Camp & Another v Byrne. The Court in this matter highlighted the fact that negligent conduct that manifests itself in the form of a positive act which causes harm to another person is prima facie wrongful.

Additional consideration was had to legal publications[1], which conclude that a duty to act may arise in instances where an individual creates a potential risk or harm to others as a result of lawful positive conduct. Should said person fail to prevent the risk of harm associated with such conduct from materialising; the duty to act is breached.

The SCA further relied upon the determination as handed down in the Hawekwa matter, wherein it was held that “teachers owe young children in their care a legal duty to act positively to prevent physical harm being sustained by them through misadventure.”

Finally, reference was had to section 28(1)(b) of Constitution which dictates that every child has the right to appropriate alternative care in circumstances where they have been removed from the family environment.

Ultimately, the SCA determined that the Appellant’s submission that they could not be held liable for the damages sustained by Jaco due to policy considerations was “wholly unfounded.”

The appeal was dismissed with costs.


Individuals tasked with caring for children have a duty to take positive steps in order to prevent harm befalling the minor child/children under their care.

Written by Puseletso Radebe and supervised by Jarryd Spargo, 17 August 2018

[1] Lawsa 2 Ed. Para. 65

Share Article: