Article written by Avyakta Sing, Candidate Attorney, checked by Ashleigh Butler, Associate and released by Chantelle Gladwin-Wood, Senior Partner at Schindlers Attorneys
13 July 2022
M (“the Plaintiff”) sued the MEC of the Department of Basic Education (“the Defendant”) in her representative capacity as the mother of her child (“T”), due to an eye injury caused to T, by his school educator, Mr Nkuna. The Plaintiff alleged that because her child was injured by an educator who is employed by the Defendant, Mr Nkuna is vicariously liable.
The Plaintiff brought six witnesses to Court to prove her case. At the time that the matter was brought to court, the Plaintiff’s child (“T”) was 23 years old. The learner, however, was 17 years old and in Grade 7, when the incident took place on 3 March 2014. On the day in question, Mr Nkuna hit one learner and proceeded to hit the Plaintiff’s child with a plastic pipe on the hand. During the process, he missed and hit T’s eye instead. Upon realizing his mistake, Mr. Nkuna promised to give T money to buy snacks. T did not report the matter to anyone including his own parents, however upon T’s uncle visiting his house, he saw that T had an injury on his eye and brought such injury to T’s parents’ attention. On the 17 March 2014, T’s parents, together with his uncle approached the teacher in order to ascertain what transpired, however, the teacher vehemently denied the allegations and agreed to take T to be examined by an eye specialist. T was referred by the specialist to undergo an eye surgery, but the surgery did not take place because no one was willing to accompany him to the hospital. A female teacher offered him R500, in order for him to buy food and medication. As a result of the injury caused by Mr. Nkuna, T felt unsafe amongst his schoolmates, on the basis that they would laugh at him. Due to the trauma suffered by T, he dropped out of school and refused to enroll in any other school, even though they were willing to accept him. Other leaners testified in court against Mr. Nkuna, confirming that the incident had taken place at the school.
Was T assaulted based on a balance of probabilities?
T was not a credible witness in this case as the evidence presented was contradictory. The evidence presented to the court was not accurate because T did not report the assault to anybody even though he lost his sight in his left eye. The classmates’ evidence was unsatisfactory and unreliable because all the witnesses were related to T, which resulted in favorability towards T. Mr Nkuna was a credible witness. The other teacher was also considered a reliable and honest witness. Both parties presented medical evidence to the court.
The court held that it was unclear as to the causation of the incident as no person gave evidence regarding the eye injury. The court held that the Plaintiff must prove on a balance of probabilities that he was assaulted by the teacher as the evidence presented by the Plaintiff was inaccurate and false. The court held that the Plaintiff’s case must fail because of the inaccurate version of events presented to the court.
Plaintiff must not provide a destructive version of events to the court when presenting evidence. A person who claims assault must prove that he has in fact been assaulted by another on a balance of probabilities.