Who is liable – the State or a Public School?

In terms of the South African Schools Act (SASSA) public schools and their SGBs have a degree of autonomy and independence but fortunately for schools Section 60 does provide for state liability for the acts and omissions of schools in certain circumstances.  When the state is liable has recently been considered by the courts in two important decisions, that of Parktown High School For Girls v Hishaam and Another (93/2018)[2019]ZASCA 10 and Kenmont School and Another v Moodley and Others (11611/2016)[2018] ZAKZDHC 67.

Section 60(1)(a) states that:

“ the state liable for any damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which such public school would have been liable for. “

The facts in these two cases differ significantly but both deal with this important issue of when the state is liable and when the school is liable.

The Parktown High School case dealt with a claim by a member of the public who attended a fashion show at the school and was injured. This event was organised by the Representative Council of Learners as a fund raiser.

The essence of this case was:

  1. Whether the school should be held liable for the injury in terms of Section 60(4) of SASAA which exempts the State from liability if the negligent conduct occurs “in connection with any enterprise of business operated under the authority of a public school for purposes of supplementing the resources of the school as contemplated in section 36…”; or
  2. Whether it fell outside Section 60(4) and therefore the State was liable in terms of Section 60(1).

Fortunately for the school in this case the court held on the central issue of whether the fashion show was an ‘enterprise or business’, that it was not and therefore the state was liable.

The second case that dealt with state liability was the Kenmont case.  This case dealt with the attaching of a public schools’ assets due to a cost order granted against the school and the SGB. Without going into the details of the original High Court case, the school and the SGB had a cost order against them.

Section 58A(4) of SASSA states that the assets of a public school may not be attached as a result of any legal action taken against the school and the school was of the view that the Department of Education should be responsible for the costs in terms of Section 60(1)(a) of SASSA. The court however held that the provisions of Section 60(1) are not applicable as it was not a delictual claim nor was it a contractual damage or loss.

The court went further and, in what we submit was an unfortunate decision, Section 58(4) was held to be unconstitutional as it infringed on the Constitutional right that everyone is equal before the law and has a right to equal protection and benefit of the law. Section 58(4) was held to be unconstitutional as it deprived the respondent in the Kenmont case from recovery of his costs.

The reason that we respectfully feel that the decision in this case was wrong will be addressed thoroughly in an article written by the authors of this article in a legal journal – shortly. In addition, as the case found an aspect of SASSA unconstitutional it has to be referred to the Constitutional Court and is set down for hearing on the 14th May 2019. We are hoping for the Constitutional Court to not allow Section 58(4) to be declared unconstitutional.

Kimeshree Pillay and Brett Bentley

Bentley Attorneys