This blog was co-authored by William Hayne, Candidate Attorney.

In October 2024 the High Court grappled with the duty of care owed by schools to their pupils, what this duty entailed and whether it had been breached. The court found that two patrolling teachers assigned to supervision of the school playground was, on the evidence, sufficient steps taken to prevent foreseeable harm.

The claimant was a pupil at a school under the control of the Gauteng Department of Education at the time of the incident.  Prior to the incident, the pupil was suspended for seven days due to unrelated issues and accordingly was not entitled to be on the school grounds at the time of the incident.

However, the claimant had unlawfully entered the school ground by climbing over the fence.  During “play time” the claimant was kicked in the head and pushed into a wall by another pupil, causing a traumatic brain injury with loss of consciousness and a fractured skull.  As a consequence, the claimant allegedly continued to suffer headaches, memory loss, concentration issue and psychological trauma.

The claimant instituted proceedings against the school alleging that it had negligently failed to exercise reasonable care and skill to ensure that no harm came to its pupils on school grounds because there were no teachers present at the time and place of the incident.

The Department submitted that there were, at all times, two teachers patrolling the playground to ensure the safety of the pupils. This was confirmed by testimony from one of the teachers who was on duty on the day of the incident, and was left unchallenged by the claimant.

The court held that when an educator assumes responsibilities over a minor, they do so in the position of a parent, and accordingly, have a legal duty to take care of the student and to ensure that a safe and secure environment exists. In order to succeed with a claim for negligent liability, the claimant must allege and prove that a reasonable person in the position of the school would foresee the reasonable possibility of its conduct injuring a person and causing them patrimonial harm but fail to take reasonable steps to guard against such occurrence.

The court found that it was clear that the school had foreseen the possibility of harm coming to the learners and the resultant patrimonial harm. However, that by assigning two teachers to patrol the playground at all material times, the school had taken reasonable steps to guard against the foreseen harm.

Importantly, the court qualified the duty owed by the school to its learners. It would be unreasonable verging on impossible to insist that the duty of care required a teacher to continuously and without break supervise every student under their purview or to have each student assigned a particular teacher for their safety. The court found that, even although no teacher was present at the time of the incident, they were present in the broader playground. As the court graphically expressed it, the teachers could not be everywhere all the time and “are not God and are not air”.

This judgment reinforces the notion of reasonable steps to safeguard against foreseen harm. One cannot be expected to exclude all possibility of harm but that one must take the steps that a reasonable person in their position would take to prevent the harm.

Mhlongo v Member of the Executive Council of the Gauteng Department of Education