South Africa: North Gauteng High Court, Pretoria

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 572/2011

DATE: 4 December 2014

In the matter between:

SALBY OUPA MOKONYAMA................................................................................................Plaintiff

and

MINISTER OF BASIC EDUCATION..........................................................................First Defendant

MEC OF EDUCATION: LIMPOPO PROVINCE...................................................Second Defendant

MS BOSHOMANE.........................................................................................................Third Defendant

JUDGMENT

Tuchten J:

1 The plaintiff has sued the defendants for damages. The plaintiff was born on […] 1990. In 1998, when the plaintiff was 8 years old, he was a pupil at the Molemo Primary School in Zebediela. He was in Grade 3.

2 The plaintiff testified that his class teacher was the third defendant. One school day in March 1998, the plaintiff said, while class was in progress, the third defendant was summoned to the principal’s office. She left the class unattended. In her absence these young children became noisy. On her return, the third defendant rebuked the children for their behaviour. Some, at least, of the children responded by calling out “Hai wena!” which according to the evidence was an act of disrespect.

3 The plaintiff said that the third defendant reacted to the disrespect which had been shown her by seizing a broomstick which was ready to hand in the classroom and savagely beating the plaintiff on his back. The plaintiff said that he was the nearest boy or pupil to the third defendant.

4 The plaintiff said that he lost consciousness and woke up in hospital to find that he was unable to walk properly. The plaintiff advanced to the witness box with the aid of crutches and it is clear that he has a disability. He claims that the beating administered by the third defendant is the cause of his disability. He sued the defendants for damages for assault in a summons taken out on 6 January 2011. The defendants, who were jointly represented by the state attorney, denied in their plea that the plaintiff suffered any injuries whatsoever while he was a pupil at the Molemo Primary School. The defendants pleaded that the plaintiff had physical impairment when he was admitted to the school in 1998.

5 The defendants also pleaded that the plaintiffs claim was extinguished or rendered unenforceable by prescription both under the Prescription Act, 68 of 1969, and the Institution of Legal Proceedings Against Certain Organs of State Act, 40 of 2002. In response to these challenges, the plaintiff applied to this court under case no. 4836/2014 for an order condoning the late service of notice on the first and second defendants and for leave to continue with his action.

6 In his condonation application, the plaintiff explained that he had been unaware that he had any legal claim against the defendants until the end of October 2010, when a chance comment by a passenger in a taxi in which the plaintiff was travelling led the plaintiff to believe that he was indeed entitled to legal redress for what he says happened to him. He then laid a charge of assault against the third defendant and consulted an attorney.

7 The defendants did not oppose the condonation application and on 17 March 2014, JW Louw J condoned the late service of the notice and granted the plaintiff leave to proceed with the present action.

8 When the case was called before me, the defendants were jointly represented by counsel. The plaintiff was represented by both senior and junior counsel. Counsel informed me that they had reached agreement that the only issue they wished me to determine was whether the third defendant assaulted the plaintiff as alleged. I granted the requisite order under rule 33(4). Accordingly the only issue before me was whether the plaintiff was assaulted as alleged. All the other issues, including whether the assault caused the disability from which the plaintiff presently suffers, were postponed sine die.

9 The plaintiff lived with his grandmother, Mrs Lena Mokonyama, at the time because his mother was working for an horticulturalist near Pretoria. Both the plaintiffs mother and grandmother testified. Both of them said that they visited the plaintiff in hospital after the incident. The plaintiff testified that he was admitted after his injury to the Qroothoek Hospital at the Mathibela Village, then transferred first to the Pietersburg Hospital, then to the Mankweng Hospital and then finally to the Ga-Rankuwa Hospital.

10 A difficulty attending the plaintiffs case was that he was unable to produce a single document showing that he had ever been at any of these hospitals. I granted a postponement of the case to enable the plaintiff to make further efforts to produce such records. In the result the plaintiff remained unable to produce any such documents. The plaintiff was even unable to give his patient number.

11 In his further particulars, the plaintiff said that the assault on him was witnessed by one of his classmates, Tumi Mogotlane. Mogotiane gave evidence but testified that he had not seen how the plaintiff was injured; he had only heard about it, he said. Mogotlane also testified, however, that the plaintiff had at the time in question played soccer with the other children, in the position of striker. I was provided with photographs taken of the plaintiff when he was a child. Although they ail show the plaintiff clothed in long trousers and wearing shoes (which leaves open the possibility that the plaintiff suffered from some physical disability which was concealed by his clothing), they do show that on the face of it, the plaintiff was a normally abled child.

12 During cross-examination of the plaintiff and his grandmother, the version to be advanced on behalf of the defendants was extensively put to the plaintiff. It was foreshadowed that both the third defendant and the then school principal were available to give evidence and that they, particularly the third defendant, would testify that no assault on the plaintiff ever took place. Moreover, it was dented that the third defendant was the plaintiff’s class teacher. On the contrary, thus the version of the defendants, when the plaintiff was taken ill or suffered an injury which kept him from school; the school authorities learnt that he was in the Groothoek hospital and Mr Makafola (who, it was put, was in fact the plaintiffs class teacher) and the school principal went to visit him there.

13 Neither the plaintiff nor his grandmother was a perfect witness. No charge was laid against the third defendant. This was explained on the basis that the plaintiff’s grandmother ruled within the family that laying a charge against a teacher, a person highly esteemed in the community, would give rise to conflict and potential prejudice against other children of the family who attended the Molemo School. I have mentioned the absence of hospital records. I think that it is surprising that the plaintiffs grandmother kept nothing from any of the hospitals, not even a card showing the plaintiffs hospital number or a letter.

14 There was a significant difference between the version of the plaintiff and that of his grandmother. The plaintiff said that after he lost consciousness in the classroom, he woke up in hospital. But the plaintiffs grandmother said that the plaintiff, supported by his siblings, had walked home from school on the day the plaintiff said he was beaten. The grandmother said that the plaintiff told her that the third defendant had beaten him with a broomstick. The plaintiff could walk, the grandmother said, but not properly. The grandmother went to the school to investigate and interviewed the teachers. The plaintiff’s grandmother was told that the plaintiff had been “reprimanded”, which to her implied a beating. The grandmother asked the third defendant whether it was true that she had beaten the plaintiff with a broomstick. The third defendant denied having used a broomstick. Then, on the grandmother’s version, one of the teachers took the plaintiff to hospital in her motor car. This happened, the grandmother said, a week after the incident at the school.

15 But all this must yield to the fact that the defendants’ case was closed without any evidence being presented, after an application for absolution had been refused. While the plaintiff and the witnesses who testified in support of his case may legitimately be criticised for individual shortcomings as witnesses and the plaintiffs case lacks corroboration that one might have expected would be available, I am not prepared, having seen them in the witness box, to reject their evidence as lies. There is thus uncontradicted, credible evidence before me that the plaintiff was indeed beaten by the third defendant in the classroom with a broomstick.

16 The plaintiff must therefore succeed on the only issue placed before me for decision. I make the following order:

1 It is declared that during March 1998 in a classroom in the Molemo Primary School in Zebediela, the plaintiff was assaulted by being beaten with a broomstick by the third defendant.

2 The defendants, jointly and severally, must pay the plaintiffs costs incurred to date, including the costs consequent upon the employment of both senior and junior counsel.

NB Tuchten

Judge of the High Court

2 December 2014