The liability of a public school to pay compensation is governed by the South African Schools Act No 84 of 1996 (“the Act”). Section 60(1) of the Act provides that the State is liable for any delictual or contractual 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 but for the provisions of this section. A “school activity” is defined in the Act as “any official educational, cultural, recreational or social activity of the school within or outside the school premises”.
The Supreme Court of Appeal’s judgment in Parktown High School for Girls v Emeran 2019 (4) SA 188 (SCA) (“Parktown”) set an unequivocal precedent, providing clarity regarding South Africa’s legal position in relation to the liability of a public school to pay compensation.
In Parktown, a minor child was injured on the premises of a public school whilst attending a fashion show organised by the school’s Representative Council of Learners. The child’s father instituted action against the school for damages sustained in his personal capacity and for damages sustained by his son. The school denied liability and filed a special plea, alleging that the action should be directed against the State. The court a quo dismissed the special plea but granted the school leave to appeal to the Supreme Court of Appeal.
The court in Parktown found that section 60(1) of the Act makes it plain that any claim for delictual or contractual damage or loss sustained in connection with any school activity conducted by a public school must be directed against the State, not the school. A public school, or its governing body, may only be held liable to pay compensation if the damage or loss arose out of the operation of an enterprise or business which had been duly authorised by the school’s governing body (as per sections 60(4) and 36 of the Act) in order to supplement the school’s resources. Section 60(4) of the Act exempts the State of the liability to pay compensation in those circumstances.
The court also clarified that section 60(1)(b) of the Act (which stipulates that where a school has obtained public liability insurance, the liability of the State is limited to the extent that the damage or loss has not been compensated in terms of the policy) confers no liability upon the school to pay compensation. The provision goes no further than to provide that the State’s liability is limited to the extent that the injured party has not already been compensated by the school’s insurer.
The court ultimately held that the fashion show constituted a “school activity” and that the claim should therefore have been directed against the State rather than the school. The court thus upheld the school’s special plea, and dismissed the claim against the school.
The Parktown judgment therefore made it clear that if damages or loss arises during a public school’s school activity, a claim for such damages or loss must be directed against the State, not the school.
Having regard to the ruling in Parktown, one may well question the purpose served by Regulation 8A of the Regulations for Safety Measures at Public Schools (“Regulation 8A”), which requires public schools, where financially feasible, to obtain insurance cover against accidents, injuries, general medical expenses, hospitalisation and theft. Importantly, this should not be conflated with the insurance contemplated in section 60(1)(b) of the Act.
The insurance contemplated in section 60(1)(b) is third party / public liability insurance. The insurance envisaged in Regulation 8A, on the other hand, is what is generally described as Group Personal Accident insurance. For example, should a learner become injured during a school sporting activity, the policy provides cover for the learner’s medical expenses, irrespective of whether the school was negligent. The extent of cover and applicable terms will depend on the provisions of the insurance policy taken out by the school.
