Pro Tempo Akademie CC v C S Van der Merwe obo H Van der Merwe

On 2 September 2009, Jacobus Hercules Van der Merwe (Jaco), a 13-year-old learner at Pro Tempo Akademie CC (Pro Tempo), a school catering for children with learning disabilities, became impaled on one of five steel droppers erected on the playground to support recently planted saplings. The steel dropper tore through Jaco's rectum and bladder, causing severe injuries requiring medical attention and surgery. The dropper was approximately 60 centimetres high, protruding 30 centimetres above a 30 centimetre high sapling. The dropper was located in a part of the playground where senior learners regularly played cricket and rugby and would run around the trees and droppers during normal play. The exact circumstances of how Jaco became impaled were unclear - evidence suggested he either sat on or leaned against the dropper. Jaco was traumatised and uncertain about the events. He had been feeling unwell, was disoriented, tired and had a headache. Jaco suffered from hyperactivity and learning disabilities, and the school was aware of these conditions. His mother, Ms Cornelia Van der Merwe, acting as his guardian, instituted action against Pro Tempo for damages. The parties agreed that the trial would decide only the merits, with quantum held over.

• Whether Pro Tempo was negligent in erecting steel droppers protruding 30 centimetres above saplings in a playground where children with learning disabilities regularly played ball games
• Whether the element of wrongfulness was established in the context of delictual liability
• Whether the creation of a dangerous situation by placing steel rods in a playground created a legal duty to prevent foreseeable harm to children
• Whether public policy considerations, particularly relating to the extraordinary nature of the child's act, should exclude liability
• The appropriate apportionment of contributory negligence given the child's age, learning disabilities, hyperactivity and trauma

The appeal was dismissed with costs, including the costs of two counsel. The High Court's order was confirmed: the defendant (Pro Tempo) was held 80% liable to compensate the plaintiff for damages proven, and ordered to pay the plaintiff's costs including costs of senior counsel.

The binding legal principle is that an educational institution that creates a dangerous situation by placing protruding steel rods in a playground where children regularly play ball games owes a legal duty to take reasonable steps to prevent foreseeable harm to those children. Negligent positive conduct that causes physical harm to the person or property of another is prima facie wrongful. Where a defendant has by lawful prior positive conduct created a potential risk of harm to others, a legal duty arises to take reasonable steps to prevent that risk from materializing. A diligens paterfamilias in the position of a school catering to children with learning disabilities would foresee the reasonable possibility that placing steel droppers protruding above saplings in an active play area could injure children, and would take reasonable steps to guard against such occurrence. The extraordinary or peculiar nature of how a child comes to be injured does not negate liability where the defendant has created an objectively dangerous situation. Public policy considerations, informed by constitutional norms including section 28(1)(b) of the Constitution (children's right to appropriate care), support the imposition of liability in such circumstances.

The Court made several non-binding observations: (1) It is a notorious fact, accepted even by the appellant's witnesses, that children are impulsive - citing Knouwds v Administrateur Kaap 1981 (1) SA 544 (C); (2) The Court expressed concern that the headmistress, Ms Cilliers, did not immediately go to the scene when informed of the incident; (3) The Court noted it was "disconcerting" that the headmistress did not attend to Jaco immediately; (4) The Court warned against confusing the delictual elements of wrongfulness and negligence, noting that depending on circumstances it may be appropriate to enquire first into wrongfulness (assuming negligence) or vice versa; (5) The Court clarified that "reasonableness" in the context of wrongfulness concerns the reasonableness of imposing liability for harm, not the reasonableness of the defendant's conduct (which is relevant to negligence); (6) The Court noted that although the respondent and Jaco disputed the presence of chicken mesh around the dropper, it was never suggested that such mesh would have impeded access to the dropper.

This case is significant in South African delictual law for several reasons: (1) It clarifies the application of wrongfulness and negligence principles in cases involving physical harm to children in educational settings; (2) It reaffirms that negligent positive conduct causing physical harm is prima facie wrongful, and distinguishes this from cases of pure omission; (3) It emphasizes the enhanced duty of care owed to children with learning disabilities and special needs in institutional care; (4) It applies constitutional values, particularly section 28(1)(b) of the Constitution regarding children's rights to appropriate care, to common law delictual principles; (5) It confirms that the creation of a dangerous situation by prior positive conduct creates a legal duty to prevent foreseeable harm from materializing; (6) It demonstrates the continued relevance of older precedents like Coley (1925) in modern negligence cases; (7) It clarifies that public policy considerations do not exclude liability where an institution creates an objectively dangerous situation, even if the precise mechanism of injury was unusual; and (8) It provides guidance on contributory negligence assessments for children with special needs, recognizing their reduced capacity to foresee and avoid danger.