The Member of the Executive Council, Education, North West Province v Izak Boshoff Foster and Others

On 6 May 2006, the first respondent, an 18-year-old matriculant, played rugby for Hoërskool Lichtenburg in a tournament hosted by Hoër Volkskool Potchefstroom. Both schools fall under the MEC for Education, North West Province. During the match, the first respondent was tackled and fell to the ground, with another player falling on top of him, causing a neck injury (the initial injury). Two first aid personnel from Kosh Sport & Trauma Services (the fourth respondent) carried him off the field without stabilising his neck with a spine board or solid neck brace, causing a second, more severe spinal injury. The initial injury consisted of a dislocated fracture of the cervical spine at C4/C5 level with partial severing of the spinal cord and neurological fallout at C7. The second injury resulted in full and permanent neurological fallout at C5, rendering the first respondent permanently unable to walk. Medical experts agreed that the second injury was caused by the improper immobilisation during transport off the field. The first respondent had protested three times that they should not carry him without a spine board. Volkskool had engaged the fourth respondent as the first aid service provider based on Mr van Staden (the sole director) being well-known in the area and having provided services without complaint previously, but without verifying his qualifications or HPCSA registration. A spine board was present in the morning but was being used at another field when the first respondent was injured.

• Whether the MEC was liable for damages caused by negligence during a school rugby tournament
• Whether Volkskool (as host school) took reasonable steps to ensure the presence of competent and properly equipped first aid personnel
• Whether the appointment of an independent contractor as first aid provider relieved the school of liability
• Whether the high court had jurisdiction to vary its order to correct patent errors
• Whether punitive costs were appropriate in the circumstances

The appeal succeeded only in respect of the costs order. Paragraph 2 of the high court order was set aside and replaced with an order that the first defendant (MEC) pay the first plaintiff's costs, including costs of two counsel (removing the punitive costs element). The appellant was ordered to pay the costs of the appeal, including costs of two counsel.

A school hosting a rugby tournament, acting in loco parentis, has a legal duty to take reasonable steps to ensure that competent and properly equipped first aid personnel are present to deal with foreseeable injuries. This duty cannot be discharged merely by appointing an independent contractor with a good reputation; the school must conduct reasonable enquiries to verify that the contractor has the necessary qualifications, competence and equipment to deal with serious injuries typical in rugby (particularly neck and spinal injuries). Where a school fails to make such enquiries and appoints a manifestly imperitus (incompetent) contractor, the school is negligent and the MEC is liable under section 60 of the Schools Act for damages resulting from that negligence. Reasonable foreseeability of harm from rugby injuries and the school's failure to take reasonable preventative measures establishes liability in negligence.

The Court observed that rugby is a 'much-loved national sport in South Africa' but noted it is a dangerous sport involving physical contact in which players often sustain serious injuries including permanent paralysis. The Court noted that 'because of all the attendant risks, there has for many years been insistence on emergency measures, including professional first aid services, being available at rugby matches.' The Court commented that it was 'chilling' to have only one spine board available for all three sports disciplines. The Court noted that the minority judgment in Chartaprops is not binding precedent and cannot be relied upon; only majority judgments constitute binding precedent. Mocumie JA commented that one would not expect a player to be injured by the paramedics meant to attend to injuries, as happened in this case. The dissenting judgment noted by way of analogy that patients consult doctors daily without verifying their registration with HPCSA, suggesting it was unreasonable to expect such verification from a school sports organiser.

This judgment clarifies the extent of the duty of care owed by public schools hosting sports events, particularly contact sports like rugby. It establishes that schools cannot simply rely on the reputation of independent contractors providing first aid services but must take reasonable steps to verify qualifications and competence. The judgment emphasises the in loco parentis duty of schools and that this duty extends to ensuring proper emergency medical services are available and competent. It confirms that section 60 of the Schools Act makes the MEC liable for delictual damage caused during school activities. The case highlights that schools hosting high-risk sporting events must conduct proper due diligence on service providers and ensure adequate equipment is available. It also demonstrates the application of the Kruger v Coetzee test for negligence in the school sports context. The judgment provides guidance on when Rule 42 variation orders are appropriate to correct patent errors and ambiguities.