Member of the Executive Council for Education: Mpumalanga v Onica Skhosana obo Solomon Skhosana

Solomon Skhosana, a twelve-year old Grade 5 learner at Tjhidelane Primary School in Mpumalanga, was injured on 15 August 2007 when an explosive device exploded in his hands. During a technology lesson that morning, a teacher (Ms Mashiane) confiscated a device described as 'a battery-like device with two wires' from a classmate named Mbali and took it to the staff room. The device was later returned to Mbali. After school at approximately 14h00, Mbali gave the device to Solomon and instructed him to connect it to a battery he had brought for a ship-building project. When Solomon connected the protruding wires from the device to his small torch-battery while waiting outside the school gate, the device exploded, causing injuries to his forearms, stomach and legs. Solomon's mother, Ms Onica Skhosana, sued the Mpumalanga Provincial Government (represented by the MEC for Education) for damages on behalf of her son, alleging that the teacher's conduct was wrongful and negligent.

• Whether the teacher owed a duty of care to the learner in respect of the confiscated device
• Whether the teacher was negligent in failing to ensure that the child did not come into possession of another similar dangerous device
• Whether the teacher could reasonably have foreseen the possibility of harm from the device
• Whether a reasonable teacher would have taken steps to guard against the possibility of harm
• Whether the Provincial Government was vicariously liable for the teacher's conduct

The appeal was dismissed with costs of two counsel. The High Court's finding of vicarious liability against the Mpumalanga Provincial Government was upheld.

A teacher who confiscates an unusual electrical device from a learner has a duty to enquire into the nature of that device to establish whether it is harmful. Where an electrical device is inherently capable of being harmful, a reasonable teacher would be placed on enquiry. If such enquiry reveals the device to be dangerous or explosive, a reasonable teacher must take further precautionary measures to establish its source and ensure that no other such devices come into possession of the child or other children. Failure to make such enquiry and take such precautionary steps constitutes negligence for which the provincial government may be held vicariously liable.

Heher JA (in the minority) observed that in assessing negligence in an educational context, the court should consider the age, training, skills, experience and worldly knowledge of the teacher concerned, as well as whether the school environment was urban or rural. He noted that the size, shape, construction and outward appearance of a confiscated object are relevant to whether it would reasonably convey potential danger to a teacher. He further observed that the location of the school (such as whether it is in a mining area where explosives are common knowledge) may be relevant. Heher JA also commented that sympathy for an injured child cannot supplement a lack of evidence, emphasizing the importance of the plaintiff discharging the onus of proof on all material aspects.

This case is significant in South African law for establishing the scope of a teacher's duty of care in respect of dangerous objects confiscated from learners. It clarifies that teachers have a duty to enquire into the nature of unusual electrical devices confiscated from learners, and to take reasonable steps to prevent harm once a danger is identified. The case also illustrates the application of the classic Kruger v Coetzee test for negligence in the educational context and demonstrates the provincial government's vicarious liability for the negligent conduct of teachers. The split decision also highlights differing approaches to the evidential burden in negligence cases and the role of context-specific factors in assessing the reasonableness of conduct.