Parktown High School for Girls v Hishaam & another

A fashion show was organised by the Representative Council of Learners (RCL) at Parktown High School for Girls as a fundraising event. Members of the public paid entrance fees of R40 (afternoon show) and R70 (evening show). Naqeeb Emeran paid to attend the evening show. While on the school premises, he leaned on a concrete table top that was not fixed to its stand. The table top flipped over and fell, crushing his right hand. His father, Hishaam Emeran, instituted a delictual claim against the school (not the MEC) for medical expenses, future loss of earnings and general damages, alleging the school was negligent in not fixing the table tops. The school filed a special plea arguing that the claim should have been instituted against the provincial government (MEC) and not the school itself. The school had taken out public liability insurance, but the insurer repudiated the claim. The school also issued a third party notice against its insurance broker for failing to notify the claim timeously.

• Whether the injured party was obliged to sue the State (MEC) rather than the school under s 60 of the South African Schools Act 84 of 1996
• Whether a fashion show organised by the RCL constituted a 'business or enterprise' under s 60(4) of the Act
• Whether s 60(4) exempts the State from liability in circumstances where a school activity involves fundraising
• Whether the school can be held liable where the State is liable under s 60(1)

The appeal was upheld with costs including costs of two counsel. The order of the High Court was set aside and replaced with: (i) The defendant's special plea is upheld; (ii) The plaintiffs' claim is dismissed with costs.

Where a delictual claim arises from a school activity conducted by a public school as contemplated in s 60(1) of the South African Schools Act 84 of 1996, the claim must be instituted against the Member of the Executive Council (MEC) representing the State, not against the school itself. Section 60(4) exempts the State from liability only where the act or omission giving rise to the claim was in connection with a business or enterprise operated under the authority of the school governing body for the purpose of supplementing the school's resources as contemplated in s 36. A fundraising event such as a fashion show organised by a Representative Council of Learners does not constitute a 'business or enterprise' within the meaning of s 60(4), and therefore does not exempt the State from liability. The school cannot be held liable where the MEC is liable under s 60(1).

The court noted that s 60(4) read with s 36 accords with the general rule of South African law that a principal is not liable for the delicts of independent contractors unless the principal is also at fault. The court observed that the provision seeks to limit the State's liability for civil wrongs perpetrated by independent contractors—businesses or enterprises—contracted by the governing body for supplementing school resources. The court also commented that there may be instances where the MEC granting authority for the school governing body to contract an entity for this purpose might not absolve the State from liability, though this was not a matter requiring consideration in this case. The court further noted there may be other instances where a school itself embarks on a business or enterprise to supplement its resources within the meaning of s 60(4), but the fashion show clearly did not fall into this category. The court expressed regret at the consequence that the respondents had sued the wrong party and their claim had to be dismissed.

This case provides authoritative interpretation of ss 60 and 36 of the South African Schools Act 84 of 1996 regarding State liability for delicts arising from school activities. It clarifies that: (1) claims arising from school activities must be instituted against the MEC, not the school; (2) s 60(4) only exempts the State from liability where the activity is conducted by a business or enterprise under the governing body's authority to supplement school resources; (3) fundraising activities organised by learner bodies (such as RCLs) do not constitute 'businesses or enterprises' for purposes of s 60(4); and (4) the school itself cannot be held liable where s 60(1) applies. The judgment has important implications for victims of delicts at public schools regarding proper party citation and the scope of State liability under the Schools Act.