THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 471/2021

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL,
EDUCATION, NORTH WEST PROVINCE

APPELLANT

and

IZAK BOSHOFF FOSTER

FIRST RESPONDENT

GUILLAUME HENRI BOSHOFF FOSTER         SECOND RESPONDENT

THE LEOPARDS RUGBY UNION                        THIRD RESPONDENT

KOSH SPORT & TRAUMA SERVICES             FOURTH RESPONDENT
And

THE LEOPARDS RUGBY UNION

FIRST THIRD PARTY

KOSH SPORT & TRAUMA SERVICES

SECOND THIRD PARTY

Neutral citation:
The Member of the Executive Council, Education, North West
Province v Izak Boshoff Foster & Others (Case no 471/2021)
[2023] ZASCA 11 (13 February 2023)
Coram:
VAN DER MERWE, MOCUMIE and CARELSE JJA and GOOSEN and
MASIPA AJJA
Heard:
9 November 2022
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
11h00 on 13 February 2023.

Summary: Delict – negligence – whether public school hosting a sports tournament
took reasonable steps to ensure the presence of competent and suitably equipped
first aid provider.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Thobane AJ, sitting
as court of first instance):
1 The appeal succeeds only to the extent set out in para 2 below.
2 Paragraph 2 of the order of the high court is set aside and replaced with the
following:
‘The first defendant is directed to pay the first plaintiff’s costs, such costs to include
the costs of two counsel.’
3 The appellant is directed to pay the costs of the appeal, including the costs of two
counsel.

JUDGMENT

Mocumie JA (Van der Merwe, Carelse JJA et Goosen AJA concurring):

[1] Rugby (the sport code at the core of this appeal is defined in the Concise
Oxford English Dictionary (12 ed) as ‘a team game played with an oval ball that may
be kicked, carried, and passed by hand, in which points are won by scoring a try or
by kicking the ball over the crossbar of the opponents’ goal’.1

[2] Despite it being a much-loved national sport in South Africa and played all
over the world, because it involves physical contact, rugby is a dangerous sport in
which players often sustain serious injuries; which may include permanent paralysis.
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. One would therefore not expect a player to be injured by the

1 Concise Oxford English Dictionary 12ed at 1258; See also Roux v Hattingh [2012] ZASCA 132;
2012 (6) SA 428 (SCA) para 1.

paramedics and/or people who are meant to attend to their injuries in an emergency,
as it happened in this case.2

[3] The facts of this matter are briefly as follows. On 6 May 2006, the first
respondent (who was 18 years of age at the time and in matric) played in a rugby
tournament representing his school, Hoërskool Lichtenburg (herein after referred to
as Lichtenburg) against Hoër Volkskool Potchefstroom (herein after referred to as
Volkskool). The latter hosted the tournament. Both schools fall under the appellant,
the Member of the Executive Council of Education: North West province (the MEC).
The first respondent was tackled by a player from the opposing team and fell to the
ground. Whilst on the ground another player fell on top of him. He sustained an injury
to his neck as a result of the impact. Two first aid personnel carried him off the field
without stabilising his neck with a spine board or solid neck brace. This caused the
second injury to the first respondent. This matter revolves around the second injury.
He was later taken by ambulance to Potchefstroom Medi-Clinic, where he received
treatment. Thereafter, he was airlifted to Pretoria Hospital, where he underwent
surgery twice. After the first operation, the doctors informed the first respondent that
he would not be able to walk again. This remained the position despite the second
operation. He was discharged on 15 September 2006, four months after the incident.

[4] Following this tragic incident, the first respondent and his father, the second
respondent, issued summons in the Gauteng Division of the High Court, Pretoria (the
high court) in respect of the second injury, which was caused by the manner in which
the first aid personnel carried the first respondent off the field without having
stabilised his neck. The MEC was the first defendant in the high court whilst the first
and second respondents (the respondents) were the first and second plaintiffs. The
third and fourth respondents were respectively the third and fourth defendants as
well as the first and second third parties.3 The third respondent settled the claim with
the respondents. The fourth respondent, Kosh Sport & Trauma Services, did not

2 This is the essence of the words uttered by the second plaintiff, the father of the first plaintiff, in
shock and disbelieve after his son was severely injured during a rugby game.
3 A third party claim refers to a claim made by a defendant during the course of legal proceedings with
the intention of enjoining an individual or entity that is not involved in the original action to perform a
related duty. One good example of a third party claim is an indemnity claim against a third party. In
some situations, third party proceedings are undertaken to determine how negligence should be
apportioned between a defendant and a third party (www//upcounsel.com Legal definition.)

participate in the proceedings. By agreement between the parties the high court had
to determine the issue of liability as formulated by the parties: ‘whether the first
defendant is liable for the damages suffered, and if so to what specific extent and for
what specific injuries. . . ’.

[5] After proceeding to trial, the high court (per Thobane AJ), granted the
following order:
‘1. The defendants are liable for 100% of proven or agreed damages suffered by the first
plaintiff as a result of the manner in which first plaintiff was carried off the field on 6 May
2006;
2. The defendants are directed to pay the plaintiffs’ costs on a punitive scale as between
attorney and client which costs shall include:
2.(1) Costs of procuring medico-legal reports, consultations, attending meetings and
procuring joint minutes;
2.(2) Costs of all expert witnesses called by the plaintiffs;
2.(3) All costs of the action including costs consequent upon the employment of two
counsel.’ (Emphasis added.)
The effect of the order was that the second respondent’s claim was dismissed.

[6] Thobane AJ was not available to hear the application for leave to appeal. The
respondents also sought a variation of Thobane AJ’s order. Because of the
unavailability of Thobane AJ, Potterill ADJP heard the application for leave to appeal
together with the application for variation. She partly granted the variation sought,
but refused leave to appeal. This Court subsequently granted leave to the appellant
to appeal to this Court.

Issues for determination
[7] The central issue for determination is whether the MEC was liable for the
second injury that the first respondent suffered on 6 May 2010 at the rugby match
held at Volkskool. A secondary issue is whether Potterill ADJP was empowered to
vary the order. For convenience, I commence with the secondary issue to dispose of
it.

The variation order
[8] The respondents sought to vary the order in three respects. First, that the
phrase ‘the defendants are liable’ in para 1 and ‘the defendants are directed to pay’
in para 2 be corrected to read ‘the first defendant’. Secondly, that para 1 of the order
be amended to also make reference to the ‘second plaintiff’’ and thirdly that the injury
for which the appellant is liable be described as envisaged in the separation order.
As I shall show, the first and third proposed variations were granted. The second
was refused and nothing further needs to be said about it.

[9] Potterill ADJP made an order on the variation application as follows:
‘Prayer 2 of the application is thus not granted.
Accordingly, paragraphs [54]1 and [54]2 are varied to read as follows:
54.1 The first defendant is liable for 100% of proven or agreed damages suffered by
the first plaintiff as a result of the manner in which first plaintiff was carried off the
field on 6 May 2006, which aggravated an existing cervical spine injury with
neurological fall out at C7, to become an effective C5 motor deficit.
[54]2 The first defendant is directed to pay the plaintiffs’ costs on a punitive scale as
between attorney and client, which costs shall include:
2.(1) Costs of procuring medico-legal reports, consultations, attending meetings and
procuring joint minutes.
2.(2) Costs of all expert witnesses called by the plaintiffs.
2.(3) All costs of the action including costs consequent upon the employment of two
counsel.
No order as to costs in this application.’

[10] Rule 42 of the Uniform Court Rules of Court provides:
‘(1) The court may, in addition to any other powers it may have mero motu or upon the
application of any party affected, rescind or vary:
. . .
(b) An order or judgment in which there is an ambiguity, or patent error or omission, but only
to the extent of the ambiguity, error or omission.’ (Emphasis added.)

[11] The Constitutional Court in Minister of Justice v Ntuli,4 with reference to the
seminal judgment of Firestone South Africa (Pty) v Genticuro AG,5 stated the
following on whether a court may vary, correct or amend its own order:
‘The general principles of the common law applicable to the variation of orders of Court were
summarised by Trollip JA in Firestone South Africa (Pty) Ltd v Genticuro AG as follows:
“The general principle, now well established in our law, is that, once a court has duly
pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement
it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having
been fully and finally exercised, its authority over the subject-matter has ceased.”
Certain exceptions to this general principle have been recognised and are referred to in
Firestone. They are [i] variations in a judgment or order which are necessary to explain
ambiguities, to correct errors of expression, [ii] to deal with accessory or consequential
matters which were “overlooked or inadvertently omitted”, and [iii] to correct orders for costs
made without having heard argument thereon.
Trollip JA was prepared to assume in the Firestone case that the list of exceptions might not
be exhaustive and that a Court might have a discretionary power to vary its orders in other
appropriate cases. He stressed, however, that the
“. . .assumed discretionary power is obviously one that should be very sparingly
exercised, for public policy demands that the principle of finality in litigation should
generally be preserved rather than eroded . . .”.’

[12] The high court was fully aware that in terms of the separation order, only the
liability of the MEC was in issue. That is how the trial was conducted. And the high
court determined that issue. The references in its order to ‘the defendants’ were
therefore clearly patent errors that resulted in the order not giving effect to the high
court’s true intention. It is trite that such errors may be corrected in terms of
exception (ii) in Firestone. According to exception (iii), a court may ‘correct a clerical,
arithmetical or other error in it judgment or order so as to give effect to its true
intention . . .’.6

4 Minister of Justice v Ntuli 1997 (6) BCLR 677; 1997 (3) SA 772 (CC) para 22 -23. See also Ex parte
Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288
(CC); 2001 (8) BCLR 765 (CC); D E van Loggerenberg & E Bertelsmann Erasmus: The Superior
Courts Practice at B1-22 with reference to Geard v Geard 1943 CPD 409.
5 Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A).
6 Firestone ibid at 307C ie to correct orders for costs made without having heard argument thereon.

[13] Paragraph 1 of the order is ambiguous having regard to what the high court
was called upon to decide in terms of the order it granted on the separation of issues
under rule 33(4). It required the court to be specific on the description of the injuries.
It clearly made the required finding but failed to reflect it in the order. This was an
ambiguity, which could be corrected without changing the ‘sense and substance’ of
the judgment or order. Thus, the addition of the words, ‘which aggravated an existing
cervical spine injury with neurological fallout at C7, to become an effective C5 motor
deficit. . .’ was in line with exception (ii) in Firestone.7

[14] On this basis, it is clear that Potterill ADJP acted within the powers vested in
her. The variation of the order she granted was justified. The MEC fails on this
secondary issue.

[15] As I have said, the first respondent suffered a neck injury after a player fell on
top of him whilst on the ground after he was tackled by a player from the opposing
team a few minutes before. He was carried off the rugby field, against his
protestation, by two first aid personnel, without stabilising his neck with a spine board
or neck brace. It is undisputed that this caused the first respondent’s second injury.
This is clear from the evidence of the two medical experts, Dr Edeling (for the MEC)
and Dr Gianluca Marus (for the first respondent), who compiled their respective
reports and thereafter a joint minute.

[16] From the outset, the experts agreed that the first respondent had sustained an
initial and second injury. The initial injury consisted of a dislocated fracture of the
cervical spine at the C4/C5 level, with partial severing of the spinal cord that resulted
in neurological fallout at C7. The second injury to the spinal cord resulted in full and
permanent neurological fallout at C5. Although the two experts were initially not
agreed on the cause of the second injury, they subsequently filed a joint minute, a
‘Further Qualification of Combined Neurosurgical Report, 5th June 2017 on Isak
Boshoff Foster’. In it, they stated that:

7 Firestone fn 6 above at 307C para (i) therein states: ‘the principle judgment or order may be
supplemented in respect of accessory or consequential matters. . .’Firestone para (ii) reads: ‘The
court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains
obscure, ambiguous or otherwise uncertain, so as to give it effect to its true meaning, provided it does
not alter the “sense and substance” of the judgment or order.’

‘We now agree that there was a second deterioration in his neurological condition due to
further spinal cord injury due to the neck not being appropriate[ly] immobilised while being
transported off the field.’

[17] Both experts testified and explained their joint opinion. Thus, the experts were
in agreement that the second injury was caused by the conduct of the first aid
personnel in carrying the first respondent off the field. It is easy to understand that to
carry a person with a suspected spinal injury off the field without carefully stabilising
the neck of the person and with their head dangling about, may severely aggravate
the initial injury. This joint opinion was therefore clearly cogent and based on logical
reasoning. In the result, the high court correctly accepted the joint opinion.

Liability of the MEC
[18] I turn to the central issue before this Court, namely whether the MEC was
liable for the second injury that the first respondent suffered on 6 May 2006 at the
rugby match held at Volkskool. Section 60 of the Schools Act 84 of 1996 (the
Schools Act) provides as follows:
‘Liability of State. — (1) (a) Subject to paragraph (b), 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.
. . .
(3) Any claim for damage or loss contemplated in subsection (1) must be instituted against
the Member of the Executive Council concerned.’ (Emphasis added.)

[19]  The rugby game was ‘an activity in connection with an educational activity’ as
described in the Schools Act.8 It was admitted in the plea that the MEC would be
liable for damages caused by a wrongful and negligent omission on the part of
Volkskool . A legal duty to avoid negligently causing harm rested on it, based on the
relationship of loco parentis, which the educators and coaches have vis-a-vis the
learners as players during school games when the latter are in their custody.9
Wrongfulness was thus rightly not in dispute and neither was causation. In the result,
the central question is whether the high court correctly held that Volkskool was

8 See definitions in the Act.
9 J A A Basson and M M Loubser (eds) Sport and the Law in South Africa (2000) at 5-30.

negligent in failing to take reasonable steps to ensure the presence of a competent
and properly equipped first aid provider.

[20] From the outset, counsel for the MEC conceded that based on the evidence,
which the first respondent presented, both schools, in particular Volkskool as the
host school had to take reasonable steps to ensure that competent and sufficient first
aid personnel were present at the games on 6 May 2006 to deal adequately with
foreseeable injuries sustained by the first respondent and any other player on the
day in question.

[21] Counsel submitted that Volkskool could only be expected to take reasonable
steps and provide the degree of care that was demanded by the prevailing
circumstances. Volkskool denied that it was directly and solely responsible for the
first respondent’s second injury because, on the common cause facts and experts’
opinion, the second injury was caused by the first aid personnel in the manner in
which they carried the first respondent off the rugby field; without stabilising the neck
of the first respondent. Relying on the minority judgment of this Court in Chartaprops
16 v Silberman (Chartaprops),10 it was contended that when Volkskool appointed the
fourth respondent, as an independent contractor, it acted reasonably. He submitted
that the fourth respondent had the necessary expertise and that Volkskool took
reasonable steps under the circumstances.

[22] Counsel for the MEC also submitted that there was one spine board available
in the morning. At the time the first respondent was injured, it was being used at
another sports field. An ambulance was available in the morning. According to the
Rugby Guidelines: The Green Book, only two first aid personnel referred to as ‘first
aid trainees’ were required. The Green Book makes no reference to their experience
and qualifications. The third respondent provided five first aid personnel, including Mr
van Staden, the sole director of the third respondent. They attended to the first
respondent properly and immediately on the field. The Green Book prescribed
‘transport’, without any specification including an ambulance. The presence of a
medical doctor is a recommendation, not a requirement. He argued that there was

10 Chartaprops 16 v Silberman 2008 ZASCA 115; 2009 (1) SA 265 (SCA); [2009] 1 All SA 197 (SCA).

no evidence that linked the second injury to a lack of services on the day. He
contended that even if this Court was to find that the steps undertaken were not
sufficient, at the time the first respondent was injured, it was not necessary for Mr
van Staden to have been registered with the HPCSA. He was experienced, well
known at schools and his services had been used over the years, without any
complaints.

[23] Over and above, he submitted that according to Mr Bantjies, the Lichtenburg
headmaster and coach of the first respondent’s rugby team, at the time of the
incident, what Mr Meintjies (an educator and the sports organiser for the games at
Volkskool) did was reasonable: Mr Meintjies obtained a quotation that had all the
specifications for the games. In the quotation he also requested the qualifications of
the employees of the fourth respondent.

[24] In conclusion, he urged this Court to take into account that, the incident
occurred in 2006, where only one first aid assistant was required to be present
during a rugby game. Back then, so counsel submitted, the SA Rugby requirements
were extremely low, but (he acknowledged) over time the requirements have
increased.

[25] As Scott JA aptly puts it in Sea Harvest Corporation (Pty) Ltd v Duncan Dock
Cold Storage Pty Ltd,11 on negligence and its determination:
‘A formula for determining negligence which has been quoted with approval and applied by
this Court time without measure is that enunciated by Holmes JA in Kruger v Coetzee 1966
(2) SA 428 (A) at 430E-F. It reads:
“For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps to guard against such occurrence.”.’

11 In Caparo Industries PLC v Dickman and Others [1990] 1 All ER 568 at 586, Lord Oliver observed:
‘the attempt to state some general principle which will determine liability in an infinite variety of
circumstances serves not to clarify the law but merely to bedevil its development in a way which
corresponds with practicality and common sense.’

[26] Volkskool is a well-resourced school in the North West Province. Its educators
include dedicated sports events organisers, trained by the Department of Sports,
(Arts), Recreation and Culture in partnership with Department of Basic Education.
They are equipped to organise games and are fully aware of the basic requirements
that must be in place at the commencement of every game.12 The school has the
necessary resources to manage all sports codes during the various sports seasons.
Its educators have the necessary experience and knowledge to ensure that there is
inter alia equipment, proper facilities and emergency services available during the
games. It is well-known that the school has hosted sports events including rugby for
years. Any reasonable person in the position of Volkskoolwould have foreseen the
harm that occurred: well knowing that rugby is a dangerous contact sport that often
leads to injuries. Some more serious and with dire consequences, as in this case,
than others.

[27] Volkskool should have foreseen that if any neck injury was not treated
properly and immediately, it could lead to a spinal injury. Volkskool therefore had to
take reasonable measures to ensure the appointment of a first aid provider and
personnel that were qualified for the job, if not qualified as prescribed by the Health
Professional Council of South Africa (HPCSA) and in terms of the Green Book, at
least experienced and competent to deal with neck injuries (typical in rugby games)
and the kind of injury the first respondent suffered arising from the initial neck injury.

[28] The first respondent (at 18 years then and not an expert in rugby or neck
injuries) stated without contradiction that while he was lying on the field he could not
feel his legs. When the two first aid personnel approached him, he protested more
than once (three times as the record indicates) that they should not carry him off the
field without a spine board. He said:
‘I did not know what was wrong with me…I just knew that they should use equipment to
carry me off the field as I did not want anything that was wrong with me to worsen…I
suspected I had a neck injury…As they were carrying me off the field my head fell
backwards and frontwards and my head was loose. I was not able to keep my head still.’

12 Department of Sport and Recreation South Africa, in partnership with the DBE, hosted the National
School Sport Championships.

[29] The evidence of the first respondent, as supported by that of eyewitnesses
(Mr Mayne and a retired medical doctor) shows that the fourth respondent’s
employees, in particular Mr van Staden, were hopelessly incompetent and ill-
equipped. The facts speak for themselves.

[30] What did Volkskool do to ensure that the first aid personnel were competent
and properly equipped to do the job? Nothing really. It is on record that Volkskool
engaged the services of the fourth respondent on the simple basis that Mr van
Staden was well known in the area and had provided emergency first aid services for
schools in the area. And that there had been no previous complaints about the fourth
respondent. It was only discovered after this tragic incident that the fourth
respondent did not have the necessary qualifications and competence to do the
work. On the probabilities, reasonable enquiries would have uncovered that Mr van
Staden had a certificate of an ambulance driver, which is not what the HPCSA
prescribed (according to the evidence of Ms Nkoane of the HPCSA). Ms Nkoane
stated without contradiction that anyone who dealt with such serious injuries (which
the first respondent suffered) had to have received training in treating such injuries
and should update themselves from time to time. It is on record that Mr van Staden
obtained his certificate as an ambulance driver in 2006. The certificate did not
mention any of his qualifications. In other words, reasonable scrutiny and even the
most basic enquiry by Volkskool would have established very easily that Mr van
Staden of the fourth respondent was not registered and did not have the necessary
training required under the circumstances. This probably would have led to the
discovery of the incompetence of Mr van Staden and his staff, as well as the lack of
sufficient equipment. It was indeed ‘chilling… [to have] only one spine board
available for all three sports disciplines’.13

[31] Contrary to what counsel for the MEC argued, this is not hindsight wisdom.
On the evidence that the high court had before it, Volkskool acting in loco parentis;
and as the host responsible for providing emergency services on the day in question,
failed to take reasonable steps to ensure that competent and properly equipped first

13 The finding of the high court.

aid personnel were available to deal with the clearly foreseeable possibility of serious
injuries and their consequences.

[32] In any event, Chartaprops14 does not assist the MEC at all for two reasons.
First, counsel for the MEC relied on the minority judgment of Nugent JA, which is
impermissible. The view pronounced in the majority judgment is binding precedent,
which must be followed. Second, in Chartaprops, the appointed contractor was not
manifestly imperitus.15 On the facts of this case, the fourth respondent through Mr
van Staden was evidently imperitus. Volkskool made no effort to establish this and to
find an alternative but went according to the mere say-so that Mr van Staden had
provided the emergency services for many years without any complaint about his
services.

[33] It follows from what I have stated in the preceding paragraphs, on the basis of
the first respondent’s unrefuted evidence supported by medical evidence; that the
conclusion the high court reached cannot be faulted. The manner in which the first
respondent was carried off the rugby field caused his second injury and the sequelae
that flowed therefrom. The steps Volkskool took in preparation of the games to
prevent the foreseeable injuries, were not reasonable under the circumstances. The
appeal therefore ought not to succeed.

Costs
[34] Last, I turn to the issue of costs. It is trite that the determination of costs lies
within the discretion of the court (of first instance). In recognition of this basic
principle, a court of appeal will only interfere under limited circumstances ie where
the trial court did not exercise its discretion judiciously or where it committed a
material misdirection. The trial court mulcted the MEC in punitive costs for two
reasons. First, that the MEC did not put up any defence to the action. Second, that
because the experts were agreed, there was no dispute on the second injury and
thus no reason for evidence to be led. What the high court lost sight of, however,
was that the question of negligence was a material issue at the trial and was a
matter of some complexity. The MEC was fully entitled to dispute that issue and to

14 Chartaprops fn 13 above.
15 Imperitus is defined in the English dictionary as inexperienced; ignorant.

present evidence in respect thereof. It could not fairly be said that the MEC acted
unreasonably in its conduct of the trial. Counsel for the first respondent therefore did
not defend the punitive costs order with any enthusiasm.

[35] The high court thus clearly committed a material misdirection that enjoins this
Court to interfere in respect of punitive costs. For that reason, the order as to costs
(to the extent that punitive costs were imposed) has to be set aside. The appeal
should therefore succeed to the extent that paragraph 2 is amended. This, however,
cannot be deemed to be success to the extent of entitling the appellant to the costs
of partial success as it would be ordinarily.

[36] In the result, the following order issues:
1 The appeal succeeds only to the extent set out in para 2 below.
2 Paragraph 2 of the order of the high court is set aside and replaced with the
following:
‘The first defendant is directed to pay the first plaintiff’s costs, such costs to include
the costs of two counsel.’
3 The appellant is directed to pay the costs of the appeal, including the costs of two
counsel.

_______________________

B C MOCUMIE
JUDGE OF APPEAL

Masipa AJA (dissenting)

[37] I have read the judgment of my colleague, Mocumie JA (the main judgment).
Regrettably, I am unable to agree with its reasoning and conclusion. My
disagreement primarily pertains to its endorsement of the high court's findings. For
reasons that will become evident, I respectfully hold the view that the judgment of the
high court was premised on an erroneous evaluation of the evidence and the law.

[38] I agree with the main judgment in respect of its categorization of the issues to
be determined as well as the conclusion reached in respect of the secondary issue. I
however disagree with the conclusion that the appellant was liable for the secondary
injury sustained by the first respondent. My dissent is based on whether a case for
negligence has been made out against the appellant. The nature of the first and the
second injuries were not issues for determination in this appeal and the appeal turns
mainly on the issue of negligence. As was set out in Mashongwa v Passenger Rail
Agency of South Africa,16 the test for negligence is whether a reasonable person in
the appellant’s position would have reasonably foreseen harm befalling the
respondent as a result of his conduct and if so, would have taken reasonable steps
to prevent the harm. If he would have, did he take reasonable steps to avert the
harm that ultimately occurred.

[39] I similarly agree with the main judgment on the legal responsibility/liability
imposed on the appellant in terms of the Schools Act. My view is borne out by the
facts I set out hereinafter. In my view, what the main judgment omits are the facts
relating to the steps taken by Volkskool in preparation of the matches. On 6 May
2006, when the first respondent was injured on his neck following a tackle, two first
aid personnel carried him off the field without stabilising his neck with a solid neck
brace and without a spine board. This resulted in the first appellant sustaining the
second injury. The negligence in this matter revolves around the second injury.

[40] Prior to a rugby match commencing, there are certain requirements which
must be met. These requirements are set out by the South African Rugby Union

16 Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528 para 31.

(SARU). The minimum requirements in respect of first aid personnel for club and
school matches in 2006 were:
‘1.
PERSONNEL
1.1 a PERSON OR PERSONS SUITABLY TRAINED IN Emergency Field-Side Care
(A Trained First Aider or Paramedic).
1.2 At least 2 trained first aid assistants
1.3 Referees/coaches who have first aid knowledge could be of immense value
1.4 Some form of transport should be readily available if it is not possible to have an
ambulance on standby. An ambulance at the playing venue is the ideal.
1.5 The presence of a Sports Medicine Trained Doctor or a doctor experienced in
treating sports injuries is highly recommended
2.
FIRST AID EQUIPMENT

2.1 Trauma Board or any suitable Stretcher.

2.2 Acceptable First Aid Kit which should include the following: -

(i) Splints

(ii) Neck Braces

(iii) Trauma Bandages

(iv) Antiseptics and Strapping.’
A note was added as follows ‘If the minimum medical requirements at a field are not
met, then a rugby match should not be allowed to take place. The referee must
ensure that these basic minimum requirements are met before allowing the match to
commence.’

[41] In order for the appellant to be held liable for the second injury sustained by
the first respondent, it must be proven that the appellant was negligent. In my view,
this was not proved. On the evidence, the applicant took all relevant steps to ensure
compliance with the requirements set by SARU. I say so because prior to the rugby
match, Volkskool engaged the services of the fourth respondent as a service
provider. I accept, as was found by the main judgment, that the conduct of the first
aid personnel in removing the first respondent from the grounds without a neck brace
and without a stretcher was negligent.

[42] According to the first respondent, as set out in his heads of argument, the
appellant is not held vicariously liable for the failure of the fourth respondent and its
employees. He contends that the appellant is liable for the negligence of the

employees of Volkskool because they failed to vet and appoint suitably qualified,
experienced and equipped first aid providers and to make sure that the service
provider is adequately equipped to comply with its contractual obligations.

[43] As regards the failure to vet the fourth respondent, the evidence is that the
fourth respondent was a known service provider in Klerksdorp, Orkney and
Potchefstroom. Its services were not only utilized by the local schools but was also
used by the local university. Due to the fourth respondent’s busy schedule, Volkskool
sent the fourth respondent dates of all the sporting competitions at the beginning of
the year and he would quote them as and when necessary for each event. They pre-
booked the fourth respondent.

[44] As appears from the minimum requirements, it was not a requirement of
SARU that a first aid service provider present at the matches should be registered
with the Health Professions Council of South Africa (the HPCSA). Accordingly, the
fact that it subsequently came to light that he was not registered is a red herring. The
main judgment placed much reliance on this issue to arrive at a finding that the
appellant failed to act reasonably to ensure that the fourth respondent was suitably
qualified.

[45] Mr Meintjies testified that he was responsible for planning the sports events
for the periods 2002 to 2007. When he started at the school, Mr van Staden was
already providing the services. They used the Leopard Rugby Union (the third
respondent) referees for the match. As set out earlier, Volkskool was contracted to
the fourth respondent.

[46] A copy of Mr van Staden’s certificate was kept in the school sports file for
contractors. This was required as it was necessary to know that Mr van Staden, the
sole director of the fourth respondent, was qualified to do the work as set out in the
Green Book for Rugby (the SARU requirements). According to Mr Bantjies, they
followed a similar procedure. After requesting for first aid services from the fourth
respondent, he received a quotation setting out costs for six first aid personnel, and
the school paid in terms of the quotation. Meintjies had, prior to the first respondent’s

incident, never heard of any incident involving the fourth respondent or Mr van
Staden’s services.

[47] The evidence of Ms Dara Kgomotso Nkoane of the HPCSA is relevant to the
extent that it confirms that Mr van Staden qualified as an emergency care provider
as was set out in his certificate issued by Cape Provincial Administration Ambulance
Personnel Training Centre and irrelevant for the determination of the appellant’s
liability. Had the registration been necessary, it would have been set out as a SARU
requirement. In this regard, I differ from the main judgement. I am satisfied that the
appellant satisfied itself that Mr van Staden was suitably qualified. Having received
Mr van Staden’s certificate, being aware of his credentials and experience, it was
reasonable to accept that he was suitably qualified. By way of analogy, when visits
are made to doctor’s rooms daily to consult them, patients are treated without any
enquiries from the HSPCA on whether the doctor is registered or even qualified. To
expect that Mr Meintjies should have contacted the HSPCA to verify Mr van Staden’s
qualifications is beyond the bounds of reasonableness. I accordingly agree with
counsel for the appellant that when Volkskool appointed the fourth respondent as an
independent contractor, it satisfied itself that it had necessary expertise, and its
actions were reasonable under the circumstances.

[48] In respect of ensuring that the fourth respondent was adequately equipped,
regard must be had to the SARU requirements. Mr Meintjies testified that on the
morning of the tournament after the reception, he met Mr van Staden and other first
aid personnel. He believed the first aid personnel were employed at the nearby
hospital and were using their time off to assist the fourth respondent. This evidence
was not challenged. There were two fields, A and B, and four first aid personnel,
meaning two per field. He conducted an inspection and was shown the first aid kit,
ice, and a spine board on each field, a neck brace and straps. Mr van Staden told
him that since they could not let an ambulance stand on the premises, he was in
contact with the ambulance staff and would call them should it be necessary. It is not
in dispute that there was a provincial hospital 400 metres from the school and an
ambulance could be called from there if needed. The evidence of Mr Bantjies was
that he saw an ambulance in the morning when he walked out from breakfast at
Volkskool.

[49] In order to satisfy the SARU requirements, Meintjies organized a referee from
the Leopards Rugby Union. Mr Meintjies was satisfied that the requirements were
met and his undisputed evidence was that having satisfied himself that the
requirements were met, his role ended there. He then left for Klerksdorp for other
school sporting activities, returning after the first respondent’s incident. When he
enquired from Mr van Staden about the absence of the spine board when the first
respondent was removed from the field, he was informed that they were used for
prior injuries. Mr Mentjies’ evidence was not disputed.

[50] On the evidence, the SARU requirements in respect of equipment required in
rugby matches during 2006 were met. Having ensured compliance, it was
reasonable for Mr Meintjies to leave the school since the responsibility shifted from
the school to the referee. It was for the referee to ensure that all requirements were
met before the rugby game could start. He had the authority to stop the game at any
stage where there was non-compliance with the requirements. Accordingly, liability in
this regard should be placed at the door of the referee and not the appellant.

[51] In view of the reasons, I set out above, my view is that the first respondent
failed to prove negligence on the part of the appellant. Consequently, the conclusion
arrived at by the high court holding the appellant liable is, in my view, misguided. I
would accordingly uphold the appeal with costs.

_______________________

M B S MASIPA

ACTING JUDGE OF APPEAL

Appearances

For appellant:

S Joubert SC with J C Klopper
Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For respondent:

J D Maritz SC with P L Uys
Instructed by:

Gildenhuys Malatji Inc, Pretoria

Pieter Skein Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
13 February 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
The Member of the Executive Council, Education, North West Province v Izak Boshoff Foster & Others
(Case no 471/2021) [2023] ZASCA 11 (13 February 2023)
Today the Supreme Court of Appeal (SCA) dismissed an appeal from the Gauteng Division of the High
Court, Pretoria (high court). The appellant, the MEC of Education, North West, was found liable in
terms of s 60 of the South African Schools Act 84 of 1998 (the Act) for damages suffered by the first
respondent as a result of the negligence and incompetence of a third party (first aid personnel) appointed
by Hoër Volkskool Potchefstroom (Volkskool) to administer emergency medical service at a rugby
tournament taking place at Volkskool premises.
On 6 May 2006, the first respondent part took in a rugby tournament representing his school, Hoërskool
Lichtenberg (Litchenburg) against Volkskool, which was hosting the tournament. The first respondent
was injured during the match when another player fell on top of him subsequent to a tackle and he
sustained a primary injury to his neck. The first respondent however, sustained a secondary injury when
he was negligently carried off the field by the first aid personnel, without his neck being stabilized with
a spine board or a solid neck brace, despite his protestations. The first respondent was subsequently
informed that he would not be able to walk again.
After being released from hospital, the first respondent issued summons in the high court against the
MEC for the damages he had suffered. The high court held the MEC liable for the totality of damages
suffered by the first respondent as well as all costs associated with the action on a punitive scale.
In the majority judgment per Mocumie JA (Van der Merwe JA, Carelse JA and Goosen JA), the SCA
found that the high court correctly applied its mind when it held the MEC liable for damages that the

first respondent suffered based on the unrefuted expert medical evidence. The expert medical evidence
supported the conclusion that his damages were caused by the manner in which he was carried off the
field by the first aid personnel and the consequences which flowed therefrom. The SCA held further
that Volkskool failed to take reasonable steps to ensure that the first aid personnel it employed were
competent, properly equipped and available to deal with the clearly foreseeable possibility of serious
injuries and their consequences which are inherent to the sport of rugby.
The MEC was liable for the wrongful conduct of the school because rugby was found to be an activity
connected to an educational activity as defined in s 60 of the Act. Section 60 brought about a legal duty
to avoid delictual harm based on the principle of in loco parentis, in which the school or an educator
assumes the role of a parent when learners are under their care and custody during sport and school
activities.
In the result, the SCA confirmed that the MEC was liable for the damages the first respondent had
suffered and the appeal succeeded only to the extent of overturning the costs order from punitive to the
ordinary scale.
The minority judgment per Masipa AJA, was of the view that the Volkskool had acted reasonably in
meeting the requirements set out for rugby matches by the South African Rugby Union (SARU) by
ensuring that emergency medical staff were available, that the proper equipment was available prior to
the tournament starting and that it contracted an independent third party to act as referee. She held
further that once the SARU requirements were satisfied the responsibility shifted from the school to the
referee to ensure that all requirements were met before the matches could even start and found
accordingly that the first respondent failed to prove negligence on the part of the appellant.
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