Claim for damages
24 August 2022 17:00 by Merilyn Kader
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In CS and Another v Swanepoel and Others  2 All SA 810 (WCC), damages for sexual assault by teacher, state has a legal duty to protect and not to harm the children who are entrusted to its care on a daily basis, in public schools.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Personal injury/delict - Claim for damages for sexual assault perpetrated by teacher: The plaintiffs in CS and Another v Swanepoel and Others  2 All SA 810 (WCC) claimed damages arising from the alleged sexual assault of the second plaintiff (the plaintiff) by the first defendant some ten years before. The plaintiff was at the time a 12-year-old learner at the school where first defendant was acting principal, and her class teacher.
In a counterclaim, the first defendant claimed damages from the plaintiff, on the basis that she had wrongfully and maliciously set the law in motion by laying a false charge of rape against him.
The court, as per Sher J, held that the plaintiff bore the onus of proving the alleged sexual assault on her by the first defendant, on a balance of probabilities. The court found her to have amply discharged that onus. Her testimony was compelling and was corroborated in material respects by the evidence of two independent witnesses. By contrast, the first defendant was an unimpressive witness. The court took issue with a disciplinary hearing at which the first defendant was exonerated. From an evidentiary point of view, the plaintiff’s evidence as to what the first defendant had allegedly done to her was not controverted or refuted and should have been accepted. However, from the reasons which she gave for her findings, the presiding officer did not appear to consider that the first defendant had failed to testify and had thus failed to put up any evidence to refute the plaintiff’s evidence. The court pointed to various irregularities in the proceedings leading to a failure of justice. The first defendant’s evidence was rejected, insofar as it was at odds with the evidence, which was tendered by the plaintiff.
The court found the plaintiff to have discharged the onus of proving the sexual assault, constituting a delictual act, by the first defendant. The first defendant was thus liable to her in delict for damages.
The liability of the remaining defendants was predicated on an alleged omission relating to the wrongful and negligent breach of a legal duty, which allegedly rested on them, to protect the plaintiff from harm. Where harm is caused as a result of an omission, liability does not follow automatically, as prima facie an omission is not regarded as wrongful unless there was a legal duty on the person who caused the harm to have acted in a particular manner, instead of sitting back and omitting to do so. Whether such a duty existed in a particular case is an issue which must be determined judicially, on the basis of criteria, which include public and legal policy, and constitutional norms.
The state has a legal duty to protect and not to harm the children who are entrusted to its care on a daily basis, in public schools. In the context of the pleadings in this matter, that general duty includes the duty to protect (or to take reasonable steps to protect) children from exposure to sexual assault and molestation. The sexual assault committed by the first defendant was sufficiently closely linked to the educational business of his employer, and as such, fell within the ambit of vicarious liability. The Department was also found not to have vetted the first defendant before employing him. Had it followed its own protocols and done that, his criminal record, relating to sexual assault, would have been revealed. Its failure constituted negligence, as a result of which the second defendant was held liable with the first defendant for plaintiff’s damages.
Merilyn Rowena Kader
Legal Editor at LexisNexis