2020 has commenced on a negative note for the Gauteng Department of Education. 18 scholars have died under various circumstances since the beginning of this year. The MEC of Education in the province has expressed his sadness and even went on to call for supernatural intervention.
This number is justifiably worrisome for all the relevant stakeholders – parents, teachers, relevant government officials and a society at large. There are various judicial instruments which seek to safeguard the lives and wellbeing of children including, inter alia, the Constitution of the Republic of South Africa, 1996; the Schools Act; common law (e.g. Komape case); internal schools’ constitutions, etc.
Litigation can bring closure
Where these stakeholders have failed to prevent such deaths, families may have a legal recourse depending on various circumstances surrounding the occurrence. Some parents may feel that engaging in a lengthy litigation process is a futile exercise, clouding the healing process without hope of bringing back their loved one. However, litigation can play a vital role in bringing about closure because it holds those who are responsible for deaths into account. Judicial decisions of such cases also send a robust message to reckless stakeholders, deterring similar deaths from occurring.
Claims are determined case by case
It is important to note that not every death of a child will attract a legal recourse. Pertinent questions must be asked to determine legal liability in a particular case: where the incident happened; how it happened; was there any sort of an agreement/consent and if so, what did it entail; who is possibly responsible and should be held accountable; was there any breach of the duties etc. The surrounding circumstances of each incident will determine whether there is a claim or not. We can consider three examples:
- A child dies after being flung off a mechanical bull at the school’s sport day. The ride, owned and operated by the school, was set to the highest speed with no safety harnesses. The legal pointers would suggest that the school is responsible for the death. The parents may instigate a lawsuit against the school or MEC for Education, depending if the school is private or public.
- A child drowns crossing a river walking home after school. The school transport failed to arrive and did not communicate with the school/parents. The parents may have a legal recourse to hold the driver/transport company liable.
- A child is struck dead by lightning on the way home from school. There is a very slim chance (if any) that anyone will be held liable.
The claims applicable to the examples above are more about healing, finding closure and deterrence. The monetary aspect is seldom substantial unless the child did not die but sustained injuries/suffered severe consequences as a result thereof. Justice and holding to account those responsible should be a driving force behind such cases.
What to claim
What families may claim will depend on the circumstances of each case. Generally, they would be able to claim hospital expenses (if applicable); funeral expenses (unless the school/education department paid for such); constitutional damages; general damages; severe trauma and grief (e.g. Komape case).
The safety of children is paramount
Litigation assists the law in sending a strong message to those who transgress to the detriment of children. The cost of litigation should not discourage families from bringing claims forward. However, if families cannot claim, it should not be misconceived to mean some lives are less valued and not worthy of legal protection. Ensuring the safety of children in schools must be the primary goal, rather than reparation. If the unfortunate occurs, it is vital that the families take the necessary steps to ensure justice prevails, engage in litigation (if necessary) as part of the healing process and ultimately find closure.