Legal Concepts Made Simple

Recent case holds school liable for hiring incompetent first aid personnel leading to serious rugby injury

Author: Ivor Heyman, Advocate of the High Court

A recent case has highlighted the importance of having properly trained first aid personnel with the right equipment at rugby games. The case is Member of the Executive Council, Education, North West Province v Foster and Others [2023] ZASCA 11.

On May 6, 2006, during a rugby match between Hoërskool Lichtenburg and Hoër Volkskool Potchefstroom, a player from Hoërskool Lichtenburg was tackled and fell. The player suffered a neck injury (the first injury) which was a dislocated fracture of the cervical spine at the C4/C5 level, with partial spinal cord severing. The player then suffered a further injury (the second injury) when he was improperly removed from the field by the first aid personnel, resulting in a full and permanent neurological fallout (paralysis) at C5.

It appeared from the evidence before the court that the second injury occurred because the first aid personnel did not properly stabilize the player’s neck by failing to use a neck brace and a spinal board before moving him. Stabilization of the neck is required by the South African Rugby Union for the safe removal of injured players suspected of having a neck injury.

In his evidence, the injured player stated that, while he was lying injured on the field he could not feel his legs. When the two first aid personnel approached him, he requested several times that they should not carry him off the field without a spinal board. This request was ignored, and as he was carried off the field, his head fell backwards and forwards.

The injured player was initially 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 him 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.

The injured player and his father filed a lawsuit against the Member of the Executive Council of Education (MEC) and others, claiming negligence by the school in its preparation for and handling of sports injuries at the rugby game. The MEC was sued because, according to Section 60 of the Schools Act 84 of 1996, the MEC is held liable for any delictual or contractual damage or loss caused by public schools. Hoër Volkskool Potchefstroom is a public school.

The court held that the MEC was liable for the damages suffered by the injured player and the question arises: what steps should a school take to ensure that sports injuries are not aggravated by the first aid personnel who run out on to the field to assist the injured player? The court laid out the following steps:

1. Ensure that the first aid service provider is suitably qualified and experienced to handle serious sports injuries. In this case, the court found that the service provider only had a certificate to drive an ambulance, and was not a certified emergency care practitioner registered with the Health Professions Council of South Africa (HPSCA).

2. Ensure that first aid personnel have the necessary training and experience to deal with injuries that could occur during the sports event. In this case, the court found that the first aid personnel were hopelessly incompetent and ill-equipped.

3. Ensure that the school has the required first aid equipment available for the match before it starts. In this case, the court was told that the spinal board necessary for stabilizing a neck injury was being used at another sports field and was not available at this rugby game.

4. Perhaps most important, schools need to keep in mind that, when it comes to dangerous contact sports like rugby, they need to take all reasonable measures to ensure that the players receive proper emergency care when needed. In this case, the court found that the steps Volkskool took to prevent serious rugby injuries were not reasonable under the circumstances.

What can you do if your local authority fails to provide essential services?

Author: Ivor Heyman, Advocate of the High Court

If your local authority fails to provide essential services (including water, electricity, refuse removal, or sewerage), and concerned citizens in your town want to take action, there are legal options available to address the situation. The specific approach may vary depending on the circumstances, but here are some legal options that concerned citizens can consider based on two recent cases. These cases are reported as Kgetlengrivier Concerned Citizens v Kgetlengrivier Municipality [2020] and Kamiesberg Local Municipality v Koingnaas Belasting Betalersvereniging and Another [2021].

1. Write a letter to the local authority:
As a first step, you can write a formal letter to your local authority, identifying the service delivery issue and giving them a deadline to respond and take corrective action.

2. Seek Court Orders:
If the local authority fails to respond or take necessary action within the given deadline, you can approach the court to obtain an order compelling the local authority to provide the required services within a specified timeframe. The court can also allow you to take action to address the issue and claim reimbursement from the local authority.

3. Contempt of court:
If the local authority fails to comply with court orders, you can report this non-compliance to the court, which may take further legal action against the local authority.

4. Appoint an Administrator:
In certain cases, it may be possible to seek an order from the court to dissolve the local government and place it under administration. This is a drastic remedy that can be considered if other legal measures have failed and the local government continues to neglect its responsibilities. This remedy was used successfully in the case of Unemployed Peoples Movement v Premier, Province of the Eastern Cape and Others [2020].

It's important to note that pursuing legal action can have its challenges.

1. Cost: Legal proceedings can be expensive, and you may need to hire an attorney or advocate to represent you in court. Even if the court orders the local authority to pay your legal costs, there is no guarantee that you will be paid promptly or at all, especially if the local authority is financially troubled.

2. Delay: Court processes can be time-consuming, and obtaining a judgment may take weeks or even months, depending on the court's docket. This delay may be frustrating, especially if the service delivery issue is urgent.

3. Effectiveness: Court orders may not always be complied with by local or provincial authorities, which can render the legal process less effective.

The decision to pursue legal action should be carefully considered, taking into account the specific circumstances of your town and the resources available to you. Seeking legal advice from an attorney or advocate with expertise in administrative and constitutional law is recommended to navigate the legal process effectively. Additionally, engaging with relevant government authorities and advocating for improved services through non-legal means, such as public pressure and community organizing, may also be part of a comprehensive strategy to address service delivery failures.

South Africa’s land reform programme

Author: Ivor Heyman, Advocate of the High Court

South Africa's land reform programme is a complex and multifaceted initiative aimed at addressing historical injustices related to land dispossession. The programme consists of three main pillars: restitution, land redistribution, and tenure security. In cases of restitution, where land was dispossessed due to past discriminatory laws or practices, individuals or communities have the option of either reclaiming the land or receiving compensation. The compensation process involves several considerations, as illustrated in the case of Izaacs v Government of the Republic of South Africa and Others [2023].

Here are the key points to understand regarding how South Africa's land reform program compensates citizens for dispossession:

Constitutional Basis: The land reform program is anchored in South Africa's Constitution, specifically in Section 25(7), which grants the right to restitution of property or equitable redress (compensation) to those dispossessed of property after 19 June 1913 due to past discriminatory laws or practices.

Assessment Criteria: When determining compensation, the court considers various factors, including:

- The desirability of remedying past human rights violations.
- Equity and justice requirements.
- Circumstances at the time of dispossession.
- The history of the dispossession.
- Hardship caused.
- Current use of the land.
- History of land acquisition and use.
- Changes in the value of money over time.
- Any other relevant factors aligned with the spirit and objectives of the Constitution, particularly the right to dignity.

Market Value and Beyond: While market value is important, it's not the sole criterion for determining compensation. The court considers a broader range of factors to ensure that the compensation is just and equitable, reflecting the unique circumstances of each case.

Compensation Calculation: In the specific case mentioned above, the court calculated compensation by considering the Consumer Price Index (CPI)-adjusted value of the land at the time of dispossession and other equity considerations. This approach aims to provide a fair and just settlement to the claimant.

Distribution: Compensation may be distributed among the descendants of the dispossessed family. The claimant is usually responsible for creating a schedule of descendants, including a family tree, to identify the recipients and their respective portions of the compensation.

It's important to note that South Africa's land reform programme has faced challenges, including the slow progress of land redistribution and the preference of many claimants for cash payouts over land reoccupation and productive farming. This reflects the complexities and diverse needs and desires of those affected by land dispossession and underscores the need for a multifaceted approach to address historical injustices and promote a fair and just resolution of land-related issues in the country.

Do all learners in South Africa (legal or illegal) have a right to education?

Author: Ivor Heyman, Advocate of the High Court

Section 29(1)(a) of the Constitution grants everyone the right to a basic education. In 2011, the Constitutional Court affirmed this right when it said “basic education is an important socio-economic right directed, among other things, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential. To this end, access to school – an important component of the right to a basic education guaranteed to everyone by section 29(1)(a) of the Constitution – is a necessary condition for the achievement of this right.” See Governing Body of the Juma Musjid Primary School and Others v Essay N.O. and Others [2011] ZACC 13 (11 April 2011).

In Centre for Child Law and Others v Minister of Basic Education and Others [2019] ZAECGHC 126 (12 December 2019), the court was faced with the challenge of applying Section 29(1)(a) of the Constitution to learners in the Eastern Cape who did not possess a South African ID document. The background to this case was that, prior to 2016, the Eastern Cape Department of Education provided teaching staff and funding to all learners at schools in the Eastern Cape regardless of whether the learners possessed a valid ID document. This system ensured that all learners in the Eastern Cape gained access to basic education and the concomitant nutrition provided by the National School Nutrition Programme.

On 17 March 2016, the Acting Superintendent-General of the Provincial Department issued a Circular (the circular) and an Admission Policy for Ordinary Public Schools (the policy) announcing that children unable to produce a valid ID document would be barred from attending public school. The circular and policy, if implemented, would have led to thousands of children being removed from school or being denied access on application to enter. As a result, 37 children, who were only a small percentage of the thousands of learners affected by the circular and policy, brought an application against the Minister of Basic Education. They stated that their constitutional right to a basic education was violated by the circular, the policy, and the Immigration Act 13 of 2002. Accordingly, the applicants sought declaratory relief pronouncing the circular, policy, and Immigration Act invalid.

The Department of Home Affairs opposed the relief sought by the children on the basis that there was no reason why illegals ought to receive free education by establishing, as of right, that they can attend ‘no fee’ schools, which are entirely subsidized by taxpayers. According to Home Affairs, once it is ordered that all children in South Africa must obtain a free education, this would lead to increased illegal movements over the border, as well as potential child abandonment or child-headed households, especially from neighbouring countries.

Furthermore, Home Affairs contended that it was essential that measures prohibiting free access to public education as well as those contained in the Immigration Act are in place to prevent, or at the very least dissuade, persons who are not citizens or otherwise legally entitled to free government services from burdening the country’s constrained financial resources.

The court disagreed with Home Affairs and sided with the children. In its decision to grant the relief sought by the applicants, the court used the following reasoning: Section 29(1)(a) of the Constitution gives to children an unqualified, unconditional right to basic education, and applies to everyone, not “everyone upon the production of a birth certificate” or “provided they are in the country legally.”

The court then turned to the status of children that had come into the country illegally with their parents, and emphasized that these children could not apply to the Department of Home Affairs to legalise their stay. According to the court, these children were also entitled to the protection of the Constitution. The reason is that, when the Constitution intends to confine rights to citizens it says so. In this case, Section 29 refers to everyone, not just citizens of South Africa. This led the court to the conclusion that the circular and policy were unconstitutional and had to be struck down.

Closing Thoughts
First, while the court’s concern about the plight of learners without valid ID documents is commendable, what is troubling about this judgment is the court’s failure to deal with the concerns raised by Home Affairs, namely that these learners place a strain on our education system, with a resulting negative impact effect on South African learners.

In Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19 (4 October 2000), the Constitutional Court held that, when it comes to socio-economic rights such as the right to education or housing, the constitution cannot be applied in a vacuum. The exercise of constitutional rights must take available resources into account. If the court in the Centre for Child Law case had attempted to take available resources into account, it may well have found that our education system is limited in its ability to absorb increasing numbers of learners from other countries.

Second, is the problem of Section 39 of the Immigration Act, which prohibits South African learning institutions from providing education to so-called "illegal foreigners." The court referred to Section 39 but claimed that it should not be interpreted in conflict with Section 29(1)(a) of the Constitution. Here the court might have gone too far. While it is necessary to view all legislation through the prism of the Constitution, this should not be done to the extent of ignoring the plain and simple meaning of the legislation. Instead of interpreting Section 39 of the Immigration Act in a manner which went against its wording, the court should rather have found Section 39 unconstitutional.

Third, the need for careful use of educational resources is underscored by research conducted by the Centre for Development and Enterprise (CDE), an independent policy research and advocacy organization based in South Africa. A CDE report published in March 2023 found that (i) more than 50% of Grade 1 learners did not know all the letters of the alphabet after a year of schooling, (ii) more than 80% of Grade 4 learners could not read for meaning in any language, and (iii) only 37% of Grade 5 learners had some basic mathematical knowledge. This is a grave cause for concern that the Department of Basic Education needs to address urgently.

Do South African citizens have a constitutional right to housing?

Author: Ivor Heyman, Advocate of the High Court

Section 26 of the Constitution grants everyone the right to access to adequate housing. Section 26 also stipulates that: (i) the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to housing, and (ii) no one may be evicted from their home or have their house demolished without an order of court.

In the recent case of City of Ekurhuleni Metropolitan Municipality v Unknown Individuals Trespassing and Others [2023] ZAGPJHC 265 (22 March 2023), the court was confronted with a very challenging situation where the rights of several stakeholders appeared to collide. In a nutshell, the court had to decide whether the rights of land invaders who were illegally occupying an RDP housing development took precedence over the owners of RDP houses in the same development who were waiting to take occupation of their homes.

The Ekurhuleni case involved two incidents. The first incident took place in July 2019 when a group of individuals (the first group) invaded the RDP housing development in Rietfontein, Pretoria. The first group claimed that they should have been allocated housing in the development but, due to corruption and maladministration, others were given preference. Some in this group produced documents showing that their names had been placed on the official RDP housing list as far back as 1996, but they still had not been awarded an RDP house.

The second incident involved another invasion by a group in June 2021 (the second group) of the same RDP housing development. The second group did not claim that it should have been allocated RDP housing like the first group claimed. This group claimed it was entitled to remain in occupation of the RDP housing development until the city or municipality provided it with alternative accommodation. In making this claim, the second group relied on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).

The municipality of Ekurhuleni brought an urgent application to the High Court to evict both the first and the second groups. The problem that the municipality faced was that, before bringing the application, it had already tried to evict the first group by force. The first group therefore claimed that they were entitled to a spoliation (i.e. return of occupation because of wrongful deprivation) order which included the return of goods and possessions taken by the Metro when evicting them.

The court concluded that the first group had not gained a sufficient foothold on the land (referred to in law as peaceful and undisturbed possession), having only recently occupied it before being ordered to leave by the police. This meant that the first group’s spoliation application had to fail, and the application to evict them could proceed.

The second group had been on the premises for over a year since 2020. The attempt to remove them only occurred in May 2021. Since neither the police nor the municipality had sought to oppose the second group’s occupation of the land for a long period, the court found that they were in peaceful and undisturbed possession at the time the municipality brought its application to join them as parties to the original application.

The result was the provisions of the Prevention of Illegal Eviction Act (PIE) did apply to the second group. Therefore, before the owners of the RDP houses could legally evict the illegal occupiers from the state-owned land on which the RDP houses were sitting, it was necessary for the state to provide temporary emergency shelter to the illegal occupiers. This was a requirement of PIE.

The problem, according to the court, was that the authorities were unable to provide temporary housing because of the enormous shortage of temporary housing. Many of those who had been allocated temporary housing were treating it as permanent housing, and it could therefore take years before more temporary housing became available. This meant that illegal occupiers could occupy the RDP housing development indefinitely because no temporary housing was available.

Closing Thoughts
As we try to unpack the complex set of rights and obligations that the court in the Ekurhuleni case faced, some observations can be made:

First, the statement by the court that the root cause of the land invasions is the unfulfilled and unrealistic promises made by the government. It is of great concern that these unfulfilled and unrealistic promises have led to such high levels of hopelessness, frustration and despair that individuals feel they have no choice but to take the law into their own hands and occupy RDP housing illegally.

It turns out that these invaders are by no means alone in their frustration. The court explained that there are at least 1.2 million people in Gauteng who are on a waiting list for RDP housing, and only 10 000 housing units are being built annually. Of the 1.2 million people waiting for RDP housing, there are 256 651 people whose names were put on the list for RDP housing during the period from 1996 to 2000. At the current rate of construction, it would take another 25 years for these people to receive their houses before the other 1 million could even be considered. By that point, some people will have waited for over 50 years to get RDP housing.

Second, it seems confusing that the rights of illegal occupiers to remain in occupation of land are superior to the rights of the owners of that land. The reason is that the legislature, in enacting the Prevention of Illegal Eviction Act (PIE), wanted to stop landowners from taking the law into their own hands, and summarily evicting illegal occupiers. Another reason for enacting PIE was to force the authorities to find alternative accommodation for illegal occupiers who take occupation of state-owned land. Due to the failure of the authorities to find alternative accommodation, we now have a situation in the country where illegal occupiers can occupy land indefinitely because there is nowhere for them to go.

This raises the difficult question of whether PIE is constitutional when one has regard to the provisions of Section 26 of the Constitution (the constitutional right to access adequate housing). On the one hand, you have people who have followed the law by putting their names on waiting lists, and waited patiently for an RDP home to be allocated to them in terms of Section 26. On the other hand you have unlawful occupiers who invade RDP housing developments with the express purpose of being protected from eviction in terms of PIE until the city secures temporary accommodation for them. What this case tells us is that the rights of unlawful occupiers will take precedence over those who follow the law. One can be forgiven for wondering whether this was what the framers of our Constitution intended.

Do South African citizens have a constitutional right to water?

Author: Ivor Heyman, Advocate of the High Court

A recent article in the Daily Maverick entitled “Water crisis – Johannesburg is the next Eskom if we don’t act now” explains that, due to chronic water shortages that bedevil areas of Johannesburg, residents of Lenasia South, Coronationville, Crosby, Claremont, Melville, parts of Auckland Park, Westdene and South Hills have become resigned to chronic water shortages, and are forced to live from water bottles and filling up at water tankers or council-supplied JoJo tanks.

This Daily Maverick article begs the all-important legal question: is there a constitutional right to sufficient water? To answer this question, we need to go back to the Constitutional Court case of Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28 (decided on 8 October 2009). In that case, the Constitutional Court (Con Court) gave a very tentative judgment about the right to water, and this case arguably is one of the reasons why the water situation in our country continues to deteriorate.

The applicants in Mazibuko were five poor residents of Phiri in Soweto. For many years, they and other residents of Soweto had been the beneficiaries of an unmetered and unlimited supply of water for which a flat rate of R68.40 per month was charged. In May 2003 Johannesburg Water initiated “Operation Gcin’amanzi” (to save water) to revamp Soweto’s distribution of water services. Its goals were to reduce water losses and demand, rehabilitate the water network, and improve the rate of payment. Phiri was selected in February 2004 as the area for first implementation of the project. Central to Johannesburg Water’s plan was the abandonment of its flat rate policy for Soweto residents, and the installation of pre-paid meters which would provide each household with 25 litres of water per person per day. Any usage above that would have to be paid in advance by using the pre-paid meters that the City was installing.

The applicants challenged the City’s new plan on two grounds: first, that the pre-paid meters violated section 27(1) of the Constitution which provides that “Everyone has the right to have access to … (b) sufficient food and water”; and second that installation of pre-paid water meters in Phiri was unlawful under the Water Services Act, the City’s Water Services By-laws, was administratively unfair, and was unfairly discriminatory under section 9 of the Constitution.

The Constitutional Court rejected the findings of the two courts below it that found that the City is required to provide a minimum amount of water to its citizens (High Court said 50 liters per person per day, Supreme Court of Appeal said 42 liters per person per day) in order to comply with the Constitution. Instead, the Con Court said that, while Johannesburg Water “is not under a constitutional obligation to provide any particular amount of free water” it is “under a duty to take reasonable measures progressively to realize the achievement of the right.” Since the City was continually reviewing its policies and investigating ways to ensure that the poorest households were able to gain access to water (e.g. by additional allocations for indigent households), the installation of the water meters was neither unfair nor discriminatory.

Closing Thoughts
In the Mazibuko case, the Con Court emphasized the need for Johannesburg Water to review and revise its policies repeatedly to ensure that it promotes the progressive achievement of the right of access to sufficient water. One can only wonder how the Mazibuko case would be decided today. With many Johannesburg residents now experiencing water outages ranging from days to weeks each month, it appears that the right to sufficient water is less secure than it was 15 years ago when Mazibuko was decided.

Second, the Con Court’s finding that Johannesburg Water is not under a constitutional duty to provide free water is beyond reproach. However, that doesn’t answer the question whether Johannesburg Water is under a constitutional duty to provide water to people who are willing to pay for it. According to the Daily Maverick article above, as much as 60% of Johannesburg Water’s supply of water is being lost due to old infrastructure that has been deteriorating progressively over the last 15 years. This raises the question whether Johannesburg Water, by virtue of its failure to maintain its infrastructure, is in dereliction of its constitutional mandate to provide sufficient water to the residents of Johannesburg.

Does a customer have a constitutional right to electricity even if the connection is illegal?

Author: Ivor Heyman, Advocate of the High Court

As Eskom continues to reel from the amount of illegal connections to its grid, a recent case serves as a reminder that, while electricity may be a constitutional right, it still has to be paid for.

In the case of 39 Van Der Merwe Street Hillbrow CC v City Of Johannesburg Metropolitan Municipality and Another [2023] ZAGPJHC 963 (25 August 2023), the owner of the building at 39 Van der Merwe Street in Hillbrow brought an application to the Johannesburg High Court to have electricity restored to the building. The building owner’s case was that on 6 July 2023, City Power disconnected the electricity supply to the building when it discovered that there was an illegal electricity connection at the property. The building owner denied that there was any unlawful connection to the electricity supply to the building, and claimed that it had been paying its electricity bill diligently each month.

In deciding on the matter, the court stated that, on the evidence before it, the assertion by City Power that an illegal connection existed at the building was backed up by figures presented in court that the building's electricity meter had been tampered with. According to the court, this meant that electricity was being consumed at the property without it being paid for by the building owner.

The court concluded that, after having discovered the illegal connection, City Power was not obliged to supply the building with any more electricity. Furthermore, to the extent that the building owner or its tenants had a right in terms of section 73(1)(c) of the Local Government: Municipal Systems Act (32 of 2000) to have access to the electricity supply provided by City Power, such right had been forfeited by their unlawful conduct.

Closing Thoughts
A recent article in News24 reported that, according to Eskom, 85 563 of 173 800 customers in Soweto alone are illegally connected to the Eskom grid, which means they do not pay for electricity. Eskom claimed that illegal connections cause the network to become overloaded and can increase loadshedding and power outages. So it appears more will have to be done to stop illegal connections from mushrooming in Gauteng than simply cutting off the power of individual buildings or dwellings.