THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case number:  640/06

In the matter between:

THE MEC FOR EDUCATION,
WESTERN CAPE PROVINCE

Appellant

and

EDITH STRAUSS
Respondent

CORAM:

SCOTT, MTHIYANE, CLOETE, HEHER JJA
and MALAN AJA
HEARD:

12 NOVEMBER 2007
DELIVERED:
28 NOVEMBER 2007

Summary: South African Schools Act 84 of 1996 – s 60 - Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (COIDA) – s 35 – educator
doing part-time discus training injured – whether s 35(1) of COIDA applicable
Neutral citation: MEC for Education v Strauss [2007] SCA 155 (RSA)
________________________________________________________________

MALAN AJA:

[1] This is an appeal with leave of the court a quo against the judgment of
Van Zyl J sitting in the Cape High Court in which he dismissed with costs the
defendant’s special plea and ordered the defendant to pay the costs of a Rule
33(4) application and the costs of the postponement of the hearing on 30 May
2006.

[2] The appellant, the defendant in the court a quo, is the Member of the
Executive Council for Education in the Western Cape. The respondent, the
plaintiff in the court a quo, was an educator1 employed at the Paarl Girls’ High
School. The plaintiff instituted proceedings against the defendant, the governing
body of the school and two medical doctors claiming damages arising from an
incident that occurred on 12 February 2001 while she was engaged in training
learners at the school to throw the discus. She was struck on the forehead just
above the left eye by a discus thrown by a learner participating in the training
session and sustained serious injuries as a result. Her claim against the
governing body and the two medical doctors was subsequently withdrawn and
she proceeded against the defendant only.

[3] The plaintiff was employed by the governing body of the school, a public
school,2 pursuant to a written contract effective from 1 January 2001 in

1 An ‘educator’ is defined in s 1 of the South African Schools Act 84 of 1996 (the ‘Act’) as
meaning ‘any person, excluding a person who is appointed to exclusively perform extracurricular
duties, who teaches, educates or trains other persons or who provides professional educational
services, including professional therapy and education psychological services, at a school’.
2 Section 1 of the Act. Every public school is ‘a juristic person, with legal capacity to perform its
functions in terms of this Act’ (s 15). Governance of a public school is vested in its governing
body which ‘may perform only such functions and obligations and exercise only such rights as

accordance with the provisions of s 20(4) of the Act (and not by the Head of
Department in terms of the Employment of Educators Act 76 of 1998). In terms of
her contract of employment the plaintiff accepted the professional authority of the
principal. It is alleged that the plaintiff was obliged to ‘carry out lawful requests
and/or instructions of the school principal and/or the governing body relating,
inter alia, to educational activities, including sports training or coaching at the
school’. She was obliged to provide assistance in respect of extra curricular
activities as instructed by the principal without any additional compensation.
Clause 4.3 of her contract provides:
‘Die werknemer sal bystand verleen ten opsigte van buite-kurrikulêre aktiwiteite soos deur die
Hoof aan hom/haar opgedra sonder enige addisionele vergoeding.’

[4] The incident is alleged to have occurred while the plaintiff was an educator
at the school and
‘acting upon the lawful instructions of the school principal conveyed to the plaintiff by the sports’
head, to train or coach learners in discus throwing, for which the plaintiff would be remunerated
by the governing body as an independent trainer.’ (Paragraph 9 of the particulars of claim).

In this paragraph a contract of employment other than the contract annexed to
the particulars of claim is referred to.

[5] The plaintiff’s claim against the defendant is founded on the latter’s own
alleged negligence and also, by virtue of s 60 of the Act, on the negligence of the
principal of the school or its governing body. As to the defendant’s own
negligence, it was alleged, for example, that the defendant failed to provide
safety nets around the discuss circle (paragraph 10.4) and also that he failed to
ensure that nets were provided by the principal, the governing body or the school

prescribed by the Act’(s 16(1)). The professional management of the school is in the hands of the
principal, ex officio a member of the governing body (s 23(1)), who carries on his duties under the
authority of the Head of Department (s 16(3)). The functions of governing bodies are set out in s
20.

(paragraph 10.5). As to the plaintiff’s reliance on s 60, it was alleged that the
‘school principal, governing body and/or Head of Department’ failed to ensure
that educators and sports trainers or coaches were able to carry out their
functions in an environment where the risk of injury was eliminated (paragraph
10.6) or that they failed to take reasonable steps such as the provision of safety
nets to prevent injury to the plaintiff (paragraph 10.7).

[6] Section 60 of the Act provides:
‘(1) The State is liable for any damage or loss caused as a result of any act or omission in
connection with any educational activity conducted by a public school and for which such public
school would have been liable but for the provisions of this section.
(2) The provisions of the State Liability Act, 1957 (Act 20 of 1957), apply to any claim under
subsection (1).
(3) Any claim for damage or loss contemplated in subsection (1) must be instituted against the
Member of the Executive Council concerned.’

[7] The plaintiff pleaded that in terms of s 60(1) the State is liable for any
damage or loss caused as a result of any act or omission in connection with any
educational activity conducted by a public school and for which such public
school would have been liable but for the provisions of the said section and
added that any action had to be instituted against the defendant.

[8] In the course of his judgment Van Zyl J said that ‘any liability ascribed to
the defendant, in his official capacity as the member of the executive council who
was responsible for education in the Western Cape, would not arise from any
negligence on his part. It could arise only from the provisions of section 60(1) …
on which the plaintiff has in any event placed reliance’. I do not agree. Section
60, although wide in scope, has a limited purpose: it exempts the school or its
governing body from liability for damage or loss caused ‘as a result of an act or
omission in connection with any educational activity’ and transfers liability to the
State. Public education is the responsibility of the State. Hence the legislature
intended the State to be liable for damage or loss caused by an act or omission

resulting from an educational activity for which the school would otherwise have
been liable. The section, however, does not preclude claims a person may have
against the State based on other grounds such as in this case where reliance is
also placed on the defendant’s own negligence and he is cited as a wrongdoer.
The section simply does not deal with such other claims. (I express no view on
the merits or otherwise of this claim.)

[9] The activity the plaintiff was allegedly engaged in clearly falls within the
description of ‘educational activity’ used in s 60(1). Van Zyl J correctly came to
this conclusion: the plaintiff was acting as alleged on the lawful instructions of the
school officials. The liability transferred must furthermore result from ‘an act or
omission in connection with any educational activity’. The acts or omissions
alleged by the plaintiff in paragraph 10 of her particulars of claim and attributed to
the principal, the governing body or the principal are all acts or omissions ‘in
connection with any educational activity’, liability for which would be transferred
to the State had the school been liable. By pleading s 60 of the Act the plaintiff
intended to hold the State liable not only as a wrongdoer but also by virtue of the
liability thus transferred.

[10] The defendant filed a special plea contending that s 60 did not avail the
plaintiff. Two grounds were relied on. The first was that the plaintiff was
appointed in terms of s 20(4)3 of the Act which provides that a public school may,
subject to the Act, the Labour Relations Act 66 of 1995 and any other applicable
law, establish posts for educators and employ educators additional to the
establishment determined by the Member of the Executive Council in terms of s
3(1) of the Employment of Educators Act 76 of 1998. In terms of s 20(10) s 60 is

3 Section 20(4): ‘(4) Subject to this Act, the Labour Relations Act, 1995 (Act 66 of 1995), and any
other applicable law, a public school may establish posts for educators and employ educators
additional to the establishment determined by the Member of the Executive Council in terms of
section 3 (1) of the Educators' Employment Act, 1994.’

not applicable where the act or omission complained of relates to the contractual
responsibility of the school as an employer towards its staff.4 The plaintiff’s claim
lies in delict and the defendant correctly did not persist with this contention. The
second ground relied upon is s 35(1) of the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 (COIDA) which precludes an action by an
employee for the recovery of damages against his or her employer, as a
consequence of which the defendant is not liable for any damage for which the
governing body would not have been liable. Although the special plea is
somewhat inelegantly worded, s 35(1) was relied upon in argument both in this
and the court a quo as an independent ground apart from the provisions of s 20
(4) of the Act.

[11] COIDA came into operation on 1 March 1994 providing for a system of no-
fault compensation for employees who are injured in accidents that arise out of
and in the course of their employment or who contract occupational diseases. A
compensation fund is established5 to which employers are required to contribute6
and from which compensation and other benefits are paid to employees.7
Employees meeting the requirements of the Act are entitled to the benefits
provided for and prescribed by COIDA.8 COIDA
‘supplants the essentially individualistic common-law position, typically represented by civil claims
of a plaintiff employee against a negligent defendant employer, by a system which is intended to

4 Section 20(10) reads: ‘Despite section 60, the State is not liable for any act or omission by the
public school relating to its contractual responsibility as the employer in respect of staff employed
in terms of subsections (4) and (5).’ See LUR vir Onderwys en Kultuur, Vrystaat v Louw en n
Ander 2006 (1) SA 192 (SCA) para 7.
5 Section 15.
6 Section 87.
7 Section 16.
8 Section 22.

and does enable employees to obtain limited compensation from a fund to which the employers
are obliged to contribute.’ 9

[12] At common law10 an employee has to show that his or her employer acted
negligently thereby risking a finding that he or she was contributorily negligent.
The employee claiming common-law damages from the employer would also
bear the risk of the employer’s insolvency or his inability to meet a judgment
debt. While the employee ran the risk of an adverse cost order if he or she was
unsuccessful, a common-law action might lead to his or her recovering
substantially more by way of damages than under the compensation provided by
COIDA. Section 35 abolished an employee’s common-law right to claim
damages. Section 35 COIDA is headed ‘Substitution of compensation for other
legal remedies’ and provides as follows:
‘(1) No action shall lie by an employee or any dependant of an employee for the recovery of
damages in respect of any occupational injury or disease resulting in the disablement or death of
such employee against such employee's employer, and no liability for compensation on the part
of such employer shall arise save under the provisions of this Act in respect of such disablement
or death.’

[13] Prior to the date of the trial the defendant filed an application in terms of
Rule 33(4) for an order that the special plea raised questions of law which might
conveniently be decided before any evidence was led and separately from any
other issue, and directing that all further proceedings be stayed until such
questions had been resolved. Van Zyl J granted the application holding that the
special plea should be decided separately and that no evidence was required for
this purpose. I agree with this ruling. He, however, ordered the defendant to pay
the costs of the application and of the postponement of the trial on 30 May 2006
and dismissed the special plea with costs. He expressed the view that any

9 Jooste v Score Supermarket Trading (Pty) Ltd  1999 (2) SA 1 (CC) para 15.
10 Jooste v Score Supermarket Trading (Pty) Ltd above para 13.

liability of the defendant could only have arisen from the provisions of s 60(1) of
the Act and said that COIDA
‘is certainly relevant in that the plaintiff was, at the relevant time, an employee who personally
suffered an occupational injury, with resultant disablement, in an accident arising out of and in the
course of her employment. She would hence, under normal circumstances and provided she
complies with any requirements for a valid claim, qualify for compensation from the
Compensation Fund in terms of such Act. This does not mean, however, that the liability of the
State in terms of section 60(1) of the Act is excluded, or even restricted, by such claim.’

He said of s 60:
‘It is abundantly clear that the section was intended to have a particularly wide and far-reaching
ambit. The State unconditionally accepts liability for “any damage or loss” resulting from “any act
or omission” relating to “any educational activity” conducted by the public school and respect of
which that school would be liable if it were not for the provisions of this section. This constitutes
general liability, with the State stepping into the shoes of the school and taking over its
responsibility towards any party who or which might have suffered loss or damage as a result of
such act or omission.’

And added:
‘Indeed, the only reference to another statute in section 60 occurs in section 60(2), which
stipulates that the provisions of the State Liability Act 20 of 1957 apply to any claim against the
State in terms of section 60(1). This leads to the almost irresistible inference that no reference to
any other statute or law was intended. If the legislature had intended section 60(1) to be subject
to the provisions of section 35(1) of COIDA … it would undoubtedly have said so.’

[14] The plaintiff alleged in her particulars of claim that she was obliged to
carry out lawful instructions of the principal or governing body relating to
educational activities, including sports training or coaching at the school. She
alleged further, in paragraph 9 of her particulars of claim (quoted in paragraph 4
above) that the incident occurred when the plaintiff was engaged in the training
or coaching of learners in throwing the discus for which she was to be
remunerated as an independent trainer. It follows that the incident fell within the

definition of an ‘accident’ as defined in COIDA.11 This is so whether the incident
occurred within the course and scope of the plaintiff’s employment in terms of her
written contract of employment pursuant to s 20(4) of the Act12 or within the
course and scope of her employment as an independent trainer as alleged in
paragraph 9 of the particulars of claim. In both cases she was an ‘employee’ and
the governing body, acting on behalf of the school, her ‘employer’. In this regard
Van Zyl J correctly observed that it mattered not whether the plaintiff’s agreement
to render services as an independent or outside trainer could be classified as an
amendment to her contract of employment or as an additional agreement: in
rendering coaching services she was on her own pleaded version acting on
instructions of the principal conveyed to her by the head of sport at the school
and thus acting within the course and scope of her employment.

[15] It is correct, as Van Zyl J observed, that s 60(1) has a particularly wide
and far-reaching ambit. He, however, added that if it had been the intention of the
legislature to exclude the provisions of s 35 COIDA from its scope the legislature
would have expressly so provided. This observation was made in the context of

11 Section 1 defines it as ‘an accident arising out of and in the course of an employee's
employment and resulting in a personal injury, illness or the death of the employee.’
12 Section 1 COIDA contains the relevant definitions: 'employee' means ‘a person who has
entered into or works under a contract of service or of apprenticeship or learnership, with an
employer, whether the contract is express or implied, oral or in writing, and whether the
remuneration is calculated by time or by work done, or is in cash or in kind, and includes - (a) a
casual employee employed for the purpose of the employer's business …’. The plaintiff was
remunerated as an independent trainer (cf ER24 Holdings v Smith NO and Another 2007 (6) SA
147 (SCA) para 10). An 'employer' ‘means any person, including the State, who employs an
employee …’. The plaintiff is an ‘educator’ (see s 1(1) of the Act and s 1 of the Employment of
Educators Act 76 of 1998) and the ‘public school’ is her employer in terms of the s 3(4) of the
latter Act.

the question whether the reference to ‘any other applicable law’ in s 20(4) of the
Act includes a reference to COIDA. The argument, however, loses sight of the
express words of s 60(1) which renders the State liable only in circumstances
where the school would have been liable - 'and for which such public school
would have been liable'. If a school as employer would not have been liable to an
employee by virtue of the provisions of s 35 COIDA neither would the State be in
terms of s 60. This conclusion can be reached without reference to s 20(4) of the
Act and the question whether COIDA is included in the words ‘any other
applicable law’. COIDA provides for compensation for employees and s 35(1)
expressly excludes liability on the part of the employer for damages in respect of
any occupational injury or disease resulting in disablement or death. Since the
school is not liable to the plaintiff liability cannot be attributed to the State in
terms of s 60(1).13 It follows that the special plea to the plaintiff’s particulars of
claim should be upheld in so far as she relies on s 60 of the Act. Nothing in s 36
of COIDA militates against this conclusion. Indeed, s 36 allows both a claim for
damages against a third party, ie a party other than the employer, as a
wrongdoer and also a claim for compensation in terms of COIDA.

[16] In his judgment in the court a quo Van Zyl J awarded the costs of the Rule
33(4) application to the plaintiff remarking that the application was unnecessary
‘in that the issue of evidence was irrelevant for purposes of considering the
special plea’. He added: ‘In fact such application bordered on an abuse of the
procedure of this court and might even have justified a punitive order as to costs
had Ms Williams generously not insisted on such order.’ I do not agree. The
parties were in agreement that the special plea should be dealt with separately
but could not agree whether evidence was required in respect of the issues
raised in it. Van Zyl J was satisfied that the special plea could be decided
separately and that no evidence was required for that purpose. In other words,
on this issue, he found in favour of the defendant but nevertheless gave an

13 Cf Road Accident Fund v Monjane [2007] SCA 57 (RSA) para 12.

adverse costs order against him. It is not apparent from his judgment why he
described the application as one that bordered on an abuse of procedure. The
only basis advanced in this court is the statement by the plaintiff’s attorney that
she ‘had omitted to include in the minute [of the pretrial conference of 12 May
2005] … that the parties agree to disagree on the issue of oral evidence and that
the court be asked for a ruling at the commencement of the hearing on whether
the special plea should be disposed of by way of argument or after the adduction
of evidence.’ Whether such an agreement was reached is in dispute but there is
no suggestion that the approach to the court to determine the issue would have
had to take any particular form. In the circumstances it was prudent of the
defendant, given the on-going dispute whether evidence was required to
adjudicate the special plea, to approach the court formally by way of notice of
motion. The founding affidavit properly summarises the pleadings and respective
contentions of the parties. It shows that the defendant requested the consent of
the plaintiff for the disposal of the legal questions as early as 5 May 2006 failing
which an application would be made. The plaintiff’s attorney agreed to the
separation in a letter of 10 May 2006 but voiced her disagreement whether the
matter could be disposed of without evidence. As I have said, there is a dispute
of fact on what was agreed upon at the pretrial conference. However, the
plaintiff’s case is not that it was agreed that an informal application without the
need for a notice of motion and affidavit would be sufficient: the alleged omission
in the minutes of the pretrial conference merely refers to the fact that the court
would be ‘asked’ at the commencement of the hearing. How the court was to be
‘asked’ was, even on the version of the plaintiff’s attorney, not agreed. The
learned judge a quo was satisfied after ‘reading the papers and hearing initial
argument’ that the matter could be disposed of without oral evidence. The
defendant cannot be faulted for having elected to bring a formal application for a
separation. The relief prayed for in the application was granted. Costs of the
application should therefore have followed the result and as the court a quo
misdirected itself this court is at large to substitute such an order on appeal.

[17] A replying affidavit was clearly necessary and there can be no argument
that the comprehensive answering affidavit which was filed on the afternoon
before the trial was late, and entitled the defendant to the costs of the
postponement on 30 May 2006.

The following order is made:
(1)
The appeal is upheld with costs including the costs of two counsel;
(2)
Paragraphs 1 and 2 of the order of the court a quo are set aside and
replaced with the following:
‘(a) The special plea is upheld with costs including the costs of two
counsel and the plaintiff’s claim based on s 60 of the South African
Schools Act 84 of 1996 is dismissed;
(b) The plaintiff is ordered to pay the costs of the Rule 33(4) application
and of the postponement on 30 May 2006, including the costs of two
counsel.’

_________
Malan AJA
Acting Judge of Appeal

Concur:

Scott JA
Mthiyane JA
Cloete JA
Heher JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Date:
28 November 2007
Status:
Immediate
The MEC for Education, Western Cape Province v E Strauss
On 28 November 2007 the Supreme Court of Appeal gave judgment in MEC for Education
Western Cape v Edith Strauss  upholding a special plea against the claim of an educator
at the Paarl Girls’ High School who was injured while she was engaged in training learners
at the school to throw the discus. Her claim was dismissed in so far as it was based on
section 60 of the South African Schools Act 84 of 1996 which renders the State liable for
any damage or loss caused as a result of any act or omission in connection with any
educational activity conducted by a public school and for which such public school would
have been liable but for the provisions of the section. Ms Strauss was at the time of the
incident in the employ of the school and in terms of section 35 of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 a claim arising from an accident such
as occurred in this case against an employer by an employee is excluded and the
employee’s claim is limited to compensation under this Act. The SCA expressed no view
on the merits of Ms Strauss’ claim against the Member of the Executive Council for
Education in the Western Cape based on the Member’s own failure to provide a safe
school environment where she could perform her duties as an educator including sports
training or coaching of learners in terms of her employment contract without any undue
risk of harm befalling her.

--- end ---