Let us reflect on this question: How much do we care as a society about the plight of our schoolchildren? It has now become inescapable that every year we hear new stories about the suffering of children in our schools.

For example, one of the latest from our courts is the events that led to the case of R K and Others v Minister of Basic Education and Others [2019 ZASCA 192 (18 December 2019)]. Though this case will be known as a watershed moment for ruling in favour of the Limpopo family of a five-year-old learner from Mahlodumela Lower Primary School, which is located in a rural area of the Limpopo province, it will remain a reminder that the learner suffered an almost unimaginably inhuman and undignified demise.

The revelation in court papers in R K and Others v Minister of Basic Education and Other is that the young learner “had drowned, and was lying in the filth in the pit with hand outstretched as if seeking help” [par 11]. Our learners always have their hands stretched out seeking help. And what do we do as a society? We rather bail out bottomless pits such as South African Airways and Eskom. It was common knowledge that the infrastructure of the school, including ablution facilities, were “in an appalling and disgusting condition”. Furthermore, the community complained for years, but all this fell upon the deaf ears of the authorities.

The case of R K and Others v Minister of Basic Education and Other, and like many litigated cases on schools’ infrastructure, is demonstrative of the lack of proper care our learners are exposed to. The Limpopo learner disappeared into thin air, and the school even had to ask his mother if he was home. It is worrisome that the lack of taking reasonable care of learners in our schools is sometimes excused through the use of indemnity forms signed by parents absolving the schools from any liability. By signing an indemnity form, as a parent you are in effect signing a waiver declaration foregoing the rights to sue the school if your child is hurt or fatally wounded during school excursions or after-school activities.

If you consider contact sports such as karate, wrestling, soccer or rugby which come with inherent risk of injury or loss, for example, one will be forgiven for understanding that indemnity agreements may be necessary because our schools cannot afford to be liable or to be sued every time there is an injury to the learner. The recent drowning of a 13-year-old Parktown Boys High School learner (Enoch Mpianzi) at the so-called orientation camp is, however, mind-boggling.

The story reported in the media is that the deceased and other boys were on a makeshift raft on the Crocodile River in the North West, which tragically overturned. His body was found two days later. Enoch Mpianzi was reportedly not wearing a life jacket when the raft overturned because his parents could not afford to buy him one. But why was he allowed to be on the dreaded Crocodile River without a life jacket; and no lifesavers? The current South African law position is that one must distinguish between negligence in the form of failing to take reasonable care and “gross negligence” cases of liability waivers. Gross negligence is generally exhibited through willful blindness or extreme or deliberate recklessness.

The media-reported facts in the Parktown Boys High School incident show blatant and gross negligence that should be attributed to the school. Thus, civilly and criminally liable to his parents for allowing Enoch to get into the river without a life jacket. More ridiculous and illogical is the conduct of not ensuring that all learners were accounted for after their makeshift raft had capsized. To argue that his disappearance was only noticed hours after is unbelievable.

Apparently, Enoch’s parents signed an indemnity form in favour of Parktown Boys High for this Grade 8 orientation trip. Clearly, the school, despite the signed indemnity forms, owed a duty to all the Grade 8 learners who went to the so-called orientation camp to employ ordinary care and to anticipate reasonably foreseeable dangers while at the camp so as to take precautions for protecting the learners from such dangers. The court in Duffield v Lillyfontein School and Others [2011 ZAECGHC 3 (27 January 2011)], for example, held that in indemnity cases such as the one before it “all things reasonably necessary to ensure that stringent safety measures were put in place… so as to limit the risk of personal accident or injury to the participants thereof” must be taken.

In the case of Duffield v Lillyfontein School and Others, the plaintiff (Joy Duffield) suffered bodily injuries after she fell from a so-called zip-wire (colloquially known as a “foefie slide”) affixed to the top of a scaffold platform while taking part in an activity known as the Kempston Corporate Adventure Race. Among those sued were Lilyfontein School, and its school governing body (SGB). The school and the SGB defended the claim, saying that the plaintiff had signed a written injury indemnity form prior to her participation in the adventure race.

By its very nature, like paddling through the Crocodile River on a makeshift raft without a life jacket, it was risky and involved potentially hazardous activities such as swimming, and kloofing over rugged terrain. In the signed indemnity form, Joy confirmed that “I am able to swim and if not will be in possession of a life jacket on the day of the event.” In the main, the indemnity form waived the liability of “Lilyfontein School and any individual involved in assisting with the organisation against any liability and against any/all proceedings, claims, damages, interests, costs and/or expenses which may result from any accident or injury to myself or my sports equipment”.

In the wake of the Parktown Boys High drowning incident, and many other school environment and school activities-related injuries, the National Department of Basic Education and Parliament’s Select Committee on Education and Technology, Sport, Arts and Culture must revisit its policies and procedures on learner safety and security. Part of this process must be a formulation of an indemnity form, as a short-term solution, which applies across all schools in South Africa.

If I was the one to have the authority to revisit the schools’ indemnity practices, I would follow the ruling of the Washington Supreme Court in the case of Wagenblast v. Odessa School Dist. [No. 105-147-166J, 758 P.2d 968 (Wash. 1988)]. In this case, four Odessa School District students wanted to participate in interscholastic athletics. According to the Odessa School District, to participate in such activities students and their parents or guardians had to sign a standardized form which releases the school district from “liability resulting from any ordinary negligence that may arise in connection with the school district’s interscholastic activities programs”. The Washington Supreme Court ruled that public schools could not require parents and students to sign forms that released the schools from liability for negligence, as a condition for participating in interscholastic sports and other activities that were an important part of public education.

Such an indemnity form is considered an unconscionable contract of adhesion and against public policy.

“We hold that the exculpatory releases from any future school district negligence are invalid because they violate public policy,” said the Washington Supreme Court.

Interestingly, the Supreme Court of Iowa in the case of Galloway v. State, 790 N.W.2d 252 (Iowa, 2010) took it further by allowing learners to sue for injuries resulting from negligence suffered during an educational trip. The Court in Galloway made a very critical observation with regard pre-injury liability waivers by parents, noting in part another Washington Supreme Court case ruling, that “if a parent lacks authority without court approval to compromise and settle her minor child’s personal injury claim after an injury has occurred, ‘it makes little if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.’ ”

In the Parktown Boys High school case we are told that the orientation camp was related to education and/or learner development. Therefore, one may conclude that this excursion was education-related and the school is liable for the learner’s death.

This was an unfortunate extracurricular education event. South African schools should not be allowed to opt out of criminal and civil liability by softly coercing parents to sign indemnity forms for all activities that are considered an important part of the educational experience.

Of course, exculpatory agreements, as indemnity forms are sometimes referred to, have been part of the South African legal landscape. Some even upheld by courts. Be that as it may, in the context of the best interest of the child standard, school indemnity practices need a special dispensation in South Africa for several reasons.

First, the schools yield a massive and superior “bargaining power” against parents who are desperate to keep their children in these schools by doing whatever the school wants. The schools are likely to hide behind these indemnity forms to avoid responsibility and accountability. As a parent of school-going children myself, I used/do take serious exception to some of the indemnity forms. There have been two to three instances in the past whereby I signed such forms for my children to participate, but also scratched out the indemnity clause from the form and inscribe notes that I do not agree with the clause in question.

Second, South African schools are among the most insecure despite the National School Safety Framework. In fact, the Minister of Basic Education, Angie Motshekga, has conceded before the Parliament Portfolio Committee on Basic Education that safety and security at schools remains a major concern. Therefore, until the situation is addressed satisfactorily, indemnity forms must not provide a foundation for defence against liability claims for injuries within the schooling environment or injuries that arise out of school-related activities.

Third, I am of the view that we should stop treating learners like commodities or non-humans whose lives and limbs can be traded at will between parents and school authorities. The revised indemnity procedures must allow for the participation of the learners as co-signatories with their parents. Schools are the second homes of learners; let us keep them safe and let us have our schools operate with the greatest reasonable care of their learners. DM