A recent Supreme Court of Appeal ruling has paved the way for a former schoolboy to sue the KwaZulu-Natal MEC for Education Senzo Mchunu for damages – nine years after he lost his sight in a corporal punishment mishap.
Simphiwe Shange was 15 years old in June 2003 when he suffered an injury to his right eye, allegedly at the hand of a deputy principal who was hitting another pupil with a belt. Shange said the tip of the belt struck him on the side of his eye.
The Eshowe man, now 24, said he had lost sight in that eye and now wore an eye patch.
The deputy principal had apparently told Shange the injury was caused by mistake and he had accepted this. It was only three years later, after advice from his mother’s friend who said the action was unlawful, that he made a claim for damages.
Shange first approached the Public Protector and was advised to see an attorney to make a claim against the Department of Education. However, his attorney served notice of the damages claim on the national education minister when it should have been served on the education MEC.
But when the MEC was served with a summons in 2008, the education department said Shange’s claim should be dismissed because notice of the application had not been served on the department.
Shange then made an application to the Durban High Court in May 2010, asking the court to condone his failure to properly serve notice on the provincial department.
In June last year, acting Judge Poobie Govindasamy granted the condonation.
Govindasamy had found that Shange’s affidavit revealed “a devil’s brew of mistakes, failures and delays” in the prosecution of Shange’s case. “Clearly the oversight on (the attorney’s) part arose from failure to appreciate the fact the the minister of education and the (education MEC) are two distinct organs of state,” the judge had said. “Any failure on the part of (Shange’s) attorney should not be held against (Shange)”.
Govindasamy had also reportedly found the case to be of vital importance to Shange and that the outcome would have an enormous impact on the quality of his life.
Mchunu had challenged the Durban High Court ruling in the Supreme Court of Appeal. However, appeal court judge Suretta Snyders, with four judges concurring, agreed with Govindasamy’s decision last Friday.
Snyders looked at the question of prescription – that is whether the claim was still valid as it was allegedly made after the maximum three year period allowed.
She said the answer lay in the facts alleged by Shange, which were mostly unchallenged.
“I am satisfied that a careful scrutiny of the unchallenged facts put up by (Shange), taken together with the circumstances in which he found himself, give rise to the overall factual conclusion, fairly arrived at, that (Shange) was entitled to the benefit of the full relevant period of prescription, that is three years, before his claim would be extinguished,” Snyders said in her judgment.
“That was until at least January 2009. Summons was in fact served on the (Education MEC) on December 3, 2008.”
The judge felt that Shange was totally reliant on prompting by others with more insight to take steps to enforce his claim.
“The way in which he has been gravely let down in this regard, is a distinguishing feature of this case. The absence of the guidance of his legal guardian is evident. His own teacher (the deputy principal) led him to believe that nothing could be done about the incident,” Snyders said.
“(Shange’s) bona fide belief that his teacher’s explanation put an end to the matter was never challenged by the (education MEC). It serves to explain the delay in any steps having been taken until January 2006.”
Snyders said after January 2006, Shange’s attorney took prompt action in dispatching a notice, but sent it incorrectly to the minister of education and not the education MEC.
The appeal court agreed with Govindasamy that Shange’s attorney’s failures should not be held against his client, and upheld the Durban High Court decision.