We’ll fight for justice for Enock, vows Mpianzi family
Now fingers are pointing directly at the school for negligence and the Gauteng Department of Education has suspended Parktown’s principal, Malcolm Williams.
According to The Star report on Thursday, teacher negligence was allegedly the reason why the boy drowned.
The report says the delay in searching for the drowned boy was caused by a “negligent” teacher who left the roll-call list on the hired bus - hence the pupil was unaccounted for and it took teachers days to realise he had in fact attended the camp.
One of the pupils who saw Enock drown said during a radio interview that he told the teachers several times that Enock had drowned and yet it took the teachers more than a day to start the search for him.
They failed to ensure that the pupils had life jackets before exposing them to a river.
They also failed to try to rescue the boy even after they were told that the last time he was seen was at the river, struggling to swim.
Now Enock’s drowning has brought to the fore the issue of indemnity forms that parents are required to sign before any school excursion.
The question now being raised is whether Parktown will be exempted from liability for Enock’s death.
Not so, according to attorney and director at Richard Spoor Attorneys, Richard Spoor. He said in the Mpianzi’s case, the indemnity would not be valid.
“The indemnity against negligence doesn’t guard against intentional misconduct or recklessness.
“No indemnity is going to work in those circumstances. A notice such as ‘at your own risk’ is of no consequence to a child. If you want an indemnity, you must explain things properly and people must understand the risks they are exposed to. And if those things aren’t in place then that indemnity is worthless.”
Whether the contract or the agreement is enforcable or not depends on a number of circumstances, said Spoor.
“The onus rests on the persons relying on the indemnity to show that it is valid and fair. The Consumer Protection Act deems indemnities against death to be invalid.
“The onus, then, is on the school to demonstrate that all the parents understood the risks to which the child would potentially be exposed and against which they were indemnifying the school.
“It’s one thing to go to the zoo, it’s quite another thing to go rock-climbing or river-rafting. And so, it is a fundamental requirement for a parent to know what risk their child is exposed to and the parent should have an opportunity to think about it and be well-informed. If that hasn’t happened, the indemnity is invalid.
“In this case, going into a river without a life jacket is grossly negligent. No indemnity is going to work in those circumstances,” he said, adding that indemnity against negligence doesn’t guard against intentional misconduct or recklessness.
“Recklessness comes very close to intent as it shows a complete disregard for the safety of the child. It simply means that you anticipate the risks, but ignore the consequences.”
On whether the school tried to cover up the circumstances leading to Enock’s death, Spoor said he suspected bad control measures and poor organisation on the school’s part.
He said the next step in law should be an inquest to establish if there’s anyone who is criminally liable and there’s almost certainly a civil claim for emotional distress, harm and loss of a child.
Seated on a mattress and covered with a blanket Enock’s mother, 45-year-old Anto Mpianzi, said on Friday she couldn’t begin to fathom the suffering her son went through in his last moments.
“The death of my son is a great tragedy. I cannot begin to explain the pain and suffering that this tragedy has caused the family, but we are committed to finding out what happened and to hold those who are responsible for this tragedy accountable. I am angry that this has happened.
She recalled a dream she had on Wednesday night - the day Enock drowned when the makeshift raft he was on capsized and was swept down the river.
“He was walking towards me without the luggage he took with him to the camp. And in the dream, I asked why he left his gear at the camp and all he did was look at me and did not respond.
“For the past week, I’ve been feeling like the world is crashing down on me,” said Mpianzi.
Mpianzi spoke of her “little boy” being a happy-go-lucky child who was reliable and loved playing with his friends.
“He was looking forward to going to high school. I don’t understand how we went from preparing for a school trip, feeling the excitement of it, to having my son return as a corpse,” she said.