Durban - A recent survey by a Durban principal revealed that eight schools in Chatsworth, Phoenix, Verulam and Tongaat had chosen to forgo excursions this year.
Nash Singh, principal of Swanvale Primary School in Phoenix, said the recent death of Enock Mpianzi, 13, during an orientation camp sparked panic, and felt the legal gaps in indemnity forms left them vulnerable.
Enock, of Parktown Boys’ High in Joburg, drowned during a “water activity” on the Crocodile River at Nyati Bush and Riverbreak in the North West.
The boys were required to build a raft and sail it across the river. During the activity, the raft capsized. Enock drowned and his body was found two days later.
According to the POST’s sister publication, The Star, the teachers were playing games at the time of the incident.
Enock Mpianzi
Seven teachers accompanied 198 Grade 8 boys on the trip.
It is alleged the roll-call list and indemnity forms were left on the bus, which returned to Joburg after the group was dropped off at the campsite.
No roll call was reportedly done on the day of arrival. When a fellow pupil reported the incident to a teacher, it was alleged he was not taken seriously.
The next day, teachers called Enock’s parents to confirm if their child was on the trip.
Since the incident, his parents have sought help from the Human Rights Commission. They want the school to be held liable for negligence.
Gauteng Education MEC Panyaza Lesufi suspended the school’s principal, Malcolm Williams.
Based on an investigation, the teachers could be charged individually.
On Saturday, mourners gathered at Kensington Secondary School in Joburg to bid farewell to Enock.
Singh said stemming from the incident, principals felt unprotected and wanted the Department of Education to provide a standardised indemnity form.
“Just about every school has its own indemnity form. If worded by a layperson, which includes school staff, it could leave gaps that a seasoned lawyer or advocate could exploit in court. It doesn’t make us feel confident.”
Singh said the indemnity forms should be similar to the ones patients sign before undergoing medical procedures.
“Teachers are taking children’s lives into their hands. Patients are made to sign a document with a long list of terms and conditions.
“Why can’t the same apply in schools?”
Singh said since the department did not recognise excursions as a priority, he opted to cancel school trips this year.
“I met with my staff and the school governing body. We analysed the risk involved and decided it was not worth it. We have instead opted to bring the excursion to the school.
“I have already planned an educational reptile show. So, instead of taking the pupils to a reptile park, we will bring the reptile park to the school.”
Singh said it was not the perfect scenario, but he was trying to provide an alternative with minimum risk.
A Chatsworth principal, who declined to be named because he is not permitted to speak to the media, said schools were unable to guarantee 100% protection against the various threats.
“Weather changes, incidental threats and transport breakdowns are not planned. Schools are now afraid of undertaking trips because of these threats and their consequences.”
He said when it came to the ratio of pupils to teachers, it should be one adult to 15 pupils.
“Younger children could be one adult to 10. In cases of special needs, the pupils could be fewer.”
Vee Gani, the chairperson for the Parents’ Association in KZN, said there was a sense of anxiousness among school management bodies.
“I know a few schools, which I cannot name, that have cancelled excursions this year.
“Others are reviewing their policies on trips as many are afraid to be held liable should a pupil be harmed or injured under their watch,” said Gani.
Vee Ganie.
Picture: Supplied
He said it was unlikely that the department would issue standardised forms as each school operated differently and would need to tailor-make their forms to suit the particular trip.
Gani said he preferred schools to refrain from using the words “indemnity forms” and opt for consent forms.
“When I was in school, parents had to sign an indemnity form that indemnified the school and the department of any liability. This has stopped as it was deemed illegal. The school cannot recuse responsibility entirely with no accountability.”
He said consent forms were the new version.
“These forms merely provide consent for pupils to attend school trips.”
He, however, encouraged schools not to make drastic decisions.
“There is a distinct line between adequate care taken and negligence. As long as you follow the necessary protocols when planning a trip, you have nothing to worry about. The success of trips clearly outweighs the number of incidents that take place.”
Professor Vimolan Mudaly , an associate professor at the School of Education at UKZN, said indemnity forms were a waste of time.
“I question whether it has any legal standing in a court of law. The parent signs these forms assuming that the school will take the necessary precautions to protect their child. What does ‘necessary’ mean?
“I’m not sure what the legal implications are but certainly there needs to be a discussion around the use of indemnity forms and how does the completion of, and a signature, absolve the school and ultimately the Department of Basic Education from all blame.
“Right now, with the crime rates, the daily road carnage and the tight school curriculum, I would personally not send my child on another excursion.”
However, Professor Labby Ramrathan, an associate professor at the School of Education at UKZN, said banning school trips was not the answer.
“Rather focus on how to make it more safe, accountable and beneficial to the pupils in terms of social cohesion, collegiality and building character, values and leadership within a humanistic perspective.”
Ramrathan said even though parents should complete indemnity forms, the extent of indemnifying the school should be limited.
“When something serious happens, then such indemnity should not carry any weight.”
Willie Coetzee, who specialises in corporate and commercial law at Shepstone and Wylie Attorneys, said the relationship between a school and its pupils was one of “in loco parentis”.
This was where educators were under a legal duty to supervise pupils in the same way a reasonable and prudent parent would.
“Consequently, educators are to ensure that there is no foreseeable risk of injury to the child,” said Coetzee.
“It follows that where a child is injured during a school excursion, and such injury is attributed to the negligence of the educator, then the school may very well be liable for negligence.”
Indemnity forms, said Coetzee, were binding documents and unless a complainant was able to prove gross negligence in court, the documents stood.
“The purpose of an indemnity form invariably seeks to indemnify the school against loss that may be occasioned as a result of the negligence of the school and its staff.
“Our courts have held that in order to avoid the operation of the indemnity, gross negligence needs to be proved. Gross negligence is considered to be an extreme case of negligence where there is a total disregard of a duty.”
He said it was an accepted principle of the law that persons may not indemnify themselves against gross negligence.
“Therefore, in order to overcome an indemnity, it must be proved that the conduct complained of was grossly negligent.
“This is largely dependent on the facts of the case and the risks that the child was exposed to in the circumstances.
“The courts may well be prepared to find gross negligence where the school did not act reasonably.”
Elijah Mhlanga, the spokesperson for the Department of Education, said there were many benefits to school trips and it was nonsensical to ban them.
“Should we shut down the entire aviation industry just because some aeroplanes crash and kill people?”
He said indemnity forms were not a substitute for a reasonable expectation of due care and responsibility.
“A large majority of public schools do not insist on indemnity forms; instead, they assume responsibility for the safety, care and protection of the learners even when they are undertaking school excursions.
“As a department we do not recognise indemnity forms. Instead we expect schools to ask parents to give consent for their children to participate in excursions.”