A mother who sought millions of rand in damages from the North West MEC for education after her son's assault by his grade R teacher has been forced to settle for a fraction of that sum.
This despite the traumatic effect the assault had on her now-teenage son, who has been identified for placement at a special school and has “no educational potential” beyond grade 9.
This ruling was handed down by North West judge president Ronald Deon Hendricks in the provincial high court, sitting in Mahikeng, on Tuesday. Hendricks found the boy did not lose the use of his hand after his assault and there was no evidence of any permanent disability.
The judgment stemmed from an August 6 2015 incident that only made it to court in 2018 and to trial in February this year. The boy's mother initially sought R7m in damages from the MEC for “future medical expenses, loss of amenities of life and pain and suffering”.
“[The mom] testified that [her son] came home during the afternoon of August 4 2015 and reported that he was assaulted with a knobkierie on his hand by his teacher. She questioned him about what happened and left it there. On August 8, [the son's] hand changed colour and turned blue.
“On August 10, she took him to the clinic for medical treatment. There was, however, no improvement. On August 19 she took him back to the clinic and was referred to a hospital, for further medical treatment. She also reported the incident at the school,” Hendricks summarised.
A teacher at the school who testified confirmed that the perpetrator was hired as a childminder at the school for a fixed period and that the mother reported the incident to him two weeks after it happened. He then referred her to the foundation phase principal.
After a request for postponement by the MEC, the matter resumed on October 8 this year for cross-examination of both the mother and teacher who gave evidence. Both their testimonies were accepted by the court.
An educational psychologist, Ms Monyela, was then called to testify as an expert witness for the mother.
“Her evidence was to the effect that on January 16 2023, she compiled an assessment report about a consultation with [the son]. She also compiled a joint minute together with Dr Pienaar, the educational psychologist of the defendant.
“She testified that [the son] was a child of average intelligence, based on the tests she conducted. He was injured at a vulnerable stage of his development. This resulted in him performing far below the accepted level for his age. He could spell the alphabet instead of words,” Hendricks said.
Monyela also said the assault had affected the young boy's “emotional functioning” as he was now fearful and felt unsafe.
Monyela also said the boy cannot write nor spell words. She said as years went by, the more his performance dropped. Monyela said the boy could count but could not apply numbers.
"She identified him for placement in a special school,” Hendricks said.
Sight should not be lost of the fact that [the boy] did not lose the use of his hand and neither has he been rendered disabled in that regard. He suffered pain and discomfort for approximately two weeks in total, received medical treatment at a clinic and in hospital, and there is no evidence of any permanent disability.
Monyela said the incident negatively affected the boy's future development.
She said whereas he would have achieved matric pre-incident, he would only achieve grade 9 post-incident.
Another expert witness called for the mother, an industrial psychologist, also said the assault “negatively affected” the boy's psychological wellbeing and that he needed to be placed in a special needs school. She added that the son could only end up “employed in the informal sector doing unskilled labour and mostly light work”.
To further support this, the mother's legal counsel sought to submit an actuarial report without proper procedure being followed, according to the judge.
“An objection was raised because it was handed in on the morning of the trial, at court, to the defence. There was no explanation proffered why the actuary could not testify and why his/her report should be accepted on affidavit.
“No explanation was also advanced why the report was not timeously filed and served. Because the correct procedure was not followed, this court refused the acceptance of the actuarial report into evidence.”
The MEC once again tried to request a postponement of the matter, citing his unreadiness to proceed with the trial, but this was rejected by the court. He also closed his case without bringing any witnesses or evidence.
This forced Hendricks to “decide this matter solely on the evidence presented during the [mother’s] case”.
She tried to argue for the court to approach the calculation for damages based on the industrial psychologist's report, in the absence of the actuary's report, but this was rejected by the judge.
“Much as this opinion may well be a guide, this court is not bound to slavishly follow it. This court has an unfettered discretion, to be exercised judiciously, to determine an amount of damages that is just, fair and equitable.
“Sight should not be lost of the fact that [the boy] did not lose the use of his hand and neither has he been rendered disabled in that regard. He suffered pain and discomfort for about two weeks in total, received medical treatment at a clinic and in hospital, and there is no evidence of any permanent disability,” the court said.
While Hendricks eventually found that the MEC was liable “for 100% of the proven damages”, he ruled that he must pay R30,000 in damages as well as the “costs of suit on a party and party basis on the magistrate court scale to be taxed”.
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