11 October 2022
Graphic: Lisa Nelson
The MEC for Education in the Northern Cape must pay for any proven damages of a learner who suffered serious acid burns after “experimenting” with drain cleaner left in a school bathroom.
The incident occurred in 2015 when the boy was 11 years old.
Lawyers for the MEC argued that the learner should also be held liable. But Kimberley High Court Judge Lawrence Lever absolved him, given his young age.
In his 7 October ruling, Judge Lever said the learner - who is not named - had gone to the bathroom. He discovered there was no water to flush the toilet but saw a container of liquid, which he assumed was water.
He used it in an attempt to flush the toilet and noticed it started “boiling”.
“Having discovered that it was not water, it seems a process of experimentation followed,” Judge Lever said.
“This ultimately resulted in the victim and another learner pouring the drain cleaner into the urinal … the drain cleaner splattered and burned him. He suffered burns to his head, face and body and was taken to hospital where he received treatment for his burns.”
The learner’s father sued the MEC.
The MEC submitted that the child was injured “at his own hand”, and so the MEC was not responsible for the harm caused.
But the judge said the evidence of the child was that, prior to the incident, he had never come across acid, which the MEC had failed to rebut. Because of his age, Judge Lever found he was culpae incapax (cannot be held accountable for his actions).
He said the MEC was the political head of the education department in the province and was responsible for the wrongful and negligent conduct of its employees.
According to the evidence, there was a standing instruction that the drain cleaner had to be locked in an office in the administrative section. The cleaner had not done this.
Instead, he left the acid in the bathroom to go on a break to eat lunch, because, the cleaner testified, he had not yet managed to unblock the drain.
“From the admitted facts, it is clear that the [MEC] had a legal duty to ensure that minor learners did not suffer harm … the standing rule that the drain cleaner was to be locked in an office underlines and confirms this aspect.
“Clearly the authorities at the school foresaw that the drain cleaner could cause harm … on the basis of this fact a reasonable person would foresee the danger and harm of allowing minor learners access to it … and a reasonable person would take steps to prevent such harm,” Judge Lever said.
Judge Lever rejected the cleaner’s version that he had stacked wheelbarrows against the gate of the toilet to prevent access as being “improbable”.
Judge Lever held the MEC to be vicariously responsible for the cleaner’s negligence. He ordered the MEC to pay all damages which can be proved (either through negotiation or at another trial) and to pay costs.