On 30 January 2017, a Grade 12 learner attending Geluksdal Secondary School in Brakpan on Gauteng’s East Rand ran into a mobile classroom during break time to shelter from a heavy thunderstorm. As she entered the doorway, the 17-year-old touched the metal door frame and was electrocuted. She died on the scene.

This was not the first death or injury to occur in a school environment as a result of unsafe infrastructure. 

Due to the apartheid system’s underspending on, and neglect of, schools for black learners, South Africa has a substantial backlog in providing decent school infrastructure. 

Unsafe and unlawful structures and neglected electrical equipment and sanitation facilities remain a persistent problem in schools across the country.

While our current government may have inherited a schooling system with poor and unsafe school infrastructure, it has nevertheless failed to adequately remedy this state of affairs for more than two decades. 

Therefore, a fundamental question that needs to be asked is: What role do education officials have today in keeping learners free from harm while at school? 

To what extent can authorities at various levels of the basic education system be held accountable for the deaths of learners like the girl at Geluksdal Secondary, or others, including Michael Komape, Enoch Mpianzi and Lumka Mkhethwa?

The continued lack of concern for pupil safety and neglect of school infrastructure are systemic problems for which structural redress is urgently required. 

It is also crucial that those responsible for these constitutional violations are held accountable.

These are some of the questions SECTION27 will raise before the Gauteng local division of the high court in Johannesburg, where we have been admitted as an amicus curiae (friend of the court) in the matter of the death of the learner at Geluksdal. 

The learner’s family, represented by Cliffe Dekker Hofmeyr Inc, is claiming damages from the department of basic education, the head of the department, the MEC for basic education, the school governing body (SGB) and the principal at Geluksdal Secondary School.

SECTION27 aims to argue that the common law should be developed in accordance with Section 39(2) of the Constitution, so that an individual is allowed to claim for the grief they have suffered as a separate head of damages, rather than as part of their claim for damages for pain and suffering. 

Alternatively, SECTION27 will argue that, within the context of ongoing and systemic deaths and injuries of learners due to unsafe infrastructure, claims for constitutional damages should be recognised so as to hold education officials accountable for their failure to comply with their constitutional obligations.

In the Supreme Court of Appeal’s judgment on the case concerning the death of five-year-old Michael Komape, the court avoided the development of these questions by including grief as part of the family’s claim for pain and suffering.  

The teenager at Geluksdal Secondary died because the electrical equipment necessary for a safe environment – circuit breakers, cables, earth leakage and distribution boxes – were repeatedly stolen or vandalised. 

This meant that while mobile classrooms, like the one she sought shelter inside back in 2017, were provided with electricity for power and lighting, nothing was earthed and the distribution boxes (which help send electrical current to different points in the classroom) had no circuit breakers. 

Circuit breakers are essential protective devices that cut off the electrical current when a fault is detected; without these, the potential for fires or electrocution is significantly increased.

According to an investigative report undertaken by independent attorneys on behalf of the Gauteng department of education (GDE), the SGB made clear that it had periodically fixed and replaced electrical wiring and circuit breakers at the school. 

The principal reported the theft of the circuit breakers to the GDE as early as March 2016, and repeatedly flagged the issue in monthly reports. 

Despite escalating the problem, the electrical equipment was not replaced. The report found the GDE liable for the learner’s death, stating that:

“[T]hey should reasonably have foreseen that harm may occur, and having a duty of care as diligens paterfamilias, and as envisaged in the Regulations… should have replaced the safety mechanisms, and ensured that the classrooms were safe for learning and teaching. They failed in this regard.”

The report illustrates that officials in various departments of the GDE did not think it was their duty to replace the electrical equipment, and because of the lack of clarity, several officials shrugged off the responsibility. 

Worryingly, as the roles and responsibilities of officials in the basic education system are unclear, no one at the district, circuit or provincial level has answered for what happened at Geluksdal.

Many schools, particularly in Gauteng, are ravaged by theft and vandalism. 

This has not only robbed schools of the equipment and resources necessary to ensure proper teaching and learning, but on occasion has left schools unsafe for learners. 

While the school environment is also the responsibility of the community, and issues such as theft may need to also be addressed at a community level, stakeholders such as the DBE, provincial education departments, school governing bodies and school management teams are not absolved of their responsibility to ensure that learners and school property are kept safe.

Regulatory framework for accountability

Our law speaks to the need for public officials to ensure learners are safe at school. 

The courts have, through their jurisprudence, recognised that public officials, while fulfilling their roles in loco parentis (in the place of a parent), have certain duties to keep learners safe. 

The courts have pronounced on these roles to ensure authorities are held accountable for failing to ensure the school environment is safe.

Section 195 of the Constitution obliges all those engaged in public administration, such as DBE officials, to promote and maintain a “high standard of professional ethics”. 

Very specific obligations are also placed on provincial MECs to institute measures promoting school safety. 

In this regard, regulations 4(3)(c) and 4(1)(b)(ii) of the Regulations Relating to Minimum Norms and Standards for Public School Infrastructure, published by the minister of basic education in 2013, state that the MEC must provide perimeter security within seven years of the publication of the regulations, by 29 November 2020.

In addition to this, the regulations indicate that every school site, including outbuildings and sporting and recreational facilities, must be surrounded by appropriate fencing, and that school buildings must have at least one safety and security measure in place, such as burglar proofing, a security guard or an alarm system. 

Geluksdal Secondary School was not properly secured. 

Had Geluksdal been secured against theft and vandalism, this tragedy is unlikely to have occurred.

Over and above the duties of MECs, officials at public schools, like educators and principals, also have a role to play in protecting learners, and are required to adhere to the obligations imposed upon them by the Bill of Rights. 

As organs of state, public schools must “respect, promote and fulfil” the rights enshrined in the Bill of Rights, which include everyone’s right to an environment that is not harmful to their health and wellbeing, as well as a child’s right to appropriate alternative care when removed from the family environment, as they are at school. 

In addition to these, Section 28(2) of the Constitution stipulates that the best interests of the child must be of paramount importance in every matter concerning the child, which includes all decisions taken by a school in relation to learner safety.

Significantly, the minister of basic education published regulations dedicated solely to safety measures in public schools, and which detail the steps these schools must take to address learner safety. 

Notably, Regulation 8A(2) provides that a public school must take measures to ensure the safety of learners during any school activity.

SGBs have a statutory duty to ensure that schools are well maintained, repairs are attended to and security is provided. 

In particular, Section 20(1)(g) of the South African Schools Act states that the SGB of a public school must “administer and control the school’s property, buildings and grounds occupied by the school, including school hostels, if applicable”.

With regard to funding school maintenance and repairs, the National Norms and Standards for School Funding also state that funds received by school governing bodies from a provincial education department must, among others, be used for items including services relating to repairs and maintenance, as well as security services.

This legislative and regulatory framework establishes that there is an obligation to keep learners safe from the dangers that arise from poor maintenance and the lack of security. 

When a learner’s life is taken at school as a result of a wiring problem that could have been fixed, it signals a carelessness that violates every child’s right to basic education.

We need to hold role players accountable for failing in their responsibilities to prevent senseless accidents and losses in the school environment, and to ensure that school infrastructure challenges are addressed in a sustainable way. DM/MC

Demichelle Petherbridge is an attorney in the education rights programme at SECTION27, and has an LLD in human rights law.

Julia Chaskalson is a communications officer at SECTION27.