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Parktown drowning: Most indemnities not worth the paper they are written on


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

In the aftermath of the drowning of schoolboy Enoch Mpianzi, there is renewed focus on consent and indemnity forms. But do they mean anything and do they have legal validity?

“Gauteng Education Department changes school outing policy,” one of the news headlines read in response to the public outcry following the death of 13-year-old Enoch Mpianzi from Parktown Boys’ High School. He tragically drowned in the Crocodile River near Brits while attending a Grade 8 orientation camp at the Nyati Bush campsite in North West. But what is the change and how is this going to affect the promotion of safety and security of learners while on school educational activities?  

Let me declare up front that I wrote this without the benefit of sight of the actual revamped GDE Policy or the actual relevant provision. Be that as it may, it is reported that it is now required that schools in Gauteng seek authority to apply for permission to the department if learners are to participate in physical activities. According to the statement attributed to the Gauteng Department of Education (GDE), the following is now the position:

“School outings that have boat activities must be authorised at head office where we check there are proper safety measures in place. But remember the consent forms are a product of the parents themselves, not the department. It is parents at the schools that formulate the consent forms so if parents are not happy with consent forms, they must convene SGB (School Governing Body) meetings and amend or change them. It is the power of the department, it is the power of the SGB to formulate and change those consent forms.” 

Although a reactive response to a tragedy, the GDE must be commended for doing something. However, the latest intervention comes with gaps and inbuilt inefficiencies. There is little worth celebrating in the provisions of the said changed GDE Policy. The following are notable: 

First, the 2001 South Africa’s Regulations for Safety Measures at Public Schools, as amended, addressed the issue of safety and security during school activities. Section 8A, for instance, requires public schools to seek approval from “an official representing the provincial education department before a school activity involving the transportation of learners is undertaken”. School activities here refers to “any educational, cultural, sporting or social activity of the school within or outside the premises”.  The application must be made to the Head of Department. Once permission is granted, the school gets a copy and the department keeps the original.  

Of importance to note is that certain key documents must be submitted with the application for approval, namely: a full itinerary; if the school activity is taking place on an invitation, a letter confirming such invitation; and any other documentation that will support the application. Part of the information to be fully disclosed to parents before school outings include the purpose of the school activity and the nature of the activities the learners will have to undertake.   

In my view, the latest policy intervention by the GDE comes 18 years too late when leaners’ lives or limbs have been lost. The supporting documentation referred to above could have come in handy as relevant evidentiary information in the Mpianzi case, for example. But most importantly, it could have immediately alerted the department to the potential risks involved. 

Other provinces, such as the Western Cape, addressed the issue of indemnity forms in the context of school safety and security as early as 2010.  Circular 0018/2010 of the Western Cape Education Department (WCED) discouraged the use of indemnity forms for school outings. The WCED stated that the “use of these forms cannot legally waive the right of a child to claim for damages in the event of an accident or incident where such child sustains damages to his or her person during a school outing”.  Still, a school must get the consent of the parent or guardian of the learner “before the learner leaves the school grounds to go on a school outing”. This is obtained through the Parental Consent Form.

Second, this change is limited to water activities during outings. This is problematic: The issue or rather the principle is not about the dangers of water activities. It is about safety and security at schools and during school activities – irrespective of their nature. Moreover, it fails to address the big elephant in the room in the form of the lack of proper care exhibited by schools and teachers towards learners. 

Third, the department seems to see nothing wrong with schools using indemnity forms to evade liability for failing to exercise the duty of care required of them by law. This I decipher from the flippant language used above. According to the department, the public must “remember the consent forms are a product of the parents themselves, not the department. It is parents at the schools that formulate the consent forms so if parents are not happy with consent forms; they must convene SGB (School Governing Body) meetings and amend or change them”. 

Clearly, there is no intention on the part of the department to regulate the use of indemnity forms, even if such regulation is a soft regulation in the form of suggesting the basic content of the indemnity forms. This is rather disconcerting because if provincial education authorities were to read closely Section 60 of the South African Schools Act they would realise that indemnity forms could not be left solely to the exclusive control of schools and SGBs.  Strange though, because the 2001 Regulations indicated above provide that “a public school may not request a parent to sign an indemnity form that indemnifies the school against any legal action that may arise as a result of the school activity” [Sec 8C (2)]. The provision against indemnity forms is couched in permissive terms, making it important that our education authorities have a sustained oversight over the utility of indemnity forms at our public schools. 

Fourth, being dismissive of the need for the department to consider issues of school indemnity forms is very short-sighted to the reality that some of these indemnity forms are couched in very cold-hearted terms, and they aggravate (and promote) incidents of lack of proper safety and security in our schools. To contextualise this argument, a quick online search will reveal some of the undesirable indemnity forms.  

Some pre-schools in Johannesburg formulate indemnity forms in the most outrageous terms, particularly given the fact that they care for minor children. The relevant part of one such form reads verbatim as follows: 

“a) I accept that all reasonable precautions will be taken to ensure the safety of my child and that I shall be held responsible for the payment of medical and/or hospital accounts, where applicable, should an injury be sustained at the playschool or while moving between the 2 properties next door to each other. I, therefore, undertake on behalf of myself, my Executors, my wife/husband and my child aforesaid to indemnify and absolve the Principal, helpers, workers, students and/or staff of (the school) against and from any/or all claims whatsoever that may arise in connection with any loss or damage to the property or injury to the person of my child aforesaid in the course of any such activities.  

“b) …(the parent/guardian), of the learner …Fully understands and accepts that any accidents of any sort that may occur at (the school), on the playground, on a school outing, a school excursion shall be undertaken at my son/daughter’s own risk, and I undertake on myself, my executors, my wife/husband and my child/children aforementioned, to indemnify, hold harmless and absolve (the school), the school staff, and any board members against and from any or all claims, whatsoever, that may arise in connection with any loss or damage to the property of, or injury to the person of my child(ren) aforementioned in the course of any such activity, tour, excursion. I hereby give my consent for my child(ren) to take part in the extra-mural activities of the School, including games, athletics, field trips, educational tours, School and Christian camps and country tour of historical interest; even if not having been notified or having to sign any separate indemnity forms for specific trips/events. I am aware that animals may be in areas or destinations the children are taken to which the child may come into contact with, and indemnify (the school) of any injury or loss caused by any of the animals involved. I am fully aware that food may be distributed by the school, and that other children or personnel at school bring their own food to school that your child may ingest or be in contact with. As such, you indemnify (the school) and its personnel of neglect if your child becomes sick or has an allergic reaction. I also consent that (the school) and its personnel may take photos of the child(ren) for use in online or printed articles, advertisements, and fundraising.” 

The above clause is concerning and can simply be summarised as follows: As a parent please note that in our care your child can be harmed by animals roaming around, your child is exposed to risk of myriad injuries, your child can die of food poisoning, and there is nothing you can do about it because you agree not to hold us delictual and/or criminally liable. 

The indemnity form continues: 

“c)  The Parent hereby indemnifies and agrees to hold harmless, the (school’s) Governing Body, the School, its Principal and Staff as well as their authorised agents and/or representatives, against any and all claims, costs or expenses, howsoever arising, including legal costs, arising out of injury, loss or damage suffered as a result of any activities during the enrolment of the Pupil at the School”.  

The phrase “however arising” is very broad and would include claims for injuries or death arising out of the negligence of the SGB, school and its staff. Such an indemnity clause is against public policy. 

Not all South African schools are hypocritical when dealing with indemnity issues. For example, some schools use an indemnity form which clearly states that “there is never indemnity from malicious dereliction of duty or neglect”.  It must be conceded though, that such a clause is not helpful in the context of this discussion. Gross negligence is not necessarily malicious. 

Publicly available is the GDE exemplar of School Safety Policy of 25 May 2012, which in effect is the pro forma template for schools in Gauteng. To the GDE’s credit, this exemplar policy is a watered-down attempt to be aligned to the 2001 Regulation. The 2012 version of the policy is silent on indemnities. Indications are that the last review of this 2012 policy was in April 2014. The reality is that the public remains exposed to some of the most grotesque indemnity forms imaginable, the information of which will need a bigger platform or publication space to expose. 

The GDE could have done better, and I am confident that the MEC, who is so passionate about public school education, will seriously consider the improvement of the new policy. In particular, the MEC will see the need to have some say in the formulation of schools’ indemnity forms and parental consent forms. DM


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