Foreseeability And Fault: Reaffirming The Bounds Of Delictual Liability

Introduction

On the night of 13 October 2014, two Grade 12 learners— B, aged 18, and O, aged 17 — drowned while attending a school revision camp. The camp had been organised to assist learners in their Matric examination preparation, and no provision had been made for swimming. Learners were expressly and repeatedly instructed not to swim, and the pool was out of bounds at all times. Educators supervised the learners throughout the day, conducted checks at 22:00 and 23:30, and departed at approximately 00:20, leaving a camp manager, a security guard, and parents on the premises. After the educators left, a number of learners disobeyed the instructions and went swimming; B and O subsequently drowned.

The parents brought a delictual claim for damages against the Member of the Executive Council for the Western Cape Department of Education and the Minister of Education, alleging negligence on the part of the school’s staff. At the close of the plaintiffs’ case, the defendants applied for absolution from the instance, which Acting Judge Van Zyl granted on 18 March 2026.

Issues for court determination

The central issue before the court was whether, on the evidence adduced by the plaintiffs, there existed a basis upon which a court, applying its mind reasonably, could find that the defendants were negligent in failing to prevent the drownings. This required the court to consider whether the defendants ought reasonably to have foreseen the possibility of the learners drowning, and whether they failed to take reasonable steps to guard against such an occurrence.

A secondary issue was whether the plaintiffs’ particulars of claim were deficient for not explicitly alleging foreseeability of the parents’ emotional harm as secondary victims; the court declined to grant absolution on this technical ground. The defendants also questioned whether any in loco parentis duty was owed to B, who was 18 and thus a major; the court accepted, for purposes of the application, that the duty subsisted regardless of age given the controlled school programme.

The court’s findings and reasons

Foreseeability

The court’s analysis was anchored in the test for negligence set out in Kruger v Coetzee, which requires a reasonable person in the position of the defendant to have foreseen the reasonable possibility of harm. The court placed particular emphasis on the principle that foreseeability must be assessed prospectively — from the standpoint of what a reasonable person would have anticipated before the event — and not with the benefit of hindsight.

The court drew heavily on a decided case which cautioned against “the insidious subconscious influence of ex post facto knowledge”, emphasising that it is “the foresight of the reasonable man which alone can determine responsibility”, not “the hindsight of a fool”.

Applying these principles, the court found that the defendants could not reasonably have foreseen the drownings. The learners were 17 and 18, old enough to act responsibly and abide by clear instructions, and both were known as disciplined young men from whom disobedience was not anticipated. They had been expressly warned not to swim, and the exact circumstances of the drowning remained unknown — O was in fact a good swimmer, in a pool that was not very deep.

Referring to previous cases, the court observed that the degree of supervision required depends on the risks to which learners are exposed. There is no obligation to keep older learners under constant surveillance, and the deliberate decision to defy express instructions and swim in the middle of the night was not something the school could reasonably have been expected to foresee.

Reasonable steps

Even assuming the drowning was foreseeable, the court held that reasonable steps had been taken: educators supervised learners throughout the day, conducted rounds at 22:00 and 23:30, issued clear warnings, and departed only once all was quiet. A camp manager, security guard, and parents remained overnight, the pool was fenced, and the camp manager was told learners were not to walk around at night. The only conceivable additional step — posting a guard at the pool overnight — could not reasonably be expected of the defendants, particularly since even a teacher on site, if asleep, would have been unable to prevent the tragedy.

Conclusion

This judgment reaffirms that the test for negligence in delict is objective and prospective: it demands reasonable foresight, not omniscience. Where harm results from the deliberate and expressly prohibited conduct of persons old enough to appreciate the consequences of their actions, a finding of negligence will not lightly be made.

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