THIRTEEN years after an incident in which a then eleven-year-old learner lost the sight of one eye resulting from a stone hitting him, the Cape High Court has now ruled that the educator on duty that day could not be held responsible.

The incident took place at Hoekplaas Primary School near Uniondale, whereafter the father of Marcel Kleinhans, the injured learner, has since sued the Western Cape MEC for Education for a total of R1.4million in damages.

According to evidence before the court, a 9-year-old learner threw a stone during a break at the farm school on 13 April 1993. He apparently threw the stone to indicate where a rugby pole should be placed before learners began playing a game of rugby.

The stone hit Marcel in the eye. He was 11-years-old at the time. He now wears a glass eye.

Hoekplaas, a farm school, had 16 learners and one teacher at the time, Mrs Virginia Burts, who also acted as principal. Ms Justice Rosheni Allie found on Thursday, 4 May 2006, that the plaintiff had failed to prove negligence on the part of the school or the education department.

She found that the plaintiff did not lead any evidence as to what reasonable steps that the educator could have taken to prevent the occurrence of the incident. All concerned conceded that it was a rocky terrain, situated in the Karoo, and accepted that it was impossible to clear the area and remove every stone on the school grounds.

The judge found that it was unreasonable to keep learners in a confined area as was suggested by the plaintiff, to cordon off an area of the school, and limit their freedom of movement during break-time.

She found that it was unreasonable to expect educators to constantly supervise learners during every break-time, and took into account the fact that the farm school only had one member of staff.

The plaintiff conceded that the teacher could not have had all the children within her field of vision at any one time. The judge found that the duty to care for the learners was no more than what a reasonably prudent person would observe in the particular circumstances. Judge Allie granted an order for absolution from the instance and dismissed the case with costs.

Advocate N Visser appeared for Marcel Kleinhans. Advocate J P White appeared for the MEC for Education.

Said MEC Cameron Dugmore: "I welcome the judgement. It gives clarity to issues of liability at school level. I have asked the department to give me a full report of the current circumstances of Marcel Kleinhans."

For enquiries, contact Gert Witbooi:  082 550 3938, or gwitbooi@pgwc.gov.za.