Enock Mpianzi death: Defence through indemnity forms will not work, say lawyers

2020-01-26 18:01

The EFF and the SA Human Rights Commission (HRC) have joined forces to take legal action against Parktown Boys’ High School, the education department and the Nyati Bush and Riverbreak lodge for the death of 13-year-old Enock Mpianzi.

The pair told City Press that the three parties violated their statutory obligation to ensure the safety of Mpianzi, who drowned in the Crocodile River at the Nyati Bush and Riverbreak lodge last week.

As a result, the EFF and HRC will help the family in a civil lawsuit.

Tembeka Ngcukaitobi, the lawyer representing the EFF, told City Press that the potential defence by the school and the department – that the family had signed indemnity forms and hence liability did not lie with them – would not hold water.

“I doubt if the defence through indemnity forms will work, especially if it’s an indemnity against your negligence,"he said. 

"If I tell you that I am not liable, it doesn’t mean, therefore, that it doesn’t matter if I push you into a ditch. You cannot indemnify yourself against your negligence,” said Ngcukaitobi.

Gushwell Brooks, the HRC spokesperson, concurred, saying there had been a clear violation of rights particularly the right to life of the deceased.

It was the reason the commission had offered legal help to the family to seek damages for rights violations.

He said the school, education department and the lodge also breached section 28 of the Constitution  on children’s rights as they had failed to ensure the child’s safety. 

Read: Malema offers legal assistance to grieving Mpianzi family

Information that could strengthen the case came to light during a meeting between the parents of Parktown Boys’ High School pupils and the Gauteng education MEC, Panyaza Lesufi, on Friday night.

The department learnt that Mpianzi’s peers – who were with him in the raft that overturned during a water activity – had immediately alerted the camp and school staff that Mpianzi had struggled in the river.

However, no attention was paid to the three pupils, who had been labelled “troublesome” after they asked if the food they had been given was halaal.

The EFF and the SA Human Rights Commission (HRC) have joined forces to take legal action against Parktown Boys’ High School, the education department and the Nyati Bush and Riverbreak lodge for the death of 13-year-old Enock Mpianzi.

Ngcukaitobi said that “a claim will be brought against the school’s own liability on its negligence to see if it had taken any steps imposed on it by the SA Schools Act”.

He believed that the family had “a very strong case”. 

“I can’t take it any higher than that ... This is a child and it’s not as if you are dealing with an adult who is capable of taking preventive measures.

“There is an obligation under the Constitution that there is a duty, generally speaking, on society to look after children,” he said.

Ngcukaitobi said there was a specific duty in section 29 of the Constitution – concerning schools – that the interests of children should be protected at all times.

He said children were inherently vulnerable in the absence of parental supervision.

"If children were being looked after by other parties, those individuals were responsible and needed to take even more care to ensure the children were safe,"he said.

Brooks said “criminal charges” fell outside the commission’s mandate and added that "it would be a matter dealt with by the police and the National Prosecutions Authority".

North West SA Police Service spokesperson Adele Myburgh confirmed that an investigation was still ongoing.

“On Tuesday the postmortem was done,” she said, adding that the investigating officer had indicated that he had almost completed the investigation. 

Advocate Tembeka Ngcukaitobi. Picture: Felix Dlangamandla

“The moment we receive the final documents from the department of health, and obtain the last statements, we will present the docket [to the NPA] for a decision,” Myburgh said.

 She confirmed that three other pupils from different schools had died at the same camp in the years 2002, 2009 and 2010 and that police had investigated all of these cases. 

“They were all inquest cases. All of them went to court. In all these cases it was found that the children died by drowning and nobody was held liable and the deaths did not occur through negligence,” she said. 

In a media briefing held on Friday morning, Lesufi revealed that the camp trip that led to Mpianzi’s tragic death was unauthorised.

“The school made an application to the district to approve the trip. However, by the time the school embarked on the trip, the district and head office had not approved it, thus making the trip an unauthorised activity,” he said.

“The laws are clear. To embark on a trip, you need to apply three months in advance,” Lesufi said, adding that although the school had applied for the trip to take place, it should not have gone ahead.

“The school certainly made an application on November 19 last year, which fell outside the required time limit for an application,” he said.

“Regardless of that, we believe the district officials who handle this kind of communiqué should either have notified the school or they should have notified the head office,” Lesufi said.

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March 29 2020