Taking the Blame
Who should take the blame for, and compensate the victims of, the recent Hoërskool Driehoek tragedy?
More than 70 schools in South Africa have been flagged for structural defects
By Wihan Meintjes
Associate | Adams & Adams Attorneys
Member of the South African Construction Forum
Advanced Certificate in Construction Contracts (UP)
[email protected]
W
hen a massive concrete walkway slab collapsed
at Die Hoërskool Driehoek in Vanderbijlpark,
four learners lost their lives and more than 20
others were injured. Alarmingly, teacher’s union,
the SAOU, released the results of a national survey where it
identified more than 70 public schools with structural defects and
where similar collapses may occur in the future. So does our law
regulate the standards of such structural designs and provide for
the compensation of victims of these tragedies?
In commercial building projects, one would consider the
relevant commercial building agreements (widely known and
referred to as JBCC, FIDIC, NEC or GCC agreements) and
professional consultants’ agreements (which regulates the
performance of professional service providers like engineers) to
determine the respective parties’ rights and obligations and to
determine where liability lies when things go wrong.
In the case of public school infrastructure however, there is an
additional dimension to contemplate. The Regulations Relating to
Minimum Uniform Norms and Standards for Public School Infra-
structure prescribe certain minimum uniform norms and standards
that public-school infrastructure need to comply with.
Additionally, in the planning and design of all new schools,
as well as in respect of additions, alterations and improvements
to existing schools, the relevant design must comply with all
applicable laws, which include the National Building Regulations
and the Occupational Safety Act.
One particular structural design requirement is that “all
buildings shall be so designed that, in the event of accidental
overloading, the structural system will not suffer disastrous or
progressive collapse.”
All structural system designs must also be checked by a
professional engineer or other approved competent person,
and that person must certify that the design complies with
the legislative requirements for structural designs. Certifying
designs which do not comply with the relevant legislative frame-
work may lead to professional liability for the certifier.
The National Building Regulations also require the owner
of any building to maintain the building in a safe and functional
condition and to maintain the structural integrity and general
safety of the building. But who must fund the implementation
of those norms and standards?
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Although the Regulations for Safety Measures at Public
Schools require all public schools to “take measures to ensure the
safety of learners during any school activity, including … insuring
against accidents, injuries, medical expenses and hospitalisation,”
these Regulations also state that such obligations on public
schools are “dependant on the availability of funds”.
The South African Schools Act also reiterates that the State
is responsible to fund all public schools. The governing bodies of
public schools must, however, still take all reasonable measures
within their means to “supplement” the resources supplied to
the schools by the State.
The State, particularly the Department of Basic Education
(DBE), provides infrastructure to public schools through two
main programmes, being the Provincial Schools Build Programme
(PSBP) and the Accelerated School Infrastructure Delivery
Initiative (ASIDI).
Although progress has been made in delivering improved
school infrastructure across South Africa, the education sector
remains plagued by various infrastructure challenges which
require urgent intervention. Due to budgetary constraints,
however, public schools may be left without immediate
assistance from the State to maintain, alter and add to
current infrastructure.
When tragedies like the recent one at Die Hoërskool Driehoek
occur, the State is lawfully obliged to step in. In this regard,
section 60(1) of the South African Schools Act provides that
the State is liable for any delictual or contractual damage or loss
caused in connection with any school activity conducted by a
public school. Section 60(1)(b) limits the State’s liability in this
regard to the extent that the damage or loss was not covered by
the in terms of the school’s insurance policies.
The State is therefore obliged to step in financially when
damages and/or losses are suffered within public schools – but
the lives of learners and teachers are still at risk given the overall
defective state of our school infrastructure.
Schools should proactively assess the current state of
infrastructure and alert the DBE of required maintenance work
where necessary. Where serious defects in school infrastructure
are detected, legal and professional advice should be sought to
ensure potential damages and losses are mitigated and, hopefully,
prevented in future.
Taking the Blame