THE HIGH COURT OF SWAZILAND
the matter of
PATRICK KUNENE Plaintiff
DLAMINI 1st Defendant
DLAMINI 2nd Defendant
MKHWELI 3rd Defendant
PLAINTIFF : Mr.
DEFENDANTS : Mr.
plaintiff, Mr. Kunene, is a shopkeeper in the Lwandle area near
an evening in November of 1990. his shop was broken into. A large
number of items were stolen and the door to the premises was damaged.
three defendants live in the area in rural homesteads in the
traditional way. Their homesteads are considerable distances apart
from each other's. The defendants are mature men. Each has a large
family, still living at home, of several children.
first defendant has a son who was about 17 at the time of the
incident. The second defendant has a son who was
a good deal younger, and the third defendant one who was even younger
than that. The second and third defendants were unsure as to the ages
of their boys, but from all of the evidence it appears that they were
about 14 and 12 respectively at the time, though possibly a little
plaintiff testified that in a meeting with the Indvuna, at which the
boys and their fathers were present, the children admitted that they
were the culprits. He also said that the fathers asked him not to
cause the boys to be prosecuted but instead to accept compensation
from them, and that he agreed to this course. In the event they did
not pay him, and he brought this present action to recover damages
for the losses and damage suffered by him.
Indvuna, Mr. Mkhabela, gave evidence for the plaintiff. He testified
that there had been a meeting between the parties, in the presence of
the children, and that the boys had admitted their role in the
break-in. He also said that the fathers had asked the plaintiff not
to bring a prosecution but instead to take compensation, and that the
plaintiff had accepted that proposal.
case, for which counsel had originally given an estimate of one day
for trial, in the event took longer. It had to be adjourned for a
further fixture. The defendants gave evidence in their own behalf
this month, several months after the plaintiff's testimony and some
time after the Indvuna gave evidence.
first defendant said that he and his wife slept in one hut in their
homestead and their children in several other huts there. It was his
habit, after the family had had their evening meal, to check to see
that all the children were in their huts before he retired. He had
done so on the
in question. They were all there. In the morning he had called the
son who was involved in the incident to help him. He was saying that
in the morning he found the boy at home and that it was not until
later that he learned that he was accused of breaking into the shop.
other defendants gave similar accounts. They said that they slept
with their wives in their own huts and that the children slept in
other huts within their homesteads. They also said, in effect, that
they made sure that the children were in their huts before they
themselves retired to bed. The evidence of these two defendants was
that their sons shared huts with other children of their respective
defendants recollection of the events that followed the break-in
differed from that of the plaintiff and the Indvuna.
first defendant testified that after he was informed of the incident,
he was called to a meeting at the Chief's kraal. He said that the
plaintiff , the Indvuna and the other defendants were present, as
well as the children who admitted their actions. He said that they
were then told by the Indvuna that the matter would have to be
postponed until after the Incwala ceremony. Later he was informed
that the defendants had in their absence been fined Z672 each. Still
later, at another meeting at the chief's kraal he was shown a
document - a summons - demanding E4000. He and the other defendants
were then told to consult a lawyer, which they did.
denied that the defendants had ever agreed to compensate the
plaintiff. His version of events was that the defendants told the
plaintiff that he should prosecute the children but that the latter
refused to do so.
second defendant also said that the matter had been postponed until
after the Incwala ceremony.
a subsequent meeting he alone had been present when the defendants
were ordered to make payments, and he himself was not permitted to
remain when that decision was made. The plaintiff had been present
but the Indvuna was not there and he, the second defendant, was
informed by the secretary to the Inner Council that compensation had
to be paid. He also said that he heard - apparently later - that they
had to pay between E600 and E700 each. He said that he refused to do
this and told the plaintiff that he should prosecute his son.
third defendant agreed with the others that the Indvuna had told them
that the matter would be postponed until the conclusion of the
Incwala ceremony. He said that the only other meeting he had been
called to was the one at which the summonses in this present action
were served. He denied that he had ever offered to pay compensation.
three of the defendants testified that their sons had never been in
trouble before. They said that they had not in fact paid compensation
to the plaintiff.
plaintiff's particulars of claim do not allege a cause of action
based on a settlement or compromise. They do not allege either, in
terms, that each of the defendants was negligent in controlling his
son. What they do aver in paragraph 7 (having earlier recited the
narrative of alleged events) is that the defendants "as parents
were duty bound to control their minor children", and in
paragraph 8 that they "failed to control their minor children".
The defendants asked for and obtained further particulars of these
two allegations. In response, the plaintiff said (in respect of
paragraph 7) that the defendants "as parents have to exercise
parental control over their minor children" and
respect of paragraph 8) that they failed to control them "in
that their minor children broke into the shop ....". In their
plea, the defendants denied the allegations in paragraph 7 and put
the plaintiff to "strict proof". They further averred that
the plaintiff had not set out sufficient grounds for the liability of
the defendants. They repeated the substance of these averments in
respect of paragraph 8 of the particulars of claim.
levant basis, in the present circumstances, on which a person will be
liable for the wrongful act of his minor child is if he is negligent
in allowing or affording the child the opportunity of doing mischief:
see Mckerron, The Law of Delict 7th Edition at page 82 and the cases
there cited at note 42.
also Boberg, The Law of Persons and the Family, at page 677 onwards.
A custodial parent must take reasonable steps to prevent his child
from causing foreseeable damage, a failure to do so being the basis
of the parent's liability.
issue has been raised in these proceedings as to the jurisdiction of
this court. At the close of the plaintiff's case the defendants did
apply for absolution from the instance on the basis that the evidence
did not disclose a prima facie case against them. Their counsel did
not, however, seek to argue orally, then or subsequently, that the
plaintiff's pleadings did not disclose a cause of action in law. The
case was approached, on both sides, on the basis that in order to
succeed the plaintiff had to show that the defendants were negligent
in failing to control their children. I propose myself to deal with
the matter on the basis that negligence is impliedly alleged in the
pleadings: see De Seer v Sergeant 1976 (1) SA 246 T.
issue, as in the English case of Donaldson v McNiven  2 All
E.R, 691 (CA), cited in McKerron at note 42 on
82, is one of supervision. The question here is whether a reasonably
prudent parent would have foreseen that his child was likely, if
unsupervised, to leave the homestead during the night and break into
the store, and would taken reasonable steps to have guarded against
prefer the evidence of the plaintiff and of the Indvuna to that of
the defendants as to what occurred after the incident was discovered.
The Indvuna is, apparently, an independent witness. The evidence
shows that the children, for' their part, admitted that they had
broken into the shop. In their cross-examination of the plaintiff and
his witness, the defendants did not put their version fully. I
believe that the truth of the matter is that the fathers did ask the
plaintiff not to prosecute their children and did offer to pay him
the plaintiff has not brought this action by way of enforcing an
alleged compromise or settlement.
question here is whether the fathers were negligent in supervising
their sons during the night.
evidence before me is that the parents did check on their children
before they went to sleep, to make sure they were in their huts. It
is, as I understand it, a feature of rural life in Swaziland that
families live on homesteads on which parents sleep in one hut and
children in others. On one view it seemed to me at first that it
might be thought that that circumstance imposes on such parents a
higher onus to be aware of the possibility that their children may
get out during the night and do mischief. An urban dweller taking his
family into the country, so it seemed to me, might be more concerned
to watch his children more closely while they were by themselves at
night in such circumstances. But on consideration, I do not see a
greater need for vigilance on the part of rural dwellers. None has
suggested here by the plaintiff. The homestead, with its separate
huts within it for parents and children, is part of the way of life.
It is, really, just as easy for a wayward child who is so inclined to
slip out of a suburban house during the night to get into trouble. In
principle, I do not see any difference between the two settings.
the present case, on the evidence, the fathers did check that their
children were in their huts before they themselves retired. It has
not been shown that any of the boys, previously, had cause trouble;
on the contrary the defendants say that they had never done so.
plaintiff's own pleadings suggest something of a difficulty in his
case. He avers simply that the defendants did not exercise parental
control. Their vicarious liability for their sons' actions is
nevertheless not strict. They can only be liable on a basis of
negligence in the present context. In his pleadings the plaintiff has
not specified the ways in which they were allegedly negligent and in
his oral submissions, Mr. Dlamini did not (except in one respect) go
beyond bare assertions that there must have been laxity in parental
control and that they were not under proper control.
did submit that there must have been, by inference, a measure of
planning involved in the episode, the boys having come together from
some distances in order to carry out the break-in.
even assuming, for the argument, that that was the case, it does not
in my view give rise - on a balance of probabilities - to a further
inference that the fathers therefore had reason to be alert to the
fact that something was afoot.
do not consider either that it can be inferred, as a matter of fact,
from the offer of compensation made by the fathers that they were
thereby acknowledging that they themselves had been negligent in
supervising their children. The point of the offer, I think, was to
try to avoid the prosecution of their sons.
circumstances, unlike those in Lewis v Carmathenshire County Council
1953 2 All E.R. 1403 (CA) where a very young child of four, left
unattended in a nursery room for a few minutes, wandered on to a road
and caused a fatal accident do not give rise to a prima facie
inference of liability. The children here were much older. Boys of
this age can and do commit misdemeanours, notwithstanding the absence
of negligence on the part of her parents.
the end, although I have a good deal of sympathy for the plaintiff I
do not consider that he has succeeded in proving that the defendants
were negligent. As Lord Goddard said in Donaldson v McNiven a parent
cannot be watching his son all day and every day - a fortiori all
night and every night. The fathers' uncontradicted evidence here is
that their sons had never previously been in trouble of the kind in
point, and that they did check in the evening to make sure that the
children were in their huts. In those circumstances, they are not
shown to have been negligent in the supervision of their children.
Accordingly I give judgment, with costs in their favour, for the