MEC not liable for child injured at ECD centre, top court rules

The Western Cape social development MEC does not have a legal duty to ensure the day-to-day safety of children in places of care, the Constitutional Court held on Friday.

The court dismissed an appeal by a father who was suing for damages suffered by his daughter, who was seriously injured while playing at an early childhood development centre (ECD) in Bredasdorp, in the Western Cape, in 2008.

The child, now 18, was on the swing at an ECD centre in Bredasdorp when the top beam of the wooden structure dislodged and collapsed on her.

The child — who suffered brain damage — spent close to two years in Cape Town’s Red Cross War Memorial Children’s Hospital and, later, the Groote Schuur Hospital.

Her father sued the Western Cape MEC for social development for damages.

The Western Cape High Court found in January 2019 that the MEC was liable for damages.

However, that judgment was overturned by the Supreme Court of Appeal (SCA) last year.

Her father then approached the Constitutional Court to apply for leave to appeal. The matter was heard in February.

The father had argued that the MEC at all material times had a legal duty to ensure that the school and its premises, as a place of care in terms of the provisions of the Child Care Act, provided a safe environment for children.

He also argued that the MEC had a legal duty to ensure that reasonable steps were taken to ensure the safety of children on school premises.

The MEC opposed the father's application. The MEC’s counsel, Ismail Jamie SC, said the SCA found that nothing in the laws regulating early child care centres contained an express provision which required the MEC to conduct safety inspections at facilities.

In a unanimous judgment written by justice Zukisa Tshiqi, the court said neither the MEC nor the department had a legal obligation to ensure the safety of playground equipment at ECD centres or to ensure the safety of children on a daily basis at ECD centres beyond conducting a biennial quality assurance assessment.

“Since there was no duty on the [MEC] to inspect playground equipment, nor to ensure the safety of the children on a daily basis, the question whether a breach of such a public duty translates into a private law duty does not arise in this matter,” Tshiqi said.

Despite the appeal by the father being dismissed, the court did not order him to pay the costs.

Tshiqi said the father raised a constitutional issue.

She said despite being unsuccessful in the SCA and in the ConCourt, the father was successful in the high court, and thus his application cannot be regarded as being totally hopeless from inception.

“The application was genuine and not frivolous. Had he been successful, the decision of this court would have significantly impacted not only children in the Western Cape but all children in child care facilities across the nine provinces,” Tshiqi said.

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