Social Development MEC Sharna Fernandez File photo: African News Agency (ANA)
Social Development MEC Sharna Fernandez File photo: African News Agency (ANA)

MEC Fernandez not liable for child’s injury - Concourt ruling

By Siphokazi Vuso Time of article published Aug 30, 2021

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Cape Town - In a far-reaching ruling, the Constitutional Court has found that neither Social Development MEC Sharna Fernandez nor her department had a legal obligation to ensure the safety of playground equipment where a swing fell on top of a 5-year-old girl, leaving her permanently disabled and with a brain injury.

The matter dates back to August 2008, when the little girl’s parents' dreams of raising a healthy and independent child were shattered, when the beam of a wooden swing structure became dislodged and collapsed on top of her at the Babbel and Krabbel play school in Bredasdorp.

The girl, then 5 years old, suffered a severe traumatic head and brain injury, leaving her severely and permanently disabled.

Following the incident, the girl’s father instituted a delictual claim against Fernandez, and the High Court found her liable for the damages.

The matter then went to the Supreme Court of Appeal where it dismissed the father’s claim, finding that the MEC was not charged with the primary role of operating the school play area.

During the legal proceedings, there was no dispute in court that the school would be liable if there was negligence in the installation and maintenance of the swing, but the school received a grant from the Western Cape Department of Social Development and was required to be registered by the department, as a place of care, in terms of the provisions of the Child Care Act.

The Constitutional Court recently considered whether the MEC had a legal duty to take reasonable steps to prevent harm to children in ECD centres, places of care and similar institutions.

“The gist of the applicant’s case was that the Minister’s alleged duty existed in terms of the (Child Care) Act and the regulations promulgated under the Act.

“Two provisions were central to the applicant’s case. The first was section 30(3)(b)[24] of the Act which provides that the Director-General must be satisfied that a proposed place of care complied with all prescribed requirements for registration and that it would be so managed and conducted that it would be suitable for the reception, custody and care of children.

“The second, which was the main ground invoked by the applicant in his submission that the Minister (MEC) was under a legal duty to prevent the harm to JE, is regulation 30(4).

“A consideration of all the factors points away from the imposition of liability on the Minister (MEC).

“Therefore, as the Supreme Court of Appeal correctly concluded, whilst the regulatory responsibilities of the Minister (MEC) must be accepted, this does not entail operational control of school premises and does not amount to a legal duty to ensure the day-to-day safety of children at ECD centres.

“Consequently, the regulatory responsibilities of the Minister (MEC) did not translate into a legal duty to prevent the harm suffered by (the child),” the apex court noted.

Centre for Early Childhood Development (ECD) director, Professor Eric Atmore, said the matter has highlighted how the government, however, through the education and social development departments, must provide sufficient resources to enable ECD centres to maintain facilities and equipment for the benefit of the children.

Atmore said, children will only be protected when national and provincial departments provide resources.

“This is a tragic case that happens far too frequently in South Africa, where children drown in pit latrines or are severely injured, as in this case, because ECD centres are not able to maintain their ECD centres, because of poverty and inequality.

“ECD centre governing bodies are responsible for the installation and maintenance of education equipment at an ECD centre, and for the safety of children using the equipment.

“It is only when national and provincial departments put young children first and provide the resources, that young children will be protected,” he said.

He said, ECD centres around South Africa, must be vigilant in ensuring that their building and equipment, indoors and outdoors, was in good working condition.

“Each day, the ECD centre principal and teachers must do an inspection to ensure that the building and equipment is safe for young children to use. They have to do this in terms of their responsibility for the safety of children in their care,” he said.

While Babbel and Krabbel Kleuterskool could not be reached for comment, Fernandez’s office would only say: “The Department of Social Development notes the Constitutional Court judgment, and will not be commenting any further.”

Cape Times

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