Child injured at crèche: MEC absolved of liability

THE Constitutional Court has upheld a verdict by the Supreme Court of Appeal (SCA) which absolved Social Development MEC Sharna Fernandez of liability for injuries a child sustained at a nursery school.

The case dates back to 2008 when a swing at the Babbel en Krabbel Kleuterskool in Bredasdorp collapsed on top of the then5-year-old child, identified in court proceedings only as JE, causing severe traumatic brain injury, the consequences of which will impact her for the rest of her life.

JE was born in December 2002 and is currently living with disability. JE’s parent BE had sued to get the MEC to pay damages.

Before the case was lodged at the Constitutional Court, it had gone through the Western Cape High Court which upheld BE’s claim against the MEC.

The MEC applied for leave to appeal against the ruling in the high court but the application was dismissed. The MEC then petitioned the SCA, which granted leave to appeal.

The question before the SCA was whether the MEC owed any legal duty to children in places of care to take reasonable steps to ensure safety of equipment, and whether the MEC was liable for damages suffered by JE.

The SCA verdict absolved the MEC from liability for the injuries the child sustained. It said the MEC was not charged with the primary role of operating the place of care, children’s homes, and places of safety and shelters but to regulate these places.

Unsatisfied with that ruling, BE then appealed to the Constitutional Court on the basis that the SCA was wrong in not holding the MEC liable for damages.

BE argued that the right of children to be received and cared for in places of care in a safe manner was so important that it required everyone who intervened in the lives of children in this context to be held accountable for the delivery of an appropriate, effective and efficient service

The MEC argued that she and the department were only responsible for attendance to registration and overseeing the operations of childcare facilities to the exclusion of their day-to-day operations.

In a unanimous judgment penned by Justice Zukisa Tshiqi, the Constitutional Court agreed with the SCA’s findings and reasoning. The Constitutional Court held that the legislative framework sought to be relied on by the applicant did not place a legal obligation on the MEC and the department to ensure the safety of the playground equipment in order to ensure the safety of children at ECD centres on a daily basis.

It noted that the alleged duty, if imposed, would create an unrealistic obligation on the MEC to ensure safety of children in thousands of places of care, children’s homes and places of safety nationwide.

In the circumstances, it held that the considerations of public policy do not favour holding the MEC liable for damages arising from JE’s accident.

The MEC had asked the Constitutional Court to dismiss the application but with no costs against the applicant.