Constitutional Court confirms Department had no duty of care for faulty swing

14 June 2022 ,  Neo Madlala 103
“In a saga that has traversed the Western Cape High Court, Supreme Court of Appeal and eventually the Constitutional Court, the Constitutional Court has now finally confirmed the position of Government in respect of its responsibility for the safety of Early Childhood Development (ECD) centres.”

A child at an ECD centre suffered serious injury and disablement when a swing at the school she was swinging on collapsed due to poor design and construction. The parents took the Provincial Minister of the Western Cape Department of Social Development to court claiming that they had a duty of care to ensure the safety of children at such centres, including the safety of playground equipment on the premises. The Department however objected contending that the obligation of the Department was not to ensure the physical safety of the children on a day-to-day basis, but instead to oversee the operation of the ECD centres and other facilities throughout the province, in a manner that ensured that they were safe and suitable for the reception and care of children.

In grappling with the matter, the Constitutional Court reaffirmed that the decision was one of considerable public importance to the extent that it would determine whether the Minister has a legal
duty to prevent harm to children in ECD centres and other places of care, further heightened by the fact that children require special protection owing to their vulnerability. The Constitutional Court however affirmed that in this case the Minister was not liable, and that while the regulatory responsibilities of the Minister had to be accepted, it did not entail operational control of school premises or amount to a legal duty to ensure the day-to-day safety of children at ECD centres.

With this judgment the Constitutional Court settled the question of whether government’s duty of care extended to things like inspection of the safety of premises, equipment etc.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).
Related Expertise: Child Rights, Dispute Resolution
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