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[2017] ZAWCHC 70
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C.B and Another v Moore and Another (20388/2011) [2017] ZAWCHC 70; [2017] 3 All SA 799 (WCC) (30 June 2017)

SAFLII
Note:
Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
20388 /2011
In
the matter between:
C.
B.                                                                                                                          First

Plaintiff
R.
B.                                                                                                                     Second

Plaintiff
v
DAWN
KATHRYN DOUGLAS
MOORE                                                                First

Defendant
PROVINCIAL
GOVERNMENT OF THE
WESTERN
CAPE: DEPARTMENT OF
SOCIAL
DEVELOPMENT                                                                               Second

Defendant
Coram:
Dlodlo J
Date
of Hearing:
27 March 2017
Date
of Judgment:
30 June 2017
JUDGMENT
DLODLO,
J
[1]
On 14 October 2010, a dark cloud enveloped the B. family when their
precious child named A. rolled from the bed at Aunty Dawns
Daycare
Centre and met her death. The plaintiffs are the biological parents
of the late A. B with identity number […], born
on 2 May 2010.
A. and her older sister Chloe were both enrolled at the first
defendants Day-Care Centre in Pinelands (known as
Aunty Dawns
Day-care and Playgroup). This Day-Care Centre (‘ECD’) was
situated as 5 Verbena Way, Pinelands, Cape Town.
On the date
mentioned above the first defendant took A. to her own bedroom and
placed her on her bed. She left the room and closed
the door behind
her. When she returned later that morning (at approximately 10h30)
she found A. on the floor next to the bed on
which she had been put.
A. was not breathing and she was already dead.
[2]
The plaintiffs aver that whilst A. was left unattended on the bed she
probably rolled off the bed and fell onto the floor and
became wedged
between the bed and a bedside table. She was then unable to breath
due to the position of her body and asphyxiated
and died. This form
of death is described as positional asphyxia or postural asphyxia.
Experts explain that positional asphyxia
occurs in an infant when the
infant’s position prevents her from breathing adequately either
because her nose or mouth is
blocked and/or her chest is unable to
fully expand and/or her airway is kinked. The infant is unable to get
sufficient air and
asphyxiates and dies. Accordingly, positional
asphyxia can occur when an infant is put to sleep or falls asleep in
an unsafe sleeping
environment or in an unsafe position. An unsafe
environment would be an adult’s bed. It is common cause that A.
was 5½
months old at the time of her death.
THE
CAUSE OF ACTION AGAINST
FIRST
AND SECOND DEFENDANTS.
[3]
The plaintiffs aver that the first defendant was under a legal duty
to ensure that safety and security of A.’s person
whilst she
was in her (first defendant’s) custody and care. The plaintiffs
further aver that the death of A. was as a direct
result of the first
defendant’s wrongful and negligent breach of her legal duty,
inter
alia
,
in that she left A. alone and unattended on a bed and failed to place
her in a cot or some other safe resting area.
[4]
The Department admits that:
(a)
in terms of the Constitution of the Republic of South Africa as read
with the Children’s Act (and the Regulations promulgated

thereunder) as well as the Department of Social Development’s
Guidelines to ECD Services, the Department had a constitutional
and
legislative mandate to regulate, manage and control the provision of
ECD services within the Western Cape; (b) in terms of
SS 7 and 8 of
the Constitution of the Republic of South Africa, the Department was
under an obligation to respect, protect, promote
A.’s right to
life as entrenched in S 1 of the said Act; (c) in terms of the
Constitution of the Republic of South Africa
Act, as read with the
Children’s Act (and the Regulations promulgated thereunder) as
well as the Guidelines to ECD services,
the Department was
responsible to protect the rights of all children, including A.,
within the Western Cape,
[5]
The Department admits that the provincial head of the Department was
obliged to consider, and having duly considered, reject
or grant an
application for registration of partial care facilities and early
childhood development programmes in the province.
The Department
admits that in terms of S 82 (1) (a) of the Children’s Act, the
head of the Department had to within 6 months
of receiving an
application for registration consider the said application for
registration or conditional registration and either
reject the
application or, having regard to Subsection (2), grant the
registration with or without conditions.
[6]
The Department admits that in terms of S 82 (2) of the Children’s
Act, when considering an application for registration
the head of the
Department was obliged to take into account all relevant factors,
including whether: (a) The ECD facility complied
with the prescribed
national norms and standards contemplated in S 79 and such other
requirements as may be prescribed; (b) the
applicant was a fit and
proper person to operate a partial care facility; (c) the applicant
had the necessary funds and resources
available to provide the
partial care services of the type applied for; (d) each person
employed at or engaged in the partial care
facility was a fit and
proper person to assist in operating a partial care facility; and (e)
each person employed at or engaged
in the partial care facility had
the prescribed skills and training to assist in operating the partial
care facility.
[7]
The plaintiffs aver that the Department was under a legal duty to
ensure,
inter
alia
,
that first defendant’s ECD facility constituted a safe
environment for A. to be kept and to ensure that her facility was

either registered or closed down. The plaintiffs further aver that
the death of A. was a direct result of the Department’s

wrongful and negligent breach of its legal duty in the respects set
out in paragraphs 14.1 to 14.15 of their Particulars of Claim,
which
include that: (a) the Department failed to process the First
Defendant’s application for the registration of her ECD

facility timeously or at all; (b) the Department failed to inspect
the first defendant’s ECD facility; The Department failed
to
regulate, manage and monitor the provision of ECD services at First
Defendant’s facility; (c) the Department failed to
advise the
first defendant that she was operating an unsafe ECD facility; (d)
the Department failed to advise the first defendant
that her ECD
facility did not comply with the
prescribed
norms and standards and minimum requirements for ECD services; (e)
The Department failed to facilitate processes and
put into place
mechanisms that assisted ECD centres to comply with their obligations
and with the requirements of the Children’s
Act; (f) the
Department failed to advise the first defendant that she was
operating an unregistered and illegal ECD centre; (g)
the Department
failed to instruct the first defendant to cease operating the ECD
facility until such time as it was safe and registered;
(h) the
Department allowed the first defendant’s ECD facility  to
continue operating notwithstanding that the first
defendant’s
ECD facility was unsafe for A. to be kept there; (i) the Department
allowed the first defendant’s ECD facility
centre to continue
operating notwithstanding that the ECD facility had insufficient
personnel and/or personnel who were not properly
qualified or
trained; (j) the Department failed to prevent the unlawful death of
A. in circumstances where it could and should
reasonably have done
so.
[8]
The Department’s defence to the plaintiffs’ claim against
it is essentially: (a) a bald denial that it had any positive
legal
duty as alleged by the plaintiffs; and (b) a bald denial that it
wrongfully and/or negligently breached its legal duty in
any
respects.
THE
PLAINTIFFS’ EVIDENCE
[9]
Dr Yolande Van Der Heyde holds the degrees MBChB (UCT) BSc (Micro)
DipForMed (SA) M Med Path (Foren). She is a Specialist in
Forensic
Pathology and is in the service of the Province of the Western Cape
and stationed at the Medical Faculty of the University
of Cape Town.
On 18 October 2010 at 12h00 she examined the dead body of A., whose
body was certified as dead on 14 October 2010.
She conducted a
post-mortem examination on the said body and recorded her findings
which facts she ascertained by means of an examination
requiring
skill in anatomy and pathology. The chief post-mortem findings made
by her on the body were: (a) The body was of a female
infant. There
was a peri-mortal abrasion just below the right temple and a bruise
in the left parietal region of the head; (b)
there was evidence of
anoxia
[1]
as indicated by
subcapsular thymic petechial haemorrhages, subpleural petechial
haemorrhages and intra-pulmonary haemorrhage. (Anoxia
is defined to
mean a lack of oxygen to the brain but Hypoxia is a reduced supply of
oxygen to the brain). As a result of her observations
she concluded
that the cause / causes of death was / were undetermined at autopsy
alone, pending results of histological and toxicological
examination
of tissue, ancillary investigative procedures and circumstantial
evidence.
[10]
On 21 October 2010 at 12h45 Dr Van Der Heyde visited Aunty Dawn’s
Day-ca
[i]
re facility at 5
Verbena Road, Pinelands. She met the first defendant who escorted Van
Der Heyde to the bedroom where baby A. had
been put to sleep, on a
double bed. There were pillows present on the bed. According to Dr
Van Der Heyde there was another child
who was in what appeared to be
a playpen on the floor, to the left of the bed (when viewed from its
foot end). In her evidence,
when viewing the photographs, Dr Van Der
Heyde confirmed that what appeared to be a playpen was a cot. To the
right of the double
bed, (when viewed from its foot end) there was a
solid looking rectangular bedside table on which stood a bedside
lamp. First defendant
said that she had found baby B. between the bed
and bedside table, on the floor, but was unable to say “
how
far in”,
nor in what position the baby was found. First defendant took the
baby to the kitchen and placed her on the table, which was clear
of
objects, and she performed CPR there. Dr Van Der Heyde studied the
contents of the police docket and made the following findings:
(a)
the deceased baby, A. B., was a 5 month old girl who was at the time
of her death in a day care centre in Pinelands. (b) the
first
plaintiff noted that on 14 October 2010, before going to the day
care, the baby was well; he and his wife played with her
prior to
taking her to the day care centre.
[11]
At the day care centre, first defendant on 14 October 2010 at 09h45,
left the baby who was asleep on a bed between pillows
while she
prepared a bottle. At 10h30 she found the baby on the floor between
the bed and the bedside table, the latter being a
solid wooden
structure. The first plaintiff indicated that she could not recall
the position the baby was in nor how far between
the bed and the
table, the body of the baby was. The first defendant removed the baby
from the floor and placed her on a wooden
kitchen table and commenced
resuscitation. The paramedics were summoned and resuscitation was
continued but to no A.il. Baby A.
was declared dead on the scene. Dr
Van Heyde noted that A.’s Apgars at birth were normal. The
child having been born on 02
May 2010 was 5 months and 2 weeks old at
the time of her death. On examination of the body organs, the main
finding was in the
lungs and thymus which showed petechial
haemorrhages as seen in cases of an asphyxia death; The lungs showed
haemorrhage in the
lung septae, and alveolar spaces and in an airway.
This is considered to be asphyxia related. The upper cervical cord
showed rarerifaction
/ swelling which is considered to be acute
(recent) in nature.
[12]
Dr Van Der Heyde concluded that the mechanism of death in this case
is considered to be an asphyxial mechanism. The child having
been
found between the bed and bedside table suggests positional
asphyxiation. The exact position could not be inferred from the

autopsy findings conclusively. Based on the histological and
toxicological tissue results and ancillary investigative procedures

and circumstantial evidence Dr Van Der Heyde was able to conclusively
exclude all other possible causes of death. According to
Dr Van Der
Heyde a possible scenario as to how A. died, given the autopsy
findings, is as follows: (a) the injuries on the child’s
head
are in keeping with the child being alive when she had fallen off the
bed; (b) there was an injury on both sides of the head;
(c) the
abrasion on the right temple suggests the head was turned to the
right, possibly caused by the carpet on the floor
on which the bed
side table stood; (d) The bruise on the left hand side of the head
superiorly could have been sustained when the
child attempted to lift
her head in order to breathe in air and bumped her head against the
side of the bed, which is a wooden
structure; (e) the swelling of the
upper cervical spinal cord noted histologically, also suggests
abnormal head and neck position;
(f) the autopsy photographs show
vomit present on the chin on the left hand side, and on the dorsal
surface of the left wrist;
(g) the first defendant noted that vomit
was present on the baby blanket; (h) it is possible that the baby’s
wrist came into
contact with her mouth as she lay on the floor, and
contributed to the obstruction of the mouth and nose. According to Dr
Van Der
Heyde, how baby A. ended up on the floor remains
unascertained.
[13]
Dr Heidi Van der Watt, a qualified paediatrician, with the degrees
MBChB FCP DCH testified on behalf of the plaintiffs. Dr
van der Watt
testified that she attended A. B.’s birth on 02 May 2011.
According to her A. was healthy when she was born.
Dr van der Watt
testified also testified on the neurodevelopmental milestones of a 5
month old infant. According to her, a 5 month
old infant can roll
from prone to supine and supine to prone, learns to sit with support,
starts to grab objects and put them in
the mouth and babbles and
coos. Taking the development and mobility of a 5 month old infant
into consideration, Dr van der Watt
testified that such infant should
never be left unattended on a raised surface, as the infant can roll
off the surface and sustain
injuries. Dr van der Watt further stated
that a 5 month old infant should therefore never be left unattended
on a bed or raised
surface
as
the infant can easily roll off the surface and thereby sustain severe
or even fatal injuries. Furthermore, according to the AAP
guidelines
(American Academy of Paediatrics), loose bedding which includes
pillows, blankets and bumper pads should be kept out
of sleeping
environments. Dr van der Watt testified that if a 5 month old infant
is left unattended in a room, the infant should
be placed in a secure
cot or on the floor if a secure cot is not available. She also
testified that if a 5 month old infant rolls
off a bed and becomes
wedged between a bed and a side-table, as occurred in this case, then
the infant would not have had sufficient
muscle strength to extricate
herself. A 5 month old infant who is lying face down and who is
unable to breath would asphyxiate
within a very short time, estimated
to be approximately 5 minutes.
[14]
Terrance Athean November testified as an expert called by the
plaintiffs. He holds the degree of BA Social Science III. He
studied
a course in Fundraising and Resource Mobilisation at Oxford
University. His previous work experience was
inter alia
, at
the Annie Starke Village (as a Social Work Assistant for emotionally
deprived children; he worked at the Grassroots Adult Education
and
Training Trust as a Community Developer in the Early Childhood
Development (ECD) Sector; he was the operations manager at the
ECD in
Claremont. Because Mr. November’s evidence is very long I will
set out
infra
the summary thereof. In his opinion, the
Department had an obligation to monitor the provision of the ECD
services being offered
by the first defendant. The Department was
also under an obligation to ensure (by inspecting, assessing,
reviewing, monitoring
and by providing guidance and support) that
first defendant’s ECD facility complied with the legal
requirements necessary
to operate an ECD facility and to ensure that
it became registered. It is apparent that first defendant’s ECD
facility remained
unregistered for over 2½ years before A.’s
death. The Department sent first defendant an acknowledgement letter,
dated
27 February 2008, acknowledging receipt of her application.
They also sent a letter to the City of Cape Town requiring a health

clearance certificate. Thereafter nothing further was done by the
Department. The Department failed to process the first defendant’s

application for registration within 6 months of receipt of the
application. The application was only considered after A.’s

death on 14 October 2010. The Department was aware that the facility
was being run as an unregistered facility. The Department
was also
aware that the first defendant intended to have up to 20 children at
the facility. The officials from the Department would
have been aware
that more than 6 children were enrolled at the facility. In 2009
there were 8 children attending the facility.
[15]
At the time of A.’s death in 2010 it appeared that there were
15 children below three years and 1 four year old. It is
also evident
from the first defendant’s applications for registration (one
in 2008 and the second in 2010) that she had no
qualifications or
formal training to look after infants or toddlers. Furthermore, the
first defendant was being assisted by her
housekeeper who also
supervised and looked after the infants or toddlers. Furthermore, the
first defendant was being assisted by
her wo also supervised and
looked after the infants and toddlers. The housekeeper, likewise, did
not have any qualifications or
formal training to look after infants
or toddlers. There was no staff register or children’s register
or daily attendance
register. The first defendant and the housekeeper
were not aware of the National Norms and Standards. No formal
application was
made to the Municipality for rezoning from
residential to business. Mr November is of the view that the first
defendant’s
facility did not comply with the CCA or the CA, nor
did it comply with the Regulations or the National Norms and
Standards or the
Guidelines. In particular, the facility did not
constitute a safe environment for A. to be in. She was not kept under
constant
supervision at all times. She was placed on a bed and left
alone in the room with the bedroom door closed, for an extended
period
of time. According to the plaintiffs, this was not the first
time that A. had been left unsupervised by the first defendant. If

the first defendant was unable to supervise A. at all times, then she
should have placed her in a cot with a baby monitor in the
room, or
if there were insufficient cots, then she should have been placed on
a sleeping mat on the floor. The Department failed
to comply with its
obligations in terms of the CCA and the CA, its obligations under the
Regulations and in terms of the National
Norms and Standards and as
stipulated by the Guidelines. Had the Department properly discharged
its statutory functions prior to
A.’s death, by
inter
alia
,
visiting and monitoring and evaluating the facility, and either
closing it down, or by providing support and guidance to ensure
that
it became registered and that it remained compliant with the law,
then the death of A. could and would have been prevented.
The
Department thus failed to protect A. from the risk of harm in the
First Defendant’s ECD facility, under circumstances
where it
was obliged to.
[16]
The Department did not take any steps to assist the first defendant
to become compliant with the necessary requirements for
registration.
Once the application was received, the Department should have ensured
that there were regular visits and assessments
done by the
Department’s social workers. The Department also failed to
obtain a report by a social service professional on
the viability of
the application. The Department’s officials did not visit the
premises (pursuant to the application for
registration) nor did the
Department take any steps whatsoever to inspect or monitor the first
defendant’s ECD facility and
the safety of the children that
were there. The Department was aware that the first defendant was
operating an unregistered ECD
facility. The Department also allowed
the first defendant to operate her ECD facility in contravention of
the Acts and Regulations
and the National Norms and Standards and
Guidelines. The Department took no steps to close down the first
defendant’s ECD
facility, even though it was unregistered and
unsafe. Had the Department monitored and assessed the first
defendant’s ECD
facility, then it would have realised that
there were severe health and safety risks for A.. Placing a 5½
month old infant
on a bed and leaving her unattended and alone in a
room, exposes her to physical danger and constitutes a clear
non-adherence to
basic safety standards on how to care for an infant.
Had the Department visited the premises, it would have noted that a
number
of infants and small toddlers were being kept there. It would
have noted that there were infants and numerous young toddlers, but

only three cots Available which was insufficient. Had the Department
assessed the staff, as it should have, then it would have
realised
that they were not qualified or trained to look after toddlers. The
Department would then presumably, at the very least
have advised the
First Defendant and her staff, to keep an eye on the toddlers at all
times, not to leave them alone and never
to leave them on a changing
table or on a bed or countertop unattended.
[17]
If the Department had visited the premises and observed (or been
told) that small toddlers and infants were also left to sleep

unattended on the beds, then they would presumably have advised First
Defendant that this was an unsafe and unacceptable practice.
In his
view, despite its statutory duties, the Department failed to take all
proper and reasonable measures in order to ensure
the safety of A..
Had the Department complied with its obligations and ensured that the
ECD practitioners were properly qualified
and trained and that the
necessary health and safety requirements at first defendant’s
ECD facility were implemented and
maintained, then the incident would
have been avoided. It was only after the incident that the Department
visited and inspected
the premises. It was only after the incident
that the Department undertook to ensure that the minimum Norms and
Standards would
be adhered to by the facility. It is upon conducting
this assessment that the relevant social worker discovered that the
first
defendant is not properly trained. It was therefore only after
the incident that the Department undertook to assist the facility

with registration and to become compliant. According to Mr November,
he is aware of at least two deaths of infants at unregistered
crèches
during or about 2010. He is aware of numerous other reported
incidents of abuse and injuries at unregistered facilities.
He
testified about the Department’s response to A.’s death
and about the current situation regarding unregistered ECD
facilities
in the Western Cape.
[18]
Following A.’s death in 2010, the then Social Development MEC
Patricia de Lille ordered a departmental investigation
into A.’s
death, which she was obliged to do in terms of section 89(1) of the
Children’s Act. She also made numerous
statements in the press
regarding the incident (which reports have been discovered by
Plaintiffs). In one of the press reports
she was quoted as saying
that: “
The
owner applied in January 2008 for the registration of the facility.
This application was received by the Department of Social

Development, which also sent an acknowledgement letter to the owner.
The Department requested the Environmental Health Inspector
from the
City of Cape Town to provide the department with a clearance
certificate for the number of children Aunty Dawn’s
Daycare and
Playgroup wanted to accommodate”
.
She also said that: “
The
Social Development Department failed to follow up on whether the
letter had been received by the Environmental Health Practitioner”
and further that “
This
means that over two years the situation with this day care centre has
remained unchanged”.
De Lille was further quoted as saying that: “
Unregistered
partial care facilities must understand that they are not allowed to
operate unless they have a valid registration
certificate from the
department of Social Development”.
She also confirmed that there were more than 2000 unregistered day
care centres in the Western Cape.  The Department then
declared
that an amnesty period would be given to unregistered day care
facilities in the Cape Town, from 1 February 2011 until
31 July 2011
(which only applied to crèches in existence before the end of
January 2011). In her official press statement,
dated 01 February
2011, De Lille said that: “
The
amnesty Period represents an opportunity for all of us, Government,
crèche owners and operators, and parents alike, to
start
complying with the Children’s Act, which is there to protect
and nurture our children’.
[19]
According to Mr November despite numerous promises from the
Department (made after A.’s death) that it would enforce
start
complying with its obligations to register all ECD facilities in the
Province and enforce the law, there are still a large
number of ECD
facilities which are being operated on an unregistered basis in the
Province. The situation remains that the Department
does not process
the applications for registration within 6 months. Applications take
years to be processed. He is aware of cases
where people have been
waiting for up to 5 years for their applications to be processed by
the Department. According to Mr November
the Department should offer
better training and access to information for ECD practitioners and
officials on legislation governing
ECD provision and registration
application processes for ECD Centres to become compliant and in
order to prevent the death of more
young children. In conclusion Mr
November feels strongly that the mandate recognised by the CCA and CA
was not properly executed
or “
enforced”
by the
Department and they had failed to protect and act in the best
interest of A..
THE
SECOND DEFENDANT’S EVIDENCE
[20]
Dr Badronessa Govender testified that she holds the four year
Bachelor’s degree in social work as well as a Master’s

degree and a PhD in early childhood development from the University
of the Western Cape. She is a registered social worker in the
employ
of the Second Defendant and has been so employed for several years.
She was employed at the Bellville Regional Office of
second defendant
from 1 April 2009 to November 2011, whereafter she took up a position
at Second Defendant’s Head Office
in Cape Town. In 2010 she was
responsible
inter
alia
for the registration of partial care facilities under the Children’s
Act and Pinelands – where Aunty Dawn’s Day
Care Centre
was situated – fell within her geographic area of
responsibility. The Children’s Act which had already
been
passed into law in 2006, was to come into effect on 1 April 2010. It
was to replace the Child Care Act that was operative
in the preceding
period. The Children’s Act required the registration of all
partial care facilities at which more than six
children were
accommodated. The Children’s Act also provided for the
registration of early childhood development programmes
at all
registered partial care facilities. All registered places of care
under the Child Care Act would be deemed to be registered
as partial
care facilities under the Children’s Act and would be required
to apply for the registration of early childhood
development
programmes.
[21]
The national government made limited funds Available to promote
registration of places of care prior to the implementation
of the
Children’s Act. Dr Govender had no staff to engage in such
promotion and was provided with two persons employed under
the
Extended Public Works Programme to assist her. The said persons had
to be specifically trained for the purpose. As there was
insufficient
capacity to attend to all unregistered places of care, she was
instructed to attend to the registration of facilities
in poorer and
less capacitated areas. The programme to encourage and assist with
registration was conducted in 2009 and she focussed
on areas such as
Delft. The programme was not conducted in the Pinelands area where
Aunty Dawn’s was situated, as it was
considered that facilities
in that area would likely know of the requirements for registration.
She testified that, at the time
of little A.’s death, she was
on leave and that another social worker, Ms Charmaine Brown, had
conducted the investigation
into the death of A., in accordance with
the second defendant’s obligations under section 89 of the
Child Care Act. Mrs Brown
had compiled a report of which she later
became aware. Upon her return to work she had been requested by her
Head Office to conduct
a further investigation for the purpose of
determining whether Aunty Dawn’s Day Care Centre should be
closed down. Essentially
she was asked to assess Aunty Dawn’s
Day Care Centre for compliance with the minimum norms and standards
and readiness for
registration. She did her assessment on 25 October
2010. She found that first defendant had applied for registration of
a place
of care under the Child Care Act, which application had been
received on 6 February 2008, when Dr Govender had not yet been
employed
by the second defendant. The application form was
acknowledged by letter dated 27 February 2008 and it was stated that
a further
communication would follow. In accordance with established
procedure a letter dated 28 February 2008 was addressed to the City
of Cape Town for the clearance certificate that was required before
the application for registration could be processed further.
No
correspondence was received from the City of Cape Town in response to
that letter.
[22]
When Dr Govender took up her employment at the second defendant’s
Bellville Regional Office, in April 2009, one of the
first things
that she did was to compile a data base of registered and
unregistered partial care facilities that were known in
the area for
which she was responsible. From that data base, she established that
there had been an application for registration
of Aunty Dawn’s
Day Care Centre in February 2008. From the application form she
determined that at the time of application
the facility had less than
six children. In terms of the Child Car Act that would imply that
registration of the facility as a
place of care was not necessary.
However, the owner had made application as she intended expanding the
facility to accommodate
15 children. During her assessment, she found
that there were several respects in which the Guidelines and National
Norms and Standards
were not being complied with at the facility.
However, she found the premises at the facility were clean and safe
for children
and there were three cots Available at the facility and
adequate mattresses for the other children.
[23]
She formed the opinion that the facility could be assisted to become
registered through a capacity building process. However,
she found no
reason to shut the facility down and recommended that the facility
scale down the number of children accommodated
there to less than the
required number for registration – six – until all
outstanding documentation had been received
within a period of six
months. In her oral testimony she indicated that, had she found the
conditions which pertained during her
visit on 25 October 2010 if she
had visited the facility prior to little A.’s death, she
likewise would not have shut it
down as there were no dangers to the
well-being of the children. Under cross-examination she denied that
she knew that the facility
was operating as a facility that
accommodated more than six children. She indicated that she had not
visited the facility as the
practice was that that would only be done
once the City of Cape Town had certified that it met the requirements
of the City’s
Department of Health, its Fire Department and the
City’s zoning requirements.
LEGAL
AND POLICY FRAMEWORK
[24]
In
terms of the Child Care Act, a ‘place of care' meant any
building or premises maintained or used, whether for profit or

otherwise, for the reception, protection and temporary or partial
care of more than 6 children apart from their parents. Under
the
Child
Care Act t
he
Department was
responsible
for regulating the provision of places of care in the Western Cape.
In
terms of section 30(2) of
the
Child Care Act, all ECD facilities (referred to as “
places
of care”)
in the    Western Cape were obliged to be registered. The
section stipulates that no child may be received in any place
of care
(other than a place of care maintained and controlled by the State)
unless that place of care has been registered under
that section, or
otherwise than in accordance with the conditions on which that place
of care has been so registered. Section 30(3)(b)
stipulates that the
Director-General must be satisfied that the place of care (1)
complies with the prescribed requirements and
(2) that it will be so
managed and conducted that it will be suitable for the care and of
children in order to grant an application
for registration of a place
of care.
[25]
In terms of section 30(1)(a) a social worker, a nurse or any other
person, authorized thereto by the Director-General, or any

commissioner, may enter any place of care in order to inspect that
place of care and the books and documents appertaining thereto.
In
terms of section 31(4) the social worker, nurse or other person so
authorized, or the commissioner, shall submit a report to
the
Director-General after having inspected a place of care.
In
terms of Regulation 34A, on receipt of a report referred to in
section
31
(4)
of the Act indicating that a requirement for registration of a place
of care, in terms of Regulation 30 or 31 has not been met,
the
Director-General shall  inform the places of care, in writing,
of the contents of the report and where necessary, require
the
management to respond to the report, in writing, within 14 days of
receipt of such report and provide a developmental programme,

guidance and support to enable the place of care to meet the
requirements within a specified period being not less than 2 months

and not more than 6 months of receipt of such report.
In
terms of Regulation 30a.(1) no place of care shall be registered
unless the Director-General is satisfied that certain behaviour

management practices are expressly forbidden. In particular, the
Director-General could only register a place of care if he or
she was
satisfied, inter alia, that the children were not being isolated from
other children at the place of care, other than for
the immediate
safety of such children, only after all other possibilities had been
exhausted, and then under strict adherence to
policy, procedure,
monitoring and documentation.
Regulation
30.(2)(a) stipulated that all children in a place of care had the
right to a plan and programme of care and development
and the right
to expect that their plan and programme was based on an appropriate
and competent assessment of their developmental
needs. It also
stipulated that they had the right to a regular review of their
placement and care or development programme.
Section
30(6) of the Child Care Act stated that any person who contravened or
failed to comply with any provision of section 30
shall be guilty of
an offence.
THE
CONSTITUTION OF THE
REPUBLIC
OF SOUTH AFRICA
[26]
Section
1 of the Constitution confirms that the Republic of South Africa is
founded on the values of,
inter
alia,
(1)
human dignity and (2) the advancement of human rights and freedoms
and (3) supremacy of the constitution and the rule of law.
Section 2
of the Constitution states that the Constitution is the supreme law
of the Republic; that law or conduct inconsistent
with it is invalid,
and that the obligations imposed by it must be fulfilled.
Section
7(2) stipulates that the State must respect, protect, promote and
fulfil the rights in the Bill of Rights. According to
section 8(1) of
the Constitution, the Bill of Rights applies to all law, and binds
the legislature, the executive, the judiciary
and all organs of
state. Section 8(3)(a) of the Constitution stipulates that when
applying a provision of the Bill of Rights a
Court, in order to give
effect to a right in the Bill, must apply, or if necessary develop,
the common law to the extent that legislation
does not give effect to
that right.
[27]
According to section 10, everyone has inherent dignity and the right
to have their dignity respected and protected, which includes
the
right to bodily and psychological integrity (recognised in section
12). According to section 11, everyone has the right to
life. Section
28 of the Constitution deals specifically with the rights of
children. It states, inter alia, that every child has
the right to
social services and to be protected from neglect and abuse. According
to section 28(2), a child's best interests are
of paramount
importance in every matter concerning the child. Section 39(1)
stipulates that when interpreting the Bill of Rights,
a Court must
promote the values that underlie an open and democratic society based
on human dignity. Section 39(2) stipulates that
when interpreting any
legislation, and when developing the common law, every Court must
promote the spirit, purport and objects
of the Bill of Rights.
Section 173 states that the High Court has the inherent power to
develop the common law, taking into account
the interests of justice.
Section 195(1)(f) states that public administration must be
accountable. Section 237 stipulates that
all constitutional
obligations must be performed diligently and without delay.
THE
GUIDELINES FOR EARLY CHILDHOOD
DEVELOPMENT
SERVICED (MAY 2006)
[28]
The Guidelines aim to explain the most important facets of ECD
service delivery and were developed to facilitate the Department
of
Social Development’s mandate towards ECD in South Africa. They
also refer to important core aspects in the early childhood
phase of
life, such as health and safety. The Guidelines explain that an ‘
ECD
Centre’
and a ‘
Place of Care’
are
defined as any building or premises maintained or used, whether or
not for gain, for the admission, protection and temporary
or partial
care of more than 6 children away from their parents. Depending on
registration, an ECD centre or Place of Care can
admit babies,
toddlers and/or pre-school aged children. The term ECD centre can
refer to crèche, day care centre for young
children, a
playgroup, a pre-school, after school care etc. ECD centres are
sometimes referred to as ECD sites. The guiding principles
which form
the basis for the Guidelines include the following, namely: (a) That
the needs and rights of children are central to
all services and
provisions; (b) That the rights of young children must be protected;
(c) That everyone who intervenes in the lives
of young children
should be held accountable for the delivery of an appropriate,
effective and efficient service
. (underlined to stress
importance).
The
Introduction section to the Guidelines recognises that young children
have rights in South Africa which are well protected by
the
Constitution and laws and further that it is, inter alia, the
Department’s responsibility to know what these rights are
and
to make sure young children are properly cared for.
The
Introduction goes on to state that “
We want children to
enjoy life and live in a safe and healthy environment”
. The
Introduction also recognises that the “
The Department of
Social Development is one of the government departments
that
have to ensure that young children are taken care of in
the best way”.
[29]
Part One, Chapter 1, of the Guidelines acknowledges that: “
The
Department of Social Development has a responsibility to ensure that
conditions are created for the optimum development of all
children
and their families through the provision and support of appropriate
services
.”
Chapter 1 of the Guidelines deals with the rights of children and
acknowledges that: “
children
need special protection and care”.
It
also acknowledges that “
The
laws of the State are needed to protect children before and after
they are born.
”
The Guidelines further recognise that children in South Africa are
protected by the Constitution and the Child Care Act
of 1983. Some of
the rights of children which the Guidelines aim to protect and
enhance are as follows: (a) All organisations concerned
with children
should work towards what is best for each child; (b) All children
have the right to life. Governments should ensure
that children
survive and develop healthily; (c) Governments should ensure that
children are properly cared for, and protect them
from violence,
abuse and neglect by their parents, or anyone else who looks after
them; (d) Children should be protected from any
activities that could
harm their development.
[30]
The Guidelines recognise that inter-sectoral collaboration and
integrated service delivery requires commitment from various

government departments. They recognise that it is important for each
service provider to seek practical ways to facilitate inter-sectoral

collaboration and integration in service provision to young children.
They should know what each department is doing and determine
ways to
work with other service providers. In collaboration, they must keep
the rights of the young child CENTRAL to discussions,
strategies and
agreements.
Chapter
3 of the Guidelines sets out and defines the roles and
responsibilities of the Department, as,
inter
alia
:
(a) To promote the importance of early childhood development services
in the province (in this case, the Western Cape); (b) To
establish
mechanisms and programmes to facilitate capacity development in early
childhood development service delivery in the province;
(c) To
provide support and guidance to early childhood development service
providers in the province; (d) To ensure that national
policies,
legislation, strategies and priorities are implemented within the
means of the provincial department; (e) To register
early childhood
development centres (which includes Places of Care in terms of
section 30 of the CCA and the Regulations thereunder);
(f) To put
mechanisms in place to facilitate the registration of early childhood
development centres (places of care) in an empowering
and
developmental way; (g) To keep a provincial register of all
registered early childhood development services. (h) To monitor
the
provision of registered and non-registered early childhood
development services (with specific reference to section 31 of the

CCA); (i) To cancel the registration certificate of a Day Care Centre
(place of care) in terms of section 32 of the CCA. (j) Chapter
4 of
the Guidelines deals with the legislative framework for ECD Centres
(Places of Care). It explains that in terms of the Act,
section
30(2), a place of care must be registered. No child may be kept in an
unregistered place of care. The Guidelines also states
that there is
a particular obligation on the Department of Social Development in
terms of section 30(3)(a) to obtain information
with regard to an
application for registration.
[31]
According to the Guidelines, Regulation 30(2) indicates that certain
additional information should accompany the application
form, which
includes a certificate from the Director-General i.e. the Department
of Social Development in the province indicating
that a needs
assessment was done. The Guidelines state further that Regulation
30(2) and (3) are clear on the importance of adhering
to, and
implementing minimum standards. The Guidelines refer to Regulation 34
which stipulates that a specific register that needs
to be kept by a
place of care and describes the information which it must contain.
Managers of places of care have to ensure that
they adhere to this
and keep such a register updated. The Guidelines note that the Child
Care Act makes provision for the “
inspection”
of places of care, which refers to a system of monitoring and
evaluation, whereas the Regulations refer to a quality assurance

process. As the methodology for quality assurance has significantly
changed in the past 20 years, the Guidelines state further
that it is
understandable that the Act and the Regulations might differ.
Regulation 34A refers to a report which must be submitted
to the
Director-General indicating that a requirement for registration of a
place of care has not been met and the steps which
must then be taken
by the Department. The Guidelines state further that within the
context of the Department of Social Development,
monitoring and
evaluation should be seen as a developmental and empowering process,
with the best interest of the child being more
important than
anything else.
[32]
The guidelines deal with the circumstances that can lead to the
closure of a Place   of Care, which includes,
inter alia:
(a)
Jeopardizing
the health of children; (b) Insufficient personnel (c) Incapable
personnel; (d) A non-functioning or dysfunctional
management
committee with maladministration.
The
Guidelines also refer to the procedure for dealing with centres which
contravene the stipulated requirements (see the Child
Care Act for
the detailed procedure). When, after monitoring or reviewing the
facility or if a complaint is received, and it is
found that the
requirements of the Act are not met, the social worker must,
inter
alia
compile an assessment report; provide guidance and support to the
facility; and review the facility and compile a report. Chapter
5 of
the Guidelines sets out the minimum standards for the registration of
ECD services. The Guidelines stress that ECD Centres
must meet
minimum standards of care in order to be registered. If minimum
standards are kept and improved on, then parents and
families will
know that their children are being cared for in a safe place. In this
regard, the Guidelines point out that children
must be protected from
physical harm or threat of harm from themselves or others. All
reasonable precautions must be taken to protect
children from the
risk of fire, accidents and or other hazards. All furniture and
equipment must be safe and in good repair.
[33]
This means that beds, mattresses or mats for sleeping and resting on
must be safe and clean. Practitioners should have at least
the
minimum qualification and work towards improving their
qualifications. The minimum qualification of practitioners is the
registered
Basic Certificate in ECD NQF Level 1 of the South African
Qualifications Authority. This qualification entails basic knowledge
and skills about child development from birth to six year old. ECD
centre supervisors should have a minimum qualification of the

National Certificate in ECD at NQF Level 4 by the South African
Qualifications Authority. They should have a general understanding
of
early childhood development from birth to six year old. ECD programme
supervisors should demonstrate a theoretical and practical
knowledge
and experience in managing ECD centres. All ECD practitioners must
have appropriate training in ECD. They must receive
ongoing training
in early childhood development and the management of programmes and
facilities for young children. ECD Practitioners
should be physically
and mentally capable of meeting all the demands made of caring for
children.  Practitioners should show
that they know and
understand how children develop (and be familiar with the development
milestones at each stage of development).
The Guidelines explain what
must be done to register an ECD centre. According to the Guidelines,
the Minister will consider the
registration or re-registration of a
centre when a report and a recommendation by the Department of Social
Development have been
received. A certificate from the local
authority stating that the centre complies with all the structural
and health requirements
of the local authority must accompany the
report of the Department of Social Development. An ECD centre is
subject to quality assurance
review or inspection by the Department
of Social Development at least once a year. The Guidelines also set
out the 6 steps involved
in registering an ECD facility.
[34]
If the necessary requirements for registration have not been met then
the social worker or other official employed and authorised
by the
provincial Department of Social Development will continue to consult,
advise, empower, build capacity and review the facility.
The
Guidelines also deal with the quality assurance review.
In
terms of the Child Care Act, the Director-General, or a person
authorised by him or her, is entitled, at all times, to evaluate
the
place of care, its books, documents and registers and its
developmental programmes, and to examine the health, nutrition and

general well-being of the children in the place of care. The quality
assurance review is important as it helps improve the way
the centre
is run. Good practice must be noted and praise given where
appropriate.  Where there are improvements to be made,
these
should be discussed with the responsible staff member and guidance
offered so that changes can be made. Where there are unacceptable

practices, these must also be discussed and agreement reached on
changes to be made immediately to ensure the safety and well-being
of
the children at the centre.
THE
CHILDREN’S ACT (38 OF 2005)
[35]
The Children's Act was aimed at expanding the range of social
services provided to children, which was lacking under the Childcare

Act, and providing clarity on what services need to be delivered, by
whom and to whom. The Act recognises   that children
have a
constitutional right to social services and that the State bears
the primary duty to ensure that these services are
delivered. The
Children's Act accordingly brings South Africa's child care and
protection law in line with the Bill of Rights
and International law.
The
Children’s Act was assented to on 08 June 2006 and came into
operation on 01 April 2010. It repealed the whole of the
Child Care
Act 74 of 1983.
As
from 01 April 2010, the First Defendant and the Department were
accordingly subject to the provisions of the Children’s
Act and
the Regulations promulgated thereunder. The guiding principles as set
out in the Guidelines would have continued to be
operative.
The
Foreword to the Act states    that it is intended
,
inter alia
,
to give effect to certain rights of children as contained in the
Constitution; to set out principles relating to the care and

protection of children; to provide for partial care of children and
to provide for early childhood development. The Pre-amble of
the Act
recognises that the Constitution establishes a society based on
democratic values, social justice and fundamental human
rights and
seeks to improve the quality of life of all citizens; that every
child has the rights set out in section 28 of the Constitution;
that
the State must respect, protect, promote and fulfil those rights; It
further recognises that children are entitled to special
care and
assistance and that it is necessary to effect changes to existing
laws relating to children in order to afford them the
necessary
protection.
Section
2 of the Act states that the objects of the Act are, inter alia, to
give effect to the constitutional rights of children,
including the
right to be protected from neglect; to ensure that the best interests
of a child are of paramount importance in every
matter concerning the
child; to protect children from physical harm and hazards; and
generally, to promote the protection, development
and well-being of
children.
[36]
The overarching objective of the Children’s Act, in relation to
ECD services, is to increase the number of children that
have access
to registered ECD facilities, which are compliant with various health
and safety requirements, and which can meet the
educational and
development needs of a child.
It
is clear that the Children’s
Act
places
an
obligation on the Department to regulate the provision of ECD
facilities and services
in
the Western Cape.
Section
4(1)  deals with the implementation of the Act and states that
the Act must be implemented by organs of state in the
national,
provincial and, where applicable, local spheres of government subject
to any specific section of this Act and regulations
allocating roles
and responsibilities, in an integrated, co-ordinated and uniform
manner. Section 4(2) recognises that competing
social and economic
needs exist, and directs that organs of state in the national,
provincial and where applicable, local spheres
of government must, in
the implementation of this Act, take reasonable measures to the
maximum extent of their Available resources
to achieve the
realisation of the objects of this Act.
[37]
Section 6(1) of the Act states that the general principles set out in
the section guide the implementation of all legislation
applicable to
children, including this Act and all proceedings, actions and
decisions by any organ of state in any matter concerning
a child or
children in general. According to section 6(4)(b) in any matter
concerning a child a delay in any action or decision
to be taken must
be avoided as far as possible.
In
terms of section 8(1), the rights which a child has in terms of this
Act supplement the rights which a child has in terms of
the Bill of
Rights. In terms of section 8(2), all organs of state in any sphere
of government and all officials, employees and
representatives of an
organ of state must respect, protect and promote the rights of
children contained in the Act. Section 9 stipulates
that, in all
matters concerning the care, protection and well-being of a child the
standard that the child's best interest is of
paramount importance,
must be applied.
Section
15 of the Children’s Act deals with the enforcement of rights
and states that anyone listed in that section has the
right to
approach a competent Court, alleging that a right in the Bill of
Rights or the Children’s Act has been infringed
or threatened,
and the Court may grant appropriate relief. Plaintiffs would clearly
fall within the class of persons listed in
section 15 of the
Children’s Act.
[38]
Chapter five of the Act deals with Partial Care. Section 76 states
that partial care is provided when a person, whether for
or without
reward, takes care of more than 6 children on behalf of their parents
or care-givers during specific hours of the day
or night, or for a
temporary period, by agreement between the parents or care-givers and
the provider of the service. In terms
of section 78(1), a partial
care facility must be managed and maintained in accordance with this
Act and must comply with the prescribed
national norms and standards
contemplated in section 79 and such other requirements as may be
prescribed. Section 79 of the Children’s
Act sets out what the
national norms and standards must relate to, which includes,
a
safe environment for children. The Children’s Act also makes it
illegal for anyone to run an unregistered ECD centre with
more than 6
children. Section 80 stipulates that all partial care facilities: (a)
must be registered with the provincial government
of the province
where that facility is situated; (b) must be managed and maintained
in accordance with any conditions subject to
which the facility is
registered; and (c) must comply with the prescribed national norms
and standards contemplated in section
79 and such other requirements
as may be   prescribed.
[39]
In terms of Section 81, an application for registration must be
lodged with the provincial head of social development of the
province
where the facility is situated in accordance with a prescribed
procedure. It states further that the application must
contain the
prescribed particulars and must be accompanied by a report by a
social service professional on the viability of the
application. This
presupposes a visit of the facility from a social service
professional. Section 82(1)(a) stipulates that the
provincial head of
social development must within 6 months of receiving the application
consider an application for registration
or conditional registration
and either reject the application or, having regard to subsection
(2), grant the registration with
or without conditions. According to
section 82(2) of the Act, when considering an application for
registration the provincial head
of social development must take into
account all relevant factors, including whether: (a) the facility
complies with the prescribed
national norms and standards
contemplated in section 79 and such other requirements as may be
prescribed; (b) the applicant
is a fit and proper person to operate a
partial care facility; (c) each person employed at or engaged in the
partial care facility
is a fit   and proper person to assist in
operating a partial care facility; and (d) each person employed at or
engaged in
the partial care facility has the prescribed skills
and training to assist in operating that partial care facility.
Section
85 permits the Director-General or the head of the Department
to apply to the High Court for an order to instruct a partial care

facility, whether registered or not, to stop operating that facility.
[40]
Section 87(1)(a) obliges the provincial head of the Department to
maintain a record of all partial care facilities in the province,
the
types of partial care facility and the number of each type of
facility.  Section 87(1)(c) also states that the provincial
head
of the Department must
conduct
inspections at the prescribed intervals of partial care facilities in
the province to enforce the provisions of this Act.
Chapters 6 of the
Act deals with ECD programmes which stipulates that: (a)  every
a partial care facility providing partial
care services for any
children up to school-going age must provide an ECD programme; (b)
that a person or organisation providing
an ECD programme must
register the programme with the provincial head of social development
of the province; and (c) that the ECD
programme must be provided in
accordance with the Act and must comply with the prescribed national
norms and    standards
contemplated in section 94 and such
other requirements as may be prescribed.
[41]
Chapter 20 deals with the Enforcement of the Act. In particular, it
allows a person authorised by the Director-General, a provincial
head
of social development or a municipality may enter any partial care
facility which on reasonable suspicion is being used as
an
unregistered partial care facility, in order to inspect that facility
and its management. The person conducting the inspection
may
determine whether the ECD facility complies with: (a) the prescribed
national norms and standards; (b) other national norms
and standards
as may be prescribed by regulation; (c) any structural, safety,
health and other requirements as may be required
by any law; and (d)
the provisions of this Act; A person who has conducted an inspection
must submit a report to the Director-General,
the provincial head of
social development or a municipality, as may be appropriate, on the
inspection carried out by that person.
According to section 305(1) a
person is guilty of an offence if that person operates an
unregistered ECD facility or fails to stop
operating an unregistered
ECD facility after that person has been instructed by way of a notice
of enforcement.
THE
REGULATIONS PROMULGATED
UNDER
THE CHILDREN’S ACT
[42]
Certain Regulations were also promulgated under the Children’s
Act. In particular, the
General Regulations Regarding Children, 2010
are relevant.  Chapter 4 of the Regulations deals with Partial
Care and Chapter
5 deals with Early Childhood Development. Part I of
Annexure B to the Regulations sets out the National Norms and
Standards for
Partial Care.  The Regulations stipulate what
documents must accompany the application and what files and registers
must be
kept by the ECD facility. Regulation 19 deals with the
employment of staff at a partial care facility and states that any
person
employed at a partial care facility in a managerial or
supervisory capacity or who is directly involved in the partial care
of
a child must possess a number of skills, which includes, inter
alia,    the ability to implement an ECD programme for
ECD;
the ability to write reports and notes and the ability to assess age
related developmental milestones. Very importantly, Regulation
21(1)
stipulates that all partial care facilities must be subjected to
inspection
and monitoring
to determine compliance with the Regulations and Part I of Annexure
B. According to the Regulation, the inspection and monitoring
of all
partial care facilities must be executed by a person designated by
the provincial head of the Department. All inspections
and monitoring
visits must be followed by a report that must be submitted to the
head of the Department and the management of the
partial care
facility. Inspection of a   partial care facility must take
place every 5 years or may take place at shorter
intervals if
inspection is a condition for registration. Regulation 28(1) likewise
stipulates that all early childhood development
programmes must be
subjected to assessment and monitoring to determine compliance with
the National Norms and Standards for ECD,
contained in Part II of
Annexure B. The National Norms   and Standards for Partial Care
(Part I of Annexure B) include, inter
alia, the following
requirements: (a) Children must experience safety and feel cared for
whilst at the partial care facility; (b)
Premises must be safe, clean
and well maintained; (c) Equipment used must be safe, clean and
well-maintained; (d) There must be
adult supervision at all times;
(e)
All
reasonable precautions must be taken to protect children and staff
from the risk of fire, accidents or other hazards.
DISCUSSION
ANND APPLICATION
OF
LEGAL PRINCIPLES TO THE
FACTUAL
MATRIX OF THIS CASE.
[43]
Before I start discussing the merits of this case it is necessary to
note that the trial readiness of this matter was declared
on 13 July
2016 by my brother, Bozalek J. At that stage the first defendant was
still represented by Gerhard Kotze of attorneys
Buchanan Boyes whose
offices are in Cape Town. Subsequent to the matter being declared
trial ready the first defendant’s
attorneys reportedly
attempted to make contact with the first defendant in order to advise
her that a trial date had been allocated
for 18 October 2016. This
was to no A.il resulting in the first defendant’s attorneys
withdrawing as her attorneys of record.
[44]
The correspondence reveals that the first defendant’s attorney
received an e-mail   from an acquaintance of the
first defendant
advising him that the first defendant had gone overseas for an
undisclosed period of time. The first defendant’s
erstwhile
attorney also attended the first defendant’s place of residence
in   Pinelands (Cape Town) to hand deliver
a letter to her
advising and enclosing the notice of set down for 18 October 2016.
The visit reveals that the Aunt Dawns Day care
and Playground had
closed down. Apparently an unknown gentleman (of foreign nationality)
opened the front door and advised the
attorney that the first
defendant no longer resided in the house. The gentleman advised the
property had been sold and transferred.
An attempt was then made
(reportedly) by the erstwhile first defendant’s attorney to
advise her of the trial date via e-mail
address [...]
and this bounced
back. The plaintiff’s attorneys also sent an e-mail to the
first defendant using the same e-mail address
but it similarly
bounced back. The subsequently appointed tracing agents confirmed
that the first defendant emigrated to England
where her son resided.
[45]
After all attempts proved fruitless contact was made with one Grant
Moore (a son of the first defendant). An e-mail enclosing
notice of
set down was e-mailed to the latter with a request that he hands same
over to the first defendant. Mr Grant Moore advised
that he had no
contact with the first defendant because ‘
she
has left SA for good’
.
It is common cause that the trial scheduled for 18 October 2016 was
postponed to afford plaintiffs an opportunity of notifying
the first
defendant of the new trial date. A formal application was made for
leave to serve the Court Order on the first defendant
by way of
substituted service. The latter application was granted. The order
made provision that the first defendant must be served
in England.
Seeing that it was anticipated that she would attempt to evade
personal service, a provision was made,
inter
alia
,
that service was also to be effected on   the first defendant’s
son, Craig Moore (who resided at 18A Station Parade,
Willesden
Greens, London) requesting him to bring the order to the first
defendant’s attention. The first defendant had already
been
traced to be residing at 18A Station Parade, Willesden Green, London,
England together with her son Craig Moore. The plaintiffs’

attorneys instructed Cesar Augusto Sepulveda (a process server in
London) who interviewed the letting manager of the property,
who
confirmed the first defendant and her son Craig were indeed resident
in the property. On 8 March 2017, Mr Sepulveda attended
to the
property and served the order on the first defendant and her son,
Craig Moore. Because no reply could be obtained from the
occupants
inside the building Mr Sepulveda effected service by posting two
copies of the order through the letterbox of the property
and by
fixing two further copies of the order (in transparent envelopes), to
the front door of the property.
[46]
Mr Sepulveda then deposed to an affidavit wherein he confirms the
aforesaid service. He also annexed two colour copies of photographs

depicting the two time copies of the court order which he had affixed
to the front door of the abovementioned London property.
I fully
agree with Mr Coughlan that there was proper service of the court
order and that it must have come to the attention of
the first
defendant and her son, Craig Moore. The plaintiffs are entitled to be
granted default judgment seeing at the date of
hearing mentioned in
the order served the first defendant did not appear before court. So
much as to the service on the first defendant.
I now return to the
discussion of the merits of this matter.
[47]
I have fully summarised the evidence tendered in this matter above. I
state categorically that the most likely conclusion to
be drawn from
the Available evidence is that A. rolled off the first defendant’s
bed onto the floor and that her positioning
on the floor led to a
lack of oxygen and a death by asphyxia (suffocation). The totality of
the evidence led concerning the first
defendant leads me to an
inescapable conclusion that the latter’s actions in placing
baby A. on her bed to sleep and then
leaving A. unattended on that
bed, were indeed clearly wrongful and negligent. See
Hawekwa Youth
Camp and Another v Byrne
2010 (6) SA 83
(SCA) at [25] where the
Supreme Court of Appeal,
inter alia
, observed as follows:
‘…
..On
the assumption that the teachers in charge of the group could have
prevented the harm that Michael suffered and that they had

negligently failed to do so, should they – and by vicarious
extention, the Minister – as a matter of public and legal

policy, be held liable for the loss resulting from such harm? But for
the confusion between wrongfulness and negligence which transpires

from the Minister’s heads of argument, it appears to me that
wrongfulness had in fact been conceded. What is in effect disputed
is
negligence. However, be that as it may, I am satisfied that
wrongfulness had been established.
In
this regard I am in full agreement with the following statement by
Desai J in
Minister
of Education and Another v Wynkwart
NO
2004 (3) SA 577
(C) at 580A-C:
“
It
was not in dispute that [the respondent’s minor son] R was
injured at school while under the control and care of the appellant’s

employees and it was fairly and properly conceded that teachers owe
young children in their care a legal duty to act positively
to
prevent physical harm being sustained by them through misadventure.
It was submitted that in this instance, as many other delict
cases,
the real issue is ‘negligence and causation and not
wrongfulness”.
[48]
Mr Oliver prefixed his submissions by pointing out that the first
defendant was not an employee or agent of the second defendant.
He
contended that the second defendant could not incur vicarious
liability for any negligence or wrongful deeds or omissions of
the
first defendant. He submitted that there is no evidence indicating
that any of the second defendant’s employees committed
an act
that caused or causally contributed to the death of A.. Mr Oliver
referred this Court to the test as succinctly stated by
the
Constitutional Court in a dictum in
Le Roux v Dey
(Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae
2011 (3) SA 274
(CC) where the following appears:
“
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements of delictual

liability to be present – it would be reasonable to impose
liability on a defendant for the damages flowing from specific

conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and
legal
policy in accordance with constitutional norms. Incidentally,
to avoid confusion it should be borne in mind that what is meant by

reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s conduct, but it
concerns
the reasonableness of imposing liability on the defendant for the
harm resulting from that conduct.”
See
also
F v Minister of Safety and Security and Others
2012 (1)
SA 536
(CC);
Country Cloud Trading CC v MEC, Department of
Infrastructure Development
2014 (2) SA 214
(SCA). I fully accept
the aforegoing line of reasoning. In fact the
Supreme Court of
Appeal in Olitzki Property Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA) held as follows:
‘
Where
the legal duty the plaintiff invokes, derives from breach of a
statutory provision, the jurisprudence of this Court has developed
a
supple test. The focal question remains one of statutory
interpretation, since the statute may on a proper construction by
implication
itself confer a right of action, or alternatively provide
the basis for inferring that a legal duty exists at common law. The
process
in either case requires a consideration of the statute as a
whole, its objects and provisions, the circumstances in which it was

enacted, and the kind of mischief it was designed to prevent. …
The conduct is wrongful, not because of the breach of a
statutory
duty per se, but because it is reasonable in the circumstances to
compensate the plaintiff for the infringement of his
[or
her]
legal right. The
determination of reasonableness here in turn depends on whether
affording the plaintiff a remedy is congruent with
the court’s
appreciation of the sense of justice of the community. This
application must unavoidably include the application
of broad
considerations of public policy determined also in the light of the
Constitution and the impact upon them that the grant
or refusal of
the remedy the plaintiff seeks will entail.’
[49]
In Mr Oliver’s submission all the duties of care alleged by the
plaintiffs derive from the Guidelines and the norms and
standards
provided in the Guidelines. Mr Oliver contended that the Guidelines
are not mandatory or peremptory but they are rather
directory or
permissive. In his view, to the extent that the second defendant has
not adhered to the Guidelines and Norms and Standards
contained in
them, the second defendant cannot be held to have breached any
statutory duties such as to entail liability to plaintiffs
for the
death of A.. In this regard Mr Oliver is of the view that the
statutory requirements that the second defendant is obliged
to keep a
register of unregistered partial care facilities must similarly be
seen as a permissive rather than a peremptory requirement.
He
concluded by stating that the practice of visiting facilities that
had applied for registration only after the required documentation

had been received from the City of Cape Town was not unreasonable
given the limited resources and manpower Available to the second

defendant to conduct such visits. I do not agree with Mr Oliver and I
shall deal with his submissions
infra.
[50]
From the summary of the legal and policy framework given above, it is
clear that one of the Department’s primary responsibilities
is
to promote the care of children  and the protection of their
rights within ECD facilities. It is of importance to mention
that the
Department’s admission that the responsibility for ensuring
that ECD facilities are registered and for monitoring
compliance with
the Children’s Act and Regulations thereunder is to protect
children from the risk of harm in ECD facilities.
That is one of the
reasons why the Department is vested with the power to shut down ECD
facilities which are unsafe. It is the
Department’s obligations
to facilitate the protection and promotion of the rights of children
in line with S 28 of the Constitution
of this Country and the UN
Convention on the rights of the child. It is subject to no dispute
that the Department has to ensure
that ECD facilities, services and
programmes are well managed, equipped, staffed and maintained. There
is a duty on the Department
to monitor the quality of ECD facilities,
services and programmes in order to ensure adherence to safety
standards. It is of importance
that the Department recognises that
the registration of partial care facilities in accordance with the
Children’s Act 38
of 2005 is a necessary safeguard for young
children and their facilities to ensure that basic and adequate
health and safety standards
have been met.
[51]
The Department’s officials are required to support persons who
wish to register their ECD facilities. The Department
must support
such persons in taking the steps needed to make sure that their
facility is registered and compliant with the national
norms and
standards in the manner set out hereunder. The applicant wishing to
register his or her ECD facility should contact the
Department to
advise them that he or she wishes to register the facility. It then
becomes an obligation for the Department to assist
the applicant to
navigate the registration process. There should then be an initial
interview at the Regional Office where the
Department’s
official advises the applicant on the process and what needs to be
done. The interview would cover the registration
requirements,
legislative mandates, registration procedure, norms and standards,
registration documents and monitoring processes.
Of course the
Department provides the applicant with an application form and a list
of required documents. An interview is necessary
because of the
cumbersome and unclear registration process and requirements. An
interview allows for face to face interaction with
the applicant so
that the Department can apply a step by step approach to provide
guidance on the application process.
[52]
The Department also requests the Environmental Health Officer to
provide a certificate. This is a local government responsibility,
and
is limited to a physical inspection of the facility conducted by a
Health Inspector to assess how many children can be accommodation
at
the facility. Once the Department receives an application, and as
part of the application process, it must send an official
to visit
the facility. Site visits must be done in order to assess compliance
with conditions for registration and norms and standards.
A site
visit forms an essential part of the evaluation of an application for
registration as it allows an official from the Department
to inspect
and monitor the ECD Services being rendered and to assess the
competency of the staff and the general care of children,
as well as
the administrative systems and financial systems and compliance with
national norms and standards.
[53]
After the assessment of the facility has been conducted the official
will complete an inspection form and then contact the
applicant to
let him or her know if the ECD facility and/ ECD programme meets the
necessary requirements or not. Therefore, part
of the Department’s
ECD registration service is to provide updates to the applicant on
the status of the application. If
the facility or programme does not
meet the necessary requirements then the Department must advise the
applicant thereof and explain
the shortcomings to the applicant. The
Department must then assist and mentor the applicant and conduct
follow up visits in order
to re-assess whether the applicant meets
the requirements for registration. This accords with the official
media release of the
then MEC Patricia de Lille, dated 15 October
2010, which states that ‘
our policy is to help unregistered
facilities get registered.’
THE
ACTIONS OF THE DEPARTMENT
[54]
It is common cause that the first defendant submitted an application
to the Department for registration of her ECD facility
on or about 6
February 2008. The Department acknowledged receipt of the application
on 27 February 2008 and advised the first defendant
that further
communication would follow soon. A letter was then drafted by
Charmaine Brown (dated 28 February 2008), which was
sent to the
Environmental Health Inspector. Charmaine Brown was the social worker
at the Bellville District Office at the time.
The Department is
unable to prove that the letter to the Environmental Health Officer
was ever sent. That perhaps, would explain
why no response was ever
received from the Environmental Health Inspector. According to the
handwritten note following the Department’s
visit of the
facility on 15 October 2010 it states that: ‘
Health
did not do an inspection. There (sic) didn’t know of it’.
[55]
The Department concedes that between 28 February 2008 and 14 October
2010, no official (or unofficial visit) was done by the
district
office. The Department essentially put up three justifications for
failing to process the first defendant’s application
for
registration. The first excuse was that (according to Dr Govender),
the first defendant’s application form indicated
that there
were less than 6 children at the facility and therefore registration
was not applicable. It is strange because the application
form does
not state this. I am of the view that this is an incorrect assumption
which was made by Dr Govender and the Department.
I find no basis for
such an unwarranted assumption given that the first defendant
expressly stated on her application that she
had established her ECD
facility centre 2 years ago (2006) with 5 children and that her needs
had increased very much since then.
I point out that the Department’s
assumption is also not borne out by the handwritten notes from the
Departmental visit of
the first defendant’s facility on 15
October 2010. This indicates that the first defendant had 8 children
enrolled in her
facility in 2008. Of course it was wrong of the
Department to assume that applicants would limit the number of
children at their
facilities to less than 6 children until such time
as they were registered (which can take years). In my view it should
have been
obvious to the Department that many of the applicants who
were applying for registration were doing so because of the fact that

they had more than 6 children enrolled at their facility. I hasten to
add that the Department’s excuse for not processing
the
application because there were less than 6 children at the first
defendant’s facility is contradicted by the very fact
that the
Department intended to send a letter to the Environmental Health
Officer at the City of Cape Town to inspect the first
defendant’s
facility (along with 8 other ECD facilities). This fact alone
indicates that there was an intention on the part
of the Department
to process the application for registration.
[56]
The second excuse offered by the Department is that, according to Dr
Govender,    she was unable to visit all of
the
unregistered facilities in the Goodwood Magisterial District because
of the fact that she had an extensive workload in 2009.
According to
Dr Govender, it was only herself and 3 ECD assistants who were
responsible for visiting approximately 294 unregistered
facilities
that fell within the Goodwood Magisterial District. This evidence by
itself does not prove that there was a lack of
resources on the part
of the Department to deal with applications for registration. No
evidence was presented by the Department
regarding its annual budgets
and how such budgets were allocated. In any event, Dr Govender was
only employed at the Bellville
Regional Office from April 2009. She
ordinarily would be unable to comment on the workings of the office
before that time. According
to Dr Govender at some stage her office
had no ECD assistants. There was no explanation why this was the
case. The Doctor did not
testify that she ever requested the
Department to allocate additional staff to assist her with processing
the backlog of applications
for registration. There is no evidence to
indicate that such additional staff were not Available had such a
request been made.
It cannot thus be said that the Department lacked
the necessary resources to process the first defendant’s
application for
registration. It would appear that before the
incident (the death of A.) application for registration were simply
not prioritised
by the Department. But as soon as the incident
occurred the Department realised that it was at fault. An emergency
Departmental
meeting was called to look at how the Department could
fast track application for registration. According to the
Department’s
press release dated 1 February 2001:
‘
The
amnesty period represents an opportunity for us all Government,
crèche owners, and operators and parents alike to start

complying with the Children’s Act, which is there to protect
and nurture our children.’
[57]
Mr Coughlan submitted that the excuse of the office being
understaffed is a convenient afterthought by the Department to try
an
cover up the fact that it neglected to process applications for
registration timeously and to cover up the fact that it omitted
to
process the first defendant’s application timeously or at all.
I am in full agreement with Mr Coughlan in this regard.
In any event
this excuse was raised by the Department for the first time during
the hearing of the trial in April 2017. Dr Govender
testified that
she did not visit any of the unregistered facilities in Pinelands
because she elected to prioritise the more marginalised
and
disadvantaged areas, such as, those unregistered ECD facilities in
Elsies River, Bishop Lavis and Delft. According to the official
media
release dated 15 October 2010, the Department’s district
offices have regular information drives to educate facility
owners
about their legal obligation to get registered. The truth is though
whilst the Department can be commended for their information
drives
and for visiting unregistered ECD facilities in poor communities
which had not yet applied for registration, this does not
constitute
a legitimate excuse for ignoring those applications for registration
which had already been submitted to the Department
and which were
already on file. This I say especially because there was a statutory
obligation on the Department to process the
said applications within
a 6 month period. In a failed attempt to bolster her excuse for not
having processed the first defendant’s
application for
registration, Dr Govender testified that the Bellville District
office was also responsible for 3 other programmes
(namely, older
persons, youth and substance abuse). I should express my view that
this excuse does not constitute a rational or
legitimate ground for
ignoring applications for registration which had already been
submitted to the Department and which was already
pending. Needless
to again mention that there was a statutory obligation on the
Department to process the said application within
6 months.
[58]
The third excuse offered for failure to process the first defendant’s
application for registration is that during Dr
Govender’s audit
of ECD facilities in September or October 2009, she noted that the
first defendant’s application had
been on file for 2½
years, but that there were certain documents outstanding for
registration (such as an Environmental
Health report and a fire
clearance). According to Dr Govender, she required all the relevant
documents from the other departments
before she would visit and
assess the ECD facility. She stated, because all the documents were
not on file she therefore did not
conduct any assessment of the ECD
Services at the first defendant’s facility. Of course this is
not at all a valid excuse.
The relevant documents were not on file
because the Department’s letter to the Environmental Health
Officer was probably
never sent. Notably, the Department at no stage
made any effort whatsoever to contact the first defendant in order to
advise her
that her application was deficient and to assist her in
that regard. It is not logical to state that the application for
registration
can simply be ignored (where certain documents from
other departments are outstanding). One must bear in mind that the
purpose
of the visit of the facility is to assess the health and
safety of the children at the facility and to assess whether the
facility
meets the registration requirements under the Children’s
Act and to assess whether the facility concerned should be
registered,
conditionally registered or shut down. This would
determine which assessment can and should be undertaken, regardless
of any other
outstanding requirements from any other departments. Mr
Coughlan was constrained to submit as follows in the above regard:
‘
It
is accordingly submitted that even if the application for
registration cannot be finalised until certain other legal
requirements
have been met, this does not justify the Department’s
failure to consider the application, given the clear intention of the

Guidelines and the wording of section 82(1)(a) of  the
Children’s Act which states that the provincial head of social

development must within 6 months of receiving the application
consider an application for registration or conditional registration

and either reject the application or grant the registration, with or
without conditions.’
In
fact the above submission finds support from the recommendation made
by the same Dr Govender in her Quality Assurance Report
(dated 2
November 2010) wherein she makes it clear that compliance with
various legislation and government policies (i.e re-zoning,
health
clearances) is not a pre-requisite for granting registration. She
states that such compliance would assist the Department
in
recommending registration of the facility.
[59]
Dr Govender in her testimony stated that she had attempted to follow
up with Mr Johannes Gerber (the Environmental Health Officer)
on 2
occasions to enquire why he had not submitted his Health and Safety
report to the Department. She alleges that she sent 2
e-mails to Mr
Gerber and received no response. It is strange though that the said
e-mails are not on record.  I hold the view
that it is highly
unlikely that she would have ever followed up with Mr Gerber given
her earlier excuse that she did not attend
to the first defendant’s
application for registration because she was prioritising
registration in disadvantaged areas. The
official Departmental
report on the incident does not state when the letter was actually
sent to the Environmental Health
Officer or whether it was ever
received by him. It also does not mention that Dr Govender followed
up with Mr Gerber by sending
e-mails. Importantly, the report also
does not indicate that the lack of an official visit from the
Department was due to the fact
that the response from the
Environmental Health Officer was outstanding. There is a handwritten
note on file from Dr Govender regarding
a meeting that she had on 3
December 2010 with representatives from the Minister’s Office
where she wrote ‘
I
had to answer questions with regard to why no follow-up was done on
the file’
.
It is strange that Dr Govender’s own note indicates that there
was no follow-up done on the file.
[60]
This contradicts her later evidence in court that she did follow-up.
The note also suggests that there should have been a follow-up
done
on the file. One must ordinarily reason as follows: if it was the
Department’s policy not to follow-up on the applications
(until
all the outstanding documents were on file), then it is unlikely that
Dr Govender would have been called to a meeting to
explain this
shortcoming on her part to the Department (in circumstances where the
Department already knew that no response had
been received from the
Environmental Health Officer). In any event, the then MEC’s
official press release contradicts Dr
Govender’s evidence. In
this regard the MEC wrote:
“
Even
though the applicant had fewer than six children at the time, on the
application form she indicated that she wished to register
for 18 to
20 children."
"As
a matter of course, the department therefore requested the
Environmental Health Inspector of the City of Cape Town, to
provide
the department with a Health Clearance Certificate for the number of
children the facility wanted to accommodate,"
De Lille says.
"What
the department failed to do was follow up on whether the letter it
sent to the Environmental Health Officer was actually
received. This
means that for over two years the situation with this day care centre
has remained unchanged.”
[61]
The fact is the first defendant’s application was not processed
and her premises was not visited after she lodged her
application for
registration in 2008.  The Department took no further steps
after acknowledging receipt of the first defendant’s
head
of the
Department was obliged to do so within a 6 month period. The
Department was accordingly obliged to devise and implement a

comprehensive and workable plan to meet its obligations in terms of
the sub-section. It did not do so. The Department failed to
implement
a strategy aimed at a properly resourced, co-ordinated and managed
ECD system in the Western Cape.
It
was only after A.’s death, at a meeting which was held on 20
October 2010, between Environmental Health and the other relevant

role players in Pinelands, where it was realised that (1) the
different departments had different policies regarding partial care

facilities and (2) that there was a lack of effective communication
between the different departments (3) and that what was needed
was an
integrated approach to applications for registration. It was also
stressed at that meeting that once an application for
registration
was received the Department and the Environmental Health Officer
would need to assess the facility together. It was
accordingly
decided at the meeting that all (unregistered) partial care
facilities would be visited by the Department and
Environmental
Health during the course of that month.
[62]
It is needless to state that quite evidently there were a number of
significant shortcomings on the part of the Department.
The most
obvious example I can think of is that there was no evidence from the
Department (nor was there any documentation in its
file) to indicate
that an interview was ever held with the first defendant. It is
abundantly clear that the Department failed to
evaluate the first
defendant’s application for registration. It also failed to
revert to the first defendant on her application
as was promised in
the acknowledgement letter. I find it completely strange and
unacceptable that on 31 January 2013 (some 5 years
after first
applying for registration) the first defendant’s attorneys were
still desperately trying to get the Department
to register her ECD
facility. Her premises were never visited (whilst application was
being processed). She was never assisted
by the Department to meet
the requirements for registration. It was only after the incident (15
October 2010) that the first defendant’s
facility was visited
by the Department’s social worker (Ms Nazeera Abrahams and Mr
Johan Gerber – the Environmental
Officer).  The facility
was then assessed on 25 October 2010 for compliance by Dr Govender.
She compiled a report dated 2
November 2010 referred to earlier in
this judgment.
[63]
It emerged from the visit and the quality assessment report after
A.’s death that the first defendant’s facility
did not
meet most of the necessary requirements for registration. For an
example, it appears from the first defendant’s second

application for registration that she only had one (1) assistant
helping her. The latter was actually the domestic cleaner who
had no
ECD qualification and who had no experience in ECD when she started
working for the first defendant in 2008. It is so that
during the
said Departmental visit the first defendant was provided with the
minimum norms and standards as well as the procedures
for
registration. She supposedly indicated an eagerness to comply with
the Department’s regulations and was willing
to be trained. The
Department undertook to assist the facility with the registration
process and assist them with capacity building.
This does not appear
to have ever happened. It is common cause that the Department further
recommended in the quality assessment
report that the facility
consider scaling down the number of children to less than the
required number for registration until all
outstanding documentation
has been received.
[64]
Had the Department processed the first defendant’s application
and visited the premises (which it was supposed to do
as part of the
evaluation of the application), then it would,
inter
alia
,
have realized that the first defendant and her staff were not
properly qualified or trained to look after infants and that they

were unfamiliar with safe sleep practices which practices were not in
fact being implemented. Had the Department officials visited
the
first defendant’s premises prior to the incident under
discussion herein, the Department would have noted any unacceptable

practices and directed that changes be implemented immediately in
order to ensure the safety and well-being of the infants and
other
children at the facility. Notably, Dr Govender conceded that if the
Department had fulfilled its function by visiting the
facility, by
assessing the ECD Services there, by assessing the experience and
qualifications of the staff, by mentoring and training
the staff, by
advising on safe sleep practices and by ensuring compliance with the
prescribed minimum norms and standards, and
by registering the
facility, that would significantly reduce the type of incident under
review. She further did not hesitate to
concede that had the
Department’s officials visited the facility they would have
advised the first defendant on basic health
and safety (such as the
need to implement safe sleep practices by not leaving infants
unattended on her bed).
[65]
There are numerous material shortcomings in the ECD Services being
provided by the first defendant’s ECD facility. Clearly
the
persons rendering those ECD Services were not suitably qualified or
experienced in ECD and were thus not fit and proper. This,
the
Department would easily unearth if only premises were visited as the
law requires. Had the Department processed the application
for
registration and visited the premises then it would have advised
First Defendant that she did not meet necessary requirements
for
registration in terms of the Act and that she must either close down
her facility pending compliance with the statutory requirements
or
that she must limit the number of children at her facility to less
than 6 until such time as she became registered. From the
Available
evidence having been considered holistically, I hold that the
Department’s failure to comply with its statutory
duties
seriously compromised the care and safety of the children at the
facility (owned by the first defendant) and that this caused
or
materially contributed towards the death of A. whilst she was at the
first defendant’s ECD facility. The death of A. would
probably
have been prevented had the second defendant intervened as it could
have and should have done. It is trite law that in
order to succeed
in a delictual claim, a claimant would have to prove the following
elements: (i) causation; (ii) wrongfulness;
(iii) fault (negligence);
and (iv) harm. It shall be helpful to briefly discuss these elements
(hereunder) as far as they pertain
to the factual scenario of the
present case. See
Oppelt v Department of Health, WC
2016 (1)
SA 325
(CC) at para [34].
FACTUAL
CAUSATION
[66]
A mention must be made that the criterion applied to determine
factual causation is the well-known but-for test. This is a
factual
enquiry. The plaintiffs must prove, on a balance of probabilities
that, but for the negligent omissions of the Department
that A. would
not have died. Of course the issue pertaining to factual causation
relates to the question whether the negligent
act or omission in
question caused or materially contributed to the claim. In
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 34F-H and 35A-D, the
then Appellate Division guidingly made the following formulation:
‘
Causation
in the law of delict give rise to two rather distinct problems. The
first is a factual one and relates to the question
as to whether the
negligent act or omission in question caused or materially
contributed to (see Silva’s Fishing Corporation
(Pty.) Ltd v
Maweza,
1957 (2) S.A. 256
(A.D.) at p. 264; Kakamas Bestuursraad v.
Louw,
1960 (2) S.A. 202
(A.D.) at p. 222) the harm giving rise to the
claim. If it did not, then no legal liability can rise and cadit
quaestio. If it
did, then the second problem becomes relevant, viz.
whether the negligent act or omission is linked to the harm
sufficiently closely
or directly for legal liability to ensue or
whether, as it is said, the harm is too remote. This is basically a
juridical problem
in which considerations of legal policy may play a
part. The distinction between these two enquiries is well explained
by Prof.
Fleming, The Law of Torts, 4
th
ed., p. 169, as follows:
“
The
first involves what may broadly be called the ‘factual’
question whether the relation between the defendant’s
breach of
duty and the plaintiff’s injury is one of cause and effect in
accordance with ‘scientific’ or ‘objective’

notions of physical sequence. If such a causal relation does not
exist, that puts an end to the plaintiff’s case, because
no
policy can be strong enough to warrant the imposition of liability
for loss to which the defendant’s conduct has not in
fact
contributed.
The
second problem involves the question whether, or to what extent, the
defendant should have to answer for the consequences which
his
conduct has actually helped to produce. There must be a reasonable
connection between the harm threatened and the harm done.
As a matter
of practical politics, some limitation must be placed upon legal
responsibility, because the consequences of an act
theoretically
stretch into infinity. The task is to select those factors which are
of sufficient significance to justify the imposition
of liability and
to draw a boundary along the line of consequences beyond which the
injured party must either shoulder the loss
himself or seek
reparation from another source.”
(See
also Hart and Honorè, Causation in the Law, p. 104; American
Restatement (Torts), 2
nd
ed., secs. 430-3).
The
present case turns on the first of these problems, viz. causation in
fact, for it could hardly be contended that, if the negligence
of
Davel and Mahela in fact caused or contributed to the death of the
deceased, this was too remote a consequence to give rise
to legal
liability. Of a “cause” in this sense Prosser, Law of
Torts, 4
th
ed., at p. 237, states:
“
A
cause is a necessary antecedent: in a very real and practical sense,
the term embraces all things which have so far contributed
to the
result that without them it would not have occurred. It covers not
only positive acts and active physical forces, but also
pre-existing
passive conditions which have played a material part in bringing
about the event. In particular it covers the defendant’s

omissions as well as his acts.”
The
test is thus whether but for the negligent act or omission of the
defendant the event giving rise to the harm in question would
have
occurred. This test is otherwise known as that of the causa
(conditio) sine qua non and I agree with my brother VILJOEN that

generally speaking (there may be exceptions – see Portswood v.
Svamvur,
1970 (4) S.A. 8
(R.A.D.) at p. 14) no act, condition or
omission can be regarded as a cause in fact unless it passes this
test (see Da Silva and
Another v. Coutinho,
1971 (3) S.A. 123
(A.D.)
at p.147).’
[67]
What it essentially lays down is the enquiry – in the case of
an omission – as to whether, but for the defendant’s

wrongful and negligent failure to take reasonable steps, the
plaintiff’s loss would not have ensued. The Supreme Court of

Appeal has said on more than one occasion that the application of the
‘but-for test’ is not based on mathematic, pure
science
or philosophy. It is a matter of common sense, based on the practical
way in which the minds of ordinary people work, against
the
background of everyday – life experienced. See
ZA v Smith
2015 (4) SA 574
(SCA) at para [30]. In applying this common sense,
practical test, a plaintiff therefore has to establish that it is
more likely
than not that, but for the defendant’s wrongful and
negligent conduct, his or her harm would not have ensued. The
plaintiff
is not required to establish this causal link with
certainty. See
ZA Smith
supra
at para [30] and
authorities collated therein. In
Minister of Safety and Security v
Van Duivenboden
2002 (6) SA 431
(SCA) the Supreme Court of Appeal
held at [24] that:
‘
The
first enquiry is whether the wrongful conduct was a factual cause of
the loss. The second is whether in law it ought to be regarded

as
a
cause.
Regarding the first enquiry he said the following:
'The
enquiry as to factual causation is generally conducted by applying
the so-called "but-for" test, which is designed
to
determine whether
a
postulated
cause can be identified as
a
causa
sine qua non of the loss in question. In order to apply this
test one must make a hypothetical enquiry as to what probably
would
have happened but for the wrongful conduct of the defendant. This
enquiry may involve the
mental
elimination of the wrongful conduct and the substitution
of
a
hypothetical
course of lawful conduct and the posing of the question as to whether
upon such an hypothesis plaintiff's loss would
have ensued or not. If
it would in any event have ensued, then the wrongful conduct was
not
a
cause
of the loss; aliter, if it would not have ensued.' ...A plaintiff is
not required to establish the causal link with certainty,
but only to
establish that the wrongful conduct was probably a cause of the loss,
which calls for a sensible retrospective analysis
of what would
probably have occurred, based upon the evidence and what can be
expected to occur in the ordinary course of human
affairs rather than
an exercise in metaphysics.’
[68]
In
Lee v Minister for Correctional Services
2013 (4) SA 144
(CC) at [41], the Constitutional Court said the following about
causation in the case of a negligent omission:
'(I)n
the case of an omission the but-for test requires that a hypothetical
positive act be inserted in the particular set of facts,
the
so-called mental removal of the defendant's omission. This means that
reasonable conduct of the defendant would be inserted
into the set of
facts. However, as will be shown in detail later, the rule regarding
the application of the test in positive acts
and omission cases is
not inflexible. There are cases in which the strict application of
the rule would result in an injustice,
hence a requirement for
flexibility
.'
While
it may be more difficult to prove a causal link in the context of a
negligent omission than a commission,
Lee
explains that the ‘
but-for’
test is not always the be-all and end-all of the causation enquiry
when dealing with negligent omissions. The starting point, in
terms
of the ‘
but-for’
test,
is to introduce into the facts a hypothetical non-negligent conduct
of the defendant and then ask the question whether the
harm would
have nonetheless ensued. If, but for the negligent omission, the harm
would not have ensued, the requisite causal link
would have been
established. The rule is not inflexible. Ultimately, it is a matter
of common sense whether the facts established
a sufficiently close
link between the harm and the unreasonable omission. See
Oppelt
v Department of Health, WC
2016 (1) SA 325
(CC).
[69]
It is particularly apt where the harm that has ensued is closely
connected to an omission of a defendant that carries the duty
to
prevent the harm. Regard being   had to all the facts, the
question is whether the harm would nevertheless have ensued,
even if
the omission had not occurred. See
Mashongwa
v Passenger Rail Agency of South Africa
2016 (3) SA 528
(CC) at [65). It is also settled that a plaintiff can
hold a defendant liable whose negligence has materially contributed
to a
totality of loss resulting partly also from the acts of other
persons or from the forces of nature, even though no precise
allocation
of portions of the loss to the contributing factors can be
made. It is not for the plaintiffs to prove which part of the loss
the
defendant caused. The harm is presumed to be indivisible, and the
plaintiff need prove only that the defendant contributed materially

to the totality of it. The onus is then on the defendant to rebut the
presumption by proving that the harm is in fact divisible
and that he
did not cause all of it (which he does by proving which part he did
cause).
See
Humphrys NO v Barnes
2004 (2) SA 577
(C)
at 581.
[70]
Accordingly, in the present instance it is incumbent upon the
plaintiffs to prove only a ‘
material factual link’
between the Department’s negligent omission and the
death of A.. The plaintiffs are not required to quantify the extent

of the Department’s causal contribution. Thus applying the
ordinary, common-sense standards, it can safely be said that the

causal connection between the death of A. and the Department’s
failure to act, was sufficiently real and close to enable
the court
to say that the omission of the Department to act and intervene was a
factual cause of A.’s death. In other words,
it was a
conditio
sine qua non
of such loss. I find that the most probable
inference is that, if the Department complied with its obligations
after they received
the first defendant’s application for
registration, then the risk of the first defendant leaving A.
unattended on the bed
alone would have been eliminated, with the
result that her death would have been avoided.
WRONGFULLNESS
[71]
The next enquiry is whether the ‘
negligent
omission’
is unlawful. The Department’s omission will only be unlawful if
it occurred in circumstances that the law regards as sufficient
to
give rise to a legal duty to avoid negligently causing harm. The
wrongfulness enquiry is based on the duty not to cause harm
and that
(in the case of negligent omissions), the focus is on the
reasonableness of imposing liability. An enquiry into wrongfulness
is
determined by weighing competing norms and interests. The criterion
of wrongfulness ultimately depends on a judicial determination
of
whether, assuming all other elements of delictual liability are
present, it would be reasonable to impose liability on a defendant

for the damages flowing from specific conduct. Whether conduct is
wrongful is tested against the legal convictions of the community

which are ‘
by
necessity underpinned and informed by the norms and values of our
society, embodied in the Constitution.’
See
Oppelt
v Department of Health WC
supra
at
[51] (the Constitutional Court
judgment).
[72]
The fact is that the State is obliged to protect individuals by
taking active steps to prevent violations of the constitutional
right
to freedom and security of person. It is not essential that there be
a special relationship between the plaintiff and the
defendant for
imposing a legal duty to act. See
Van
Eeden v Minister of Safety   and Security (Women’s Legal
Centre Trust, as Amicus Curiae)
2003 (1) SA   389 (SCA). The State is required to take
reasonable legislative and other measures. Legislative measures by

themselves are not likely to constitute constitutional compliance.
Mere legislation is not enough. The State remains obliged to
act to
achieve the intended result, and the legislative measures will
invariably have to be supported by appropriate, well-directed

policies and programs implemented by the Executive. These policies
and programs must be reasonable both in their conception and
their
implementation. Thus the formulation of a program is only the first
stage in meeting the State’s obligations. The program
must also
be reasonably implemented. An otherwise reasonable program that is
not implemented reasonably will not constitute compliance
with the
State’s obligations. See
Grootboom,
para
[42].  The Supreme Court of Appeal has recognised in a number of
cases that where there is no effective way to hold the
State to
account other than by way of a private law action for damages, and in
the absence of any norm or consideration of public
policy that
outweighs it, a legal duty should be recognised unless there are
public considerations which point in the other
direction.
[73]
Perhaps I need to point out that the wrongfulness enquiry focuses on
the conduct of the Department and goes to whether the
policy and the
legal convictions of the community, constitutionally understood,
regard it as acceptable. It is based on the duty
not to cause
harm-indeed to respect rights – and questions the
reasonableness of imposing liability. Negligence, on the other
hand,
tests the defendant’s conduct against that of a reasonable
person in the same situation in order to determine fault.
See
Loureiro and Others v Imvula Quality Protection (Pty) Ltd
2014
(3) SA 394
(CC) at para 53. The proper approach to the question,
whether an omission to comply with a statutory obligation gives rise
to delictual
liability, appears from the following judgment of the
Supreme Court of Appeal in
Olitzki Property Holdings v State
Tender Board and Another
supra
at para 12 of the
judgment:
‘
Where
the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court
has developed a
supple test. The focal question remains one of statutory
interpretations, since the statute may on a proper construction
by
implication itself confer a right of action, or alternatively provide
the basis for inferring that a legal duty exists at common-law.
The
process in either case requires a consideration of the statute as a
whole. . . . But where a common-law duty is at issue, the
answer now
depends less on the application of formulaic approaches to statutory
construction than on a broad assessment by the
court whether it is
just and reasonable that a civil claim for damages should be
accorded. The conduct is wrongful, not because
of the breach of the
statutory duty per se, but because it is reasonable in the
circumstances to compensate the plaintiff for the
infringement of his
legal right. The determination of reasonableness here in turn depends
on whether affording the plaintiff a
remedy is congruent with the
court's appreciation of the sense of justice of the community. This
appreciation must unavoidably
include the application of broad
considerations of public policy determined also in the light of the
Constitution and the impact
upon them that the grant or refusal of
the remedy the plaintiff seeks will entail
.’
[74]
Wrongfulness is generally uncontentious in cases of positive conduct
that harms the person or property of another. Conduct
of this kind is
prima
facie
wrongful. This principle remains true where one is dealing with
negative conduct (omission) where there is a pre-existing duty,
such
as the failure to protect a vulnerable person from harm. See
Mashongwa
v Passenger Rail Agency of South Africa
supra
at
para [19]. The point is where a constitutional duty has been breached
the value of accountability assumes a prominent role in
the
determination of the appropriateness of transposing that breach into
a private-law breach leading to an award of damages. That

transposition will, however, become an option only if there are no
other appropriate non-judicial remedies Available to enforce

accountability. The prospects of recognising a private-law remedy
following upon a breach of a public-law duty would be enhanced
where
no other effective remedy exists. See
Mashongwa
supra
para
[24].
[75]
In the case of
Mashongwa v Passenger Rail Agency of South Africa
supra
at [25] the following guiding observation appears:
‘
The
state and its organs exist to give practical expression to the
constitutional rights of citizens. They bear the obligation to
ensure
that the aspirations held out by the Bill of Rights are realised.
That is an immense responsibility that must be matched
by the
seriousness with which endeavours to discharge it are undertaken. To
this end, the state, its organs and functionaries cannot
be allowed
to adopt a lackadaisical attitude, at the expense of the interests of
the public, without consequences. For this reason,
exceptions are at
times made to the general rule that a breach of public-law
obligations will not necessarily give rise to a delictual
claim for
damages. Absent that flexibility, public authorities and
functionaries might be tempted and emboldened to disregard their

duties to the public. And that could create fertile ground for a
culture of impunity. These obligations cannot therefore be ignored

without any repercussions, particularly where there is no other
effective remedy.
Safeguarding
the physical wellbeing of passengers must be a central obligation of
Prasa. It reflects the ordinary duty resting on
public carriers and
is reinforced by the specific constitutional obligation to protect
passengers' bodily integrity that rests
on Prasa, as an organ of
state. The norms and values derived from the Constitution demand that
a negligent breach of those duties,
even by way of omission, should,
absent a suitable non-judicial remedy, attract liability to
compensate injured persons in damages.
When account is taken of
these factors, including the absence of effective relief for
individual commuters who are victims of violence
on Prasa's trains,
one is driven to the conclusion that the breach of public duty by
Prasa must be transposed into a private-law
breach in delict.
Consequently, the breach would amount to wrongfulness.’
[76]
It
is of importance that I mention that our common law employs the
element of wrongfulness (in addition to the requirements of fault,

causation and harm) in order to determine liability for delictual
damages caused by an omission. The appropriate test for determining

wrongfulness has been settled in a long line of decisions of the
Supreme Court of Appeal. An omission is wrongful if the

defendant is under a legal duty to act positively to prevent the harm
suffered by the plaintiff. The test is one of reasonableness.
A
defendant is under a legal duty to act positively to prevent harm to
the plaintiff if it is reasonable to expect of the defendant
to have
taken positive measures to prevent harm. The court determines whether
it is reasonable to have expected of the defendant
to have done so by
making a value judgment based,
inter
alia
,
upon its perception of the legal convictions of the community and on
a consideration of policy. The question   whether a
legal duty
exists in a particular case is thus a conclusion of law depending on
a consideration of all the circumstances of the
case and on the
interplay of the many factors which have to be considered, See
Van
Eeden v       Minister of Safety and
Security (Women’s Legal Centre Trust, as Amicus

Curiae)
2003
(1) SA 389
(SCA) at para [9].
[77]
In applying the concept of the legal convictions of the community of
the court is not concerned with what the community regards,
as so
socially, morally ethically or religiously right or wrong, but
whether or not the community regards a   particular act
or form
of conduct as delictually wrongful. The legal convictions of the
community must further be seen as the legal policy makers
of the
community, such as the Legislature and Judges. The approach of our
courts to the question whether a particular omission
to act should be
regarded as unlawful has always been an open-ended and flexible one.
See
Van
Eeden
supra.
Most
certainly the concept of the legal convictions of the community must
necessarily incorporate the norms, value and principles
contained in
the Constitution. The Constitution is the Supreme Law of the country,
and no law, conduct, norms or values that are
inconsistent with it
can have legal validity, which has the effect of making the
Constitution a system of objective, normative
values for legal
purposes.
[78]
The entrenchment of fundamental rights and values in the Bill of
Rights, enhances their protection and affords them a higher
status.
State actions, court decisions and even the conduct of natural and
juristic persons may be tested against them. All private
law rules,
principles or norms (including those regulating the law of delict)
are subjected to and given content in the light of
the basic values
in the Bill of Rights. See
Van Eeden
judgment where the
following appears.
‘
Section
7(2) of the Constitution imposes an affirmative duty on the State to
'respect, protect, promote and fulfil the rights in
the Bill of
Rights'. Section 8(1) of the Constitution provides that the Bill of
Rights applies to all law, and binds the Legislature,
the Executive,
the Judiciary and all organs of State. Under section 11 of the
Constitution, the Bill of Rights entrenches the right
to life. It
follows that there is a duty imposed on the State and all of its
organs not to perform any act that infringes these
rights. In some
circumstances there would also be a positive component which obliges
the State and its organs to provide appropriate
protection to
everyone through laws and structures designed to afford such
protection.
[79
In
Minister of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA), the Supreme Court of Appeal concluded that while
private citizens might be entitled to remain passive when the
constitutional
rights of other citizens are under threat and while
there might be no similar constitutional imperatives in other
jurisdictions,
in this country the State has a positive
constitutional duty to act in the protection of the rights in the
Bill of Rights. The
Supreme Court of Appeal held as follows:
'Where
the conduct of the State, as represented by the persons who perform
functions on its behalf, is in conflict with its constitutional
duty
to protect rights in the Bill of Rights, in my view, the norm of
accountability must necessarily assume an important role
in
determining whether a legal duty ought to be recognised in any
particular case.'
Where
the conduct of the State, (as represented by the persons who perform
functions on its behalf), is in conflict with its constitutional
duty
to protect rights in the Bill of Rights, the norm of accountability
must necessarily assume an important role in determining
whether a
legal duty ought to be recognised in any particular case. The norm of
accountability, however, need not always translate
constitutional
duties into private law duties enforceable by an action for damages,
for there will be cases in which other appropriate
remedies are
Available for holding the State to account.’
See
Van Duivenboden
supra
para [21] and [22].
[80]
It is trite that w
here
the State's failure occurs in circumstances that offer no effective
remedy other than an action for damages the norm of accountability

will, ordinarily demand the recognition of a legal duty unless there
are other considerations affecting the public interest that
outweigh
that norm. The Supreme Court of Appeal has developed the legal
principles governing the State's delictual liability in
respect of
its constitutional obligations, and particularly, those relating to
the rights to dignity, life and freedom and security
of the person in
a series of cases.
See
Minister
of Safety and Security v Hamilton
2004
(2) SA 216
(SCA);
Minister
of Safety and Security v Van  Duivenboden
2002
(6) SA 431
(SCA);
Van
Eeden v Minister of Safety and Security (Women's Legal Centre Trust,
as Amicus Curiae)
2003
(1) SA 389
(SCA);
Minister
of Safety and Security and Another v Carmichele
2004
(3) SA 305
(SCA);
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005
(2) SA 359
(CC). T
he
Supreme Court of Appeal has explicitly acknowledged that one of the
considerations relevant to the question of whether a legal
duty for
the purposes of the law of delict exists is the constitutional value
of accountability, in terms of which Government and
those exercising
public power should be held accountable to the broader community for
the exercise of their powers. There is no
effective way to hold the
State to account in the present matter other than by way of an action
for damages and (in the absence
of any norm or consideration of
public policy that outweighs it), the constitutional norm of
accountability requires that a legal
duty be recognised.
[81]
Accordingly,
where (as in circumstances such as the present), persons in the
position of the plaintiffs have no other effective
remedy against the
State, an action for damages is the norm unless public policy
considerations point in the other direction. When
considering whether
the Department owed a duty to A. the answer lies in the recognition
of the general norm of accountability:
the State is liable for the
failure to perform the duties imposed upon it by the Constitution
unless it can be shown that there
is compelling reason to deviate
from that norm. See
Minister
of Safety and Security v Carmichele
2004 (3) SA 305
(SCA) at para [43]. Section 36(1) of the
Constitution, therefore, requires the State, or any person asserting
that a limitation
of a right falls within the provisions of section
36(1), to show that the limitation is reasonable and justifiable. It
is one of
the objects of the Bill of Rights to require those limiting
rights to account for the limitations. The process of justifying
limitations,
therefore, serves the value of accountability in a
direct way by requiring those who defend limitations to explain why
they are
defensible. See
Metrorail
,
para [75].
[82]
It has also been said that the Court requires the bearer of
constitutional obligations to perform them in a manner which is

reasonable. What constitutes reasonable measures will depend on the
circumstances of each case. Factors that would ordinarily be
relevant
would include the nature of the duty, the social and economic context
in which it arises, the range of factors that are
relevant to the
performance of the duty, the extent to which the duty is closely
related to the core activities of the duty-bearer
- the closer they
are, the greater the obligation on the duty-bearer, and the extent of
any threat to fundamental rights should
the duty not be met as well
as the intensity of any harm that may result. The more grave is the
threat to fundamental rights, the
greater is the responsibility on
the duty-bearer. Thus, an obligation to take measures to discourage
pickpocketing may not be as
intense as an obligation to take measures
to provide protection against serious threats to life and limb. See
Metrorail,
para [88]. A final consideration will be the relevant human and
financial resource constraints that may hamper the organ of State
in
meeting its obligation. This last criterion will require careful
consideration when raised. In particular, an organ of State
will not
be held to have reasonably performed a duty simply on the basis of a
bald assertion of resource constraints. Details of
the precise
character of the resource constraints, whether human or financial, in
the context of the overall resourcing of the
organ of State will need
to be provided. See
Metrorail,
para [88].
[83]
The Department is and remains the primary agency of the State
responsible for the discharge of its constitutional duty to protect

the rights of infants in ECD facilities. Indeed it failed to act in
accordance with its obligations. It cannot, in my view, evade
being
held accountable for A.’s death. It is and cannot be disputed
that the Department is under a public-law duty to protect
children in
ECD facilities. Additionally to the public law duty there can be no
doubt that that duty, together with constitutional
values, has
mutated to a private-law duty to process applications for
registration in order to prevent harm to children in ECD
facilities.
Undoubtedly, Section 15 of the Children’s Act would confer an
action for damages on plaintiffs. It must be pointed
out that
regardless of section 15, the norm of accountability would translate
the applicable statutory and constitutional duties
into private law
duties enforceable by an action for damages.
[84]
An important consideration in favour of recognising delictual
liability for damages on the part of the Department in circumstances

such as the present is that there is no other practical and effective
remedy Available to the Plaintiffs. Conventional remedies
such as
review and mandamus or interdict do not afford plaintiffs any relief
at all. The only effective remedy for plaintiffs is
a private law
delictual action for damages. I fully agree with Mr Coughlan that
there is no reason (no policy considerations) to
depart from the
general principle that the Department (as an organ of State), will be
liable for its failure to comply with its
constitutional and
legislative duty to protect A.. On the contrary, A. was pre-eminently
a person who required the State's protection.
See
Carmichele
(SCA
)
at para [44].  Thus, in my view,
it
would be eminently reasonable to impose legal liability on the
Department in this matter.
Legal
Causation
:
[85]
Indeed d
emonstration
(as done above) that a wrongful act was a
causa
sine qua    non
of the loss sustained by the plaintiffs herein does not necessarily
result in legal liability. See
Hing
and Others v Road Accident Fund
2014 (3) SA 350
(WCC) at [41].
The
second leg of the causation enquiry relates to whether the wrongful
act is linked sufficiently closely or directly to the loss
for legal
liability to ensue or whether (as it is said), the loss is too
remote. This is sometimes called ‘
legal
causation’
.
Legal
causation as a requirement serves as a moderating tool to regulate a
defendant's liability so as to keep it within bounds
which legal
policy would consider reasonable.
[86]
In our law, the test to be applied in determining legal causation was
described by Corbett CJ as
'a
flexible one in which factors such as reasonable foreseeability,
directness, the absence or presence of a novus actus interveniens,

legal policy, reasonability, fairness and justice all play their
part'.
See
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
[1994] ZASCA 146
;
1994
(4) SA 747
(A) at 764 I-765B.
In
delict, the reasonable foreseeability test does not require that the
precise nature or the exact extent of the loss suffered
or the
precise manner of the harm occurring or details of the injury should
have been reasonably foreseeable for liability to result.
It is
sufficient if the general nature of the harm suffered by the
plaintiff and the general manner of the harm occurring was reasonably

foreseeable. See
Standard
Bank Chartered Bank of Canada v Nedperm Bank Ltd
supra
at
768;
RAF
v Russel
2001 (2) SA 34
(SCA) at [26]
[87]
In
essence, therefore, the question of legal causation is not a logical
concept

concerned with causation but a moral reaction, involving a value
judgment and    applying common sense, aimed at assessing

whether the result can fairly be said to be imputable to the
defendant.
If
the negligence of the Department caused or contributed to the death
of A., then it could never be contended by the Department
this was
too remote a consequence to give rise to legal liability. I hold that
p
olicy
considerations based on the norms and values of our constitution and
justice point to the reasonableness of imputing liability
to the
Department. I further hold that failure of the Department to prevent
A.’s death is accordingly the kind of conduct
that ought to
attract liability.
NEGLIGENCE:
[88]
The test for determining negligence is that enunciated in
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E - F.    The
issue of negligence essentially involves a threefold enquiry. The
first is whether the harm was
reasonably foreseeable. The second is
whether the
diligens paterfamilias
would have taken reasonable
steps to guard against such occurrence. The third is whether the
diligens paterfamilias
failed to take those steps. Even where
the circumstances of an accident are deemed to be ‘
somewhat
unusual’
, the element of foreseeability will be met if the
general nature of the harm to the third party was foreseeable; it is
not necessary
that the precise or exact manner in which the harm
occurs be foreseeable.
See
Mcintosh
v Premier, KZN
2008 (6) SA 1
(SCA) at [13];
Carmichele
(SCA)
supra
at
para [45]
[89]
The fact is liability in delict is for causing damage, not for
causing
'accidents'
or
'events'
leading
to damage. Thus the test of negligence is the reasonable
foreseeability of damage, harm or injury, not of an accident or
event
causing the same. As such, it is sufficient if the person sought to
be held liable therefor should have foreseen the general
nature of
the harm that might be caused in consequence of his conduct, that is,
it is the harm or damage and not the occurrence
or event giving rise
thereto that is relevant. See
Vorster
v AA Mutual Insurance Assoc. Ltd
1982 (1) SA 145
(T) at 161.
The
crucial question, therefore, is the reasonableness or otherwise of
the Department’s conduct. This is the second leg of
the
negligence inquiry. Generally speaking, the answer to the inquiry
depends on a consideration of all the relevant circumstances
and
involves a value judgment which is to be made by balancing various
competing considerations, including such factors as the
degree or
extent of the risk created by the actor's conduct, the gravity of the
possible consequences and the burden of eliminating
the risk of harm.
In the ultimate analysis, the true criterion for determining
negligence, is whether in the particular circumstances
the conduct
complained of falls short of the standard of the reasonable person.
Dividing the inquiry into various stages, however
useful, is no more
than an aid or guideline for resolving this issue. See
Carmichele
(SCA)
supra
at
para [44] – [45].
[90]
Obviously, i
t
is reasonably foreseeable that infants are going to be injured or
even killed if the Department does not fulfil its duties by

regulating ECD services provided at ECD facilities.
It
is reasonably foreseeable that an infant could be seriously injured
or killed if the Department failed to process the First Defendant’s

application for registration and if the First Defendant’s ECD
services were not monitored and she was permitted to continue
to
operate an unsafe ECD facility.  I agree with Mr Coughlan’s
submission that a reasonable person in the Department’s

position would reasonably have foreseen the possibility of harm
befalling someone in A.’s position as a result of a failure
to
fulfil its constitutional and legislative responsibilities. I am of
the view that, given that the harm was foreseeable and given
that
such harm could result in serious injury or even death to vulnerable
persons (infants) such a reasonable person would have
taken
reasonable steps to prevent harm to A. by processing the application
and by visiting the facility to assess the safety of
the children. It
is common cause that the Department did not take any steps to avert
the foreseeable harm that ultimately occurred
to A.. The reasons put
forward by the Department for its failure to process first
defendant’s application do not, in my view,
constitute valid
and excusable reasons. The fact remains that the Department failed to
comply with its core responsibilities. Its
failure resulted in a
breach of A.’s fundamental right to the safety and security of
her person. This failure thus infringed
A.’s most fundamental
right to life. I state categorically that the Department did not
present sufficient evidence to demonstrate
that there were resource
constraints which justified its failure to act. I therefore hold that
in conformity with the value of
accountability, the Department’s
failure to comply with its legal responsibilities amounted to
negligence.
HARM
[91]
Not much time and energy need be spent on this element. The element
of harm is not in dispute. The fact is, A. died and the
plaintiffs’
rights were infringed.
CONCLUDING
REMARKS
[92]
The plaintiffs have proved liability on the part of both defendants
on a balance of probabilities. The first and second defendants
are
thus consecutive wrongdoers in as much as their wrongful omissions
follow one another in time. In my finding, the omissions
of both
defendants constitute substantial factors in bringing about the harm
that eventuated in this matter.  This is a case
where one is
dealing with a situation where separate delictual acts (omissions)
have combined or coalesced (so to speak) to cause
a single
indivisible injury. See
Nedcor Bank Ltd t/a Nedbank v Lloyd –
Gray Lithographers
(Pty) Ltd
2000 (4) SA 915
(SCA) at 902 where
Scott JA pointed out that concurrent wrongdoers are persons whose
independent or ‘
several’
delictual acts (or
omissions) combine to produce the same damage. See
Van Der Walt
Delict
para 60; McKerron
The Law of Delict
7
th
ed at 107-8. See also
Harrington NO v Transnet Ltd
2007 (2) SA
228
(C). In the circumstances, it is fair and reasonable that each
defendant should be held jointly and severally liable for the harm

suffered by the plaintiffs.
ORDER
[93]
In the circumstances this court makes the following order:
(a)
The
defendants are jointly and severally liable to pay damages to
plaintiffs arising from the wrongful death of their daughter A.
B.,
which occurred on 14 October 2010;
(b)
The defendants are jointly and severally liable for the party and
party costs incurred by the plaintiffs in the action to date.
(c)
The
remaining issue of quantum is postponed
sine
die
for determination.
____________________________
D
V DLODLO
Judge
of the High Court
HEARD:
27 March 2017
DELIVERED:
30 June 2017
APPEARANCES:
COUNSEL
FOR PLAINTIFFS:
Adv. W S Coughlan
ATTORNEY
FOR PLAINTIFFS:
DSC Attorneys
Mr
C Smit
COUNSEL
FOR DEFENDANT:
Adv. G Oliver
ATTORNEY
FOR DEFENDANT
:

State Attorney
Shakira Chotia