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[2018] ZASCA 166
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Government of the Western Cape: Department of Social Development v C B and Others (1220/2017) [2018] ZASCA 166; 2019 (3) SA 235 (SCA) (30 November 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1220/2017
In
the matter between:
THE
PROVINCIAL GOVERNMENT OF THE
WESTERN
CAPE: DEPARTMENT OF
SOCIAL
DEVELOPMENT APPELLANT
and
C
B FIRST
RESPONDENT
R
B SECOND
RESPONDENT
DAWN
KATHRYN DOUGLAS
MOORE THIRD
RESPONDENT
Neutral
citation:
Government of the Western Cape: Department of Social
Development v C B & others
(1220/2017)
[2018] ZASCA 166
(30
November 2018)
Bench:
Navsa ADP, Wallis, Mbha and Dambuza JJA and Nicholls AJA
Heard:
02 November 2018
Delivered:
30 November 2018
Summary:
Civil Procedure – separation of issues in terms of Uniform
Rule 33(4) – principles restated – repeated warnings
against impulsive separation of issues – issues to be separated
have to be carefully and clearly circumscribed – no
court order
of separation – procedure improper.
Delict
– damages claim by a secondary victim for psychological harm
suffered – Provincial Government owed no legal duty
to
secondary victim – nothing in the statutory framework
indicating intention to provide for delictual damages – no
negligence proved.
ORDER
On
appeal from
: Western Cape Division, Cape Town (Dlodlo J sitting
as court of first instance):
1 The appeal is upheld.
2 The order of the high court is set
aside and replaced by the following order:
‘
(a) The first defendant is
liable to pay damages to the plaintiffs arising from the wrongful
death of their daughter, A B, which
occurred on 14 October 2010.
(b)
The first defendant is liable for the costs incurred by the
plaintiffs.
(c)
Determination of quantum is postponed sine die.
(d)
The claim against the second defendant is dismissed.
(e) Each party shall pay its own costs
in respect of the claim against the second defendant’
3 Each party shall pay its own costs
in this appeal.
JUDGMENT
Dambuza
JA (Navsa ADP, Wallis and Mbha JJA and Nicholls AJA concurring):
Introduction
[1]
This appeal arises from the tragic, and for the parents, the
heartrending death of a five month old baby girl, A B (A), at a
day
care (early child development (ECD)) facility, known as ‘Aunty
Dawn’s’, in Pinelands, Cape Town, on 14 October
2010. As
a result of A’s death, her parents, Mr and Mrs B (the Bs),
instituted a claim against the operator of the facility,
Ms Dawn
Moore (Ms Moore), and the appellant, the Provincial Government of the
Western Cape: Department of Social Welfare (the Province),
for
damages suffered by them as a result of A’s death. The Western
Cape Division of the High Court (high court) (Dlodlo J)
found Ms
Moore and the Province jointly and severally liable for damages
suffered by the Bs as a result of A’s death. This
appeal by the
Province, is with the leave of the high court.
Background
[2]
During 2006 Ms Moore started
operating Aunty Dawn’s from her home in Verbena Way, Pinelands,
Cape Town. At that stage the
facility accommodated five children. On
6 February 2008 Ms Moore applied for registration of her facility
with the Province as
a partial care facility,
[1]
as she was required to do in terms of s 30(2) of the Child Care Act
74 of 1983 (the Child Care Act), which was the then applicable
legislation.
[2]
In her application for accreditation Ms Moore stated that she
intended to increase the number of children accommodated at Aunty
Dawn’s to about 18 to 20.
[3]
On 27 February 2008 the Province issued a written acknowledgment of
receipt of Ms Moore’s application. A written instruction
also
went out to the municipal health department for inspection of the
facility so that a health care certificate would be issued
in
preparation for registration. However, at the time of A’s
death, two years after the application for registration of Aunty
Dawn’s, there had been no further consideration, by the
Province, of Ms Moore’s application for registration. By that
time (2010) Ms Moore was caring for 17 children, 15 above the age of
three, one below the age of three, and A.
[4]
A was born on 10 May 2010. At
the time Mrs B was employed as an information technology specialist
in Westlake, Cape Town, but lived
in Pinelands. Towards the end of
her maternity leave Mrs B visited Aunty Dawn’s to assess its
suitability as she was looking
for a day care facility for A and her
three year older sister C.
[3]
She found Aunty Dawn’s clean, reasonably spacious, with
appropriate indoor and outdoor equipment and conveniently located.
She was satisfied that it was properly run and the fees were within
her and her husband’s budget. Ms Moore told her that
A would be
the only baby at the facility and undertook to personally take care
of her. There were cots for A to sleep in. Mrs B
approved of the
facility and she and her husband decided to enrol their children
there.
[5]
In August 2010 C and A were enrolled at Aunty Dawn’s. The
routine was that Mrs B would drop both children at Aunty Dawn’s
at about 07h15 in the early morning before going to work. She would
leave A still strapped into her car safety seat and find her
secured
in the same manner when she came to fetch the children in the
afternoon.
[6]
On 14 October 2010 A died after
she had been left alone in Ms Moore’s bedroom. Because Ms Moore
left South Africa before the
trial, there was no direct evidence in
the high court as to how the events of the day unfolded after Mrs B
had dropped the children
off that morning. The facts relating to A’s
death could only be distilled from her statement filed in the record
of the inquest
together with other evidence that I will deal with in
due course. According to that statement after Mrs B left A at the
facility
at about 07h30, Ms Moore put her on the bed in her bedroom
to sleep. She placed pillows around her.
[4]
At about 09h45 she changed A’s nappy and, once more, left her
sleeping on the bed amongst pillows as she went to prepare
her food.
When she returned to the bedroom A was still asleep. Ms Moore left
her sleeping on the bed with the door closed and checked
on her
regularly. At about 10:30 am she found her lying on the floor, wedged
between the bed and a bedside pedestal. She was not
breathing, and Ms
Moore’s attempts at resuscitating her proved fruitless. She had
sustained an abrasion on one side of the
head and a bruise on the
other. Vomit on her left wrist was suggestive of the wrist having
come into contact with her mouth and
thus contributed to the
obstruction of the mouth and nose. The opinion of a pathologist
who
interviewed
Ms
Moore
was
that
having
rolled
off
the
bed
and
become stuck between the bed
and a bedside pedestal A must have died of positional asphyxiation.
[7]
Mr and Mrs B were called to
Aunty Dawn’s and were told of the tragic news of their baby’s
death. They also learnt at
that stage that Ms Moore had left A to
sleep on the bed instead of a cot. It turned out that this was not
the first time that Ms
Moore had left A to sleep on the bed rather
than in a cot. In a statement made to the social workers
subsequent
to
A’s
death,
Mrs
B
related
that
when
she
picked
up
the children from Aunty Dawn’s
on the afternoon preceding A’s death she found A sleeping on
the bed.
[5]
Ms Moore explained to her that A had fallen asleep whilst the two of
them were sitting on the bed and, because she did not want
to wake
her up, Ms Moore put pillows around her and left her sleeping on the
bed.
[8]
Subsequent to A’s death,
on 25 October 2010, Dr Badronessa Govender, a registered social
worker employed as a Director by
the Province, visited Aunty Dawn’s
to investigate the circumstances of A’s death. Her assistants,
Ms Charmaine Brown
and Ms Abrahams, as well as an environmental
practitioner also visited Aunty Dawn’s. At the time, Pinelands
fell under Dr
Govender’s responsibility. She was responsible
for, amongst other things, registration of partial care facilities in
terms
of s 80 of the Children’s Act 38 of 2005 (the Children’s
Act).
[6]
In a quality assurance report compiled by her pursuant to the visit,
she recorded the conditions at Aunty Dawn’s as follows:
‘
Mrs Dawn Moore is the owner of
the centre and the principal. She has no formal qualification in ECD
practices. She operated an ECD
centre in the 1970’s for four
years. She then closed down and took up other employment for a few
years. According to Mrs
Moore, she has experience of early childhood
development for the past ten or eleven years. She indicated that she
has first aid
training. Further to this, she indicated that she has
two “helpers” who assist with the caring of the children
and
keeping the centre clean and tidy. They have no qualifications in
early childhood development’.
[9]
Regarding ‘sleeping arrangements’ she reported that:
‘
It can be reported that it was
observed that there were adequate cots and mattresses available for
the children. There were also
extra mattresses if the need should
arise for its use. It can also be reported that it was clean and
covered with plastic’.
[10]
Her assessment of the facility was that the staff complement appeared
to be adequate and compliant with the ratio of ECD practitioners
to
children, laid down in the Guidelines for ECD services. Although the
carers did not have formal qualifications they had prior
experience
of working with children and demonstrated a positive attitude towards
the children and sensitivity to their needs. Ms
Moore was open to the
development of practitioners and was eager to comply with the
Department’s regulations. She was also
willing to be trained.
The premises were clean and tidy, and reasonable precautions had been
taken to protect the children.
[11]
Dr Govendor recommended that
the pre-registration processes, such as rezoning and health
inspections be done so that the facility
could be registered. She
also recommended that Ms Moore reduce the number of children to fewer
than 6 until the facility was registered.
Her view was that the
facility should not be closed down because the non-adherence to the
norms and standards of the Province was
not of such a degree
as
to
negatively
affect
the
children.
[7]
In
her
evidence
before
the
high
court
she attributed the failure by
the Province to process Ms Moore’s application to a policy of
the province at that time, which
was to prioritize ECD facilities
located in previously disadvantaged communities. Apparently there
were over 1300 unregistered
facilities in the province and many of
these were in previously disadvantaged communities. Aunty Dawn’s
was eventually registered
as an ECD facility on 22 July 2011.
The
pleadings
[12]
As against Ms Moore the Bs’ case was that she was negligent in
causing A to sleep on a bed. There were also contentions
that she
failed to ensure that her facility complied with the minimum
standards set for ECD’s in the Children’s Act
and the
Guidelines. A further contention was that she failed in her
Constitutional duty to ensure A’s safety and security.
[13]
In respect of the Province, the claim was broadly premised on
failure, by the Provincial officials, to comply with statutory
and
Constitutional obligations to regulate, manage, control and support
provision of ECD services in the Western Cape Province
generally and
to Aunty Dawn’s in particular. The high-water mark of the case
against the Province was that, had the officials
processed Ms Moore’s
application for registration of Aunty Dawn’s, they would have
visited and inspected the facility
for compliance with the applicable
laws. Had they done that, and provided the necessary support and
advice to Ms Moore, she would
have complied by implementing a safe
sleeping regime for the children, and would not have placed A on the
bed. Her death would
not have occurred.
[14]
Both Ms Moore and the Province denied negligence in relation to A’s
death.
The
trial
The
evidence
[15]
The high court considered the evidence of five witnesses. On behalf
of the Bs it was the evidence of Dr Yolande van der Heyde,
a
pathologist, Dr D H Van der Watt, a specialist paediatrician, Mrs B,
and Mr Terrence November who also testified as an expert
witness and
whose expertise is adverted to later in this judgement. The social
worker, Dr Govender was the only witness who testified
on behalf of
the Province. Apart from Mr November the essence of the evidence of
these witnesses appears in the background already
outlined above.
[16]
There is nothing contentious about the evidence of all the witnesses
except Mr November. Although he held a three year degree
in BA Social
Science at the time of giving evidence he was neither a registered
social worker nor qualified to register as such
because he did not
hold the requisite four year degree. He had only completed a number
of short courses related to management of
non-governmental and
non-profit organizations, and had 27 years’ experience working
in the early childhood and community
development sectors. He never
worked for the State and had never managed an ECD or partial care
facility. He had also never published
any material in the area of
ECD. Most importantly, he had no qualification in the field of law.
Yet he claimed to be and testified
impermissibly as an expert in
relation to interpretation of the ECD and partial care statutory
regime. Based on his asserted expertise,
he gave lengthy evidence on
the statutory obligations of the Province in relation to early
childhood development. The contention,
on behalf of Mr and Mrs B, was
that he was an expert on ‘facilitation of registration of ECD
facilities’
[17]
It is true that in certain
cases lack of formal or theoretical training may be offset by
practical experience in a specific field.
However it is important to
bear in mind that the basis for acceptance of opinion evidence is
that such evidence will assist the
court appreciably. A witness’
opinion may assist the court in this way if the witness is better
qualified to form an opinion
than the court. If the court is in as
good a position to form an opinion as the witness, or even better,
the opinion of the witness
is inadmissible.
[8]
[18]
Mr November’s evidence
relating to interpreting the relevant legislation, was clearly
inadmissible. That task is one for the
court.
[9]
Counsel on behalf of the Bs correctly did not rely on any of it.
[19]
The trial was conducted on the basis of an agreement or understanding
between the parties and the court that the issue of liability
for the
damages suffered by the Bs as a result of A’s death, would be
separated from the quantum thereof. But nowhere in
the record does
such an agreement appear. Nor is it referred to in the judgement of
the high court. And no order of separation
was granted by the court.
[20]
This court has repeatedly
warned against ill-considered separation of issues. In
Denel
(Edms) Bpk v Vorster
[10]
Nugent JA expressed this warning as follows:
‘
Rule 33(4) of the Uniform Rules
– which entitles a court to try issues separately in
appropriate circumstances – is
aimed at facilitating the
convenient and expeditious disposal of litigation. It should not
always be assumed that that result will
always be achieved by
separating the issues. In many cases, once properly considered, the
issues will be found to be inextricably
linked, even though, at first
sight they might appear to be discrete. And even where the issues are
discrete, the expeditious disposal
of the litigation is often best
served by ventilating all the issues at one hearing, particularly
when there is more than one issue
that may be readily dispositive of
the matter. It is only after careful thought has been given to the
anticipated course of litigation
as a whole that it will be possible
properly to determine whether it is convenient to try an issue
separately.
But where the trial court is
satisfied that it is proper to make such an order – and in all
cases it must be so satisfied
before it does so – it is the
duty of that court to ensure that the issues to be tried are clearly
circumscribed in its order
so as to avoid confusion. The ambit of
terms like the ‘merits’ and the ‘quantum’ is
often thought by all
the parties to be self-evident at the outset of
a trial but in my experience it is only in the simplest of cases that
the initial
consensus survives. Both when making rulings in terms of
Rule 33(4) and when issuing its orders a trial court should ensure
that
the issues are circumscribed with clarity and precision.’
[21]
This is yet another case in which one can only conclude that no
careful thought was given to the implications of separating
the
issues. The separated issues were never clearly circumscribed and the
question of the evidence necessary in relation to each
of those
issues was seemingly not carefully considered. It appears that the
idea was that evidence relating to the harm suffered
by the Bs would
be led when considering the claim in relation to quantum of damages.
This was wrong.
[22]
The Bs had claimed damages for ‘psychiatric injuries in the
form of severe depressive symptoms, anxiety, post traumatic
stress
disorder and emotional disorder’. Their entitlement to an order
for general damages after an assessment thereof, depended
on them
showing that they had indeed suffered injuries as alleged. Their best
evidence on record in this regard was that Mrs B
never went back to
work subsequent to A’s death, that Mr and Mrs B could not ‘face
living in Cape Town anymore’,
and that they went to live with
Mr B’s parents in Hermanus to get their support.
[23]
A claim for sentimental damages
based on deterioration in the quality of life as a result of
emotional shock or grief, caused by
the death of another is
distinguishable from a claim for emotional shock associated with pain
and suffering experienced by a plaintiff
directly.
[11]
Medical or psychiatric evidence is the usual method by which
psychiatric injuries are proved. Such evidence usually establishes,
simultaneously, the causal nexus between the shock and the harm
suffered. The extent to which such grief endures, and the impact
thereof on the physical and mental wellbeing of the plaintiff, are
crucial in proving a damages claim. If the shock is only for
a short
period and does not have real impact (transient shock) on the health
of the plaintiff, it is usually disregarded.
[12]
[24]
No evidence of detectable or
recognised psychiatric injury was led in this instance. In the
absence of such evidence a finding of
liability lacked a fundamental
basis. This court seems to have been confronted with the same problem
in
Barnard v Santam Bpk
(Barnard)
.
[13]
There counsel were in agreement that the case had to be decided on an
assumption that the appellant had suffered nervous shock
resulting in
significant psychological trauma. Whether she had indeed suffered
such trauma and the extent thereof were questions
that had to be
referred back to the trial court.
[25]
Foreseeability of the harm suffered and whether a reasonable person
would have taken preventive action remains a further requisite
for a
finding of liability for damages based on psychiatric injuries.
Indeed in
Barnard
this court held that the relationship
between a mother and child was, by nature, very close, and that the
closer the relationship
between the victim and the traumatised
person, the more reasonable the inference that shock was reasonably
foreseeable. It must
be stressed however, that the claim in Barnard
was only against the perpetrator of the harm (and not the regulator).
Had the separated
issues been clearly circumscribed in this case, due
attention would have been paid to these aspects. The differences
between this
and other similar cases and the implications of those
differences would have been closely considered. Incidentally, the
fact that
the Bs would, as a result of the separation, have to return
to court to recount the tragic event and its effect on their lives
for the purposes of determination of the quantum, is a telling factor
in relation to the lack of thought given to the separation
of issues.
The
judgment of the court a quo
[26]
Despite these deficiencies in
the evidence, the high court found Ms Moore and the Province jointly
and severally liable to Mr and
Mrs B for A’s death. The judge a
quo concluded that ‘the omissions of both defendants
constitute(d) substantial factors
in bringing about the harm that
eventuated in th[e] matter’.
[14]
[27]
The court’s findings were
premised, broadly, on the responsibilities of the Province under the
Child Care Act, the Children’s
Act, the Guidelines
[15]
to ECD services and the Regulations
[16]
promulgated in terms of the Child Care Act. The high court found that
if the officials of the Province had visited Aunty Dawn’s
as
required by these legal instruments, they would have become aware of
the deficiencies at the facility and would have instructed
Ms Moore
to either close down the facility or reduce the number of children
accommodated there until it qualified for registration.
The court
also found that the omission by the Province in this regard was a
factual cause of (or contributor to) A’s death
and the
consequent harm to her parents was what a reasonable person in the
place of the Province would have foreseen and avoided.
The court also
found that the Bs had no alternative remedy (against the Province)
but to sue for damages.
On
appeal
[28]
The appeal had the following bases. It was contended that the
Province did not owe the Bs any legal duty attracting civil liability
in relation to A’s death. Whilst the Province acknowledged, as
one of its primary duties, the promotion of the proper care
of
children and protection of their rights within the partial care
facilities environment, it denied that it carried the primary
responsibility of ensuring the safety of children in the day to day
operation of privately run facilities. That primary responsibility
resorted with the owners of the facilities, so it contended.
Consequently the Bs could not prove the requisite negligence (duty
of
care) on the part of its employees. In the absence of wrongfulness no
question of negligence would arise, but in any event the
Province
argued that a reasonable person in its position would not have taken
any further steps to guard against harm to Mr and
Mrs B. Moreover,
there was no causal link between A’s death and the failure by
Provincial officials to process Aunty Dawn’s
registration
application. And, the alleged failures by Provincial employees were
too remote from the harm (allegedly) suffered
by the Bs to constitute
the legal cause thereof. And fourthly, the harm suffered by the Bs
was not reasonably foreseeable by the
Provincial employees.
[29]
The Bs persisted in their reliance on the failure by the provincial
employees to perform their statutory duty of processing
Ms Moore’s
application for registration of Aunty Dawn’s in terms of the
Child Care Act, the Children’s Act, the
Guidelines and the
Regulations.
Discussion
Common
law claims for damages against the State
[30]
In paras 23 to 25 above I have
discussed the common law principles relating to a claim for damages
for psychiatric injuries. That
discussion does not consider cases
such as the present, where the claim for damages is against the
State. It is a basic requirement
for delictual liability that the
conduct complained of must have been wrongful
(apart
from
being
negligent).
[17]
For
conduct
to
be
wrongful
it
must
infringe either a legally
recognised right of the plaintiff or constitute a breach of a legal
duty owed to the defendant by the
plaintiff.
‘
The legal duty may be imposed
by statute or by operation of common law, in which case the
imposition of the duty depends upon the
particular circumstances of
the case.’
[18]
[31]
In this case there can be no dispute that Ms Moore had a legal
obligation to prevent harm to A as a primary victim and to Mr
and Mrs
B as secondary victims in relation to A’s death. However the
situation was different in respect of the Province.
The question
whether the Province had a statutory duty to protect the Bs depended
on its legal duty, if any, towards A and the
causal link between the
breach of that duty and the harm suffered by the Bs.
[32]
Whilst the regulatory
responsibilities of the Province must be accepted, this does not
necessarily translate into a legal duty to
prevent harm to either A
or her to parents. Breach of a statutory duty, such as that on which
the claim against the Province was
founded, is not per se wrongful
for the purposes of determining delictual liability. It is merely a
relevant factor in the determination
of wrongfulness. The test as to
whether in a given case the State has a legal duty, is flexible.
[19]
In
Minister of Safety and
Security v Van Duivenboden
[20]
this court expressed itself as follows on state delictual liability:
‘
The reluctance to impose
liability for omissions is often informed by a
laisez faire
concept of liberty that recognises that individuals are entitled
to ‘mind their own business’ even when they might
reasonably
be expected to avert harm, and by the inequality of
imposing liability on one person who fails to act when there are
others who
might equally be faulted. The protection that is afforded
by the Bill of Rights to equality, and to personal freedom and to
privacy,
might now bolster that inhibition against imposing legal
duties on private citizens. However those barriers are less
formidable
where the conduct of a public authority or a public
functionary is in issue, for it is usually the very business of a
public authority
or functionary to serve the interests of others, and
its duty to do so will differentiate it from others who similarly
fail to
avert the harm. The imposition of legal duties on public
authorities and functionaries is inhibited instead by perceived
utility
of permitting them the freedom to provide public services
without the chilling effect of the threat of litigation if they
happen
to act negligently and the spectre of limited liability’.
The
court also warned, however, that:
‘
That last consideration ought
not to be unduly exaggerated, … bearing in mind that the
requirements for establishing negligence,
and a legally causative
link, provide considerable practical scope for harnessing liability
within acceptable bounds’.
[33]
Relevant factors in determining
delictual liability of the State include, its primary relationship
with the plaintiff; potential
of risk of harm created by the State
prior to the breach; control, by the State, over a potentially
harmful situation or thing;
Constitutional norms and values;
foreseeability of harm, the extent thereof and available practical
preventive measures.
[21]
This case is distinguishable from
Van
Duivenboden
and
Van
Eeden
where
this
court
found
that
the
State
had
a
legal
duty
towards
the
plaintiffs
by virtue of the police having
failed to take into custody dangerous criminals after reports had
been made to them. This case is
also distinguishable from those where
the State has been held to have a direct responsibility to the
plaintiff in respect of specific
services.
[22]
[34]
In
Olitzki
Property Holdings v State Tender Board & another
[23]
the approach was outlined as follows:
‘
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. 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 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.’
[35]
In
Knop
v Johannesburg City Council
[24]
this court held that the question whether a public authority is
liable in damages for negligence in exercising its statutory
functions
must depend on the answer to the question whether the
conduct was wrongful. This, in turn, entails consideration of the
nature
of the functions of the public authority.
[36]
Against this background I now turn to examine the legislative
framework on which the claim against the Province is founded
in this
case.
The
legislative framework
[37]
Ms Moore’s application for registration of Aunty Dawn’s
straddled two pieces of legislation. It was made in 2008
in terms of
s 30 of the Child Care Act. On 1 April 2010 the Children’s Act
came into effect. The Guidelines give insight
as to the intention of
the legislature in regulating as it did the accommodation and care of
children in partial care facilities.
[38]
The foundation for the minimum standards set in the Guidelines
appears in the foreword to the Guidelines as follows:
‘
Early childhood development
services need to be holistic and should attend to the child’s
health, nutrition, development,
psychosocial and other needs.
Parents, communities, non- governmental organisations and government
departments have a role to play
to ensure an integrated service to
children. Collaboration between sectors is therefore of utmost
importance. Access to basic social
services is the right of all
children, parents and other primary caregivers. They should have
access to as many resources as possible
to provide [for] the needs of
young children’.
[39]
Although the Department of
Social Development bears the primary responsibility of ensuring that
conditions are created for the optimum
development of children
through provision of support of appropriate services, it is not the
only government department responsible
for ensuring that young
children are taken care of in the best way. Other government
departments include the Departments of Health,
Education, Housing,
Home Affairs, Justice and local municipalities.
[25]
The Regulations require the municipalities to be involved in giving
approval in the establishment and continuation of ECD facilities.
They also promulgate by-laws that regulate and monitor day-care
facilities and child minding.
[40]
The role and responsibilities
of the provincial departments includes provision of support and
guidance to ECD service providers
in the province; development at the
discretion of the Member of Executive Council (MEC) of provincial
legislation, policies, guidelines,
strategies and priorities on ECD;
facilitation of registration of ECD facilities and monitoring the
provision of registered and
non-registered ECD services
within communities.
[26]
[41]
Although registration of ECD
facilities and adherence to minimum standards is strongly
advocated,
[27]
challenges to responsibilities of government are acknowledged in the
Guidelines. These include poverty, HIV and AIDS, disability,
and
inter-sectoral collaboration.
[28]
Further, the extent of logistical and financial difficulties inherent
in the provision of these services was not lost on the legislature.
[42]
The report of the South African
Law Commission which preceded the promulgation of the Children’s
Act gives insight into the
experience derived from implementation of
the Child Care Act. In that report the Commission suggested that the
provisions of the
contemplated Act not be applicable to ECD
facilities providing
services
to fewer than six children, a position taken to prevent
over-regulation of the sector. The commission accepted that not
all
ECD services would be rendered in buildings.
[29]
Adequacy of human resources to assist in monitoring and evaluation of
ECD facilities, especially in remote areas, was a concern
expressed
by the some of the role players.
[30]
[43]
Some of the challenges acknowledged in the Guidelines resonate with
the difficulties expressed by Dr Govender when giving evidence
in
this case. For example, Aunty Dawn’s was one of approximately
1400 private and unregistered ECD facilities operating in
the Western
Cape. Her evidence regarding the shortage of social workers in the
country was that there were 16 164 registered social
workers as
against a need for 68 498. It is in this context that the province
developed a policy in terms of which priority would
be given to
facilities located in disadvantaged communities. It is difficult to
understand why Dr Govender’s evidence in
this regard was
rejected by the judge a quo.
[44]
Nothing in the legislative framework on which the Bs rely is
indicative of an intention to visit with delictual liability
non-compliance with any particular regulatory function. Registration
of ECD facilities under the Child Care Act and the Children’s
Act was essentially part of the broader role intended for the State
to promote, provide and support EDC services around the country.
In
this regard the Guidelines provide that ‘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’.
Given
the important role fulfilled by child care facilities across social
and economic strata throughout the country it is not surprising
that
a corrective rather than a purely punitive approach is preferred
where there is non-compliance with minimum standards. In
large part
therefore, the legislative framework remained aspirational. The
intention must have been that government, through the
various
government departments, led by the Department of Social Development
would develop a plan to effect progressive access to
ECD services in
the various provincial jurisdictions within the country.
[45]
Insofar as the Bs’ claim was founded on ss 12 and 28 of the
Constitution an argument may be made that powers were conferred
on
the Province with the aim of safeguarding children in ECD facilities.
However, considering the vastness of the need for practical
care
services, the fact that some facilities may, by reason of their
location and paucity of resources, not comply with the minimum
standards set in the Guidelines, shows that strict adherence to legal
prescripts was an unattainable goal.
[46]
The role of the state in this
case is distinguishable from that of the police officers in
Minister
of Safety and Security v Van Duivenboden
[31]
and
Van Eeden v Minister of
Safety and Security
[32]
where the police had previously been asked to exercise their powers
to restrain specific unlawful conduct that had been brought
to their
attention. In this case there was no evidence that the Province had
been alerted to specific risks or dangers to the children
at Aunty
Dawn’s. On the contrary, the Bs were satisfied with the
services they received from the facility. Parents that were
interviewed during the investigation into the tragedy expressed their
willingness to continue entrusting their children to Ms Moore’s
care. And there is no evidence that non-adherence
to
norms
and
standards
would
have
led
to
the
closing
down
of
the facility.
[47]
More significantly, the contention that registration of the facility
and consequent inspections would have prevented the tragedy
finds no
support in the evidence. The Guidelines prescribed only one visit to
a facility per year. Ms Moore was quite alert to
(recommended) safe
sleeping practices for small children. She was also aware that Mrs B
was not comfortable with the practice of
causing A to sleep on the
bed. Hence her coy explanation on the day preceding A’s death
about why she had left her sleeping
on the bed. Yet, the following
day she put her to sleep on the bed and left her alone in the
bedroom. The contention that a visit
from Provincial officials would
have caused her to observe a safer sleep routine finds no support in
the evidence. Consequently
the order of liability against the
Provincial Government cannot be sustained.
Causation
[48]
Although given the findings made above, it is strictly speaking, not
necessary to consider this aspect, I shall do so briefly.
Even if the
conduct of the Province gave rise to legal liability it is difficult
to understand how such conduct could be causally
linked to A’s
death. Apart from the fact that Ms Moore was quite aware of the
recommended sleeping environment for babies
of A’s age, on the
evidence, even if the Provincial officials had visited Aunty Dawn’s
and had done the prescribed
inspections (which would have been once a
year), they would not have recommended closure of the facility. In
the end, on all levels
the claim for damages had to fail.
Costs
[49]
Although this case does not
fall squarely within the scope of
Biowatch
Trust v Registrar Genetic Resources and Others
[33]
it is only proper that the Bs not be mulcted with an order of costs.
The Bs experienced great suffering as a result of the tragedy
and it
is understandable that they would approach the court for what
assistance they might get. It would be undesirable to inflict
further
anguish on them.
[50]
Therefore the following order is made:
1 The appeal is upheld.
2 The order of the high court is set
aside and replaced by the following order:
‘
(a) The first defendant is
liable to pay damages to the plaintiffs arising from the wrongful
death of their daughter, A B, which
occurred on 14 October 2010.
(b)
The first defendant is liable for the costs incurred by the
plaintiffs.
(c)
Determination of quantum is postponed sine die.
(d)
The claim against the second defendant is dismissed.
(e) Each party shall pay its own costs
in respect of the claim against the second defendant’
3 Each party shall pay its own costs
incurred in this appeal.
___________________
N
Dambuza Judge of Appeal
APPEARANCES
For
Appellant: I Jamie SC (with him G Olivier)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
Respondent: R F van Rooyen SC (with him W S Coughlan)
Instructed
by:
DSC
Attorneys, Cape Town
Rosendorf
Reitz & Barry Attorneys, Bloemfontein
[1]
Section 1 the Child Care Act defined a ‘place of care’
in relation to children as:
‘
any building or premises
maintained or used, whether for profit or otherwise, for the
reception, protection and temporary or partial
care of more than six
children apart from their parents, but does not include any boarding
school, school hostel or any establishment
which is maintained or
used mainly for the tuition or training of children and which is
controlled by or which has been registered
or approved by the State,
including a provincial administration.’
[2]
Section 30(2) of the Child Care Act provided:
‘
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 this section, or otherwise than in accordance with
the conditions on which that place
of care has been so registered.’
[3]
At that time the Bs only had the two children, C and A. Two more
girls were born subsequent to A’s death; E on 10 October
2011
and E, on 10 March 2016.
[4]
Despite poor quality, black and white photocopies of photographs on
record, taken on the day of the incident, show the pillows
still
scattered on the bed.
[5]
Mrs B confirmed this incident when giving evidence.
[6]
Although the application for registration of Aunty Dawn’s was
made in terms of the Child Care Act, when the Children’s
Act
came into operation the responsibilities of the Provincial
Government continued in terms of the latter Act. Section 79 of
that
Act provides:
‘
(1) The Minister, after
consultation with interested persons and the Ministers of Education,
Finance, Health, Provincial and Local
Government and Transport, must
determine national norms and standards for partial care by
regulation.
(2) The national norms and standards
contemplated in subsection (1) must relate to the following:
(a) A safe environment for children;
(b) proper care for sick children or
children that become ill;
(c) adequate space and ventilation;
(d) safe drinking water;
(e) hygienic and adequate toilet
facilities;
(f) safe storage of anything that may
be harmful to children;
(g) access to refuse disposal
services or other adequate means of disposal of refuse generated at
the facility;
(h) a hygienic area for the
preparation of food for children;
(i) measures for the separation of
children of different age groups;
(j) the drawing up of action plans
for emergencies; and
(k) the drawing up of policies and
procedures regarding health care at the facility.’
[7]
Section 80(1) provides:
‘
Any person or organisation may
establish or operate a partial care facility provided that the
facility–
(a) is registered with the provincial
government of the province where that facility is situated;
(b) is managed and maintained in
accordance with any conditions subject to which the facility is
registered; and
(c) complies with the prescribed
national norms and standards contemplated in section 79 and such
other requirements as may be
prescribed.’
In
terms of s 82(1):
‘
The provincial head of social
development must–
(a) within six months of receiving
the application consider an application for registration or
conditional registration or for
the renewal of registration and
either reject the application or, having regard to subsection (2),
grant the registration or
renewal with or without conditions;
(b) issue to the applicant a
certificate of registration or conditional registration or renewal
of registration in the prescribed
form if the application is
granted; and
(c) state in the certificate of
registration the period for which the registration will remain
valid.’
[8]
Zeffert and Paizes The South African Law of Evidence 2
nd
ed; at 311.
[9]
South Atlantic Islands Development Corp v Buchan
1971 (1) SA 234
(C)
at 238C-F.
Separation
of issues
[10]
Denel (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) para 3.
[11]
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk
1973 (1)
SA 769
(A). See also Barnard v Santam Beperk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA)
and Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).
[12]
Visser and Portgieter Law of Damages 3
rd
edition at 110.
[13]
Barnard v Santam Beperk 1999 (1) SA 202 (SCA).
[14]
B and another v Moore and another (20388/2011)
[2017] ZAWCHC 70
;
[2017] 3 All SA 799
(WCC) para 92
[15]
The Guidelines for Early Childhood Development Services (the
guidelines - developed by the National Minister of Social
Development,
in terms of the Children’s Act, to facilitate
execution by that department of its role in early childhood
development in
the country).
[16]
Children’s Act Regulations.
[17]
Joubert LAWS (2
nd
ed) Vol 8 at 81
[18]
Ibid at 83
[19]
Aspects of the Role of Policy in the Evolution of our Common Law
(1987) 104 SALJ 52
[20]
Minister of Safety and Security v Van Duivenboden
[2002] ZASCA 79
;
2002 (6) SA 431
(SCA);
[2002] 3 All SA 741
(SCA) para 19
[21]
Joubert LAWSA (2nd ed) Vol 8 at 102.
[22]
For example Lee v Minister of Correctional Services [2012] ZACC 30;
2013 (2) SA 144 (CC).
[23]
Olitzki Property Holdings v State Tender Board and Another
[2001]
ZASCA 51
;
2001 (3) SA 1247
(SCA) para 12.
[24]
Knop v Johannesburg City Council
[1994] ZASCA 159
;
1995 (2) SA 1
(A);
[1995] 1 All SA 673
(A).
[25]
See for example the Introduction to the Guidelines and Part One of
Chapter 1 thereof at 13 (under the Heading ‘The Importance
of
Providing Quality ECD services’).
[26]
At 24-25
[27]
See ss 30(2) and (3) and s 30(6) of Child Care Act and Regulation 30
(2) and (3). Section 30(6) of the Child Care Act provided
that any
person who contravened or failed to comply with the provisions and
requirements for registration of places of care would
be guilty of
an offence
[28]
At 14 and 15.
[29]
Compare with description of ‘place of care’ in the Child
Care Act, 1983.
[30]
For example this challenge was expressed to the commission by the
Department of Health, Pretoria.
[31]
Minister of Safety and Security v Van Duivenboden .
[32]
Van Eeden v Minister of Safety and Security (176/01)
[2002] ZASCA
132
;
[2002] 4 All SA 346
(SCA) (27 September 2002).
[33]
Biowatch Trust v Registrar Genetic Resources and Others
[2009] ZACC
14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).