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[2020] ZASCA 103
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Minister: Western Cape Department of Social Development v BE obo JE and Another (379/2019) [2020] ZASCA 103; [2020] 4 All SA 650 (SCA); 2021 (1) SA 75 (SCA) (16 September 2020)
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Certain
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 379/2019
In
the matter between:
THE
MINISTER OF THE WESTERN CAPE DEPARTMENT
OF
SOCIAL DEVELOPMENT APPLICANT
and
B[…]
E[…] obo J[…] E[…]
FIRST RESPONDENT
OVERBERG
DISTRICT
MUNICIPALITY SECOND
RESPONDENT
Neutral
citation:
Minister: Western Cape Department of Social
Development v E[…] and Another
(Case no 379/2019)
[2020]
ZASCA 103
(16 September 2020)
Coram:
PONNAN, WALLIS, MAKGOKA, DLODLO and NICHOLLS JJA
Heard
:
28 August 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 16 September
2020.
Summary:
Nursery school – place of care in terms of Child Care Act
74 of 1983 – child injured when playing on swing in playground
– defective design and construction of swing rendering it
dangerous – whether Minister owed a legal duty to children
in
places of care to take reasonable steps to ensure safety of equipment
– whether Minister liable for damages suffered by
injured
child.
ORDER
On
appeal from:
Western Cape High Court (Sievers AJ, sitting as
court of first instance)
1
The application for leave to appeal is granted.
2
The appeal is upheld and the order of the high court altered to read;
'1
The plaintiff's claim is dismissed with no order as to costs.
2
The defendant's claims against the third party are dismissed with
each party to bear
their own costs.'
3
Each party is to bear their own costs of the appeal.
JUDGMENT
Wallis
JA (Ponnan, Makgoka, Dlodlo and Nicholls concurring)
[1]
In 2008 the
Babbel & Krabbel Kleuterskool (the School) in Bredasdorp had
around 190 children in its care.
[1]
Its playground was equipped with conventional playground equipment –
a climbing frame, slides, a see-saw, a roundabout and
swings. On 12
August 2008, J[…] E[…], then five and a half years old,
was playing on the swing when the heavy cross-beam
collapsed on top
of her causing severe head and brain injuries and leaving her
severely disabled. That family tragedy gives rise
to the present
proceedings in which J[…]'s father, the first respondent,
seeks to recover damages from the applicant, the
Minister of the
Department of Social Development in the Western Cape (the
Minister).
[2]
[2]
The Minister joined the second respondent, the Overberg
District
Municipality (Overberg), as a third party and it in turn joined the
School as a third party. Contributions were sought
from them in the
case of Overberg on the basis of contributory negligence in the event
of the Minister being held liable to Mr
E[…] and, in the case
of the School, if Overberg was held liable. Mr E[…] had sued
the School in a separate action
that was consolidated with this case,
but it played no active role in the litigation.
[3]
The issue of liability was separated from the remaining
issues and
tried before Sievers AJ in the Western Cape Division of the High
Court, Cape Town. On 25 January 2019 he handed down
a judgment
holding the Minister liable to pay the damages claimed by Mr E[…]
and dismissing the Minister’s claims
against Overberg.
Thereafter he refused leave to appeal. However, this court granted an
order on 29 July 2019 that the application
for leave to appeal and
condonation be referred for oral argument in terms of s 17(2)(
d
)
of the
Superior Courts Act 10 of 2013
. That is the application before
us, in which the Minister is the applicant, Mr E[…] the first
respondent and Overberg effectively
the second respondent. The
parties were directed, if called upon to do so, to address the merits
of the appeal.
[4]
The issue
of leave to appeal can be disposed of forthwith. The case involves a
consideration of the legal duties imposed upon the
Minister and the
Director-General (the DG) of the Department of Social Development
(the Department) in their capacity as the regulators
having oversight
of all places of care and like institutions in the Western Cape. It
does not arise from knowledge on the part
of departmental officials
of a specific issue relating to this school, where such knowledge
might have operated to impose a legal
duty to prevent or avoid harm
that would not otherwise have arisen. As such, given the fact that
the national legislation relied
on in both the high court and this
court applies in all nine provinces, the question whether it gives
rise to legal duties to prevent
or avoid harm to children in places
of care and like institutions is one of general importance. Lastly,
the judge distinguished
the judgment of this court in
Barley
,
[3]
which raised similar issues under the same legislative provisions and
where it was held that no legal duty had been imposed on
the Minister
or the Department in the circumstances of that case. Leave to appeal
must be given.
The
facts
[5]
At the heart of the allegations of negligence
against the Minister lay the fact that the swing that collapsed on
J[…] was
defectively designed and unsafe. Its design was
simple. There were two sturdy upright poles lightly cemented into the
ground and
attached by a cross-beam to a similar upright pole
fastened to the side of a wooden climbing frame, so that the swing
stood at
right angles to the climbing frame. A round cross-beam,
similar in size and shape to the uprights, rested on top of the
uprights.
It was fastened to them by a hoop-shaped metal strap
attached to each upright by nails and perhaps an occasional screw,
passing
over the top of the beam and attached again to the other side
of the upright. Three swings made out of old car tyres were attached
directly to the cross-beam by nylon ropes.
[6]
The
evidence of Mr Jeffrey Hillman, an expert mechanical engineer,
identified three respects in which the design of the structure
was
defective. First, placing a round cross-beam on top of the flat tops
of the upright poles meant that the cross-beam could move
back and
forth on the uprights in a rotary motion. To prevent this steps
should have been cut at each end of the cross-beam at
the points
where it met the uprights so that the connecting surfaces between the
two were both flat. The cross-beam would then
not have rotated on the
uprights.
[4]
Second, the
appropriate method of fastening the cross-beam to the uprights would
have been by way of a bolt or screw fastening
driven through the top
of the cross-beam into the centre of the uprights. This would have
tied the cross-beam securely to the uprights.
By contrast, the
fixings (metal straps) used for that purpose flexed back and forth
with any rotary motion of the cross-beam, ultimately
weakening the
straps until they broke. Third, the ropes holding the swings should
not have been attached directly to the cross-beam,
but rather to
metal eyes set into the base of the cross-beam, or metal sleeves
passing over the cross-beam and able to rotate when
the swing was in
use, without imposing rotational forces on the cross-beam itself.
Instead, by attaching the ropes directly to
the cross-beam, the
to-and-fro motion of the swings transmitted a force directly to the
cross-beam, causing it to move back and
forth across the top of the
uprights. The fact that there were three swings attached to the
cross-beam aggravated the situation.
[7]
Mr
Hillman did not say that these defects in the design would have been
obvious to a layperson. His criticism was directed at the
fact that
the stability of the swing was dependent on the fixings rather than
on the structure itself. Apparently a well-designed
structure does
not rely on the fixings in order to maintain its integrity. The
fixings are there as a back-up to prevent the structure
breaking
apart if it comes under unexpected stress. Recognising that a design
is poor requires what he described as 'a higher-level
training and
understanding' than would be possessed by a lay person. Some
knowledge of and experience in structures and mechanics
would be
necessary. A layperson would be able to recognise that there were
problems once it could be seen that the beam was actually
moving and
the fixings were coming loose. This would have occurred over years of
use, when metal fatigue appeared in the fixings
as a result of the
rotational forces applied to the metal strips. While lines in the
strips might have been visible from ground
level, it would have
required a closer inspection, using a ladder or chair, to recognise
that the metal had become fatigued and
was at risk of breaking. The
photographs show that the cross-beam was higher than the security
fencing surrounding the property
and it would therefore have been
above the height of anyone who was not exceptionally tall.
[5]
[8]
Mr Hillman's evidence that the swing's design was
defective was unchallenged. It was also not challenged that as a
result the ordinary
use of the swing by the children in the School
would cause the fixings to undergo stress and eventually suffer metal
fatigue, with
the result that, if the problem was not addressed, they
would break. One infers from this evidence that it was probable that
the
swing would be in use when the fixings broke and the cross-beam
became detached from the uprights. When that happened a large –
several metres long – and heavy beam of wood would collapse and
any child underneath the falling beam would inevitably be
injured,
quite probably fairly seriously. This was likely to occur if the
swing's design was not remedied in the way Mr Hillman
described or,
at the least, the fixings were regularly replaced to guard against
them breaking as a result of metal fatigue.
[9]
The essential question against this background was
whether the Minister, and through him the officials of the
Department, owed a
duty to J[…] to protect her against the
situation that arose. That is the central issue in this case.
Wrongfulness
and legal duty
[10]
Liability
for negligence in delict depends in the first instance on the
existence of a legal duty owed by the party sought to be
held liable
to the injured party to take steps to avoid or prevent the
harm-causing conduct that gives rise to the claim. Whether
such a
duty exists depends on whether the failure to take such steps was
wrongful. In regard to the nature of wrongfulness I need
do no more
than quote the following passage from
Za
v Smith
,
which incorporates all the most recent jurisprudence on the topic
from this court and the Constitutional Court:
[6]
'
The
import of wrongfulness in the province of delict – and
particularly with reference to delictual liability for omissions
and
pure economic loss – has been formulated, both by the
Constitutional Court and in this court on numerous occasions
recently… In
the most recent of these expositions by the
Constitutional Court in
Country
Cloud Trading CC v MEC Department of Infrastructure Development
,
[7]
Khampepe J explained the position as follows:
"
Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm demands
the imposition
of liability or, conversely, whether “the social, economic and
other costs are just too high to justify the
use of the law of delict
for the resolution of the particular issue”. Wrongfulness
typically acts as a brake on liability,
particularly in areas of the
law of delict where it is undesirable and overly burdensome to impose
liability.
Previously,
it was contentious what the wrongfulness enquiry entailed, but this
is no longer the case. The growing coherence in
this area of our law
is due in large part to decisions of the Supreme Court of Appeal over
the last decade. Endorsing these developments,
this court
in
Loureiro
[8]
recently
articulated that the wrongfulness enquiry focuses on –
"
the
[harm-causing] conduct and goes to whether the policy and 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."
The
statement that harm-causing conduct is wrongful expresses the
conclusion that public or legal policy considerations require
that
the conduct, if paired with fault, is actionable. And if conduct is
not wrongful, the intention is to convey the converse:
“that
public or legal policy considerations determine that there should be
no liability; that the potential defendant should
not be subjected to
a claim for damages”, notwithstanding his or her fault."
With
reference to the criterion for wrongfulness referred to in
Loureiro
,
as to whether it would be reasonable to impose liability on the
defendant, the Constitutional Court sounded the following note
of
caution in
Le
Roux v Dey
:
[9]
"
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."' (Footnotes omitted.)
[11]
A claim
that a breach of, or non-compliance with, statutory provisions is
wrongful and gives rise to delictual liability can rest
on either one
of two possible bases. The first is where, properly construed, the
statutory provision imposes an obligation to pay
damages for any loss
caused by such breach or non-compliance. That involves a
consideration of the object and purpose of the legislation
in order
to determine whether, properly interpreted, it imposes an obligation
to pay damages if the statutory duty is breached,
or provides a basis
for inferring that an obligation to pay damages arises at common
law.
[10]
The second is where
the breach of, or non-compliance with, a statutory provision, when
taken together with all other relevant factors,
of which
constitutional norms founded in the Bill of Rights will be
fundamentally important, leads to the conclusion, in accordance
with
common law principles, that it was wrongful so as to attract
delictual liability.
[12]
These two
enquiries tend to overlap as the first involves a consideration of
similar policy issues to the second. It is as well
to bear in mind
that, if the policy of the statute is not to create a statutory
liability to pay compensation for breach of its
provisions, those
same policy factors will point against the existence of a common law
duty of care.
[11]
When the
statutory provisions in question involve conduct that constitutes
administrative action in terms of s 33 of the Constitution,
the
breach or non-compliance relied upon is a breach of, or
non-compliance with, a public duty and that ordinarily attracts a
public law remedy rather than the private law remedy of damages.
[12]
[13]
The
relationship between the two enquiries was dealt with in this court
in
Olitzki
,
[13]
where Cameron JA said:
'
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. 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.' (Footnotes omitted.)
[14]
The legal
duty that the Minister was alleged to owe to J[…] was
formulated against the background of the statutory provisions
governing the entitlement to operate a place of care, in which
category the School fell.
[14]
There was some confusion in this regard between the provisions of the
Child Care Act 74 of 1983 (the Act) and its successor the
Children's
Act 38 of 2005 (the
Children's Act), but
that was resolved in the
course of the trial. The School had been registered under the Act,
but its registration had expired and
the renewal was not processed
because it was accommodating more than the authorised 160 children
and extensions were taking place,
which would require a fresh review
of the facilities. However, it continued to receive a subsidy from
the Department and was for
all practical purposes treated as if it
were still registered. The events with which we are concerned all
occurred before the
Children's Act came
into force on 1 April 2010.
Accordingly, the relevant statute for the purpose of determining
wrongfulness was the Act,
although it was not suggested that the
outcome would have been any different had the
Children's Act applied
.
[15]
Apart from
the Act, the statutory matrix against which the question of
wrongfulness had to be considered included the Regulations
published
in terms of the Act.
[15]
The
Minister did not argue that the fact of non-registration at the time
of the accident in any way lessened any legal duty that
might have
been owed to J[…]. An issue raised at the trial, that the
Minister was obliged to close the School the moment
its registration
lapsed, was not persisted with on appeal. This was the correct
approach because the statutory powers vested in
the DG on which it
was based did not empower the DG to close the School. Given that,
apart from this tragic incident, it was operating
normally and
providing a vital service to the community, counsel rightly accepted
that there was no prospect of a court granting
an interdict to
prevent its continued operation.
The
pleadings
[16]
The pleaded case was that the School could only be registered under
the Act if the
Minister, (in practical terms the officials in the
Department under the DG), was satisfied that it complied with all
prescribed
requirements and that it would be so managed and conducted
as to be suitable and safe for the reception, care and custody of
children.
This was admitted. It accorded with the provision in
s 30(3)(
b
) of the Act governing the disposal of
applications for registration of a place of care, which required the
Minister to reject an
application if not so satisfied. In argument it
was pointed out that the section did not include the words 'and safe'
that appear
in the pleading. However, if the DG was not satisfied
that the place of care would be managed and conducted in a safe
manner for
the children under its care, it is difficult to conceive
how the DG could be satisfied that it was being suitably managed and
conducted.
[17]
The allegation that the Minister provided the School with a financial
grant was also
not in dispute, but an allegation that the Minister
was under a statutory obligation to review, by way of periodic
quality assurance
assessments, the registration of the School as a
place of care, was denied. That allegation, taken together with the
two that were
not in dispute then formed the basis for the legal duty
on which the case was based, expressed in the following terms:
'10
Accordingly, in the light of [the allegations described above], and
in any event, the defendant
at all material times had a legal duty:
10.1
To ensure that the school and its premises, as a place of care in
terms of the provisions of the Act,
provided a safe environment for
children, specifically the minor.
10.2
That reasonable steps be taken to ensure the safety of children,
specifically the minor, whilst on
the school's premises.
10.3
To ensure the safety of children, specifically the minor, whilst on
the school's premises.'
[18]
The repeated references to 'specifically the minor' (meaning J[…])
added nothing
to the legal duty. The fact that it was her, rather
than another child, who was using the swing when it collapsed, was
purely fortuitous.
No suggestion of negligence was made relating to
her specifically, as opposed to the general body of learners. The
pleaded duties
must therefore be understood as of general application
in relation to all learners in all places of care under the
jurisdiction
of the Minister.
[19]
The duty was alleged in terms so broad and general that it was not
feasible to identify
with precision its scope and what the Minister
and officials of the Department were required to do to comply with
it. A little
more detail emerged when reading the particulars of
negligence on the part of unidentified employees of the Department.
They were
said to have been negligent in the following respects:
(a)
failing to inspect the School's premises and specifically the swing
structure at all, or, if they inspected
them, failing to do so
properly and adequately;
(b)
failing to ascertain that the top beam of the swing structure was not
properly fastened or secured to
the support poles and failing to warn
the School's employees of that fact;
(c)
failing to ensure that the swing structure was properly or adequately
maintained;
(d)
allowing a dangerous, or potentially dangerous, structure to be
erected and kept on the School's premises
and used by the children;
(e)
failing properly to safeguard the learners on the School's premises;
(f)
failing to ensure that the School and its premises were suitable and
safe for the reception, care
and custody of children.
[20]
The Minister disputed the existence of any legal duty in the terms
set out above
in para 17 and also disputed negligence in the respects
alleged. Some confusion arose because the plea commenced with a
denial
of the existence of a legal duty on the footing that any duty
in regard to the safety of the School premises and specifically the
playground equipment rested on Overberg. It then continued with a
general denial of the existence of the legal duty alleged by
the
first respondent. This resulted in an argument in the application
papers and the heads of argument that the broad contention
by the
Minister of absence of a legal duty was not open on the pleadings.
However, this was not pursued in oral argument and correctly
so.
Properly construed, the Minister's plea did not admit the existence
of any legal duty to ensure the safety of children in places
of care
and the case was argued on the basis that this court had held in
Barley
that there was no such duty. Any deficiency in, or
confusion occasioned by, the terms of the plea was clearly resolved
by the end
of the trial.
The
relevant statutory provisions
[21]
The foundation for the alleged duties was said to lie in the terms of
the Act and
the Regulations promulgated under the Act. Two provisions
were central to the argument. The first was the need for the Minister
to be satisfied in terms of s 30(3)(
b
) that a proposed
place of care complied with all prescribed requirements for
registration and that it would be so managed and conducted
that it
would be suitable for the reception, custody and care of children.
The second, where the argument by counsel for the first
respondent
focussed, was regulation 30(4) of the Regulations published in terms
of the Act. This dealt with the requirements for
applications for
registration of places of care at that time. In view of their
centrality to the argument two of its provisions
should be
highlighted. After providing that the application for registration
must be made on a form determined by the DG, it reads:
'(2)
The application shall be accompanied by—
(
a
)
the constitution of the association of persons that is to manage the
… place of care …;
(
b
)
a certificate issued by the local authority within whose area the …
place of care … is situated or is to be erected
to the effect
that the plans for the said building or buildings, if still to be
erected, have been approved by the local authority
or, alternatively,
that the said building or buildings, if already erected, complies or
comply with all the structural and health
requirements of the local
authority;
(
c
)
a certificate issued by the Director-General confirming that a needs
assessment which supports the need for this resource in the
community
undertaken by the applicant in collaboration with the
Director-General; and
(
d
)
in the case of a children's home or shelter a certificate in
paragraph (
c
) shall also contain a confirmation that the
children's home or shelter is able to comply with residential care
minimum standards.
(3)
…
(4)
Registration of a … place of care … shall be reviewed
every 24 months on the basis of a quality assurance assessment
undertaken by appropriately trained officials appointed by the
Director-General.'
[22]
The high court's judgment also referred to the powers of the DG to
cause an inspection
of places of care. Section 31(1)(
a
) of the
Act, empowered a social worker, a nurse or any other person,
authorised by the DG or any commissioner of child welfare,
to enter a
place of care in order to inspect it and the books and documents
appertaining thereto. After such an inspection the
person conducting
the inspection was obliged to submit a report to the DG. It appears
that a social worker, Ms Balie, visited the
School from time to time,
but it is not clear that these visits were pursuant to s 31(1)(
a
)
and there is no record of a report being rendered pursuant thereto.
[23]
Had there
been such a report, the DG would have been entitled to exercise the
powers conferred by regulation 34A. An adverse report
could lead to
various steps being taken. These would be aimed initially at
remedying problems identified in the report and providing
guidance
and support to the management of the place of care as to the
requirements to be fulfilled in order to achieve this. If
the
problems were not resolved after a specified period of at least two
months and not more than six months, and the DG was satisfied
that
the place of care still did not comply with the requirements for
registration, the certificate of registration could be withdrawn
and
the place of care ordered to close.
[16]
All of this was academic in the present case because there was no
evidence that an inspection under s 31(1)(
a
)
had taken place, or that an adverse report had been furnished to the
DG, or would have been furnished had there been such an inspection.
Additionally, it can safely be accepted that a report to the DG that
the swing was unsafe in the respects identified by Mr Hillman,
would only have led to the School being directed to make it safe and
not to allow it to be used until that had been done.
[24]
The high court referred to regulation 34A(3) which also deals with a
quality assurance
review every 24 months. However, that review was
concerned with minimum standards for residential care and the School
does not
provide residential care. Reference to regulation 30(2)(
d
),
quoted earlier in para 21, shows that the regulation, while
purporting to include all places of care is concerned with those
institutions that provide residential care such as children's homes
and shelters and not with places of care, such as the School,
that do
not.
[25]
The high
court further relied on the Guidelines for Early Childhood
Development Services (the Guidelines)
[17]
as indicating best practice in regard to early childhood development
services. As guidelines these had no binding legal effect,
but they
provided an indication of what was expected of those responsible for
the regulatory oversight of places of care and similar
institutions.
Ms Dianne de Bruin, the Department's manager of social work in the
Overberg district, testified that they gave direction
to officials in
regard to early childhood development centres, as places of care have
become known since the advent of the
Children's Act.
[26
]
For present purposes the section of the Guidelines dealing with the
roles and responsibilities
of the provincial departments of social
development seems the most apposite. It started by saying that the
provincial departments'
role was to promote the importance of early
childhood development and to do this in collaboration with other
departments, such
as those of education and health, as well as
non-governmental organisations that contribute services to young
children and their
families. This was to be done by establishing
mechanisms and programmes to facilitate capacity development in early
childhood development
service delivery in the province and providing
support and guidance to early childhood development service
providers. Responsibility
for registering early childhood development
centres rested on them and they were to put mechanisms in place to
facilitate such
registration in an empowering and developmental way.
Budgetary provision for early childhood development was a major
feature of
the role of these departments.
[27]
The Guidelines dealt with quality assurance reviews. The purpose of
such a review
was described as follows:
'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.'
A
three-point quality assurance scale was identified under the headings
'not acceptable', 'acceptable with a few adaptations' and
'acceptable'. I agree with the characterisation of these provisions
by Dambuza JA in
Barley
[18]
as adopting a corrective rather than a punitive approach in regard to
non-compliance with minimum standards. I also agree, given
the
challenges that exist in regard to the provision of early childhood
development centres as identified in the Guidelines, that
they
provided a framework that was largely aspirational.
[28]
An example of a quality assurance report was given. In regard to
premises and equipment
it had the following headings: toilet
facilities; hand washing facilities; kitchen facilities; outside
area; outside play equipment;
fencing; other eg swimming pool; and
management of pets. Rating all of these aspects of an early childhood
development centre on
the simple three-point scale provided would
cover many matters in addition to safety. Focussing on outside play
equipment there
would be a concern whether there was sufficient
equipment for the number of children being accommodated in the
centre. The suitability
of the equipment provided for use by children
at the centre would be considered, for example, whether it would
serve its primary
purpose of helping children with their large muscle
motor development? Consideration would be given to whether some of
the equipment
might be unsuitable for use by the younger children and
the measures in place to prevent the younger children from using it.
One
thinks of a slide that is too high off the ground, or a swing
that did not have any means to secure a young child safely. Broken
equipment would be identified. The extent to which adult supervision
would be necessary would be considered. All of these impact
upon
issues of safety, but the same is true of the state of the kitchen
and toilet facilities. Overall the concern would be with
whether the
requirements for registration were met. According to the agreed
minimum physical standards then applicable in the Western
Cape, in
regard to outdoor equipment and toys what was necessary was
'Improvised equipment (safe, suitable for stimulation and
development) eg improvised sand tray'.
Discussion
[29]
The role of
the Department under the Act was primarily that of a regulator. It
did not itself operate places of care, children's
homes, places of
safety and shelters. These would be operated by non-governmental
organisations (NGO's) and private bodies. Initially
the Department
had a licencing function. In performing that function regulation
30(2)(
b
)
provided for the local authority to provide assurance that the
building or buildings where the place of care was to operate complied
or would comply with the structural and health requirements of the
local authority. That was consistent with the constitutional
identification of child care facilities as a local government matter,
albeit within a functional area of national and provincial
legislative competence.
[19]
[30]
The School had been registered under the Act for a number of years.
It had moved
to its present location in 1999. The swing had been
acquired from another school that had closed. It seems to have been
erected
in the playground some six years prior to this incident. The
registration certificate issued to the School in 2009 after this
incident
reflects that registration was valid for two years. It would
then be subject to review in terms of regulation 30(4).
[31]
It was not suggested that regulation 30(4), properly construed,
imposed an obligation
to pay damages if injury was caused as a result
of non-compliance with the obligations imposed thereby. It was
submitted that considerations
of public policy, in accordance with
constitutional norms, in particular the provisions of s 28(2)
requiring that in all matters
concerning children the interests of
the child are of paramount importance, rendered it fair, just and
reasonable to impose an
obligation to pay damages if injury resulted
from non-compliance with the regulation's requirements. In the result
the argument
took the following form.
[32]
A quality assurance review of the registration of a place of care had
to occur every
twenty-four months. The review had to be undertaken by
an 'appropriately trained official' appointed by the DG. Counsel for
the
first respondent submitted that this required a review of the
continued suitability of the place of care to receive and care for
children. The guidelines said that this included an assessment of the
outside play equipment. This necessarily included whether
this
equipment was safe to use. Therefore, so the argument ran, the
official undertaking the review needed to have the level of
training
necessary to make an assessment of whether the equipment was safe.
Had such an official undertaken the review on the two
or three
occasions between the swing's erection in the School's playground and
August 2008, they would have detected the defect
in the swing's
design and observed the signs of metal fatigue in the fixtures. The
School would then have been required to address
and resolve these
issues and the accident would not have occurred.
[33]
This argument had an appealing simplicity, but it does not withstand
closer scrutiny.
It needed to start by considering the purpose of
regulation 30(4) on a proper construction thereof. The quality
assurance
review it required was linked to the renewal of the
registration of the place of care. When initially registering the
School, the
DG had determined that it met all the prescribed
requirements and that it would be so managed and conducted as to be
suitable and
safe for the reception, care and custody of children.
The biennial regulation 30(4) review dealing with the renewal of
registration
was directed at ascertaining that this remained the
case. The appropriate training of the official undertaking the review
needed
to be directed at issues relevant to renewal of the
registration.
[34]
As pointed out above in para 21, regulation 30(2) prescribed the
requirements for
registration. There were three elements. The
constitution of the organisation that would operate the place of care
had to be produced,
together with a certificate from the local
authority that its structural and health requirements were satisfied
and a certificate
from the DG that there remained a community need
for the facility. The process followed by the Department was first to
obtain the
certificate from the municipality and then to send a
qualified social worker to inspect the school. The social worker's
task was
to ascertain whether those responsible for the operation of
the place of care were still managing and conducting it in a way that
made it suitable and safe for the reception, care and custody of
children, and would continue to do so. No additional requirements
were stipulated for the review in terms of regulation 30(4).
[35]
The next question is to determine what the regulation required
insofar as issues
of safety were concerned. The evidence showed that
social workers are not qualified to assess technical issues of
safety. Like
any other layperson they would notice obvious
deficiencies such as broken windows or holes in the fencing around
the grounds, but
it was highly unlikely that they would detect
structural defects in buildings or equipment. If playground equipment
was obviously
broken or damaged, they would draw that to the
attention of the relevant person at the place of care. In the case of
the School
that would be the head teacher. But it was not to be
expected of them that they would have the structural and technical
knowledge
that Mr Hillman said was required to recognise deficiencies
in the design or construction of playground equipment. Nor could they
be expected to acquire such knowledge with a reasonable modicum of
training. Counsel's submission was that more appropriately qualified
persons were required to undertake quality assurance reviews in terms
of regulation 30(4) and to make a full assessment of whether
the
playground equipment was safe for children to use. He had in mind a
person with enough basic knowledge to undertake DIY ('do
it
yourself') work, or a handyman, and submitted that the DG needed to
ensure that the Department employed, or had available to
it, such
people to conduct quality assurance assessments involving inspections
of places of care and the equipment used in such
facilities.
[36]
I am by no means satisfied that a DIY enthusiast or a handyman would
have the level
of skill indicated by Mr Hillman, but the wider
implications of the submission cast doubt upon its correctness. It
focussed entirely
on the safety and integrity of the playground
equipment. Such a person would not necessarily have the knowledge and
skill to consider
whether the kitchen and toilet facilities were
proper and hygienic. Nor would they be able to assess whether the
people in charge
of the facility were suitably qualified to have the
care of children. That required the knowledge and experience of the
social
worker. They might be unable to deal with all the issues of
safety that might arise in relation to a place of care, such as the
safety of the electrical appliances, the protection of plug points
and the wiring of the premises. If cooking or heating water
involved
the use of gas this would raise other safety concerns. They might not
be qualified to assess the risks of fire, the sufficiency
of alarms
and fire-fighting equipment, or whether there were suitable escape
routes in the event of fire.
[37]
One can
multiply these examples, but it is unnecessary to do so. They
illustrate that the construction of regulation 30(4) for which
counsel contended would require the employment by the Department of a
wide range of persons with knowledge in a range of fields
to
undertake inspections on an ongoing basis in order to satisfy the
obligation of the DG to ensure that appropriately trained
persons
were undertaking the quality assurance reviews. Every review would
need to be undertaken by several different officials
each having
different qualifications. In
Barley
[20]
the evidence showed that there were around 1400 unregistered early
childhood education facilities in the Western Cape alone, some
of
which would be operating pending registration, while others would be
operating without registering. The Minister's oversight
responsibilities, although not necessarily the funding obligation,
would extend to all of these as well as those that were registered.
To that number one would need to add the children's homes, places of
safety and shelters to which these regulations apply. The
enormity of
the task of undertaking quality assurance reviews every two years in
respect of all these institutions in a single
province, let alone
every province throughout the country, provides a clear indication
that counsel's construction of regulation
30(4) cannot be correct. It
would have the effect of stultifying the provision in the Guidelines
that provincial departments should
facilitate the registration of
these institutions.
[38]
The correct
construction of regulation 30(4) appears from its proper
context. That context is that the provision of places
of care as they
were formerly known under the Act, and early childhood development
centres, as they are now known under the
Children's Act, is
largely
undertaken by NGO's, private organisations and individuals. The
responsibility of the departments of social development
in each
province is to facilitate the establishment and registration of such
facilities and to exercise general oversight over
their operations by
regular visits and inspections by departmental staff, who are
primarily social workers or health care professionals
such as nurses.
That the structures in which these facilities operate are properly
constructed is a matter over which the local
authorities in which
they are situated exercise their conventional powers to enforce both
the National Building Regulations and
Standards
[21]
and local by-laws governing the construction of buildings. Similarly,
the Regulations contemplate that the health inspectors of
the local
authority will be responsible for monitoring that the premises are in
a hygienic condition. This is an aspect of the
intersectionality
between different governmental structures that the Guidelines
recognise is essential in this important field.
[39]
As regards general issues of safety, including the construction and
maintenance of
playground equipment, the responsibility for this is
that of the person or organisation operating the facility and the
persons
employed in it as teachers, carers, assistants or ground
staff. In terms of s 30(3)(
b
) of the Act the Department's
responsibility at the time of initial registration was to ensure that
these people and organisations
were suitable to manage and conduct
the place of care so that it would be suitable and safe for the
reception, care and custody
of children. When a quality assurance
review was undertaken every two years that would again be the focus.
The obligation of the
DG was to appoint officials to conduct reviews
who were appropriately qualified to assess whether the people and
organisations
operating the place of care were suitable to manage and
conduct it, so that it in turn would be suitable and safe for the
reception,
care and custody of children. Operational issues such as
the proper design and maintenance of play equipment were the
responsibility
of the place of care and its management and employees.
[40]
It is instructive at this point to contrast this position with that
which prevails
in respect of public schools in terms of the South
African Schools Act 84 of 1996 (the Schools Act). Public schools are
owned and
operated by provincial education departments. Places of
care under the Act are not. The majority of teachers in a public
school
are employees of the relevant Education Department. By
contrast, while the salaries of the teachers at the School were
funded from
the Departmental grant, they were not employees of the
Department. The responsibility of Education Departments for delictual
claims
arising from injury suffered by learners while about school
activities is enshrined in s 60(1) of the Schools Act. There is
no equivalent in the Act. These contrasting situations in relation to
otherwise similar institutions, points to a difference in
regard to
liability for delictual claims.
[41]
The structural underpinning of the argument for the first respondent
was based on
an incorrect interpretation of regulation 30(4).
There are no policy considerations justifying the imposition of a
broader
duty on the Minister as pleaded on behalf of the first
respondent. In fact, the relevant policy considerations point away
from
it. The first is one that I have already touched upon. It is
that the role of the Minister and the Department is regulatory and
not operational. Its responsibility at the time was to facilitate the
operation by suitable persons of places of care and its current
responsibility is to facilitate the operation by suitable persons of
early childhood development centres. All obligations in relation
to
the day to day operation of such facilities rest with the persons who
are registered to operate them. The Minister attends to
the
registration of the facility and reviews such registration
biennially. The Act vests powers of inspection in officials appointed
for that purpose by the Minister. If they discover matters of
concern, whether in relation to safety or otherwise, they render
a
report and remedial action is taken over a period of time. The
Minister has no powers of intervention to address safety issues
directly. It is always the place of care itself that must address and
resolve these.
[42]
The second policy consideration is that responsibility for other
health and safety
issues lay explicitly with local authorities in
whose area of jurisdiction childcare facilities are located.
Compliance with building
and health requirements would be reviewed
biennially by the local authority. I am concerned here with general
responsibility for
these matters, not the question that divided the
Minister and Overberg as to responsibility for the safety of
playground equipment.
Local authorities may make by-laws governing
these matters and the provincial authorities would expect them to do
so. The health
by-laws of Overberg contain detailed provisions in
this regard, extending to issues of ventilation and lighting; the
provision
of waste receptacles; toilet and bathroom facilities; the
provision of clean water; disposal of effluent; washing and
sterilisation
of nappies and separate changing facilities for
changing dirty nappies.
[43]
Nowhere in
this highly regulated area is there any specific provision imposing
responsibility for safety in places of care on the
Minister and the
Department. Their concerns lie elsewhere and extend far beyond the
provision of places of care or early childhood
development centres.
An important policy issue involves asking whether the imposition of a
liability to pay damages to person injured
as a result of the
defective design or maintenance of equipment in such institutions
would impose an undue burden on the province
and hamper it in
undertaking its central functions.
[22]
In my view it would. The statutory scheme in the Act and subsequently
in the
Children's Act, is
directed at promoting a public good rather
than the protection of specific individuals in relation to whom some
other responsible
person owes that duty. Imposing a liability on the
Minister for damages in respect of personal injuries arising in
circumstances
such as those in the present case would have a chilling
effect on the Department's officials in the performance of their
statutory
and administrative duties.
[23]
[44]
The third
policy issue is a concern about the ambit of the legal duties pleaded
in this case to ensure that places of care provided
a safe
environment for children under their care; to take reasonable steps
to ensure the safety of children in places of care;
and, to ensure
the safety of children whilst on the premises of places of care.
These duties were entirely general and not specific
to J[…] or
the School arising from circumstances particular to them. The
legislation and Regulations were both national
in operation.
Accordingly, the duties alleged would, if imposed, apply in all nine
provinces in literally thousands of places of
care, children's homes,
places of safety and shelters, using the terminology of the Act, and
their successor institutions under
the
Children's Act. This
was
therefore a case where the principle that courts should avoid
imposing liability in an indeterminate amount for an indeterminate
time to an indeterminate class applied.
[24]
To uphold the claim would make provincial governments throughout the
country insurers against the consequences of negligence in
the
construction and maintenance of fittings and equipment on the part of
the operators and employees of every place of care, children's
home,
place of safety or shelter in the country.
[45]
Concerns
such as these lay at the heart of this court's conclusion in
Barley
that
the Minister did not owe a legal duty in that case to the parents of
a child who died of asphyxia after falling off a bed at
a nursery and
catching her head between the bed and a chest of drawers. The
statutory provisions relied on in that case ranged
far and wide
across the field of both the Act and the
Children's Act, the
Regulations and the Guidelines, whereas here the focus ultimately
narrowed to
regulation 30(4).
However, the same legal principles
and policy issues governing wrongfulness were considered and led to
the same conclusion, namely
that the Minister did not owe the legal
duties relied upon by the plaintiffs. The endeavour to distinguish
that decision from the
present one, based upon the description of the
child in that case as the primary victim and her parents as secondary
victims, was
misconceived. The judgment in
Barley
made it
clear
[25]
that the first issue
for consideration was whether the provincial government owed the
plaintiffs any legal duty attracting civil
liability in relation to
their daughter's death. That question was answered in the negative
and the high court was bound by the
principles of
stare
decisis
to follow it.
[46]
Cases such
as these are always hard cases because of the human tragedy involved,
which naturally elicits sympathy from everyone,
including judges.
However, as this court has had occasion to point out, sympathy is not
a basis for imposing legal liability.
[26]
I stress this because the judge in reaching his conclusion on
wrongfulness said: 'J[…] has no other way than through a
delictual action to hold the Minister accountable.' That approached
the issue from a wrong perspective. The enquiry could not start
from
a conception that the Minister owed a duty that had been breached
giving rise to J[…]'s injuries and an obligation
to account to
her. That was to answer in advance the true question of whether any
such duty was owed. For the reasons contained
in this judgment it was
not.
[47]
In view of that conclusion it is unnecessary to address the further
questions of
negligence and causation. It is also unnecessary, and in
my view undesirable, to address the issues arising out of the third
party
notice addressed to Overberg.
Costs
and result
[48]
The
Minister did not ask for costs in either the high court or this
court. That left the costs of the third party proceedings.
Section
41(1)(
h
)(vi)
of the Constitution provides that organs of state should co-operate
with one another in mutual trust and good faith by avoiding
legal
proceedings against one another.
[27]
That appears to have been overlooked in both the institution
and the defence of the third party notice. Had regard been paid
to
the constitutional injunction, the costs that both the Minister and
Overberg incurred could have been avoided and a suitable
modus
vivendi
put in place to deal with the issue of their respective rights and
responsibilities after the primary issue of liability as claimed
had
been resolved. In those circumstances it is appropriate that each of
the Minister and Overberg should bear their own costs.
[49]
I cannot
end this judgment without commenting on both the conduct of the trial
and the appeal. The only witnesses called by the
plaintiff, now the
first respondent, were Mr Hillman, Ms Wyngaardt, a former teacher at
the School, and the plaintiff himself.
None of these could address
the issue of the legal duty that allegedly rested on the Minister or
gave any evidence relevant to
that issue. It was a legal issue that
could properly be dealt with on exception,
[28]
or as a separate issue in terms of rule 33(4) of the Uniform Rules of
Court. Had it been thought that greater detail was required
in order
to highlight the policy issues relevant to the determination of
whether the Minister bore a legal duty as alleged, a properly
formulated request for particulars for trial and request for
admissions at the pre-trial conference would have achieved that
purpose.
Either course would have led to the avoidance of a
lengthy
[29]
and costly trial.
[50]
The second comment relates to the evidence on behalf of the Minister
and Overberg.
Both in evidence in chief and under cross-examination
the witnesses were repeatedly asked to deal with issues of the
respective
duties, rights and obligations of the Minister and
Overberg. As was the case with similar evidence in
Barley
all
this was irrelevant and inadmissible. Ms de Bruin's evidence of the
processing of applications for registration and the reasons
for the
School's registration lapsing could not have covered more than a few
pages. Similarly, the evidence of Ms Balie, who was
responsible for
dealing with the registration of this School would have been short
and so would that of the other witnesses. Instead
we were faced with
a 900 page record. For the purposes of the appeal the issues had
crystallised. Nonetheless, we were told by
all parties in their
practice notes, that counsel were of the opinion that it would be
necessary for us to read the entire record.
Very few references to
that evidence were contained in the heads of argument and there was
no dispute about what the witnesses
had said. The continued disregard
by counsel of their obligation in terms of the practice directive to
identify the portions of
the record that in their opinion are
necessary to be read is unacceptable.
[51]
The following order is made:
1
The application for leave to appeal is granted.
2
The appeal is upheld and the order of the high court altered to read;
'1
The plaintiff's claim is dismissed with no order as to costs.
2
The defendant's claims against the third party are dismissed with
each party to bear
their own costs.'
3
Each party is to bear their own costs of the appeal.
_______________________
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For
Appellant: I Jamie SC (with him G R Papier)
Instructed
by: State Attorney, Cape Town and
Bloemfontein
For
First Respondent: A R Sholto-Douglas SC (with him H Rademeyer)
Instructed by:
Van der Spuy, Cape Town
Lovius
Block, Bloemfontein.
For
Second Respondent: P de B Vivier SC (with him D S Niel)
Instructed
by: Enderstein, Van der Merwe
Inc, Bellville;
Jordaans, Rijkheer
Attorneys, Blomefontein.
[1]
The
School was a community organization operated by Child Welfare SA:
Bredasdorp a registered NGO in terms of the
Nonprofit Organisations
Act 71 of 1997
.
[2]
In the Western Cape members of the provincial cabinet are described
as Ministers in terms of s 42(1) of the Constitution
of the
Western Cape, 1997. In other provinces while they are sometimes
described as Ministers the executive council of a province
is made
up of the Premier and the members appointed by the Premier. See
s 132 of the Constitution. The correct full title
in those
provinces is Member of the Executive Council, usually abbreviated to
the acronym MEC.
[3]
Western
Cape: Department of Social Development v Barley and Others
[2018]
ZASCA 166
;
2019 (3) SA 235
(SCA)
(Barley)
.
[4]
Other designs that would not pose the same dangers are feasible. For
example,
two
uprights on either side meeting at an angle forming a V-shaped notch
in which the cross-beam could rest securely.
[5]
One
cannot be precise but it appears that it was about two metres or
more above ground level.
[6]
Za
v Smith and Another
[2015]
ZASCA 75
;
2015 (4) SA 574
(SCA) paras 15 and 16.
[7]
Country
Cloud Trading CC v MEC Department of Infrastructure Development
[2014]
ZACC 28
;
2015 (1) SA 1(CC)
paras 20-21
.
[8]
Loureiro
v Imvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
;
2014 (3) SA 394
(CC) para 53.
[9]
Le
Roux v Dey (Freedom of Expression Institute and Restorative Justice
Centre as amici curiae
)
[2011] ZACC 4
;
2011 (3) SA 274
(CC) para 122.
[10]
Steenkamp
NO v Provincial Tender Board of the Eastern Cape
[2005]
ZASCA 120
;
2006 (3) SA 151
(SCA);
[2006] 1 All SA 478
(SCA)
(
Steenkamp
SCA)
para 20. See also
Knop
v Johannesburg City Council
1995
(2) SA 1
(A) at 31C-D.
[11]
Steenkamp
SCA
para 20 citing
Stovin
v Wise
[1996] UKHL 15
;
[1996]
AC 923
(HL) at 953A per Lord Hoffmann.
[12]
Steenkamp
NO v Provincial Tender Board of the Eastern Cape
[2006]
ZACC 16
;
2007 (3) SA 121
(CC) para 29.
[13]
Olitzki
Property Holdings v State Tender Board and Another
2001
(3) SA 1247
(SCA) para 12.
[14]
The
same provisions applied to children's homes, places of safety,
industrial schools and shelters.
[15]
See
the Regulations published under GN R 2612 in
GG
10546
of 12-12-1986,
as
amended by GN R416 of March 1998 and GN R119 of 3 February 1999
.
The Regulations became operative 1 February 1987.
[16]
See
regulation 34A(
f
).
[17]
See
Department
of Social Development
Guidelines
for Early Childhood Development Services
(2006),
published by the Minister of Social Development to facilitate
execution by that department of its role in early childhood
development in the country. The guidelines were developed in
conjunction with Unicef by way of technical assistance and financial
support.
[18]
Barley
op
cit fn 3, para 44.
[19]
Constitution,
Schedule 4, Part B.
[20]
Barley
,
op cit fn 3, para 43.
[21]
National
Building Regulations and Building Standards Act 103 of 1977.
[22]
Knop
v Johannesburg City Council
op
cit, at 33A-F;
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 22;
Premier
Western Cape v Fair Cape Property Developers (Pty) Ltd
2003
(6) SA 13
(SCA) paras 36 and 41.
[23]
Steenkamp
NO v Provincial Tender Board of the Eastern Cape
[2006]
ZACC 16
;
2007 (3) SA 121
(CC) para 42.
[24]
See
Administrateur,
Natal v Trust Bank van Afrika Bpk
1979 (3) SA 824
(A) at 832H-833A.
[25]
Barley
op
cit, fn 3, paras 28 and 30.
[26]
Buthelezi
v Ndaba
[2013]
ZASCA 72
;
2013 (5) SA 437
(SCA) para 15;
McGregor
and Another v MEC for Health, Western Cape
[2020]
ZASCA 89
, para 107.
[27]
See
also the
Intergovernmental Relations Framework Act 13 of 2005
,
promulgated in accordance with the constitutional mandate for
national legislation that provides for ‘appropriate mechanisms
and procedures to facilitate settlement of intergovernmental
disputes’:
s 41(2)
(b)
of the Constitution.
[28]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising
Standards Authority SA
[2005]
ZASCA 73
;
2006 (1) SA 461
(SCA) para 3.
[29]
Evidence
and argument took five days.