The recent decision of the Constitutional Court in BE obo JE v MEC for Social Development, Western Cape found that the State did not owe a duty of care toward a child (“JE”) that was severely injured when a swing-set collapsed on the child at an Early Childhood Development Centre (“ECD Centre”), aka a playschool. The effect of this finding was that the child had no claim in delict against the State through the minister of the relevant organ of State, being the Western Cape Department of Social Development (“the minister” and “the department” respectively) for the damages occasioned by the incident.

It is trite that delictual liability requires the elements of wrongfulness, negligence and causation to be proven. Developments in delictual liability and wrongfulness have resulted in it being wrong for a person who creates or is in control of a danger / dangerous situation not to take steps to prevent harm being caused to others arising therefrom. This is an aspect of the law of delict that has been expanded and developed, notably in the Constitutional Court matter of Carmichele v Minister Of Safety And Security And Another. In summary, the State was found to have created / been in control of a dangerous situation when it failed to take steps to guard against the danger posed to the applicant by a known criminal by inter alia not opposing said criminal’s bail application, whereafter said criminal was released on bail and caused harm to the applicant. The Court in that instance developed the common law in line with the Constitution in order to give effect to the applicant’s rights enshrined therein (inter alia the right to life, dignity and bodily integrity, safety and security) and found that the State owed a duty of care toward its citizens when it was in control of / had created a danger.  It was further held that the obligation on the Courts to develop the common law in the light of the objectives set out in s39(2) of the Constitution was not purely discretionary, but implicit and that If the common law was deficient in promoting the objectives of the Constitution, the Courts were under a general obligation to develop it appropriately.

The facts and relevant legislation in the present matter are briefly as follows. At the time of events giving rise to this matter (2008) ECD Centres were required to be registered in terms of the Child Care Act (“the Act”). Registration of ECD Centres is reviewed every 24 months on the basis of a quality assurance assessment undertaken by the appropriately trained officials appointed by the Director-General of the department in terms of the Act and concomitant regulations and guidelines pursuant thereto, specifically Regulation 30(4) (“the legislation”). It is to be noted that the Act has since been repealed by the Children’s Act, no. 38 of 2005 (in effect from 1 April 2010), but the aforementioned registration and regulation requirements of ECD Centres have been carried over in Section 95 and Regulation 28 of GNR 261 of 1 April 2021. Children have the Constitutional right to appropriate alternative care when removed from the family environment, to be protected from maltreatment, neglect, abuse or degradation and the best interests of the child are enshrined in the Constitution as being paramount in every matter concerning the child. The collapsing swing-set was found by an expert not to be fit for purpose and failed as a result of metal fatigue. The swing-set had only been inspected by teachers at the ECD Centre and the centre itself had been duly registered in terms of the Act.

The applicant approached the Court in terms of the legislation and argued that a duty of care to ensure the safety of equipment at the ECD Centre arose therefrom. The Court dismissed this argument on the basis that the legislation was “aspirational” and merely regulatory; failing to expressly or by clear implication impose any duty on the minister to go any further than reviewing the registration of ECD Centres. The Court went on to state that in the absence of such clear duty an analysis of all relevant factors would need to lead to the conclusion that a breach of such legislation would be wrongful. The Court did not find such a breach wrongful, inter alia alluding to the “floodgates” principle, which enjoins the Court to decline to create a duty of care where it would lead to a preponderance of, or limitless, litigation. The Court did this by stating that to find the State liable for the existence of dangerous situations, such as unsafe swing-sets and playground equipment, at ECD Centres would extend the duty to thousands of ECD Centres across the nine provinces.

However, was this an easy out for the Court? Nit-picking arguments could be made that the legislation is not merely aspirational and that surely a quality assurance assessment by trained professionals should or would include playground inspections, but the Court rightfully cites precedent and the absence of a clear duty imposed by the legislation for this finding. The real question is whether the Court should have developed the common law mero motu to impose a common law duty of care on the State. Indeed, if regard is had to Carmichele it would appear that the Court was obliged to do so.

ECD Centres can only exist if they are registered in terms of the Act and the department allows them to remain so registered after each review and quality assurance assessment. The State de facto has control over them. ECD Centres, moreover, are not enjoined to obtain assurances as to the safety of their playground equipment in order to remain registered. Whilst the ECD Centre may inspect its own equipment, it is self-evident that the ordinary playschool teacher is not qualified to test or detect metal fatigue or assess how fit for purpose a swing-set is. In any event, by continuing to register and maintain registration of an ECD Centre, the State is creating the impression that the Centre is operating to its satisfaction, in accordance with the legislation. It would seem appropriate that, if the legislation was not couched in such a way as to give rise to an express duty of care, that at common law, the State had created the conditions in which a danger could exist and exercised control over same and would it be wrongful to not take steps to guard against harm arising therefrom. The effect of developing the common law to give effect to this duty of care would no doubt burden the already strained respective provincial Departments of Social Welfare, but seems no more of an excessive extension of the duty of care than that in Carmichele.

Moreover, it must be asked, to whom do claimants such as JE look if not to the State? The answer is obviously to the ECD Centre itself, but the problem with this is two-fold. Firstly, it may be found that the teacher in charge of checking playground equipment had not acted wrongfully as it would not be reasonable to expect a playschool teacher to have the ability to detect metal fatigue, or lack of fitness for purpose, in a swing-set (thus defeating a claim in delict); and, secondly, it is improbable that (if found to have been negligent) an ECD Centre would have the depth of pocket required to compensate an injured learner for the type of life altering injuries suffered by JE.

It begs the question why the Court did not look to develop the common law, especially where it appears Constitutional rights are at risk and in light of what was held in Carmichele. It may create an onerous burden on the State to carry out more thorough “quality assurance assessments”, such as playground inspections, but it is not clear why this is particularly more burdensome than conducting a quality assurance assessment with trained professionals every 24 months as already required. As for concerns over the floodgates of litigation being opened, proper oversight and care exercised by the department would surely see fewer dangerous pieces of equipment allowed in ECD Centres and thereby fewer incidents occurring. When weighed in the balance, the Constitutional rights of thousands of young children would also seemingly outweigh such concerns. As expressed above, it seems that a regulatory gap exists between where the State regulates ECD Centres and ECD Centres are required to take appropriate steps to safeguard children’s safety at their premises.

Written by Jonathon Beard, Associate, Fluxmans