Through Mwangi Githahu August 30, 2021

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Cape Town – The Constitutional Court upheld a Supreme Court of Appeal (SCA) verdict that released Western Cape Social Development MEC Sharna Fernandez of all responsibility for injuries sustained by a child in a preschool.

The case dates back to 2008, when a swing at the Babbel in Krabbel Kleuterskool in Bredasdorp collapsed on the then five-year-old child, identified in court proceedings only as JE, causing severe traumatic brain damage, including consequences will impact her for the rest of her life.

JE was born in December 2002 and currently lives with a disability. JE’s parent, BE, had filed a lawsuit seeking damages from the MEC.

Before the case reached the Constitutional Court, it had gone through the High Court of the Western Cape which upheld BE’s claim against the MEC.

The MEC sought leave to appeal the High Court’s decision, but the request was denied. The MEC then filed a motion with the SCA, which granted leave to appeal.

The question before the SCA was whether the MEC had a legal obligation to children placed in care settings to take reasonable steps to ensure the safety of the equipment, and whether the MEC was liable for the damage suffered by the child. I ?

The SCA verdict released the MEC from any responsibility for the injuries sustained by the child. He said the MEC was not charged with the primary role of operating the place of care, children’s homes, places of safety and shelters, but of regulating those places.

Dissatisfied with this decision, BE then appealed to the Constitutional Court on the grounds that the SCA had erred in not holding the MEC liable for damages.

BE, argued that the right of children to be received and cared for in safe places of care was so important that it demanded that all who intervene in the lives of children in this context be held accountable for the provision of an appropriate service, effective and efficient service

MEC argued that it and the ministry were only responsible for assisting with registration and overseeing daycare operations to the exclusion of their day-to-day operations.

In a unanimous judgment drafted by Judge Zukisa Tshiqi, the Constitutional Court agreed with the findings and reasoning of the SCA.

The Constitutional Court held that the legislative framework on which the applicant sought to rely did not impose on the MEC and the department a legal obligation to ensure the safety of play equipment in order to ensure the safety of children in day-to-day ECD centers. based.

He noted that the alleged obligation, if imposed, would create an unrealistic obligation for the MEC to ensure the safety of children in thousands of custody, children’s homes and places of safety nationwide. .

In the circumstances, it ruled that considerations of public order do not favor holding the MEC liable for the damages resulting from JE’s accident.

In the meantime, the MEC had asked the Constitutional Court to reject the application, but without costs against the applicant.

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Cape Argus

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