14 June 2022
“In a saga that has traversed the Western Cape High Court, Supreme Court of Appeal and eventually the Constitutional Court, the Constitutional Court has now finally confirmed the position of Government in respect of its responsibility for the safety of Early Childhood Development (ECD) centres.”
A child at an ECD centre suffered serious injury and disablement when a swing at the school she was swinging on collapsed due to poor design and construction. The parents took the Provincial Minister of the Western Cape Department of Social Development to court claiming that they had a duty of care to ensure the safety of children at such centres, including the safety of playground equipment on the premises. The Department however objected contending that the obligation of the Department was not to ensure the physical safety of the children on a day-to-day basis, but instead to oversee the operation of the ECD centres and other facilities throughout the province, in a manner that ensured that they were safe and suitable for the reception and care of children.
In grappling with the matter, the Constitutional Court reaffirmed that the decision was one of considerable public importance to the extent that it would determine whether the Minister has a legal
duty to prevent harm to children in ECD centres and other places of care, further heightened by the fact that children require special protection owing to their vulnerability. The Constitutional Court however affirmed that in this case the Minister was not liable, and that while the regulatory responsibilities of the Minister had to be accepted, it did not entail operational control of school premises or amount to a legal duty to ensure the day-to-day safety of children at ECD centres.
With this judgment the Constitutional Court settled the question of whether government’s duty of care extended to things like inspection of the safety of premises, equipment etc.
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