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
BASIL ESAU obo JANECA ESAU
FIRST RESPONDENT
OVERBERG DISTRICT
MUNICIPALITY

SECOND RESPONDENT

Neutral citation: Minister: Western Cape Department of Social
Development v Esau 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)
The application for leave to appeal is granted.
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.
The defendant's claims against the third party are dismissed with
each party to bear their own costs.'
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, Janeca
Esau, 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 Janeca's father, the first respondent,

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.

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 Esau and, in the case of the School, if
Overberg was held liable. Mr Esau 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 Esau 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 Esau 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.

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.

[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 Janeca 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

3 Western Cape: Department of Social Development v Barley and Others [2018] ZASCA 166; 2019 (3)
SA 235 (SCA) (Barley).

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.

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.

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

5 One cannot be precise but it appears that it was about two metres or more above ground level.

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
Janeca 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

6 Za v Smith and Another [2015] ZASCA 75; 2015 (4) SA 574 (SCA) paras 15 and 16.

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 Loureiro8 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."

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.

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

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.

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

11 Steenkamp SCA para 20 citing Stovin v Wise [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.

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 Janeca 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

14 The same provisions applied to children's homes, places of safety, industrial schools and shelters.

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 Janeca. 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.

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.

[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
Janeca) 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

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.

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
Barley18 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

18 Barley op cit fn 3, para 44.

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

19 Constitution, Schedule 4, Part B.

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 Barley20
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

20 Barley, op cit fn 3, para 43.

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
Standards21 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

21 National Building Regulations and Building Standards Act 103 of 1977.

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

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.

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 Jacena 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

24 See Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 832H-833A.

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 clear25 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: 'Janeca 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 Janeca'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.

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.

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

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.

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 lengthy29 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:
The application for leave to appeal is granted.
The appeal is upheld and the order of the high court altered to read;

29 Evidence and argument took five days.

'1
The plaintiff's claim is dismissed with no order as to costs.
The defendant's claims against the third party are dismissed with
each party to bear their own costs.'
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.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal
DATE
16 September 2020
STATUS
Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

Minister: Western Cape Department of Social Development v E and Another
(379/2019) [2020] ZASCA 103 (16 September 2020)

The SCA today upheld an appeal by the MEC: Social Development of the
Western Cape against a judgment of the Western Cape Division of the High
Court, Cape Town holding the MEC liable for damages arising from injuries
suffered by E's daughter at her nursery school in Bredasdorp. The background
to the case was that on 12 August 2008 E's daughter J, then five and a half
years old, was playing on a swing in the nursery school she attended when the
swing collapsed on top of her causing serious injuries and long term
disablement. The evidence showed that the swing was poorly designed and
constructed.
The school was operated by an NGO and accommodated some 190 children.
There was no dispute that the school would be liable if there was negligence in
the installation and maintenance of the swing. However, the school received a
grant from the Western Cape Department of Social Development and was
required to be registered by the Department as a place of care in terms of the
provisions of the Child Care Act 74 of 1983. The issue was whether the MEC
as the executive member responsible for the Department owed a legal duty to

J to ensure her safety while at school and the safety of the playground
equipment at the school.
The school had been registered as a place of care for a number of years. Such
registration had to be renewed every two years. This involved a quality
assurance assessment to be undertaken by an appropriately trained official.
Such assessments were undertaken by social workers in the employ of the
Department, but they were not qualified to identify the design and construction
faults in the swing. The plaintiff argued that it was incumbent on the Department
to employ persons who would be able to undertake such an assessment and
had they done so the defects in the swing would have been identified at an
earlier stage and remedied.
The SCA held that the primary function of the Department in terms of the Child
Care Act and the Regulations under the Act was that of a regulator. In granting
registration for a place of care (which included places of safety, children's
homes and shelters) the regulations required it to see the constitution of the
association that would operate the place of care; to obtain a certificate from the
local authority that the buildings complied or would comply with all structural
and health requirements of the local authority; to obtain a certificate that the
community needed the resource and to determine whether it would be
managed and conducted in a way that would be suitable for the reception,
custody and care of children. When a quality assessment review was
undertaken every two years these were the issues that had to be considered.
The operation of all places of care was undertaken by NGO"s and private
organisations and individuals. The Department had no part to play in the
operation of such places of care. Its obligation was to ensure that those
operating the place of care would manage it in a way that was suitable for
receiving and caring for children. The Department's responsibilities differed
from those resting on Departments of Education in regard to public schools.
These are operated by the Departments of Education and the majority of the
educators employed there are employees of the State. The SA Schools Act
provides that the State would be liable for delictual claims arising from school
activities.
The SCA held that the same responsibilities could not be imposed on the
Department of Social Development in regard to the operations of private

organisations and their employees. To impose a duty in the terms claimed
would expose Departments of Social Development throughout the country to
claims that it was not just and reasonable should be their responsibility.
Accordingly, the court held that the MEC did not owe J the duty contended for
and it was not fair, just and reasonable that the MEC should be obliged to
compensate her for her injuries.