“I recently saw an article in the news saying that the Western Cape Department of Social Development was not responsible for injuries caused to a child in a day care funded by the Department. Surely this cannot be right and the Department should be responsible?”

You are correct in noting the recent judgment handed down by the Supreme Court of Appeal in the matter of MEC: Western Cape Department of Social Development v Esau and Another (379/2019) [2020] ZASCA 103. The judgment has been heralded as providing legal clarity regarding the responsibilities of government for accidents and injuries at early childhood development centres.

To answer your question, we must briefly review the facts of the case. A swing at a nursery school had collapsed due to poor design and construction, seriously injuring a five-year old and causing long-term disablement. The nursery school was operated by a non-governmental organisation (NGO) which received a grant from the Western Cape Department of Social Development and was registered as a place of care in terms of the provisions of the Child Care Act. 

The court had to decide whether the Department had a legal duty to ensure the safety of the child while at school, as well as the safety of playground equipment at the school. The school was regularly assessed by the Department’s social workers who were not qualified to identify design and construction issues in the swing. 

It is here that the Court held that with regard to the general issue of safety, including the construction of playground equipment, the responsibility rests with the organisation operating the facility. The Department’s responsibility at both the initial registration of the nursery school as well as ongoing assessments was to ensure that the organisation was 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, but that this did not extend to the safety of playground equipment which remained the responsibility of the organisation operating the nursery school.

The above case therefore addresses the responsibility of the Department in respect of typical private or non-profit organisations that operate early childhood development centres.