The Supreme Court of Appeal found that the Provincial MEC for Social Development was not liable for the injury of a child in the playground of a nursery school operated by an NGO in the province. The school was treated as if registered under the Child Care Act 1983 because the incident occurred in 2008 but the position would be no different under the Children’s Act 2005. The case is important for examining the basis for delictual liability for breach of a statute.

The child, aged five and a half years, was seriously injured when the heavy cross-beam of a swing collapsed on top of her causing head and brain injuries and leaving her severely disabled. A claim against the MEC was based on an alleged breach of a statutory duty to ensure that the school and its premises provided a safe environment for the children. The Act and its regulations require the MEC to be satisfied in order to grant a licence that a proposed place of care complies with all prescribed requirements for registration including that it would be managed and conducted to be suitable for the reception, custody and care of children. Registration requires a certificate by the local authority that the buildings complied with structural and health requirements and the shelter complied with residential care minimum standards.

Breach of a statutory duty is wrongful and can give rise to delictual liability if the statutory provision specifically imposes an obligation to pay damages for loss caused by the breach, or if non-compliance with the regulation leads to the conclusion in accordance with common law principles and the Bill of Rights that the breach was wrongful so as to attract liability.

The role of the Department was primarily that of a regulator. The quality assurance review required every 24 months was linked to the renewal of registration and related to the persons responsible for the operation of the school. If every place requiring registration in the provinces required quality assurance reviews of all the buildings and equipment it would stultify the registration process. Issues of safety are the responsibility of the person or organisation operating the private facility. There was nothing in the highly regulated area which imposed any responsibility for safety in places of care on the MEC and the Department. The legislation relates to all nine provinces and literally thousands of places of care, children’s homes, and places of safety and shelters. Creating liability for the Department would impose liability in an indeterminate amount for an indeterminate time to an indeterminate class of claimants. This would make the provincial governments throughout the country insurers against the consequences of negligence in the construction and maintenance of fittings and equipment on the part of operators and employees in every one of these places of care, which the court was not prepared to do.

No wrongfulness and therefore no liability was found on the basis of a breach of a statutory obligation. Wrongfulness will seldom be found if it leads to possible indeterminate liability.

The case is MEC: Western Cape Department of Social Development v Esau.