This blog is co-authored by Dashia Govinden, a candidate attorney.
The drowning of a toddler in a swimming pool situated at a heritage site located within the Drakenstein Correctional Centre precinct, prompted judicial scrutiny of the state’s legal obligations in managing public property. The May 2025 judgment, delivered by the High Court, examined whether the Minister of Correctional Services, as the custodian of the premises, could be held delictually liable for alleged wrongful and negligent omissions that contributed to the child’s death.
The incident arose after a child accompanying family members on a visit to a neighbouring house, accessed the heritage site’s backyard and fell into the unfenced and uncovered swimming pool. The child’s parents brought a claim for damages, alleging that the Department failed to take reasonable preventative measures to protect and secure the premises against foreseeable harm.
The court’s analysis centered on two key elements of delictual liability: wrongfulness and negligence. On the issue of wrongfulness, the court considered whether the State had a legal duty to act positively to prevent harm. It held that such a duty existed, particularly where the defendant exercised control over the source of danger. The Department of Correctional Services, having full possession and control of the premises, had a legal duty to take reasonable steps to ensure the safety of persons who might foreseeably access the property. The court noted that the heritage status of the property did not exempt it from ordinary safety obligations. The presence of an unfenced swimming pool in an area known to be accessible to the public constituted a clear and foreseeable hazard.
On the question of negligence, the court applied the objective standard of the reasonable person. It concluded that a reasonable authority in the Department’s position would have foreseen the risk of harm and taken appropriate preventative measures. The Department’s failure to implement such measures, despite prior reports of unsupervised access by local children, was deemed negligent and amounted to a breach of its duty of care.
The State attempted to deflect liability by attributing fault to the child’s father, citing inadequate supervision and unlawful entry. However, the court rejected this argument, affirming that the Department’s duty to secure its premises could not be delegated to private individuals. Furthermore, the evidence revealed that access to the site was routinely unregulated, with no formal barriers nor security oversight in place. The Department installed a safety net over the pool only after the incident occurred, which the court viewed as an implicit acknowledgment of the pre-existing risk. The court found that this post-incident action underscored the foreseeability of harm and the Department’s prior failure to act.
This case highlights the legal consequences of failing to take reasonable precautions on state-managed property. The court confirmed that the Department of Correctional Services, as custodian of the heritage site, bore a duty of care to the public to prevent foreseeable harm. The failure to secure a known hazard was deemed both wrongful and negligent. This case affirms that public authorities can be held liable for omissions where a duty of care exists, and it reinforces that having control over a property carries a responsibility to manage known risks and take reasonable steps to ensure safety. It does not follow however that taking precautions after an incident necessarily implies negligence before the event.