MEC, Western Cape Department of Social Development v BE obo JE and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ponnan JA, Wallis JA, Makgoka JA, Dlodlo JA and Nicholls JA
• Judgment Date: 16 September 2020
• Court: Supreme Court of Appeal
• Hearing Date: 16 September 2020
• Citation: 2021 (1) SA 75 (SCA)
• Counsel: I Jamie SC (with GR Papier) for the appellant. AR Sholto-Douglas SC (with H Rademeyer) for the first respondent. P de B Vivier SC (with DS Niel) for the second respondent.
• Docket Number: 379/2019 [2020] ZASCA 103

Wallis JA (Ponnan JA, Makgoka JA, Dlodlo JA and Nicholls JA 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 JE, then 5 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 JE's father, the first respondent, seeks to recover damages from the applicant, the MEC, Department of Social Development in the Western Cape (the MEC). [2]

[2] The MEC 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

Wallis JA (Ponnan JA, Makgoka JA, Dlodlo JA and Nicholls JA concurring)

Overberg on the basis of contributory negligence in the event of the MEC being held liable to Mr BE, and, in the case of the School, if Overberg was held liable. Mr BE 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 BE 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 BE 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.

[4] The issue of leave to appeal can be disposed of forthwith. The case involves a consideration of the legal duties imposed upon the MEC 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 MEC 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 MEC lay the fact that the swing that collapsed on JE 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 attached to each upright by nails and perhaps an occasional screw, passing over

Wallis JA (Ponnan JA, Makgoka JA, Dlodlo JA and Nicholls JA concurring)

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. 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 backup 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 layperson. 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 photo- graphs show that the cross-beam was higher than the security fencing

Wallis JA (Ponnan JA, Makgoka JA, Dlodlo JA and Nicholls JA concurring)

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 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 not regularly replaced to guard against them breaking as a result of metal fatigue.

[9] The essential question against this background was whether the MEC, and through him the officials of the Department, owed a duty to JE 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 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

Wallis JA (Ponnan JA, Makgoka JA, Dlodlo JA and Nicholls JA concurring)

use of the law of delict for the resolution of the particular issue. Wrongfulness typically acts as a brake on liability, particularly...