Delictual liability for injuries suffered at childcare centres

Abstract

The Constitutional Court has recently given an important judgment about the delictual liability of the state for injuries sustained by a child at an early childhood development (ECD) centre: BE obo JE v MEC for Social Development, Western Cape. The Court substantially confirmed the Supreme Court of Appeal (SCA) judgment in the same matter. Both judgments built upon the preceding SCA judgment in Government of the Western Cape: Department of Social Development v CB, which, like BE, involved a tragic accident at an ECD centre. With the appearance of these judgments, it is a good time to assess our courts’ willingness to provide delictual remedies for injuries suffered at childcare centres, and to consider the status of South African public authority liability in general. I explain that the omissions liability of public authorities for negligently caused bodily injury has expanded significantly since 2002. The High Court judgments in BE and CB, which imposed liability on the Department of Social Development, were consistent with this. But the appellate judgments may suggest a retreat from our law’s expansionary approach. I discuss the reasons of policy and principle why such a retreat might be welcome, both for organs of state and the legal system as a whole. I also consider the potential delictual liability of the ECD centres themselves, as well as local authorities, for incidents of the kind in BE and CB. Finally, I consider two hypothetical cases that help to illustrate potential future developments for public authority liability in South Africa.