BE obo JE v Member of the Executive Council for Social Development, Western Cape

In August 2008, JE, a five-year-old child, was seriously injured at the Babbel and Krabbel play school, an early childhood development (ECD) centre operated by an NGO, when a wooden swing structure collapsed on her, causing permanent and severe brain injury. JE’s father instituted a delictual claim for damages against the MEC for Social Development, Western Cape, alleging that the Department failed in its statutory and constitutional duties to ensure that the ECD centre was safe. The claim was based on provisions of the Child Care Act 74 of 1983 and its regulations, particularly the duty to review registration of places of care through quality assurance assessments. The High Court found the MEC delictually liable, but the Supreme Court of Appeal overturned that decision, holding that wrongfulness had not been established.

Leave to appeal was granted, but the appeal was dismissed. The order of the Supreme Court of Appeal dismissing the delictual claim against the MEC was confirmed.

This case clarifies the limits of delictual liability of provincial departments in relation to regulatory oversight of ECD centres. It affirms that statutory and constitutional duties to regulate and oversee do not automatically translate into private law duties to pay damages. The judgment is significant for the law of delict, particularly the element of wrongfulness, and for understanding how children’s constitutional rights inform, but do not determine, state liability.