Dad takes fight to ConCourt after nursery school accident leaves child disabled

A Western Cape father whose daughter was left disabled after a defective swing collapsed on her at a state-subsidised nursery school is taking his fight for justice to the Constitutional Court (ConCourt) on Thursday.

In 2019, the Western Cape High Court in Cape Town found the MEC for social development in the province – then Albert Fritz, now Sharna Fernandez – liable for damages in the case.

But last year, the Supreme Court of Appeal (SCA) set aside that finding. Now, the man is turning to the country’s apex court.

The case raises important questions about who can and should be held responsible in situations like this.

In terms of the legislation, early childhood development (ECD) centres, like nursery schools, have to be registered with the provincial department of social development, a process which involves a number of health and safety checks.

At the time of the incident – which took place in 2008, when the girl was just five – the registration of the facility in question had lapsed.

It was, however, still receiving government funding.

Among the high court’s findings were that the department had “knowingly allowed the school to continue operating as an ECD centre while it was not registered” and that the MEC had been “clearly negligent”.

On appeal, the SCA found the MEC’s role was a regulatory one and not an operational one and the ECD centre’s employees were responsible for things such as the upkeep of its playground equipment.

The girl’s father has now launched an application for leave to appeal against the SCA’s ruling in the ConCourt, which is set to be heard on Thursday.

His lawyers are expected to argue there were no proper inspections of the playground equipment done by the state and, had there been, the defective swing would have been picked up.

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