By Sanette Viljoen
This article looks at the liability of the provincial Department of Social Development after the death of a child at a day care centre. The liability was the issue in the court case of Barley and Another v Moore and Another  3 All SA 799 (WCC) in the Western Cape in 2017.
The first defendant, Moore, was a day carer who had Ava, a five-and-a-half months old baby, in her care. She left the sleeping child on a bed in the bedroom to go and prepare her bottle. When she returned 45 minutes later, she found that the baby had fallen from the bed and lay dead on the floor. Subsequently the baby’s parents sued Moore as well as the provincial Department of Social Development.
The carer was sued because she had not tended to the baby properly while under her care and supervision. Die Department was sued due to the breaching of the obligations in terms of the Constitution and the Children’s Act to regulate and control day care centres properly.
It emerged that the day care centre was not registered and that the specific carer, Moore, also was not qualified or trained to render these day care services.
The court found that the apparent cause of the baby’s death was that she had rolled off the bed and smothered, after having been left without supervision and without Moore having placed the baby in a safe place beforehand.
The court found that in terms of Section 28 of the Constitution, the Department’s obligation was to ensure and promote the protection of children. The Department had an obligation to see to it that the day care centre’s facilities, services and programmes were managed well and being maintained.
It was furthermore important that the Department see to it that the necessary registrations are in place. These centres have to be registered to ensure there is control and that the quality of the centres are up to standard. These registrations have to take place in order to see to it that the personnel at all the centres are duly qualified, as stipulated by the basic health and safety standards of said Department.
The court maintained that, if the Department had scrutinised the carer’s application properly and visited the site only once, it would have realised that this carer was not trained. The Department had paid scant attention to all the rules regarding safe sleeping practices. The court criticised the Department severely on all these points and many more, because they had not fulfilled their functions properly. The court maintained that the Department was without a doubt liable for the baby’s death and that it could have been prevented if they had done their work.
Consequently, Moore as well as the Department were held liable, together and separately, for the loss/damage, as well as the cost, However, the stipulation of the amount owing was postponed.
Therefore, make sure that the day care centre you send your child to is properly registered and that it complies with all the safety standards of the Department of Social Development in your province. Also report all centres that aren’t registered. Children’s safety is of cardinal importance.