Government of the Western Cape: Department of Social Development v Barley & others [2018] ZASCA 166 SCA.

/ / News, 2019, Civil Procedure


This matter concerned a delictual claim against the Department of Social Welfare (“the Province”) and an early child development facility, “Aunty Dawn’s”, run by Ms Moore (“Moore”). The parents of Ava Barley a five-month old minor female (“Ava”), Mr and Mrs Barley (the “Barleys”) instituted a claim against Moore and the Province for damages suffered by them as a result of Ava’s death which occurred whilst she was in the care of Aunty Dawn’s. The High Court found Moore and the Province to be jointly and severally liable for damages suffered by the Barleys as a result of Ava’s death, which decision was later appealed by the Province.

During 2006 Moore started operating Aunty Dawn’s from her residence, and with the facility’s intake increasing she applied to register Aunty Dawn’s with the Province as a partial care facility, in terms of section 30(2) of the Child Care Act 74 of 1983 (the “Child Care Act”). Accordingly, the Province issued a written acknowledgment of receipt of the application and in terms of standard procedure, instructed the municipal health department to inspect the facility pending the approval of the application. The site inspection is a compulsory requirement in the application process, to ensure that the health standards of the facility are strictly complied with. It is only once the facility is found to be compliant with the aforementioned standards that the Province can issue a health care certificate for the facility. However, and despite Moore having duly complied with the application process, at the time of Ava’s enrolment at the facility, being 2 (two) years after the application for registration was submitted, there had been no further consideration by the Province of the application, nor had there been any site investigation.

The Barleys regarded Aunty Dawn’s as a suitable day care facility and after having visited the facility, in August 2010. The Barleys therefore proceeded to enrol Ava with Moore. Moore, at the time, advised the Barleys that Ava would be the only baby at the facility but assured them that she would personally take care of her. Ava subsequently died in October 2010 at Aunty Dawn’s, under the supervision and care of Moore. The Barleys learnt that Moore had left Ava to sleep on a bed instead of a cot, which was contrary to what the Barleys understood would be the sleeping arrangement for the new born. It appeared as though Ava had suffocated after having rolled off the bed. It was later confirmed that this was not the first time that Moore had left Ava to sleep on a bed rather than in a cot.

Subsequent to this incident, the facility was investigated by Dr Govender, a registered social worker employed as a Director by the Province. Dr Govender’s assessment and report of the facility concluded that the staff appeared to be adequately skilled and compliant with the Guidelines for Early Child Development Services, 2006. Although the staff employed by Aunty Dawn’s did not have formal qualifications they had sufficient prior experience working with children to justify their lack in qualifications. Dr Govender confirmed that the facility should not be closed down due to the facility’s alleged non-adherence to the norms and standards set by the Province, as this did not negatively affect the children.

The Barleys argued that Moore acted negligently by allowing the new born to sleep on a bed instead of a cot, while arguing that she failed to ensure that her facility complied with the minimum standards set in the Children’s Act 38 of 2005 (the “Children’s Act”) and Guidelines. A further contention was made that Moore failed in her Constitutional duty to ensure Ava’s safety and security. In addition to this the Barleys argued that the Province failed to comply with their statutory and Constitutional obligations to regulate, manage, control and support provision of early child development facilities as a whole. Accordingly, had the Province officials adequately processed Moore’s application for registration of the facility the necessary site inspection for compliance with the applicable laws would have been carried out timeously. In doing so, this tragedy would have been avoided as a satisfactory and appropriate sleeping regime would have been implemented in respect of all the children attending the facility. The High Court found Moore and the Province jointly and severally liable to the Barleys for Ava’s death.

The Court’s findings were premised, broadly, on the responsibilities and legal duty of the Province under the Child Care Act, the Children’s Act, the Guidelines to Early Child Development Services and the Regulations promulgated in terms of the Child Care Act. It was held that if the officials of the Province had inspected the facilities, as legally required, they would have become aware of the deficiencies of the facility and accordingly instructed Moore to make the necessary adjustments to ensure that her facility is statutorily compliant. As such, the failure on the part of the Province in this regard was the factual cause of or a contributing factor of Ava’s death and ultimately the resultant harm suffered by the parents which harm, a reasonable person in the place of the Province, would have foreseen and taken steps to safeguard against such harm.

The Province proceeded to appeal this matter based on the following grounds:

  1. it did not owe the Barleys any legal duty in relation to Ava’s death;
  2. it acknowledged that one of its key duties, so as to promote the proper care of children and protection of their rights, is to conduct the necessary site investigations, however it was vehemently rejected that it held the primary responsibility of ensuring the safety of children in the day to day operation of privately run facilities. Such responsibility rested on the owners of the respective facilities. Consequently, the Barleys could not prove the requisite negligence and duty of care on the part of the Provinces employees;
  3. no causal link exists between Ava’s death and the failure by Provincial officials to process Moore’s registration application. The alleged negligence by Provincial employees is too remote from the harm suffered by the Barleys; and
  4. the harm suffered by the Barleys was not reasonably foreseeable by the Provincial employees. ‘The legal duty may be imposed by statute or by operation of common law, in which case the imposition of the duty depends upon the particular circumstances of the case.’



On appeal, the Supreme Court of Appeal (“SCA”) held that to satisfy delictual liability the conduct in question, apart from being negligent, must be have been wrongful. As such, for conduct to be wrongful it must infringe either a legally recognised right of the party or constitute a breach of a legal duty owed towards the party, which legal duty may be imposed by statute or the common law, the imposition of the duty depends upon the particular circumstances of the case. It is undisputed that Moore had a legal obligation to prevent harm to Ava, being the primary victim and to the Barleys, as secondary victims in relation to Ava’s death. However, whether the Province had a statutory duty to protect the Barleys depended on its legal duty, if any, towards Ava and the causal link between the breach of that duty and the harm suffered by the Barleys. The Province argued that accepting that it has regulatory responsibilities towards the Barleys, this does not necessarily translate into a legal duty.

Accordingly, breach of the statutory duty imposed on the Province is not per se wrongful, for the purposes of determining delictual liability, however it remains a relevant factor in the determining wrongfulness. Considering the nature of the functions performed by the Province and the legislative framework relied on herein it is clear that there can be no inference drawn that an intention to conduct a site inspection would result in delictual liability due to non-compliance. Registration of day care facilities under the Child Care Act and the Children’s Act is part of the broader role of the State, to promote, provide and support early child development services around the country. There is no evidence before the Court that the Province had been alerted to specific risks or dangers to the children in Moore’s care. Moreover, the Barleys went to far as to confirm that they were satisfied with the services they received from the facility prior to the incident, while expressing their willingness to continue entrusting their children with Moore. Ultimately, there is no suggestion that non-adherence to norms and standards by the facility would have resulted in the closing down of the facility, which stance was reaffirmed by Dr Govender’s report as to the adequacy of the facility and staff. The argument that registration of the facility and consequent inspections would have prevented this tragedy accordingly remains unsupported by any evidence.

Notwithstanding the aforesaid, even if the conduct of the Province gave rise to legal liability one cannot convincingly argue that such conduct is causally linked to Ava’s death. Accordingly, despite the fact that Moore was aware of the recommended sleeping environment for babies, on the evidence, even if the Provincial officials had visited Aunty Dawn’s and had conducted the prescribed inspections they would not have recommended closure of the facility.  Given the important role fulfilled by child care facilities across the country it is understandable that a corrective rather than a purely punitive approach is adopted where there is non-compliance with minimum standards set by the Province. Therefore, the legislative framework remains aspirational, and will only be realised and achieved over time. Ultimately, on all levels the claim for damages against the Province fails and the appeal is upheld.

The Court was of the opinion that it was essential to address an oversight of the court a quo. In the High Court, the matter proceeded on the basis that an agreement/understanding was reached by the parties that the issue of liability for the damages suffered by the Barleys as a result of Ava’s death would be separated from the quantum thereof, however, there is no record of such agreement, nor was it referred to in the judgement of the High Court, nor was there any order of separation granted by the High Court. Emphasis must be placed on the fact that employing Rule 33(4) of the Uniform Rules of Court is only to be done where there has been a comprehensive consideration of the matter and there are compelling reasons for a separation of issues in the matter which will ensure a fair and speedy trial.

On numerous occasions, Courts have warned against ill-considered separation of issues. In the matter of Denel (Edms) Bpk v Vorster this caveat was emphasised and held that Rule 33(4) of the Uniform Rules of Court, entitles a court to try issues separately only in appropriate circumstances. It is aimed at facilitating the convenient and expeditious disposal of litigation. It must not merely be assumed that that the party’s desired result will always be achieved by separating the issues of matter. It is only after careful thought has been given to the anticipated course of litigation as a whole that it will be possible properly to determine whether it is convenient to try an issue separately. It is the duty of that court to ensure that the issues to be tried are clearly circumscribed in its order so as to avoid confusion.

This matter is yet another case in which one can only conclude that no careful thought was given to the implications of separating the issues. This exercise was not employed in the matter at hand, which was no doubt inappropriate.

The Barleys claimed damages for ‘psychiatric injuries in the form of severe depressive symptoms, anxiety, post-traumatic stress disorder and emotional disorder’. While a claim for sentimental damages based on deterioration in the quality of life as a result of emotional shock or grief caused by the death of another is distinguishable from a claim for emotional shock associated with pain and suffering experienced by a plaintiff directly, the extent of such grief and the impact thereof on the physical and mental wellbeing of the party is crucial in proving a damages claim. Incidentally, the fact that the Barleys would, as a result of the separation, have to return to Court to recount and relive the tragic event and its effect on their lives for the purposes of determination of the quantum, clearly demonstrates a lack of thought in respect of the separation of issues.



This case reiterates that Rule 33(4) of the Uniform Rules is aimed at facilitating the convenient and expeditious disposal of litigation, and accordingly demands that only after careful thought has been given to the anticipated course of litigation, as a whole, that such a mechanism should utilised.

Written by Kirsten Chetty and supervised by Jeannique Booysen, 19 February 2019

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