Municipality liable for child's drowning in stormwater drain

More than a decade after their toddler drowned in an open stormwater drain, the parents of the then 17-month-old girl received justice after the Supreme Court of Appeal (SCA) ruled that the Nelson Mandela Bay Metro was liable for the child’s death.

The tragic drowning occurred in Uitenhage in September 2014. The parents of the little girl, only identified by the court as J, were represented in their application by lawyers appointed by the court to act on their behalf.

They instituted action against the municipality, seeking damages for the emotional and psychological trauma caused by their daughter's death. 

The trial court, having heard evidence from both parties, found the municipality liable for the damages claimed.

The full court, however, upheld the municipality's appeal, finding that the appellants had failed to adequately establish the elements of wrongfulness and causation.

The appellants, aggrieved by this decision, appealed the judgment before the SCA.

On the fateful day, J fell into an open drain in Grootboom Street, Greenfields, Uitenhage, and she died as a result. The family claimed that the municipality was responsible for the maintenance, upkeep, and inspection of the drains in the area. 

Five witnesses, meanwhile, earlier testified that the municipality left the drain in Grootboom Street uncovered and unsecured over a very long period, despite being repeatedly informed of the danger it posed.

On the day of the tragic incident, the mother left her daughter with a family member at home, but he had left to watch rugby elsewhere.

The front door of the house - a stable-style door - was closed, and the child was too young to open it, the mother said. The toddler was, however, later found deceased in the drain.

After the tragic incident and while they were cleaning the yard for the funeral, both parents noticed that there was a hole in the fence.

Another witness testified that the drain had been left open since 2012/2013. There had been a burst pipe in Grootboom Street before, which caused water to pool in the drain. She reported the danger posed by the uncovered drain to the call centre three or four times since 2013. The witness said she was concerned about the safety of the children in the area.

A pastor living in the area said he reported the open drain to the municipality and to the ward councillor. He often witnessed children playing near the drain and would chase them away out of concern for their safety.

On the day of the incident, one of the children informed him that a child had fallen into the drain. When he investigated, he found J’s body floating in the drain.

The municipality, however, claimed it never received any complaints regarding the open drain, as alleged by the witnesses.

It also argued that if it was ruled that the drain was indeed uncovered, the parents should have ensured that the child did not go there while unaccompanied by an adult.  

According to the SCA ruling, given the grave risk posed by the open drain, it is not unreasonable to have expected the municipality to take preventative steps to either repair the drain or to secure the site to no longer pose a risk to the community.

The municipality failed to do so, the SCA said in finding the municipality responsible for the child’s death.

The amount of damages payable will be determined at a later stage.

Cape Times