ConCourt rejects Nelson Mandela Bay Municipality appeal in toddler drowning case

The Constitutional Court has refused to hear an appeal by the Nelson Mandela Bay Municipality in a decade-long case involving the drowning of a toddler who fell into an open stormwater drain in Gqeberha.

The decision means the Supreme Court of Appeal (SCA) ruling stands, holding the municipality liable for failing to maintain safe public infrastructure and ordering it to compensate the child’s parents for their loss.

The case has moved through multiple courts, with sharply differing views on responsibility.

Journalist, Estelle Ellis, explains that, while an earlier full bench of the Makhanda High Court blamed inadequate parental supervision, the SCA rejected this, finding that open and poorly maintained drains pose an unacceptable danger, particularly in low-income communities where children are often cared for by older siblings.

"I found it almost inhumane of the municipality, the way they were pushing this agenda of blaming the parents.

"It's significant that the court said, 'First fix the roads, and then we talk about other things like parental supervision. Fix the drains because they are dangerous and they cause a public danger.'

Although the Constitutional Court gave no reasons for dismissing the appeal, the SCA judgment is seen as significant in affirming municipalities’ duty to address known infrastructure hazards.

Evidence showed the drain had been left open for years despite repeated complaints, and that several other open drains existed in the same area at the time of the child’s death.

To listen to Ellis in conversation with CapeTalk's John Maytham, use the audio player below: