The state of the drain at the time that a Greenfields, Kariega toddler drowned in 2014. (Photo: Wilma Espag van der Bank) 
Marking the end of a long legal battle for justice for their baby girl, who drowned in a stormwater drain left open by the Nelson Mandela Bay metro, the Supreme Court of Appeal ruled that the municipality was liable for the 17-month-old's death.
Acting Appeal Court Judge Esther Steyn, writing the judgment on behalf of the court, dismissed the municipality’s contention that it was not the cause of the child’s drowning.
The trial court heard that the drain in Grootboom Street, Greenfields, Kariega, had been left open since 2012 or early 2013. There had been a burst pipe in Grootboom Street, which had caused water to pool in the drain. Several residents had, since 2012 (or early 2013, according to some witnesses), reported the danger posed by the uncovered drain to the municipality’s call centre – but it was eventually fixed only in 2021.
“Since the municipality had a system in place to deal with complaints, it is clear that the municipality could not solely rely on the public to draw their attention to hazardous drains: it has employees working in the area, attending to water leaks, electricity, sanitation or the like, and they are obligated to report any open drains or any other hazardous items for these to be attended to.
“In fact, the four open drains in Mielies and Grootboom Street on the day in question [when the child drowned] are indicative that the employees had failed in their duty to report these drains. It is inescapable that a legal duty was owed by the municipality to avoid negligently causing harm to [the community],” Steyn wrote.
“The legal convictions of the community require that where the municipality had knowledge of the open drain, a failure to attend to and cover it would be wrongful. Such knowledge of the danger posed, coupled with the failure to take appropriate remedial action, constitutes negligence and gives rise to delictual liability,” Steyn continued.
Years to fix
Yet according to evidence before the court, the community had reported that the drain had been left open since 2012 [or early 2013], and it had been repaired only in 2021, seven years after the child drowned. When Daily Maverick visited the site of the child’s drowning on Tuesday, September 2, 2025, a concrete slab had been removed from the drain, creating another large hole.
/file/dailymaverick/wp-content/uploads/2025/09/DSC_0041-copy.jpg "Lyndon Godola who retrieved the little girl's body from an open drain in Grootboom Street, Greenfields, Kariega points out the drain where the incident happened. (Photo: Deon Ferreira)")
The parents of the child, represented by attorney Wilma Espag van der Bank and advocates Hendrik van der Linde SC and Nicola Barnard, sued the municipality for emotional and psychological trauma caused by their daughter’s death. A curator, Johannes le Roux, has been appointed to represent them during the litigation.
Their names are not being published as there have been incidences in the past in Nelson Mandela Bay of successful claimants being robbed or kidnapped after legal payouts. A new court process must start to determine compensation for the family and no money has been paid out yet.
Five witnesses from the Greenfields community testified in court. They all said the municipality left the drain in Grootboom Street uncovered and unsecured for a very long period, despite being repeatedly informed of the danger it posed. The court heard that the toddler had been left with a family member on the day of her death while her mother went to collect money from a nearby relative.
/file/dailymaverick/wp-content/uploads/2025/09/DSC_0035-copy.jpg "Community members of Grootboom Street, where a toddler drowned, gather at the drain. (Photo: Deon Ferreira)")
At the time, the parents testified that the child could not open the front door and that their yard was fully fenced. They discovered a hole in the fence only after her death.
Other witnesses told the court that they had reported the open drain to the municipality several times and that they would chase away neighbourhood children when they played close to the area.
The municipality called Nokonwaba April as a witness, who at the time was the municipality’s acting senior superintendent for roads and waterworks. She stated that the drain was indeed open during an inspection on the day of the child’s drowning. She testified that when she arrived on the scene, four drains in the area had been left open.
According to April’s evidence, they “never received any complaints about the open drain”. But the record presented to the court was for nearby Mielies Street, and not Grootboom Street.
The municipality’s legal team further argued that the residents “should have kept a record of their reference numbers when they reported the drain”. DM