Community members of Grootboom Street, where a toddler drowned in September 2014. While the drain was fixed in 2021 part of the cover has once again been vandalised. (Photo: Deon Ferreira) 
The Constitutional Court has dismissed a final attempt by the Nelson Mandela Bay metro to escape liability for a toddler’s drowning in an open drain that took them eight years to fix.
The metro argues that the parents of the child were responsible for her death as they left the 17-month-old in the care of another minor, who temporarily left her in the house while the older child went to fetch water. The court heard that the toddler escaped the yard through a hole in the fence, fell into the open drain and drowned. The parents were not aware that the fence was broken at the time.
/file/dailymaverick/wp-content/uploads/2025/09/WhatsApp-Image-2025-09-02-at-16.59.45_c0684148.jpg "The state of the drain in Greenfields, Kariega, at the time of the 17-month-old child’s drowning. (Photo: Wilma Espag van der Bank)")
The metro has insisted in papers before the court that, despite the community’s adamance that they reported the dangerous open drain several times, it was not aware of the problem. The metro’s report submitted to the court, however, was for Mielies Street and not for Grootboom Street.
During the drawn-out court case, the High Court first ruled on this issue in favour of the parents. A full bench of the Makhanda High Court, with Judge Gerald Bloem writing on behalf of the court, overturned this ruling and dismissed the claim by the parents based on the municipality’s contention that parental negligence caused the death of the child. The parents then appealed the issue to the Supreme Court of Appeal, where Acting Appeal Court Judge Esther Steyn ruled in favour of the parents.
The metro then sought an appeal at the Constitutional Court based on their argument that the child’s death was caused solely by the negligence of the parents, who left the child in the care of a young teenager, and not by the municipality leaving a dangerous drain open.
In their affidavit, motivating why they should be allowed to appeal, the municipality’s lawyer, Sebastiaan Marx, said there was a duty of care on the parents to “properly observe” and control the child to ensure that she didn’t fall into the open drain.
During the High Court trial, a municipal official, Nokonwaba April, testified that the covers for the municipal drains were not readily available and had to be ordered if reported as missing. She told the court that these covers were regularly stolen.
/file/dailymaverick/wp-content/uploads/2025/09/DSC_0031-copy.jpg "The drain, originally fixed in 2021 after more than a decade of complaints, has now been broken open again. (Photo: Deon Ferreira)")
The municipality’s legal team requested the Constitutional Court to overturn the Supreme Court of Appeal’s ruling, stating that the judges “elevated the fact” that the municipality was in charge of drains to a finding that leaving one open made them responsible for the death of the child.
Read more: NMB Municipality liable for toddler’s drowning in stormwater drain that took eight years to fix
The municipality also disputed a finding by the Supreme Court of Appeal that it was not unreasonable in many lower-income households to leave a young child in the care of an older child. Marx said in his application to the Constitutional Court that this placed an “unacceptable duty” on local authorities. He stressed that the parents had an obligation to prevent the child from “roaming the streets unattended”.
Dangerous drains
/file/dailymaverick/wp-content/uploads/2025/09/DSC_0041-copy.jpg "Lyndon Godola retrieved the 17-month-old girl's body from the open drain in Grootboom Street, Greenfields, Kariega. (Photo: Deon Ferreira)")
The High Court trial heard that the drain in Grootboom Street, Greenfields, Kariega, had been left open since 2012 or early 2013 when the municipality worked on a burst pipe in Grootboom Street. Several residents reported the dangerous drain to the municipality, but it was only fixed in 2021. According to court papers, there were four open drains in Grootboom and Mielies streets on the day the child died.
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 the toddler’s death. A curator, Johannes le Roux, was appointed to represent them during the litigation.
The parents’ names are not being published as there have been incidents in the past in Nelson Mandela Bay of successful claimants being robbed or kidnapped after legal payouts. A new court process must now start to determine compensation for the family, and no money has been paid out yet.
The Constitutional Court dismissed the municipality's application for leave to appeal without providing reasons. The case will now return to the High Court to determine the amount of damages owed to the family. DM