Janeca Esau may never realise her wish to become a teacher.
Thirteen years ago, while playing on a swing, she sustained a traumatic brain injury. In an instant, her life changed.
On Thursday the Constitutional Court grappled with whether the department of social development should pay damages arising out the August 12 2008 kindergarten incident.
Esau, now 18, was on the swing at an early childhood development centre in Bredasdorp in the Western Cape when the top beam of the wooden structure dislodged and collapsed on top of her.
Bazil Esau, on behalf of his minor daughter at the time, sued the Western Cape MEC for social development for damages. The Western Cape High Court found, in January 2019, that the minister was liable for damages. Esau argued that the provincial department of social development should have done a quality assurance assessment of the early childhood development centre..
However, that judgment was overturned by the Supreme Court of Appeal (SCA) last year. Her father then approached the Constitutional Court to apply for leave to appeal.
The matter was heard on Thursday and the court reserved judgment.
The MEC opposed Esau’s application.
The MEC’s counsel, Ismail Jamie SC, said the SCA found that nothing in the laws regulating early childcare centres contained an express provision which required the MEC to conduct safety inspections at facilities.
Esau, in an interview with Sunday Times Daily, said shortly after the incident his wife, Jolene, who worked at a supermarket, had to resign to provide 24/7 care for their daughter.
He said Janeca spent close to two years in Cape Town’s Red Cross War Memorial Children’s Hospital and, later, Groote Schuur Hospital in the city.
She was like a baby again and was wearing nappies, and we had to feed her because she was unable to eat on her own.
— Bazil Esau
Esau, who worked at a hotel, had to take time off regularly to visit his daughter in hospital.
“We suffered financially because my wife had to resign, so we no longer had her income.”
Esau said Janeca only began rehabilitation after being discharged from hospital. “When she started getting a little bit better, they discharged her so she could get out of the hospital environment.
“She was like a baby again and was wearing nappies, and we had to feed her because she was unable to eat on her own. She had a tube connected to her stomach, so every four hours or so we had to make her milk that contained all the necessary nutrients, then feed her through the tube,” said Esau.
Janeca was in a wheelchair and only started walking again later. “She could walk, but not that well,” he said.
The brain damage affected her eyesight and hearing.
“She can only hear 80% in her left ear and her eyesight in her left eye has also been affected. She was right-handed, but had to start doing everything with her left hand.”
Esau said his daughter went to a special needs school when she was seven years old.
“She wasn’t 100%, but she was able to walk. When she went to the higher grades she took consumer studies as her main subjects. She loves cooking and always wants to work in the kitchen.”
This also provided an opportunity for Jolene to find a new job. “My wife started working and I also started a new job, so we started to recover financially.”
He said Janeca, who dreamt of becoming a teacher, still suffers from epilepsy.
“She always loved playing teacher at home, so she always wanted to become that, but that’s not possible any more. She also wants to learn how to drive a car, but she has to study for the learner’s test, which I think will be a bit difficult for her with her condition.”
Janeca now receives a social grant, said Esau.
“We are going on OK and were able to recover from the incident. We are a very close-knit family and we supported each other through this difficult time. Our help also came from God, who carried us through.”
