JOHANNESBURG, 17 May 2018 – SECTION27, representing Michael Komape’s family, has started proceedings to appeal the judgement handed down in the Limpopo High Court. The judgement rejected the civil claim by the Komape family for damages against the state for the wrongful and negligent death of Michael.

In 2014, five-year-old Michael had been in grade R for three days at Mahlodumela Primary in Limpopo when he left his classroom, fell into a dilapidated pit toilet and drowned.

SECTION27 this week filed an application for leave to appeal to the Supreme Court of Appeal (SCA) the judgment handed down by Judge GC Muller on 23 April 2018 in the Limpopo High Court.

The Komape family instituted a civil claim for damages against the state for the wrongful and negligent death of Michael Komape.  Claim A was for R 780 000 for damages for emotional trauma and shock that family members had experienced as a result of his death and the manner of his death.  Claim B was for R2-million for the grief suffered by the family. Alternatively, they claimed R2-million in constitutional damages as compensation for the loss of Michael as a direct result of the breach of the constitutional obligations of the state towards learners in the Limpopo province to provide safe and decent sanitation.  Claims C, D and E related to past and future medical expenses, funeral expenses and loss of earnings in respect of Michael’s mother Rosina who had to stop working when he passed away. Claims C, D and E had largely been settled prior to the trial. The Komape family also sought a declarator, an order from the court to declare that the defendants had failed in their various constitutional obligations towards the learners in the Limpopo Province.

Liability for emotional shock and trauma was conceded by the state.  What was in dispute at the trial were only the amounts claimed for shock and trauma, the claim for R2-million and whether or not the state was liable for some of the future medical expenses in respect of some of Michael’s siblings.

When judgment was handed down, the Court found that the Limpopo Department of Education had displayed a ‘complete lack of urgency or commitment’ in using and allocating funds specifically to provide safe and decent sanitation.  The Court also found that the state had failed to perform its obligations towards learners in the Province, including Michael and which resulted in the death of Michael.  The court held that the failure to fulfil these obligations resulted in the violations of a number of rights of Limpopo learners including the right to basic education.  Despite such strong findings against the state, the Court dismissed the claim for emotional shock and trauma as well as the claim for R2-million.  In respect of the claim for constitutional damages the judge noted that ‘if such a claim is successful the Komape family will be over compensated.’

The judge therefore instead of granting constitutional damages to the Komape family issued instead a structural order requiring the state to provide to the Court by 30 July 2018 an audit of the number of pit toilets in the Province together with a detailed plan for the provision of safe and hygienic toilets.

While the structural order has the potential to vindicate the rights of Limpopo learners to safe and adequate sanitation, and is therefore not being appealed, the other aspects of the court order are extremely disappointing in that it fails to sufficiently acknowledge the trauma and grief of the Komape family.    The Court failed to distinguish the multiple levels on which the human rights violations occurred in this case.  These are in respect of Michael himself, in respect of members of the Komape family as a result of his death and the ongoing violations in respect of Limpopo learners.  He further failed to recognise that the structural relief as a prospective remedy in respect of the Limpopo learners and a remedy recognising the constitutional violations in respect of the family need not be mutually exclusive.

SECTION27 on behalf of the Komape family have therefore appealed the dismissal of the claim for emotional shock and trauma largely on the basis that this part of the claim had been conceded as well the claim for R2 million. The application for leave to appeal notes that by asserting that a claim for constitutional damages for the Komape family was ‘over compensation’ the Court failed to recognise the different nature and purpose of the different claims for damages, as compensation for the different nature of harm sustained.  The Court further failed to recognise the multiple related functions and purposes of compensation for the vindication of constitutional rights.  The judgment in this case is in contrast to the arbitration award delivered by retired Deputy Chief Justice Moseneke in which he recognised that justice for the families would be served by awarding constitutional damages.

The leave to appeal also asserts that the Court erred in not granting the declaratory order in respect of the various rights obligations.  In respect of the right to basic education, it is particularly important that safe an adequate sanitation is recognised as a necessary component of the right that is immediately realisable.  This is to ensure that the state fulfils its obligation in ensuring safe and adequate sanitation.

The application for leave to appeal will be heard on 1 June 2018 in the Limpopo High Court.

For more information contact Zukiswa Pikoli at Pikoli@section27.org.za or on 011 356 4100