5 June 2018, Johannesburg – SECTION27, representing the Komape family notes the ruling of Judge GC Muller in the Limpopo High Court in respect of the application for leave to appeal in the Michael Komape trial.  The ruling grants leave to appeal to the Supreme Court of Appeal (SCA) in respect of claims B, C and in respect of the declaratory relief. The judge has, however, declined leave to appeal in respect of claim A.

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 in faeces.

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 R940 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. SECTION27 appealed the dismissal of the claim for emotional shock and trauma largely on the basis that this part of the claim had been conceded by the State during the trial.

Claim B, for R2-million, was 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. The application for leave to appeal noted 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.  We argue that the Court further failed to recognise the multiple related functions and purposes of compensation for the vindication of constitutional rights.

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 on 23 April 2018 by Judge Muller in the Limpopo High Court, 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 which resulted in his death.  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 Court noted that ‘if such a claim is successful the Komape family will be over compensated.’

The Court therefore instead of granting constitutional damages to the Komape family issued 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.

On 16 May 2018 SECTION27 filed an application for leave to appeal to the Supreme Court of Appeal (SCA) against this judgment.

SECTION27 did not appeal the structural order on the basis that it has the potential to vindicate the rights of Limpopo learners to safe and adequate sanitation. All other aspects of the judgment were appealed on the basis that the Court failed to sufficiently acknowledge the trauma and grief of the Komape family.

The leave to appeal therefore argued that the Court failed to distinguish the multiple levels on which the human rights violations occurred in the 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.  The Court 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.

The leave to appeal also asserted 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 and 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.

Judge Muller has granted leave to appeal in respect of all areas of SECTION27’s application except Claim A.

While SECTION27 will seek further advice from Senior Counsel in this case, we intend to file an application for leave to appeal directly to the SCA in respect of claim A, and a notice of appeal in respect of the declaratory relief and claims B and C.

 

For more information, please contact:

Nomatter Ndebele: 072 919 2752 or via email: ndebele@section27.org.za

Zukiswa Pikoli: 071 195 3177 or via email: pikoli@section27.org.za