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The appeal in the case of Komape v Minister of Basic Education and Others will be heard by the Supreme Court of Appeal (the “SCA”) on 2 September 2019.

SECTION27 has been representing the  family of Michael Komape since 2015 in their efforts to seek a semblance of justice following the death of their son after he tragically and gruesomely fell into a pit toilet at Mahlodumela Primary School in the Limpopo Province and drowned in human excrement.

The family, represented by Section27 instituted a civil claim for damages in 2015 against government for the wrongful and negligent death of Michael in the Limpopo High Court.   This included R 940 000 for general damages, for emotional trauma and shock that the family members had experienced as a result of his death.  The claim also sought to develop the common law by claiming R 2 million for the grief suffered by the family.  In the alternative, the family claimed R 2 million in constitutional damages as a direct result of the breach of the constitutional obligations of government towards learners in the Limpopo province to provide safe and decent sanitation. Other claims related to past and future medical expenses for the family, funeral expenses and loss of earnings in respect to the mother who had to stop working when her child passed away.

When judgment was handed down, Judge Muller of the Polokwane High Court held that the failure of the government to provide safe and decent sanitation resulted in the violation of Limpopo learners’ rights including the right to basic education.  Despite such strong findings against government, Judge Muller dismissed the claim for emotional shock and trauma as well as the claim for R 2 million in damages for grief, alternatively constitutional damages.  The Court instead issued a structural order requiring that government provide to the Court, by a specific date, an audit of the number of pit toilets in the Province together with a detailed plan for the provision of safe and hygienic toilets.

SECTION27 is appealing sections of Muller J’s judgment of 23 April 2018, in particular, the dismissal of the claim for emotional shock and trauma as well as the claim for R 2 million in damages for grief, alternatively constitutional damages. The arguments that will be made in the SCA are available here.

We will argue that the Court failed to distinguish between the multiple levels of human rights violations in this case. These are in respect of Michael himself, members of the Komape family as a result of his death and the ongoing violations of Limpopo learners. The Court further failed to recognise that the structural relief as a prospective remedy for the Limpopo learners and a remedy recognising the constitutional violations of the family, need not be mutually exclusive.

Michael died on 20 January 2014, and the civil claim was launched in the Polokwane High Court in 2015. This case has therefore already spanned a period over five years. The case remains deeply emotional and difficult for the Komape family. We hope that the SCA appeal is the end of a very long road towards closure for the family. Significant dates and developments are captured in the attached chronology.

SECTION27 wishes to express our gratitude to Legal Aid South Africa for funding our representation of the Komape family and their pursuit for justice.

For further details contact Zukiswa Pikoli 011 356 4100 pikoli@section27.org.za