18 December 2019




SECTION27 welcomes the judgment of the Supreme Court of Appeal (SCA) in the case of Komape v Minister of Basic Education.

The SCA judgment overturns a decision of Polokwane High Court in 2018 that dismissed a substantial part of the Komape family’s claim for damages arising out of the wrongful and negligent death of their son and brother, Michael Komape.

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

The SCA order requires that the National and Provincial Departments of education (the state) pay damages for emotional shock and grief in the following amounts:

  • R350 000 to Mrs Komape
  • R350 000 to Mr Komape
  • R200 000 to Michael’s adult sister, Lydia Komape
  • R200 000 to Michael’s adult brother, Lucas Komape
  • R100 000 for each of the minor children Maria, Onica and Moses Komape.

In addition, the state is ordered to pay R 6000 for the future medical expenses of each of the minor children Maria, Onica and Moses Komape as well as the legal costs of the appeal.

The family’s original claim was developed as including: Claim A for R 940 000 in damages for the emotional shock that the family members had experienced as a result of Michael’s death noting the traumatic and undignified manner in which Michael died. Claim B sought to develop the common law by claiming R 2 million for the grief suffered by the family. Our common law currently does not recognise damages for grief. 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. The family also sought a declarator for the violation of their constitutional rights.

When the 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 rights, including the right to basic education, of learners in Limpopo. Despite such strong findings against the 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.

The SCA, in a judgment penned by Justice Leach, and in which Justices Navsa, Tshiqi, Wallis and Mbha concurred, overturned the high order substituting it with a skilfully drafted judgment that avoided developing the common law, awarding constitutional damages or issuing a declarator.

The SCA order combined the award for emotional shock and grief on the basis that in this case, the two were intricately intertwined. The SCA further held that emotional shock and grief with psychiatric lesion had been conceded by the state and corroborated by expert evidence. Therefore, there was no need to develop the common law. Given that the family had been fully compensated, the SCA held that constitutional damages need not be awarded and that public funds could be better served towards more systemic relief. The SCA further refused to grant the declarator on the basis that it will serve no purpose as the state is already aware of its obligations in respect of school sanitation.

In deciding on the quantum to be awarded for emotional shock and grief, the SCA took into account the conduct of the state and was scathing of this conduct. The SCA acknowledged that the family’s ‘mental agony and grief was exacerbated by the unfeeling attitude of the education authorities.’ This included the treatment by education authorities of the family in the aftermath of Michael’s death; the ‘unsympathetic and denigrating cross-examination’ by the state’s advocate; and the state defending what the SCA described as an ‘indefensible case’.

A particularly noteworthy part of the judgment reads:

‘One the first day of the hearing the respondent’s concession of the merits was repeated. They accepted negligence on their part had led to Michael’s death, that the merits of Michael’s death were no longer in dispute and that, in respect of that claim only the quantum of damages needed to be proved. In light of this concession and the circumstances surrounding Michael’s death, if ever a case called out for settlement it was this one. For some reason however the respondents did not settle and the trial proceeded, undoubtedly as a huge cost to the State. This really ought to have been avoided and the funds better employed in national interest e.g. by improving sanitation systems at rural schools.’

This case has spanned over five years, proving to be a deeply emotional and difficult time for the Komape family. SECTION27 hopes that this judgment will bring some semblance of closure for the family and restore their dignity for the manner of Michael’s death and the treatment of the family by education authorities in the aftermath of his death.

SECTION27 intends to pursue the structural order that was handed down in the high court and which was not appealed. We intend to ensure that the state eradicate pit toilets in the Province and develop and implement an effective plan for the provision of safe and hygienic toilets

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




Boitumelo Masipa:  masipa@section27.org.za | 0814529096

Nontsikelelo Mpulo: mpulo@section27.org.za | 0827827143