SECTION27 analysis of Komape Judgment
SECTION27 will continue to monitor implementation of the court order in the Limpopo Sanitation case
20 September 2021
On 17 September 2021, the High Court (Limpopo Division) delivered judgment for the second time in the case of Komape v Minister of Basic Education in favour of the arguments presented by SECTION27. The High Court gave an order requiring that the Department of Education (DBE) and Limpopo Department of Education (LDOE) develop a comprehensive plan to urgently eliminate pit toilets at schools in Limpopo and install safe and dignified sanitation facilities. This judgment is once again a vindication for the rights of learners in the Limpopo province, whose constitutional rights are violated because of the presence of unsafe and undignified pit toilets at their schools. We cannot and must not allow this judgment to be a hollow victory.
The case has its roots in the devastating death of Michael Komape, who fell through a dilapidated pit toilet at his primary school and drowned. His family, represented by SECTION27, sought justice against the DBE and LDOE because of their failure to eliminate the dangerous pit toilets at schools. The family was awarded damages for the tragic loss of their son.
In addition, recognising that pit toilets are common at schools in Limpopo, the High Court granted a “structural interdict” against the DBE and LDOE. This order required the DBE and LDOE to eliminate all pit toilets at schools in Limpopo, and equip schools with dignified sanitation facilities. In terms of the structural interdict, the DBE and LDOE were ordered to develop a detailed plan to eliminate all pit toilets in Limpopo and install dignified sanitation facilities.
Subsequently, however, the plan that the LDOE developed was inadequate and unconstitutional in multiple respects. SECTION27 therefore re-approached the High Court seeking an order declaring that the plan filed by the LDOE was unconstitutional and inconsistent with the requirements of the structural order, and requiring the DBE and LDOE to develop a new plan that would ensure that pit toilets were eradicated urgently.
Regarding the question of whether the plan proposed by the Department was reasonable, and thus constitutional, the court held that “The answer to this question is a resounding No!” Muller J noted that the rights violation suffered by learners are significant and ongoing. Learners are in constant danger due to the presence of pit toilets at schools and their dignity is impaired where they have no other choice but to use the such facilities. The court stated that what was required of the department was “urgent and effective steps” to address the situation. In this regard, the court stated that the LDOE’s proposal to replace pit toilets in the next 14 years was an unduly long time, stating that “[t]he period of 14 years is unreasonable when learners are unable to enjoy their right to education throughout their school careers of 12 years.”
The High Court noted that while the DBE and LDOE may have financial constraints, the situation of sanitation in schools in Limpopo is a “national emergency” that “must be treated accordingly”. The court thus held that the DBE and LDOE have a duty to put in place adequate financial provision to address the sanitation needs of schools in Limpopo. Muller J stated that another child dying “…due to dangerous pit toilets will be a catastrophe which should be avoided at all costs.”
The DBE and LDOE were thus ordered to file a new plan with the court within 90 days of the judgment. The DBE and LDOE are further required to file progress reports with the court every six months detailing the steps taken to implement the new plan.
While this judgment is a victory, the matter will not be over until every pit toilet is eradicated and all schools have safe, decent, and dignified sanitation facilities. Therefore, SECTION27 will continue to monitor closely what steps the DBE and LDOE take to fulfil their obligations. We intend to develop a barometer of progress in this regard Muller J stated that if the DBE and LDOE are unable to realise the rights of learners in Limpopo by eliminating pit toilets and equipping schools with decent sanitation facilities in the “foreseeable future,” the appointment of a task team may be an appropriate solution.
SECTION27 wishes to thank Legal Aid for the funding support provided for this case
Read the full judgment here
Ends
For more information or media interviews, contact:
Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
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