The Limpopo education department came in for sharp criticism from Supreme Court of Appeal judge Mahomed Navsa on Monday over the death of four year-old Michael Komape in a school pit toilet in 2014.
“The Department has not exactly covered itself in glory with respect to children under its care,” said Navsa, addressing himself to Advocate Simon Phaswane, counsel for the Limpopo government, at the Komape family appeal hearing in Bloemfontein. “You put it to the Komapes that this was just another accident. This was a very different kind of accident.”
“Is it seriously your instruction that the circumstances of Michael’s death are such that this was just another accident?” asked Navsa. Earlier, Navsa berated the Limpopo government’s “insensitive” handling of the case at the 2017 trial in Polokwane. Counsel for the Limpopo government had argued that Michael’s drowning in a pit latrine, while tragic, was similar to other tragedies that afflict families across the country.
The case was the subject of a two week trial in 2017, when the Komape family, represented by public interest law firm SECTION27, sued the Limpopo government for R940,000 in general damages and R2m in Constitutional damages. Judge Gerrit Muller of the Limpopo High Court dismissed the family’s damages claim, awarding just R12,000 for future medical expenses for each of two younger family members, Olivia and Maria.
Legal counsel for the family also asked the court to develop common law allowing for the payment of damages for grief, which would set a precedent in future cases of state negligence. Alternatively, the family asked the court to award “constitutional damages” for the breach of the government’s constitutional duties to provide education and ensure the safety and dignity of the children under its care.
This claim was also rejected by the Polokwane court. The only victory for SECTION27 was the order for the Limpopo education department to institute a plan for the installation of safe and secure toilets across the province’s schools, 73% of which were using pit latrines until 2011.
SECTION27 and the Komape family took this judgment on appeal to Bloemfontein.
An expert witness at the Polokwane trial argued that family members were still showing signs of Post Traumatic Stress Disorder years after Michael’s drowning in a sea of faeces at the Mahlodumela School outside Polokwane.
The line of questioning by Justices Navsa and Malcolm Wallis, two of the five judges in attendance, appeared to suggest the court had little appetite for developing common law for damages related to grief when existing remedies are already available in law. Navsa then sounded out both sides on the possibility of a higher monetary award for the family. There were no objections.
Monday’s proceedings kicked off with class action specialist Richard Spoor asking to be admitted as a friend of the court. He asked to introduce arguments that he said would guide the court in reaching its decision, adding that the existing common law was inadequate in terms of addressing claims arising from the wrongful death of a child.
The judges refused his attempt to join as a friend of the court, saying he was attempting to piggy-back his class action suit involving victims in the listeriosis case against Tiger Brands onto the Komape case. Justice Wallis asked whether Spoor had a substantial financial benefit in the outcome of the listeriosis case. Spoor replied that there was a contingency agreement in place (meaning he would earn a percentage of any winnings). This case was launched in 2018 as a result of the outbreak of listeriosis from tainted food produced by a Tiger Brands subsidiary in 2017 and 2018, resulting in more than 200 deaths.
Advocate Vincent Maleka, representing the Komape family, put the case for overturning the Polokwane High Court decision of 2018. The harm suffered by the family had been aggravated by the conduct of government functionaries, he said. Michael’s mother, Rosina, had been prevented from looking for her missing son in the school toilet area, and his body had lain in the pit latrine for nearly five hours before being extracted by emergency workers. Police had ordered photos of the scene taken by a family friend to be deleted.
“There was no apology (from the state), and no investigation into the circumstances of Michael’s death. That’s vital to our argument of emotional shock (suffered by the family),” said Maleka. “One would think that caring and sensitive public functionaries would act with more sensitivity.”
Maleka argued that the remedy the family was seeking should be sufficiently onerous to deter any future instances of neglect by the state. Justice Wallis replied that if deterrence was the objective, the Polokwane court had already granted a “structural interdict” which could be used by other members of the public concerned about poor quality school toilets in the province. This would require them to take the Department of Basic Education to court to enforce the interdict.
Advocate Kate Hofmeyer, representing Equal Education (which had previously been admitted as a friend of the court), argued that the family’s constitutional right to dignity had been impaired by the state’s conduct before and after Michael’s death, and by the circumstances surrounding his death. Because of their economic circumstances, the Komape family had no alternative but to send their child to a school where there was a chance he might suffer a fatality such as occurred. There was a difference between a child dying in a car accident and a child drowning in a pit toilet, argued Hofmeyer. “This event impacts the dignity of the family and existing law does not compensate for that,” she said.
“We’ll do our best to see the family is compensated as fairly as possible,” said Justice Navsa.
Judgment was reserved.