If there ever was a case that warranted a rethink on present delict laws, it is this, advocacy groups Section 27 and Equal Education will argue in the Supreme Court of Appeal in September.
Michael Komape, one of Rosina and Maloti Komape’s six children, was five years old when he stuck his hand up and asked to go to the toilet on his fourth day of grade R at Mahlodumela Lower Primary School in Limpopo, on 20 January 2014.
He went unsupervised to the “rusty and decaying” pit latrine toilet, a temporary structure a villager had built in 2009. Non-governmental organisations, the school and education authorities had flagged the toilet as an “accident waiting to happen” for several years and it could have been fixed for R500.
The structure collapsed under his weight and the little boy drowned “in the waste of others”.
He was found with his hand stretched out of the latrine, a desperate attempt to get help that never came.
In spite of this “unimaginable horror”, the Komape family’s attempt to hold the government accountable and get “financial” justice has largely failed.
Represented by Section 27, they instituted a claim for damages in the Limpopo High Court for R940 000 for emotional trauma and R2 million for “grief”, a claim not yet recognised in law.
In April 2018, Judge Gerrit Muller found against them.
While he ruled that the government had breached its constitutional obligations to learners in Limpopo by not providing safe sanitation, he said the family had not proved their general damages claim for emotional trauma and the law did not provide a remedy for grief.
The family now hopes the appeal court will see things differently.
“If Michael had been a breadwinner or brought some material gain to his family, they would have received some recognition for his loss. Because he was a five-year-old boy at the start of his school career, his life, in terms of our law of delict, he has no value,” Section 27 lawyers wrote in the argument they filed with the court.
No ordinary case
“What is the appropriate remedy for a bereaved family who have lost their son and sibling in deplorable circumstances through the negligence of government officials while he was at school?
“This case is about the abject failure of the state to comply with its constitutional obligations to those who are in most need.”
They say the courts have emphasised the role of ubuntu in the development of common law, but its absence from delict principles, and the absence of a remedy for inhumane conduct, “highlights a chasm between the values promoted in our law and those promoted in the Constitution.
“The law needs to recognise that a loss of life, occurring as a direct result of the state’s breach of its constitutional obligations, means more than loss of property or material support.”
This is no ordinary case of grief, they say.
It is prolonged and complicated. And compounded by the government’s refusal to take responsibility for what happened and apologise.
On the day Michael died, his parents were treated with contempt and “stripped of their dignity”. Evidence presented during the trial claimed that the school contacted them and said Michael was “missing”.
When his mother arrived, she was sent on a “contrived” search but was barred from entering the “toilet” area. When his body was found, his father was forced to delete the photographs he took of the gruesome scene “because they [the school] did not want the incident to be spread”. He was threatened with criminal charges.
When Michael’s father wanted to pull his body out of the latrine, the principal refused to let him do so, saying “it was too late to save him”. The child lay in “the pit of human substances” for four hours.
The Komapes were offered no financial assistance to bury their child.
Three years later, on the eve of the trial, the government made an “insulting settlement offer” that was rejected.
Grief and sorrow
Equal Education, which has been admitted as an amicus curiae, or friend of the court, said the appeal court has already breached in part the line between emotional/psychological harm, and grief and sorrow.
This was in a matter involving a claim for damages by a mother whose child was stillborn because of medical negligence. Part of her claim was based on the fact that after the birth, she was cruelly taken to a maternity ward where mothers were nursing their babies.
In spite of no medical evidence, the court ruled that there was “no doubt that she had experienced shock, grief and depression”, and awarded her R100 000 in damages.
“The present case represents the next opportunity to develop the law,” Equal Education’s lawyers submitted in their argument.
“Dying by drowning in the waste of others is an unthinkable horror. The court must fashion a remedy that recognises when a child dies as a result of gross breaches of fundamental constitutional duties. It is the violation of these rights that require vindication.
“The existing law does not concern itself with the consequences of the trauma of losing a child, on the family as a collective, and what has been taken from it. It does not concern itself with the deceased rights.
“It does not consider if the family has been treated with dignity, or the enduring sorrow and heartache that accompanies a horrific tragedy that was preventable if only the Department of Education had responded to the school’s request for safe toilets.”
When Muller dismissed the family’s claim, he said it could lead to “bogus and unwarranted proliferation of claims for psychiatric injuries and pave the way for limitless claims for every conceivable cause of grief”.
But Equal Education’s lawyers said, “Not all cases of the death of a loved one will bear the gruesome features of this case.”
Section 27 said: “Any claim will be reliant on proof that it is distinct from ordinary grief and it would only apply in cases where there has been a direct breach of constitutional duties.”
Both legal teams referred to the fact that the Limpopo Department of Education, in response to Muller’s “structured order” that it submit an audit of the number of pit toilets in the province and an action plan, had said it would take up to eight years to begin an upgrade programme.
The respondents – the minister of basic education, the Limpopo Department of Education member of the executive council and the school – have argued that “grief is a passing emotion. It is a process. They [the family] cannot and should not be compensated for going through a process that all human beings go through.”
Common law remedy
They said a common law remedy was already available and the family could have proved its claim for damages for “trauma and emotional shock” if they had submitted the necessary medical evidence. A claim for “grief” would be having a second bite of the cherry on the same facts.
But Equal Education lawyers say it is not enough for the family to be compensated for medical injuries through the “scientific evidence” of doctors.
“Michael’s death was not an accident. This family will be haunted by the thought of Michael desperately seeking help in his final moments and that he was abandoned by adults trusted to look after him.
“This case is about the harm done to our society when elected officials fail to protect our children and then turn their backs when the worst happens.”
The matter will be argued in court on 2 September 2019.