In November 2017, the Polokwane High Court in Limpopo began to hear evidence in the trial of the Komape family against the State in Komape v Minister of Basic Education and Others.
The trial comes after five-year-old Michael Komape tragically died after falling into a dilapidated pit latrine at his school, Mahlodumela Lower Primary School in Chebeng Village, Limpopo on 20 January 2014.
On 26 June 2015 the Komape family launched their case in the Polokwane High Court, represented by public interest law firm, SECTION27. Michael’s family demanded the State compensate them for the trauma, loss of income, and grief they have suffered and continue to suffer as a result of his death.
On 13 June 2016 Equal Education (EE) was admitted as a friend of the Court (amicus curiae) in the matter. EE sought status as an amicus curiae to demonstrate the history of our campaign for the adoption of binding Regulations on Minimum Norms and Standards for School Infrastructure. Our submissions to the Polokwane High Court demonstrate the knowledge the State had, or ought to have had, of the crisis of inadequate and unsafe school conditions in South Africa, as well as that the Department of Basic Education (DBE) did not meet the constitutional duty to ensure safe infrastructure at Limpopo schools.
Komape v Minister of Basic Education and Others was heard in the Polokwane High Court from 13 November 2017 to 1 December 2017. The Court granted an order by consent, ordering government to compensate the Komape family for past and future medical expenses; funeral expenses; and income Michael’s mother lost whilst unemployed.
On 23 April 2018 the Polokwane High Court handed down judgment in the matter.
- The judge agreed with the Komape family’s claims for certain damages, but he dismissed the claim for emotional shock and grief.
- The judge ordered the Limpopo Department of Education (LDoE), by means of a structural order, to remove all plain pit latrines and provide sufficient and safe toilets in Limpopo. The LDoE was also ordered to provide the Court with a report on implementation of the structural order by the end of July 2018.
On 5 June 2018 the Komape family appealed part of the High Court’s judgment, including the claim for grief suffered by the family.
More than two months later, on 31 August 2018 the LDoE filed their report in compliance with the structural order. The report complained of a lack of budget and stated that the eradication of pit latrines in the province would take 14 years. The LDoE said they would only be able to start removing plain pit latrines in 2026!
On 27 September 2018 the Komape family submitted a response to the LDoE’s report. In their response they questioned the accuracy of the information relied on by the LDoE, particularly in relation to budgeting, and they stated the plan failed to meet the basic requirement of reasonableness.
On 5 October 2018 EE also submitted a response to the LDoE’s report. EE’s response particularly highlighted that the LDoE’s report failed to meet the requirements of the structural order in that it does not identify and take the necessary steps in addressing the most dangerous sanitation conditions facing learners in the province. EE emphasised that waiting until 2026 to start eradicating pit latrines violates the rights of learners.
On 2 September 2019 the Komape family’s appeal, Rosina Komape and Others v Minister of Basic Education, in relation to their claim for damages was heard by the Supreme Court of Appeal. EE once again acted as amicus curiae.
In the Supreme Court of Appeal, EE provided three reasons for why the claim for grief must be recognised, namely:
- The existing common law does not provide compensation for the severe infringements of the Komape family’s constitutional rights that occurred when Micheal died in a pit latrine at his school.
- The common law does not concern itself with the rights of the person who has died. There is no remedy for the violation of Michael’s constitutional rights to family life, to basic education, and to have his best interests protected and his dignity. The common law does not allow the Komape family to vindicate the rights of their lost family member in recognition of their inextricable link to him.
- We also argued that the common law does not adequately address the need for deterrence. The conduct of the State respondents was egregious. Michael’s death was not only negligent, but a result of repeated and unexplained inaction. They were fully aware of the unsafe conditions at Michael’s primary school and their reckless disregard of this state of affairs is undeniable.
Judgment in the appeal matter has been reserved.
