Michael Komape’s family awarded R1.4m in damages by appeal court

The Supreme Court of Appeal (SCA) has awarded the family of Michael Komape R1.4-million in damages for emotional shock and grief, after the five-year-old fell into a pit latrine at school and drowned.

It was “the most appalling and undignified death,” Justice Eric Leach said on behalf of a unanimous bench.

In 2014, five-year-old Komape went to the toilet at his school in Chebeng village, Limpopo.
The dilapidated structure atop the pit latrine could not hold the weight of his body, and the seat collapsed.
He fell in and drowned in human waste. He was found “lying in the filth in the pit with hand outstretched as if seeking help,” the judgment reads.

For years the school had been asking the provincial department of education to improve the pit latrines. “Although the evidence established that it would have cost as little as R500 per seat for structurally sound seats to have been built, the education authorities failed to do so,” said Leach.

Even though the education authorities conceded that they were negligent and liable to pay damages for emotional shock, the high court decided that a claim for damages on this score was not justified by the evidence and for the most part dismissed the Komape’s claim.

The SCA took a dim view of this, calling it “startling to say the least”.

The appeal court said it was a daunting task to come to a monetary award “as no monetary compensation can ever make up for their loss”. Michael’s parents and siblings had all suffered prolonged post-traumatic stress disorder, bereavement and grief.

Michael’s parents, Rosina and James, had also suffered depression, the court said, with “nightmares and flashbacks of Michael lying in the pit with his hand outstretched”.

Leach said that what made it worse was the unfeeling attitude of the education authorities — including in the litigation: “This was a case that cried out for settlement, (yet) the appellants were obliged to go to trial, submit to the rigours of the hearing,  and to relive the trauma of the past in excruciating detail. This included being subjected to unsympathetic and, at times, cruel and denigrating cross-examination.”

The attitude of the education authorities, including in the appeal litigation, “is to be deprecated in the strongest possible terms,” Leach said. He also ordered a further R6 000 to be awarded for Michael’s three minor siblings for future medical expenses.

However, the appeal court decided not to develop the common law of damages or award constitutional damages — as had been argued by the Komape family’s lawyers and friends of the court Equal Education.

The non-governmental organisation had asked the court to develop the common law to allow for damages for grief, even where there was no psychological illness diagnosed as a result. However, Leach said it was not necessary in this case — because the family’s grief could be adequately compensated for under the law as it stands.

“The fallacy in the appellants’ argument that the common law needs to be developed, is that in the light of the facts in the present case no such development is required for their grief, feelings of bereavement and loss to be taken into account in the assessment of their damages,” the judgment reads.

The court also refused to award “constitutional damages” — damages as a result of a breach of the family’s constitutional rights. Constitutional damages have been awarded before — but in respect of financial loss that would not have been recovered under the common law, said Leach.

“However, there is no reported decision in this country where constitutional damages have been awarded as a solatium for breach of a right where there has been no financial loss, either direct or indirect, or where the compensation had been awarded for a physical or psychiatric injury.”

Leach said it may well be justified in theory – “depending on the facts and circumstances of any particular case” — to award constitutional damages as a punitive measure — to “mark displeasure”. But there were also practical implications to this in South Africa, Leach said.

“Here, the public purse could far better be utilised for the benefit of many than in paying a handful of persons a substantial sum over and above the damages they have sustained and for which they have been compensated,” said the judgment.

The appeal court also ordered the government to pay the costs of the litigation.

Read the full SCA judgment below: 

SCA Komape Judgment by Mail and Guardian on Scribd

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