South Africa: For Michael Komape's Family, Justice At Last

analysis

The Supreme Court of Appeal awarded the family of the five-year-old almost R1.5 million for the "appalling and undignified death" Komape suffered by drowning in a pit latrine at school.

The family of five-year-old Michael Komape has been awarded R1.4 million in damages for "psychiatric injuries" they suffered as a result of his "appalling and undignified death" when he drowned in a pit latrine at his Limpopo school on his second day in grade R.

The Supreme Court of Appeal (SCA) also awarded the family R18 000 for future counselling as they struggle to come to terms with the death of the little boy who passed away in January 2014. However, the court stopped short of extending the common law of delict to include damages claims for "grief", saying this matter did not warrant it.

Nor did the court award punitive "Constitutional damages" to the family, the judges saying "the public purse could be far better utilised for the benefit of many than in paying a handful of persons a substantial sum when they had already been compensated".

Represented by Section 27, the claim by Rosina and Maloti Komape and their surviving children first came before the Limpopo High Court. In Claim A, they sought R940 000 for general damages and in Claim B, they sought R2 million for "grief" - a claim not recognised in law in South Africa. 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 - and issued a structural interdict to ensure this was remedied - he said the family had not proved their general damages claim for emotional trauma and the law did not provide a remedy for grief.

Calls for reforming the law

When the matter was argued on appeal before the SCA, lawyers for Section 27 and Equal Education, which joined the proceedings as an amicus curiae (friend of the court), urged the court to develop the law.

"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, has no value," lawyers for Section 27 said.

"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?"

Equal Education was also emphatic on the matter.

"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.

"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."

But the appeal court was unmoved.

In its unanimous judgment, penned by Judge Eric Leach, they said the arguments were "interesting" but not relevant. Judge Leach said claims for shock were historically treated with a good measure of suspicion and wariness - the underlying consideration being that shock experienced by witnesses to gruesome events is one of the vicissitudes of life which people have to face and live up to. And if it is recognised, it could open the floodgates of litigation.

"However, for many years, claims for shock associated with a detectable psychiatric injury, have been recognised and this is the legal basis for Claim A. However Claim B, for grief and bereavement as a result of negligence which does not flow from psychiatric harm is not part of our law," Judge Leach wrote.

"It is important to remember that the Constitution prescribes that when it becomes necessary to develop the law ... the major engine for law reform should be the legislature rather than the courts. The Constitutional Court has already ruled that the common law of delict is flexible and will in many cases be broad enough to provide all the appropriate relief depending on the circumstances of the particular cases."

A death that haunts the family

He said the defendants in finally conceding Claim A had gone beyond "a mere concession of negligence" and had stated that Claim A and Claim B were intertwined. In other words, they admitted that Michael's death had caused psychiatric injury and their extended period of grief and sense of bereavement was associated.

There was therefore no need to develop the law.

With regards to the quantum of damages, the Judge said each member of Michael's family had been psychologically affected by the sight of his body, lying in the sludge and filth of the collapsed pit latrine with his hand outstretched, as if seeking help.

"His death haunts his parents. His mother fainted on seeing his body in the pit and she experienced nightmares. Both she and her husband were diagnosed with post traumatic stress and for years had difficulty sleeping and required psychological counselling."

His siblings were also affected. His elder sister, who had taken on a parental role, did not believe he had died until she saw his body in the pit. The judge said evidence showed the whole family sustained emotional shock, understandable given the circumstances under which "poor Michael met his death".

He said the family were angry with the education authorities for not assisting with the funeral.

"While time is a healer, they were still suffering two years later. Their mental agony had been exacerbated by the unfeeling attitude of the education authorities. Mr Komape was prevented from removing Michael's body from the pit. He was forced to delete photographs he took at the scene.

Forced to relive the trauma

"The first contact from the school was when they were asked if they could use his name on certain donated furniture. No-one asked them how they were coping."

Judge Leach said it was "somewhat startling", and wrong, that the Limpopo court had dismissed Claim A - and that in spite of concessions of negligence, the respondents had refused to settle the matter, insisting it go to trial.

"The family were forced to go to court and relive the trauma. They were subjected to unsympathetic and cruel cross examination, while the respondents tried to defend the indefensible. It is to be deprecated in the strongest possible terms," Judge Leach said.

When the matter was argued in September, Richard Spoor Incorporated (RSI) requested to also be admitted as an amicus curiae, which was refused. Giving reasons for this, Judge Leach said RSI had argued that it was the representative in a class action against Tiger Brands on behalf of the families of 86 children who were among the 200 people known to have died in the listeriosis outbreak.

"RSI submitted that the common law needed to be developed to provide equitable redress for families of children who have been wrongfully killed. But there were insurmountable obstacles. First they have a financial interest in the matter, because they are acting on a contingency basis.

"And it would be stealing a march on Tiger Brands. It would obtain a precedent binding in the high court. This is both opportunistic and unfair."

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