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Counsel for the state this week said that providing toilets at public schools cannot “solely” be the responsibility of the department of education, and that parents, and even nongovernmental organisations, also have a role to play.
State counsel Simon Phaswane made the point during cross-examination in a R3‑million damages claim against the state by the family of five-year-old Michael Komape, who fell into a pit toilet at his school outside Polokwane in January 2014 and drowned in faeces.
The majority of the week’s testimony before the Limpopo high court was from experts and from Section27, which has been assisting the family in its case.
Section27’s Mark Heywood told the court that the advocacy group started raising the issue of unsafe and dangerous toilets at Limpopo rural schools with the basic education department as far back as 2012. The advocacy group had written several letters to the department and held meetings with senior officials to discuss sanitation issues at Limpopo schools.
“Our submission is that it should not take an NGO to alert the department to these problems; it ought to have its own monitoring capability on an ongoing basis to identify and rectify problems faced by both learners and teachers,” Heywood said.
But Phaswane said that if Section27 was really concerned about helping schools, it needed to step in and act.
“If your concern is the fact that the toilets are dangerous and unhygienic, then you should say: ‘Us as Section27, perhaps we should source finances to assist the school to build a temporary structure while waiting for the department’ … I would have thought that would be a temporary solution to the problem. Am I wrong to think that way?” he asked.
Heywood replied that, although Section27 does what it can to assist schools, it is the duty of the department to deal with poor sanitation. “You are wrong, advocate, to suggest that Section27 must build toilets,” he said.
Judge Gerrit Muller then intervened and asked where Phaswane was going with his line of questioning as there was no evidence before him that the department had told Section27 that it did not have the budget to build toilets.
“The question must have some relation to the evidence, otherwise we can just sit here and have a nice discussion about hypothetical questions,” Muller said.
Instead, the evidence before him showed that schools, including the Mehlodumela Primary School, which Michael had attended, had asked the provincial department to build them toilets. They received no answers and ended up building the toilets themselves out of their own funds, the judge said.
On Monday, the court heard that Michael’s school began asking the Limpopo department of education for toilets six years before he died.
The family’s counsel, Chris Maleka, presented letters from the school principal, requesting new toilets, dating back to February 2008. After getting no feedback from the department, the school used about R8 000 from its funds to build four toilets, one of which claimed Michael’s life.
Civil engineer David Still, who specialises in sanitation at rural schools, testified that the material used to build the toilets at the Mehlodumela Primary School was the “cheapest type available on the South African market”.
He said those responsible for building the toilets were “careless” and “negligent” in maintaining them.
“The toilets should have been condemned long before Michael Komape’s tragic death took place,” Still said.
But Phaswane stuck to his guns and said to Heywood that Section27 was advising parents wrongly when it said the state of school toilets was something to be taken up with the department.
Section27 should instead encourage parents to look for “donations” in order to build safe toilets as a temporary measure while waiting for the department, he said.
“Advocate, in any of the schools we have listed are parents who are unemployed, who have absolutely no resources, and schools frequently have limited resources. Parents would try to make means but they do not have means to build even the cheapest of toilets,” Heywood replied.
“Mr Heywood, you are not answering my question. I am saying: you do not advise them that, as a caring parent where your immediate concern is threat to the life of your child at this particular school, perhaps as temporary measure let’s go ask for donations to ensure that at least we have safer toilets. You are saying this is not part of your discussions?” Phaswane asked.
“I do not think parents have the capacity to build school toilets at all … it is the duty of the department,” Heywood answered.
“Because it is the duty of the government, you are saying the parents do not have any responsibility to ensure that children [do not] go to an unsafe school. You relegate that responsibility solely to the department?” Phaswane persisted.
The court also heard expert evidence that the Limpopo education department has persistently underspent its allocated budget but has ratcheted up millions of rands in unauthorised, fruitless and wasteful expenditure.
Budget analyst Daniel McLaren took the court through the provincial education department’s annual reports from 2012-2013 to 2016-2017.
He testified that, in 2012-2013, the department had underspent R960‑million out of the R22‑billion it had been allocated.
In 2014, the year in which Michael died, it had underspent R560-million and there was irregular expenditure of R2.2‑billion. The irregular expenditure was related to tender irregularities, he said.