Court dismisses damages claim by Komape family

Rosina and James Komape, Michael's parents. (Simphiwe Nkali/Gallo)

Rosina and James Komape, Michael's parents. (Simphiwe Nkali/Gallo)

It took Judge Gerrit Muller of the Polokwane High Court in Limpopo about 15 minutes to hand down judgment after a wait of just over two years from when Michael Komape’s family began to seek justice for the five-year-old’s untimely death.

But on Monday morning, Muller dismissed the family’s claim of about R2-million for emotional shock and grief, instead ordering the provincial and national department of basic education to pay R6 000 each for future medical treatment for Michael’s older siblings.

Five-year-old Michael died in 2014 after falling into a pit latrine at Mehlodumela Primary School where he was a Grade R pupil. The court heard during the trial Michael’s twin siblings, Onica and Maria, 17, had suffered the most trauma following Michael’s death.

In 2015, advocacy group Section 27, brought a lawsuit against the Department of Basic Education and the Limpopo Department of Education on behalf of the family. They were claiming R3-million in damages.

Last year, the department made a partial settlement of the claim and paid the family R34 000 for funeral expenses, R21 000 for loss of income and R79 000 for past and future psychological fees.

Michael’s mother, Rosina, lost her job as a domestic worker where she earned R1 080 for three days’ work. She had stayed away from work for some time after her son’s death and when she tried to return, she found she had been fired.

Muller also made an order that both departments supply and install sufficient and suitable toilets for children at all rural schools in Limpopo that are still using pit latrines. He also ordered them to provide the court with the list of all rural schools that use pit latrines, the period they expect they would be eradicated and provide the courts with a report before July 30.

Following the death of five-year-old Lumka Mkhethwa of Luna Primary School in Bizana, Eastern Cape over a month ago after also falling into a pit latrine, President Cyril Ramaphosa instructed Minister Angie Motshekga to conduct an audit of all schools that still use pit latrines, implement and eradicate within three months.

READ MORE: Another child dies in a pit latrine

Spokesperson for the basic education department, Elijah Mhlanga, told journalists after the judgment handed down, that the department is “delighted” the case had come to an end and the conclusion made by Muller.

“We have also noted the order as the department that we need to provide certain information to the court. Fortunately that is the information that the President had already directed the minister to put together. We were currently in the process of putting together all the schools with pit latrines, a plan of how those pit latrines are going to be eradicated and that plan is going to be costed.

“And of course now that there is a court order we are going to also put time frames of when the work will commence and when we believe the work will be finished. We will comply with the order, we don’t have an option, but it’s work we had already started to do because we are committed to provide suitable infrastructure not only for our learners but our teachers as well,” said Mhlanga.

However, it might not be the end of the case yet. Section 27 said it was still studying the judgment but are anticipating approaching the Supreme Court of Appeal.

Education attorney at Section 27, Sheniece Linderboom, said the advocacy group was looking at appealing the judgment.

“We are disappointed by the judgment, one of the things we had hoped to get was general damages for the Komape family and unfortunately this was dismissed by the judge. We had also hoped for constitutional damages or a development of the common law in the amount of R2-million this was unfortunately also dismissed by the judge …

“This is a disappointing judgment and obviously in principle we still need to go through the judgment thoroughly and consult with the family but it is very likely that in principle we are looking at appealing this judgment,” said education attorney at Section 27, adding that the family was also disappointed by the judgment.

“This has been a very painful and traumatising experience for them and unfortunately it is going to drag out a little bit longer.”

Michael’s parents, Rosina and James, who were open to speaking to the media during the trial were too distraught to speak this morning. They were accompanied by their eldest children Lydia and Lucas who stood by their parents side throughout the trial last year.

Read the full judgment below

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