Michael Komape’s family, represented by advocacy group Section 27, will appear in the Polokwane high court on Friday to apply to appeal the dismissal of the family’s R2-million damages claim after 6-year old Michael fell into a pit latrine at school and drowned.
The judgment by Judge Gerrit Muller was handed down last month. Section 27 will asking Muller to grant the family leave to appeal and for the appeal to be heard at the Supreme Court of Appeal.
Just over two years ago, Section 27 brought a claim, including for emotional shock and grief, against the department of basic education and the Limpopo department of education on behalf of the family.
Muller dismissed the family’s claim for grief and constitutional damages and made an order for the state to pay for future medical treatment of Michael’s twin siblings, Maria and Onica, 17, to an amount of R6 000 each for six sessions. In 2017, the state paid R135 000 towards funeral expenses, loss of income and future psychological fees.
The claim that he dismissed, and which is now being appealed, was for the emotional trauma they suffered after Michael’s death, constitutional damages and past and future medical expenses as a result of impaired mental health as a result of shock.
In his judgment, Muller said a report by clinical psychologist Steven Molepo, who had counselled the family made no mention of a diagnosis of grief. He further said the family’s lawyers were unable to prove that anyone in the Komape family suffered from grief as a “recognisable psychiatric illness due to the death of Michael”.
Muller said a claim for grief, which caused no recognisable injury, would lead to “bogus” and “unwarranted” claims and would “pave the way for limitless claims for every conceivable cause of grief”.
Section 27 will argue that Muller erred by dismissing the family’s claim for grief – given that both respondents had accepted the facts and evidence that the family suffered “emotional shock and suffered cognizable damages” as a result of Michael’s death.
“The respondents accepted and conceded their liability, both on the record, and with prejudice, and also in their written heads of argument confirmed in the course of their oral submissions, that the applicants are entitled to compensation in respect to claim A…The only debate before the learned judge in respect to claim A was in respect of the assessment of the quantum of damages in respect to claim, and not the merits of claim A,” reads the court papers.
Section 27 further argues that Muller was wrong in suggesting that the family was required to prove the existence of psychiatric illness in order to support the claim of grief.
“On the evidence before court, there was sufficient evidence to prove emotional shock suffered by the applicants and the sequelae therefrom, as to entitle them to compensation,” reads the papers.
Section 27 also argues that Muller was wrong in failing to develop the common law to allow for a claim for grief, as was urged by the family. Evidence showed that the family suffered bereavement and mourning as a result of Michael’s death and that Molepo’s evidence proved the existence of grief on their part, reads the papers.
“The learned judge erred when the held that recognition of a claim for grief would result in “bogus and unwarranted proliferation of claims for psychiatric injuries” and declined to recognize the development of the common law claim for grief on that basis…None of the respondents sought to resist the applicants’ claim for development of the common law for grief on that basis, or policy consideration of a possibility of multiplicity of action, let alone “bogus” claims,” reads the court papers.
The family also wants to appeal why Muller dismissed Michael’s other sibling, Moses Komape’s, claim for future medical expenses for psychological treatment.
“There is simply no indication in the judgment why the learned judge did not allow Moses Komape’s claim,” reads the papers.
In an interview with the Mail & Guardian a day after the judgement was delivered, Lydia Komape, who is the third respondent said Moses was the one who needed counselling the most more than the twins.
“He was the one who was affected the most by Michael’s death. He went to the same school as Michael and he was forced to go back to that school and pretend that nothing happened. All of us, even the twins that the judge ordered should get counselling, did not suffer as much as Moses,” said Lydia. “Even now when we talk about Michael he still cries.”
The state is opposing the appeal.