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04 Sep 2019 10:59
Hours after falling into a pit latrine, Michael Komape's mother still desperately hoping he could be rescued alive, had to sit, looking at the little hand, waiting for social services to come. (Elijar Mushiana/Gallo Images/Sowetan)
The death of Michael Komape was more than just a tragedy; it was a “horror”, which struck at the heart of the right to human dignity, the Supreme Court of Appeal heard on Monday.
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 little body.
He fell in and drowned in human waste.
It was at least four hours before his body was recovered — the autopsy could tell from the wrinkles on his feet. When his father’s friend tried to take photos — to capture the evidence of what had happened to his child — his phone was taken from him and the photos were deleted, the court heard.
Vincent Maleka SC, the counsel for Section 27 — the public interest lawyers representing the Komape family — said their son had been entrusted into the hands of people who were “in loco parentis” — standing in for his parents. These were some of the factors that made this death more than a tragedy, he said.
“It is the ultimate betrayal of the constitutional promise,” said Maleka in heads of argument.
Maleka, and friend of the court Equal Education, were trying to persuade the court to break new ground: to develop the common law so that damages could be claimed by the Komape family for grief. This is something that the law has not, so far, permitted. The law, as it now stood, was inadequate to properly compensate for this horrific loss, they argued.
Justice Mahomed Navsa said he wanted to say “from the outset, from each one of us” that he could not think of a death more undignified. “There is no court that would be unmoved,” he said.
There were two different sets (or “heads”) of damages that were the focus of the appeal: damages for emotional shock and damages for grief. Both were denied by high court judge Gerrit Muller.
Damages for emotional shock have long been recognised in our law and these had been conceded by the state in the high court. Yet Muller refused the claim saying it was not justified by the evidence.
Read Judge Gerrit Muller’s full judgment here:
Komape Judgement 23 April by Mail and Guardian on Scribd
The appeal court justices appeared to take a dim view of the high court judgment on this score. Once emotional shock had been conceded, all that was left to determine was the quantum of the damages, suggested Justice Malcolm Wallis.
Justice Mahomed Navsa said he was taken aback when he read the high court judgment “and I thought: what’s going on here?”.
When counsel for the state, Simon Phaswane, made a half-hearted attempt to defend the emotional shock order, Navsa said: “You are not defending the high court’s judgment are you?” Phaswane quailed as five sets of judicial eyes gazed at him. He mumbled something about quantum.
But the claim for damages for grief was different. Counsel were put through their paces on this question. Mr and Mrs Komape, and Michael’s brother Lucas, listened intently as the bench explored with counsel the intricacies of the law of delict and whether there was a principled basis to extend the law.
Kate Hofmeyr, counsel for Equal Education, said that a damages claim for emotional shock developed as an extension of the legal principle that you can claim for physical injury. The courts had, at some point, recognised that the differentiation between psychological and physical was illusory.
Because of the starting point, the way the law had developed was that — in order to succeed in an emotional shock claim — there had to be a “psychological condition” or a “lesion of the psyche”, which had to proved through expert medical evidence.
The constitutional home of such a claim was the right in Section 12 of the Bill of Rights — to bodily and psychological integrity. She suggested that the constitutional home for a grief claim would be in a different right: the right to dignity.
She said the grief claim was justified in this case by what led to Komape’s death, the circumstances of the death, and by what followed. The Komape family had no choice but to send Michael to that particular school, she said. Yet the school and the department knew that the toilets were unsafe. They had been — the evidence showed — since Michael’s older brother had been at the school. They knew, she said, that “any day” a child could go to relieve himself, and die instead.
At no point prior to October 2017 — over three years after Michael died — did anyone accept responsibility for his death and no one has apologised for their role in it, said Hofmeyr.
Section 27 had sought to admit new evidence to the court in which the department itself said that it would only begin to install safe sanitation structures eight years from now.
Maleka added that, after Michael, another child had fallen into a pit latrine and died in “almost exactly the same way”. Two others died after their school toilet structures collapsed on top of them, he said.
The only way to vindicate the Komape’s constitutional rights — said Maleka and Hofmeyr — was to extend the common law.
But the justices questioned why all these considerations could not be covered under the “head” of emotional shock, suggesting that grief could be a component of that claim. Navsa suggested that without being “groundbreaking” or “seminal”, the court could award damages for grief in a way that limited it to the facts of this particular case.
Hofmeyr said if the court wanted to go that route, it should consider making the quantum of the damages higher than what had originally been asked for in terms of emotional shock. The court should also make it clear that grief could be claimed for - so that lower courts could be guided.
Earlier, Phaswane had conceded that the court was not bound by the original suggested quantum for emotional shock. Navsa said the court would do all it could to arrive at a “fair” quantum.
Judgment was reserved.
Read more from Franny Rabkin
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