Ruling a blow to poor victims of state abuse
Judge did not want to order payout that could be seen as punishment for the harm government caused family
Five-year-old Michael Komape’s horrific death by drowning in human faeces in a school pit latrine will cost the state R147,372.62 — a fraction of the money the government spent in fighting his family’s constitutional damages claim. The amount seems paltry compared with the horror of how the little boy died, swallowing excrement and struggling to breathe. It seems tiny after the evidence of Michael’s mother, Rosina, who described how she fainted after seeing her son’s hand sticking out of the waste at the bottom of the pit.
It is arguably infuriating, given the way in which the Mahlodumela Lower Primary School and the Limpopo education department treated Michael’s family after his death. As Equal Education noted in argument filed at the high court: “At no point did they accept responsibility for Michael’s death. At no point did they acknowledge the horror of what they had allowed to happen. The family could not process their grief or move on with their lives whilst the departments and the school continued to remain impervious to their responsibility for this tragedy. So, they sued the departments and the school.”
But, as Michael’s case proves so tragically, the lives of the poor and vulnerable are almost always cheap — particularly in SA’s courts. In his ruling in the High Court in Polokwane dismissing a R2m claim for constitutional damages by Michael’s family, Judge Gerrit Muller reiterated the judicial stance that continues to define how courts deal with damages claims. “What then is the object of the claim for constitutional damages and an order for a declaration of rights? The aim of a claim for damages ex delicto is not to enrich a claimant who has suffered loss, but to compensate for the loss suffered. In my judgment the reality is that the compensation claimed, as constitutional damages, is nothing short of a claim for punitive damages,” Muller ruled.
The judge therefore did not want to order a damages payout that could be seen as punishment for the wrong suffered by Michael’s family at the hands of the state.
“I am not persuaded that punitive damages can be claimed as appropriate relief. If such a claim is successful the Komape family will be overcompensated, on the one hand, and on the other, [it will] not serve the interests of society,” said the judge.
“No convincing evidence emerged that punitive damages will serve to achieve to protect the rights violated or that such an award will act as a deterrence to prevent future violations by the defendants,” Muller said.
Bizarrely, despite the state conceding that Michael’s family did have a legitimate claim for emotional shock and trauma, the judge also dismissed that claim. It remains unclear what informed that part of his ruling.
Muller’s attitude to the Komape claim for constitutional damages is, in many respects, typical of a court system that seeks to be seen to “compensate for loss” rather than seek some form of financial reckoning for government negligence or abuse. The ability of the poor and vulnerable to prove such loss is often extremely limited.
Two years ago, a damages claim brought by the family of a young man wrongfully shot in the back by police and killed was heard. After proving they were entitled to damages, they were required to prove loss of income linked to his death. Because they struggled to prove how he had been supporting his family by buying groceries or giving cash to his mother, the court awarded them less than R150,000 in damages for his death.
If compensation is what drives the determination of damages, the disadvantaged, who are often most exposed to state abuse, are unlikely to win significant damages claims.
The recent Life Esidimeni arbitration award determined by retired deputy chief justice Dikgang Moseneke is, however, a potentially game-changing exception to this rule. Moseneke awarded R1.2m in “constitutional damages” to the families of each of the 144 mentally ill patients who died as a consequence of being moved from Life Esidimeni facilities to ill-equipped and “disgusting” facilities that were unable to give them proper care.
“This is a harrowing account of the death, torture and disappearance of utterly vulnerable mental-health care users in the care of an admittedly delinquent government,” Moseneke said, later adding that the deaths “stem from the arrogant and irrational use of public power”.
The government had agreed to pay R200,000 in damages to families of the victims for emotional shock, psychological injuries and funeral expenses in February. But the provincial government fought their request for an additional R1.5m in constitutional damages for violations to their right to dignity, family life, equality and for cruel and inhuman treatment.
Moseneke was not swayed by the state’s arguments against such a constitutional damages payout, finding that the “irrational and unconstitutional decision [to move the patients] was the reason for the death that ensued”.
“All the facts here point to cruelty, the antithesis of empathy and caring,” he said.
His decision was an important departure from the typical legal stance adopted towards damages. He held the government up to the light of the Constitution and awarded damages in terms of how the state had failed to uphold the rights of its most vulnerable citizens.
The question of damages in the Life Esidimeni case was not framed in terms of how much the lives of the dead could be proved to be worth or determined by the cost of therapy for their griefstricken families. It was about what the Constitution demanded of the state in caring for the mentally ill and what the cost was of the government’s failure to meet that standard.
Michael Komape’s case was important, because it sought to apply Moseneke’s reasoning to a civil claim that could affect the lives of many other disadvantaged victims of state abuse. But, while acknowledging the Limpopo government had failed in its constitutional obligations towards Michael and other rural children forced to use pit latrines, Muller did not accept that ordering the payment of R2m in constitutional damages was the appropriate judicial response.
Instead, he ordered the province’s education department and Basic Education Minister Angie Motshekga to “supply and install at each rural school currently equipped with pit latrines in the Province of Limpopo with: a sufficient number of toilets for each school for the use of children, which are easily accessible, secure and safe and which provide privacy and promote health and hygiene based on an assessment of the most suitable safe and hygienic sanitation technology”.
The judge also ordered education authorities to provide him with detailed information about the number and location of pit latrines at rural schools and a plan for how they would be replaced.
While Equal Education, a friend of the court in this matter, has been fighting for such an order, their lawyers are likely to question why the judge seemingly felt he had to choose between tackling the pit latrine crisis and ordering constitutional damages for Michael’s family.
The pending appeal of this case will help the courts determine how the victims of state negligence and abuse are compensated in future.