Pit toilet victim’s family may appeal ruling on trauma damages

The court found the State failed to perform its obligations towards pupils

THE family of pupil Michael Komape, who drowned in a pit toilet in Limpopo four years ago, is now considering approaching the Supreme Court of Appeal (SCA) to be compensated for emotional trauma due to his death.

Last Friday, the family appealed against a April 23 ruling in which Judge Gerrit Muller of the Polokwane High Court found the family was not entitled to damages for emotional trauma and constitutional damages, collectively amounting to R3 million.

Yesterday, the judge allowed the family leave to appeal against his decision on constitutional damages worth R2m, but declined their appeal on damages for emotional trauma.

The Komape family instituted the civil claims against the State for the wrongful and negligent death of 5-year-old Komape. The first claim was for R940 000 in damages for the emotional trauma and shock family members had experienced as a result of his death and how he died.

The family, through advocacy group SECTION27, appealed against the dismissal of the claim for emotional shock and trauma largely on the basis that this part of the claim had been conceded by the State during the trial.

Now, the Komapes want to petition the SCA to overturn Judge Muller’s decision to deny them the right to claim for emotional shock.

In 2014, Michael had been in Grade R for three days at Mahlodumela Primary when he left his classroom, fell into a dilapidated pit toilet and drowned.

SECTION27 spokesperson Zukiswa Pikoli said they would seek further advice from a senior counsel on the judge’s ruling. “We intend to file for an application for leave to appeal directly to the SCA in respect of the first claim,” Pikoli said.

“We argue that the court further failed to recognise the multiple, related functions and purposes of compensation for the vindication of constitutional rights.”

Liability for emotional shock and trauma was conceded by the State.

“What was in dispute at the trial were only the amounts claimed for shock and trauma, the claim for R2m and whether or not the state was liable for some of the future medical expenses in respect of some of Michael’s siblings,” Pikoli said.

She said that when Judge Muller handed down his judgment on April 23, he found that the Limpopo Department of Education had displayed a “complete lack of urgency or commitment” in using and allocating funds specifically to provide safe and decent sanitation.

“The court also found that the state had failed to perform its obligations towards learners in the province, including Michael, which resulted in his death,” Pikoli said.

“The court held that the failure to fulfil these obligations resulted in the violations of a number of rights of Limpopo learners including the right to basic education.”

However, she said that the Polokwane High Court had, despite such strong findings against the state, dismissed the claim for emotional shock and trauma as well as a claim for R2m in respect of constitutional damages.