Battle for payout over pupil’s pit latrine death

THE family of Michael Komape will battle it out with Basic Education Minister Angie Motshekga in the Supreme Court of Appeal (SCA) today in their bid to secure a R2 million constitutional damages claim following the death of Michael in a school pit latrine five years ago. The 5-year-old Michael was in Grade R.

The family, through the support of civil society group Section27, are appealing against the ruling of the High Court in Limpopo in April last year which dismissed the damages claim.

Judge Gerrit Muller had said the family was not entitled to emotional trauma and constitutional damages amounting to R3m.

Judge Muller allowed the family leave to appeal against his decision on constitutional damages worth R2m but declined their appeal on emotional trauma.

The family, through 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 family want the SCA to overturn Judge Muller’s decision to deny them the right to claim for emotional shock.

In the April 23 ruling, Judge Muller said the claim for constitutional damages was “over compensation” for the family.

Section27 in its papers argues that the judge in that ruling failed to recognise the different nature and purpose of the different claims for damages as compensation for the different nature of harm sustained.

“The court further failed to recognise the multiple related functions and purposes of compensation for the vindication of constitutional rights.

“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.”

Section27 said 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 funds specifically to provide safe sanitation.

“The court also found the State had failed to perform its obligations towards learners, including Michael, which resulted in his death.

“The court held that the failure to fulfil these obligations resulted in the violation of Limpopo learners’ rights, including the right to basic education.”

The Education Department is expected to oppose the appeal.