Pit toilet: File picture: Bongiwe Mchunu/Independent Media
Durban - The Michael Komape judgment was a missed opportunity to develop the common law in accordance with the constitution, Section27 has said.

The NGO said the high court in Polokwane, Limpopo, had failed to acknowledge the “pain, suffering and grief” of the Komape family.

Judge Gerrit Muller dismissed a R2 million claim for grief suffered by Komape’s family after he drowned in a pit latrine, saying they failed to prove to the court that they were overcome with sorrow.

Muller said a report written by Lepoliso Steven Molepo, a clinical psychologist who ­offered expert testimony on ­behalf of the Komapes, made no mention of grief in the ­family.

Section 27 said Muller had given the Limpopo Department of Education a reprieve with the judgment.

“This judgment is a mixed bag. While it potentially seeks to vindicate the rights of Limpopo pupils to safe and adequate sanitation, the judgment is at the same time extremely disappointing in that it fails to sufficiently acknowledge the pain, suffering and grief of the Komape family, who waited for almost four years before the matter went to trial.

“This aspect of the judgment, not adequately compensating the family for the acknowledged failure of the defendants, is a missed opportunity to develop the common law in accordance with the constitution. Section27 intends to appeal this aspect of the judgment to the Supreme Court of Appeal,” Section27 said yesterday.

The family was claiming R2m for grief suffered by all its immediate members - the boy’s parents, Rosina and James, and his siblings, Mokibelo and Khomotso.

Michael, a Grade R pupil at Mahlodumela Primary outside Polokwane, was just on his third day of schooling when he drowned in January 2014. Unaccompanied, he had gone to the outside toilets on the school premises during break.

Delivering his judgment, Muller said: “The result is that due to the insufficiency of the expert evidence, the plaintiffs were unable to prove that any of the members of the Komape family suffered from ’* erkende psigiatriese letsel’ of treuring’ (grief as a recognisable psychiatric illness) due to the death of Michael.

“On the contrary, the evidence established grief as a process similar to bereavement and mourning, which is not a recognisable psychiatric injury or illness.”

Grief

Muller said claims for grief, which was not a physical injury, were generally not awarded by courts.

“A claim for grief, which caused no recognisable injury, cannot be justified as a psychiatric injury or on any policy considerations.

“It would no doubt lead to bogus claims for psychiatric injuries, and pave the way for limitless claims for every conceivable cause of grief, whether insignificant, without expert psychiatric ­evidence,” he said.

Muller also stated in his judgment: “It is common cause that the defendants failed to perform certain obligations towards pupils from schools in rural Limpopo, including Michael in particular, which in his case resulted in his death.”

Muller awarded R12000 for future medical treatment of two minors in the family, Maria and Onica.

He also granted a structural interdict against the department. This ordered the department to provide adequate and safe sanitation for pupils in Limpopo province.

Department of Basic Education spokesperson Elijah Mhlanga said the department “continues to sympathise” with the family and was committed to complying with the order.

The Mercury