Michael Komape, 5, drowned in his school’s pit latrine toilet. Picture: Supplied
Johannesburg - Basic Education Minister Angie Motshekga is set to face off with the family of Michael Komape, 5, who drowned in his school’s pit latrine toilet more than five years ago.

The Komape family are going to the Supreme Court of Appeal (SCA) on Monday in their bid to secure a R2 million constitutional damages’ claim over Michael’s death in January 2014.

The family, with the support of civil society organisation Section27, are appealing the ruling of the High Court in Limpopo in April last year dismissing their constitutional damages’ claim.

Judge Gerrit Muller had found that the family was not entitled to emotional trauma and constitutional damages, which collectively amounted to R3 million. He granted the family leave to appeal his decision on constitutional damages of R2m, but declined their appeal on emotional trauma.

The Komape family instituted a civil claim for damages against the State for Michael’s wrongful and negligent death. The first claim was for R940 000 for damages in the emotional trauma and shock that family members had experienced as a result of and the manner of his death.

The family, through Section27, appealed the dismissal of the claim for emotional shock and trauma on the basis that this part of the claim had been conceded by the State during the trial. Now, the Komapes want the SCA to overturn Judge Muller’s decision to deny them the right to claim for emotional shock.

In 2014 Michael had been a Grade R pupil for three days at Mahlodumela Primary School in Limpopo when he fell into a dilapidated pit toilet and drowned.

In Judge Muller’s ruling, he said the claim for constitutional damages was “over-compensation” for the family.

But Section27 in their papers argued that the judge had failed to recognise the nature and purpose of the different claims for damages as compensation for the different nature of the harm the family had sustained.

“We argue that 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 was 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 Judge Muller had 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 the pupils in the province, including Michael, which had resulted in his horrible death.”

The education department is expected to oppose the appeal bid.

Political Bureau

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