Pretoria - The family of little Michael Komape, who tragically died when he fell into the pit toilet at his school in rural Limpopo in 2014, will hardly receive any compensation for their loss as the court turned down the bulk of their claims, which include damages for emotional shock and trauma.
The failure by the Polokwane High Court to award the total of about R3-million damages claims - made up of various individual claims - was met with mixed reaction by Section 27, which assisted the family in their legal quest.
Section 27 said while it welcomed the structural interdict to provide adequate and safe sanitation for learners in the Limpopo Province, it was at the same time disappointed that the suffering of the Komape family and the circumstances of Michael's death has been insufficiently recognised and acknowledged.
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While some of the claims had already been settled during the trial by the State, Judge Gerrit Muller, among others, on Monday dismissed various additional claims by the family which included damages for emotional trauma and shock and a R2-million claim for the grief suffered by Michael’s parents and immediate family.
The court, however, did order the Basic Education Department to pay a total of R12 000 towards the future psychological treatment for two of the youngest Komape children. Each will receive R6 000 for their counselling sessions.
On the up side, the court ordered the Minister for Basic Education Angie Motshekga and the Limpopo MEC for Education to supply and install at each rural school in Limpopo currently equipped with pit toilets, with a sufficient number of safe and secure toilets.
The minister and the MEC have to supply the court with a list and location of each school in this province with pit toilets and it has to submit a detailed programme to the court as to how and by when safer toilets would be installed.
Judge Muller ordered that the minister and MEC had to file these reports by July 30.
The Department of Basic Education estimated it would cost about R7.8 billion to address the sanitation backlog at all schools. But the judge said: “It is clear that due to lack of political will, no effort was made to better the situation at schools of which the second defendant (the MEC) was aware of.”
He said while funds were allocated for sanitation facilities at 66 schools, it was not used due to a dispute over service delivery agreements. “The department displayed a total lack of urgency or commitment to use these funds… History has shown that the defendants ( department and education officials) lack the will to act in the interest of the learners,” the judge said.
He said it was plain that the department failed to perform certain obligations towards pupils in rural Limpopo, including Michael, which resulted in his death.
Regarding the lack of compensation for damages, including their application to develop the law regarding constitutional damages, Section 27 said this stands in contrast to the damages that were awarded to the families in the Life Esidimini victims for the callous treatment of the victims in that case.
It has taken instructions from the Komape family and anticipate that they will appeal the damages aspect of the judgment in the Supreme Court of Appeal in Bloemfontein.
The State earlier conceded that it had failed the family regarding little Michael and settled some of the claims during the trial, in terms of which it was agreed the family would receive R135 327 in compensation.
Michael, five, was three days at Mahlodumela School outside Polokwane, when he fell into the pit toilet and died.