The parents of 5-year-old Michael Komape, pictured, who drowned in a pit toilet four years ago, are not losing hope in their quest to find justice for him.
Yesterday, they applied for leave to appeal in the Polokwane High Court, challenging an April 23 ruling which allowed the Department of Basic Education to only pay R100 000 damages for their loss.
The Komapes want their appeal to be heard by the Supreme Court of Appeal or a Full Bench of the high court.
They argued that their constitutional rights of the State’s obligations to protect their child were undermined.
“With respect to the right to basic education in Section 29 of the constitution, the crux of the declarator is that adequate and safe sanitation is a component of the right to basic education, which is not subject to progressive realisation by the State,” said advocate Vincent Maleka.
The parents argued that Judge Gerrit Muller- who presided in the main trial - made a mistake in his ruling that the parents and Michael’s sibling were not entitled to constitutional damages.
The family wanted constitutional damages amounting to R3 million. They argued that the judge ruled against them despite the fact that the Department of Basic Education and the Limpopo Department of Education did not oppose the parents’ claim.
The parents argued “the departments accepted on the facts, and the evidence established, that they suffered emotional shock and have suffered cognisable damages.
"The departments accepted and conceded their liability, both on the record, and with prejudice, and also in their written heads of argument confirmed in the course of their oral submissions, that the applicants are entitled to compensation,” legal counsel Maleka argued.
Maleka said the dispute between the parties was the amount and not the merits. He said the amount claimed by the Komapes “was neither excessive nor unreasonable" and that it was consistent with other rulings on similar grounds.
Maleka said the Komapes had established the violation of their rights to dignity and family life, and the violation of the best interests of their child ought to have been held paramount.
“The learned judge should have considered and concluded that an award of constitutional damages would be an appropriate remedy to vindicate the applicants’ rights in the circumstances of the present case, having regard to the following uncontested evidence:
* The Education Department have been repeatedly made aware, over an extended period of time, that sanitation for pupils across schools in Limpopo Province was not healthy and posed a risk.
* The departments repeatedly undertook to but failed to address the problems concerning inadequate sanitation brought to their attention.
* They had the necessary financial means and resources to address the problems of sanitation but failed to do so and this was not explained.
Judge Muller will pass his decision on Tuesday.