I can’t think of death more undignified than dying in faeces, says judge
The Supreme Court of Appeal (SCA) has criticised the manner in which the Limpopo Department of Education handled the death of Grade R learner Michael Komape who fell into a pit latrine about five years ago, saying the child suffered one of the most undignified deaths.
“I can’t think of death more undignified than dying in faeces,” said Judge Mahomed Navsa when the appeal brought but the Komape family was heard before a full bench in Bloemfontein on Monday.
The other judges were; Malcolm Wallis, Eric Leach, Zukisa Tshiqi and Boissie Mbha.
Michael, then five, drowned in a pit toilet at Mahlodumela Primary School in Seshego, Limpopo in January 2014 after it collapsed while inside.
The family approached the SCA after the Limpopo High Court sitting in Polokwane dismissed their claim for damages for emotional shock and associated future medical expenses. The appellants in the matter are his mother, Rosina; father, James, sister, Lydia and brother Lucas. Non-profit organisation Section 27 is assisting the family in the legal battle.
They are seeking compensation for damages from the Minister of Basic Education, the Education MEC for Limpopo, the Principal of Mahlodumela Lower Primary School and the school’s governing body.
Among other things, the family is claiming R2m in damages for grief, alternatively constitutional damages.
In the civil claim against the government, the family demanded R940 000 in general damages for emotional trauma and shock experienced as a result of his death, as well as R2m for grief.
While the entire bench seemed in agreement that the Komape family suffered terrible harm, Justice Navsa was visibly disturbed by the manner in which the provincial education depart and the school handled the matter.
“The state has to accept its negligence led to the extended duration in its non-compliance with the norms and standards and as a result failed in their duties,” said Navsa
Judge Wallis described the death as an “appalling case” given the way his body was discovered with one hand protruding from a pool of faeces like someone pleading for help.
Counsel for the Komape family, Advocate Vincent Maleka said the school failed ensure the safety of the child.
“Michael died in the hands of those charged with protecting him. Michael’s body was in the pit toilet for at least four hours. His father sought to take photos of the scene but police instructed his friend, who took the photos to delete them,” he pointed out.
Turning to the counsel for the state, Adv. Simon Phaswane, Navsa suggested the Limpopo Education Department ought to take responsibility for the tragedy because it failed to comply with its own set standards.
“You have to accept that this is not a department that has covered itself in glory when it comes to protecting the safety of young learners,” said a probing Navsa.
He added: The state hasn’t covered itself in glory with the way this case was handled… Is it seriously your instruction that the circumstances of Michael’s death are such that this was just another accident?”
To which Phaswane replied: “No.”
Navsa immediately asked: “Then why are we having this exchange?”
The family’s legal counsel also asked the court to develop common law allowing for the payment of damages for grief, which would set a precedent in future cases of state negligence.
Alternatively, the family asked the court to award “constitutional damages” for the breach of the government’s constitutional duties to provide education and ensure the safety and dignity of the children under its care.
Judgement was reserved.