The Supreme Court of Appeal (SCA) will on Monday hear an application brought by the family of Michael Komape, a five-year-old boy who drowned in a pit toilet at Mahlodumela Primary School in Seshego, Limpopo after it collapsed while inside.
The appellants in the matter are Rosina Mankone Komape; father, Maloti James Komape, sister, Lydia and brother Khomotso.
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.
The Komape family sued for damages arising from the death of their five-year-old son and brother who had just started school when he fell to his death in January 2014.
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.
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.
In detailed court papers seen by The Weekly, the Komapes are appealing the dismissal of their claim for damages for grief, based on a development of the common law, alternatively, constitutional damages, as well as a declaratory order arising from the respondent’s breach of several constitutional rights.
At issue is “whether the appellants are entitled to a claim for damages for emotional shock where the respondents have conceded liability for damages for emotional shock, and, if so, the quantum of damages to be awarded.”
The family also wants to know whether common law should be developed to recognise a claim for grief in the extraordinary circumstances of this case, and, if so, the quantum’s for damages to be awarded.
Alternatively, whether the appellants are entitled to an award of constitutional damages to vindicate their constitutional rights, and, if so, the quantum’s for damages to be awarded.
Whether the respondents should be liable for the payment of future medical expenses for counselling for Moses Komape and whether the appellants are entitled to declaratory relief.
“This is a case about an unthinkable horror: the death of a five-year-old boy who drowned in human waste when he fell into a pit toilet at school… his death was caused by the reckless acts of the school and the national and provincial departments of education,” says the family in its papers.
“His death brought untold suffering to his family. The pain was exacerbated by the manner in which the school and the Department of Education treated them after Michael’s death. They did not accept responsibility for Michael’s death. They did not acknowledge the horror of what they had allowed to happen. The family could not process their grief or move on with their lives whilst the departments and the school remained impervious to their responsibility for this tragedy,” says the family in its claim for compensation.