Court orders Department of Basic Education to pay damages to Michael Komape’s family for ’emotional shock and grief’.
Campaigners and experts have praised a decision by South Africa’s Supreme Court of Appeal (SCA) to award damages to the family of a five-year-old boy who died in 2014 after falling down a long-drop toilet, hailing it as a “breakthrough case” for the country’s legal system.
The SCA on Wednesday ordered the Department of Basic Education to pay 1.4 million rand ($98,500) to the family of Michael Komape for the “emotional shock and grief” caused by his death.
Komape drowned at the bottom of a pit latrine at the Mahlodumela Primary School in a rural area of northern Limpopo province. His death shocked South Africa, where open toilets are still common in many schools. The SCA described the school’s toilets as being “in a horrible and
disgusting condition”.
Legal scholar Emile Zitzke described the court’s decision as a “step towards making South Africa’s law more caring and compassionate”.
“The SCA held the state accountable for the reckless causing of Komape’s death and the concurrent trauma to his family,” Zitzke, a senior lecturer at the Johannesburg-based University of the Witwatersrand’s School of Law, told Al Jazeera.
According to experts, the SCA’s decision stood in contrast with other rulings by South African courts, which have traditionally been conservative in awarding damages for psychological harm, and in particular, grief. Damages for future medical expenses in the form of psychological
counselling was also awarded to Komape’s minor siblings.
The SCA’s judgement overturned a ruling made reached by a lower court.
Judges in the Polokwane High Court dismissed a damages claim brought forward by Komape’s family last year despite finding that the education ministry and its provincial counterpart had violated Michael’s rights.
Section27, a public interest law centre that represented the family, welcomed the move to reverse that decision.
“The judgment vindicated the rights of the family and sets an important precedent for other families,” Umunyana Rugege, Section27’s executive director, told Al Jazeera.
“The court was scathing of the state’s conduct, not only following Michael’s tragic death but also during the litigation.”
‘Government inaction’
Other campaigners such as Faranaaz Veriava, head of Section 27’s education rights programme, said the case had highlighted the “impact of poor sanitation on the rights to dignity, life and education”.
As of March this year, about 4,500 of South Africa’s some 25,000 schools still had pit latrines, according to the country’s Human Rights Commission.
South African President Cyril Ramaphosa pledged in August 2018 to get rid of such toilets entirely within two years, but campaigners say not enough progress has been made. Ramaphosa’s promise came five months after another five-year-old pupil drowned in similar circumstances to
Komape.
Mark Heywood, a human rights activist, accused South Africa’s leaders of lacking a “moral compass … when it comes to the front line of service delivery”.
“Michael Komape has become a touchstone for everything that is wrong with government,” Heywood told Al Jazeera.
“A five-year-old boy has become a household name in South Africa because of government’s inaction on sanitation,” he said. “There are still tens of thousands of unsafe and unhygienic toilets in South Africa.”
