Justice (at last) for Michael Komape’s horrific pit toilet death

Lydia Komape, Michael Komape’s elder sister, expressed great happiness that the award had vindicated their long struggle for justice. “It is over at last,” she said, adding that it was “the end of a long and painful road.”

And it has been a painful road. Unlike the Limpopo High Court, the SCA recognised the trauma that affected each family member, particularly linked to the horrific circumstances of the manner in which he died.

“He had drowned, and was lying in the filth in the pit with his hand outstretched as if seeking help.” They described this picture as “haunting” for James and Rosina, his mother and father.

As a result, Michael’s mother and father received damages of R350,000 each. In addition, each of his five brothers and sisters had their grief and emotional shock at Michael’s death acknowledged with a lesser amount awarded. This is an important recognition – children’s lives and feelings count and should not be overlooked in application of the law of damages.

However, the SCA also recognised that the family’s pain was not limited to Michael’s death. It was drawn out over five years – in the callous responses of officials; the unwillingness of any politician to make an apology to the family (one former MEC, now an MP, even infamously complained that she “couldn’t be expected to be MEC of toilets”); the nature of a cross-examination by Senior Counsel Simon Phaswane, who questioned their integrity and even implied they were exploiting Michael’s death for financial gain; and then by the April 2018 judgment of the Limpopo High Court that denied them any award of damages, even while recognising that Michael’s death had been caused by gross negligence and multiple violations of the duty of the state towards school children in its care.

I recall the shock of the family at the time of that judgment. “Has all our pain been for nothing?” they asked. Nonetheless, they resolved to press on with an appeal, knowing that it would take time and emotional energy.

Their son, they felt, deserved justice.

So, in September this year, after months of careful preparation by the SECTION27 legal team, they made the 10-hour car trip from Polokwane to Bloemfontein to the SCA for the hearing of the appeal. It was an interesting day of legal argument, but body language and occasional judicial eruptions of frustration with the State’s case seemed to suggest that the judges were on their side.

They were.

The SCA described the toilets at Mahlodumela Lower Primary school as “in an appalling and disgusting condition”, noting that “although it was established that it would have cost as little as R500 per seat for structurally sound seats to have been built, the education authorities failed to do so”.

In the light of the general state of sanitation in Limpopo schools, SECTION27 had asked the court to issue what lawyers call a Declarator or Declaratory Order (basically a judicial pronouncement of strong words) finding that the government had violated a range of rights and making clear its duties in this respect. On this, the SCA concurred with Judge Gerrit Muller, but mainly because it felt that the problem was not that the government doesn’t understand its duties to learners, rather that it doesn’t comply with them.

Nonetheless, the SCA’s language leaves little wriggle room for Basic Education Minister Angie Motshekga and her toilet-tardy boss, Cyril Ramaphosa, whose sluggishness and inability to offer much more than lip service on school sanitation continues the threat to tens of thousands of learners’ dignity and safety.

Thus, Judge Eric Leach concluded:

“I do not think it can be said to have been state policy to have provided only such abysmal sanitation infrastructure, and the structured interdict by the court a quo [Latin for ‘from which’ the appealed judgment came] was aimed at ensuring an improvement at the school. In addition, the court a quo in its judgment castigated the education authorities for failing to provide proper toilet facilities at schools, stating that those which had been provided were not fit for human use and that it was clear that ‘due to lack of political will no effort was made to better the situation at schools of which the MEC, Department of Education, was well aware’. This stinging rebuke, which this court endorses, will hopefully in itself move those in authority to take action to improve the situation.”

So, have they been “moved”?

Sadly not, it seems. So far, the structural interdict issued by Judge Muller, the full body of which is incorporated into the SCA’s judgment (even while it noted that granting an unrequested structural order had been “somewhat startling”), has been largely ignored by the Limpopo Education Department. In fact, in an affidavit, the department says it cannot comply with the order “until 2026” because it does not have sufficient resources. Ensuring compliance with this order is the next battleground. Judge Muller had refused to hear this matter any further while the appeal was on.

Now it’s over. The SCA has spoken. Time to account.

On 18 December, Elijah Mhlanga, the department’s head of communications, issued a business as usual statement noting the judgment and promising a “comprehensive response in due course.”

Par for the course.

Mhlanga knows the case well. He sat in on large parts of the trial and the appeal, but has nothing to say? Not even a word of sorry and sympathy for the vindicated family.

Maybe the State wants to consider its option by appealing to the Constitutional Court…

It’s worth drawing readers’ and Mhlanga’s attention to one of the most damning paragraphs of the judgment.

In the judgment, Judge Leach notes that, late in the day, the Department of Basic Education (DBE) had conceded that Michael’s death had happened due to its negligence and that a settlement had been offered and rejected by the Komapes. Sounding perplexed, the judge notes:

“For some reason, the respondents [the government] did not settle and the trial proceeded, undoubtedly at huge cost to the State. This really ought to have been avoided and the funds better employed in the national interest, eg by improving sanitation systems at rural schools.”

Mhlanga might want to enlighten the public on how much this trial cost taxpayers. Who directed the DBE’s legal strategy? Why was it so callous and uncaring throughout?

And here, the last words are best left to the learned judges who had this to say, in paragraph 55:

“ ... this was a case that cried out for settlement; [instead] the appellants were obliged to go to trial, submit to the rigours of the hearing, and to relive the trauma of the past in excruciating detail. This included being subjected to unsympathetic and, at times, cruel and denigrating cross-examination. All of this must have aggravated their mental agony. The respondents’ attitude to the litigation, up to and including this appeal in which in certain respects they attempted to defend the indefensible, is to be deprecated in the strongest possible terms. As a result, the appellants have been prevented from getting on with their lives and recovering from their trauma.”

Well, thanks to the SCA, now they can.

Justice has eventually been done.

Rest in peace Michael. MC

Mark Heywood is the editor of Maverick Citizen. He was previously the executive director of SECTION27 and closely involved in the Komape case from 2014.