Judgment reserved as Michael Komape’s trial wraps up
Closing arguments were heard since last Thursday and counsel for the family, Vincent Maleka, asked Judge Gerrit Muller to compel the Department of Education to attend to the poor state of school sanitation in Limpopo.
POLOKWANE – Judgment was reserved when the Michael Komape trial was wrapped up in the Limpopo High Court last Friday.
Five-year-old Michael drowned in a pit toilet at his school near Polokwane in 2014 and advocacy group, Section 27, sued government for damages on behalf of the Komape family. Section 27 Director, Mark Heywood, said he hoped the case will highlight the greater issue of poor sanitation in schools across the country.
Read more: Boy (5) dies in school’s toilet
It remains for the court to decide on the amount of damages to be awarded to the family, which is seeking compensation for emotional shock, trauma and grief.
The state has opposed calls for constitutional damages as well as common law damages claimed by the family.
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The court raised the prospect of a structural interdict, which would likely compel the department to address its sanitation backlog within a fixed time period.
Maleka argued against this on the basis that it would require each violation of the interdict to be argued afresh in court and said the department was unlikely to comply with a structural interdict, given its tardiness in addressing the existing sanitation backlog in schools.
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He instead asked the judge to develop a common law remedy which would allow specific damages for grief, or alternatively for damages specifically related to violations of the family’s constitutional rights, such as the right to life, dignity and equality and asked for a declaratory order stating the department failed to fulfill certain of its constitutional obligations.
“It would hold the department accountable for its violations of the constitution, and would vindicate the rights of Michael Komape and other learners in the province,” Maleka said.
State lawyer, Adv Simon Phaswana, in his closing arguments asked the court to not consider the department’s conduct when ruling on the constitutional damages claim saying it would be punishing the defendant.
Maleka reminded the judge the department’s conduct was what led to the litigation, so it cannot be ignored. He asked the court to take into account the case involves poor people, who on their own, don’t have the means to fight the state.
Evidence in the trial showed the department’s sanitation backlog and that funds earmarked for sanitation infrastructure went unspent and were returned to the National Treasury.
The state already admitted liability and settled some of the claims brought by the family.
Argument last Thursday centred around the family’s claim for additional compensation for grief suffered as a result of Michael’s death, over and above the claim for emotional trauma and shock which has already been settled.
The family is claiming R250 000 for each of the Komape parents‚ R100 000 for each of the two older children‚ and R80 000 for each of the three minor children‚ based on the emotional shock and trauma suffered as a result of Michael’s death.
The state is offering R180 000 for each of the parents and substantially less for the children.
Muller indicated he would inform the parties about the next court date.
