Family of boy who drowned in pit latrine may appeal judgment

The toilets Michael Komape was using when he fell to his death. Picture: Lebogang Makwela.
The toilets Michael Komape was using when he fell to his death. Picture: Lebogang Makwela.

The family of a little boy who drowned in a pit latrine in 2014 may appeal a high court judgment that dismissed their claim against the Limpopo education department.

Non-governmental organisation Section27, who also acted as the attorney for the Komape family, tweeted today that it was studying the judgment and would take “full instruction from the family” as to what they want.

“We expect that we will appeal.”

On Monday morning, the Limpopo High Court in Polokwane dismissed the family’s claim for constitutional damages for the death of their son, Michael Komape. He was five years old when he drowned in a pit toilet at Mahlodumela Primary School in Chibeng village near Seshego.

The family reportedly wanted more than R2 million in compensation for special and constitutional damages, funeral costs, and loss of income for Michael’s mother Rosina Komape, who lost her job as a domestic worker soon after the death of her son.

Judge Gerrit Muller ordered that two of Komape’s siblings be paid R6 000 each for general medical expenses.

“The defendants delivered an offer with prejudice of a total amount of R450 000 in full and final settlement of all the claims. Judgment has already been granted in respect of Claims C, D and E [for medical expenses and loss of earnings] which were settled during the trial for R135 373,” Muller said in his judgment.

He also ordered a structural interdict to supply and install toilets that are safe and secure in rural schools in the province.

“A structural interdict in the public interest instead of constitutional damages in respect of Claim B will be granted. The plaintiffs are substantially successful. A cost order against the plaintiffs will not promote the advancement of constitutional justice where the aim is also to vindicate the rights of a large number of children in this province,” Muller said.

The Limpopo education department was given until July 30 to submit a plan to the court on how this would be done. But in January 2014, the Limpopo department of education promised it would eradicate all pit toilets at its schools by the end of March that year.

It was only Michael’s fourth day at school. He was using one of the four doorless corrugated sheet structures available for pupils. It’s believed the badly corroded seat caved in.

At the time, the education department’s spokesperson, Phuti Seloba, said his department was “aware of the amount of risk we’re subjecting our communities to, hence the action to eradicate the pit toilets”. He added: “Come March 31, no school should be subjected to this type of sanitation – 2014 is the end of pit toilets in Limpopo.”

According to him, the department had set aside R400 million to provide water and sanitation to schools, to which 868 toilets will be delivered by the end of that financial year. In a strongly worded statement last month, another non-governmental organisation, Equal Education, slammed Basic Education Minister Angie Motshekga, calling for her dismissal.

“If South Africans are to believe in President Cyril Ramaphosa’s ‘new dawn’, then the government must adhere to the school infrastructure law, and the deadlines that it stipulates,” it said, referring to the Regulations Relating to Minimum Uniform Norms and Standards for School Infrastructure.

Read: ‘Stop all the pit latrine deaths’

“It is outrageous that, in 2018, there is still a need to audit the status of sanitation at our schools ... The law explicitly says that plain pit latrines are not allowed at schools.”

Komape’s death, says Equal Education, was not enough to spur Minister Motshekga and the MECs into action.

“Instead of conducting a toilet audit then, and properly preparing to meet the deadlines in the Norms and Standards law, the education MECs released infrastructure reports that brazenly stated that the deadlines stipulated by the law would not be met ... Instead of committing to holding the provincial education departments to account, Minister Motshekga spent public funds defending provisions in the law which render the infrastructure deadlines as mere aspirations.

“Minister Motshekga and the Limpopo education department have also used state money to drag the Komape family through a long legal battle, offering them a disgracefully small settlement weeks before the matter was set for trial. When the case did reach court, the state’s lawyers accused the Komapes of trying to make money from their child’s horrific death at school, and asked the court to order the Komape family to pay the state’s legal costs.

“Still then, President Cyril Ramaphosa had to call on Minister Motshekga to develop a plan to fix school sanitation, before she was moved to action.”

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