Komape family wins court battle 7 years after son drowned in a pit toilet in Limpopo

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James and Rosina Komape and their eldest daughter, Lydia, sit in the Limpopo High Court in November 2017. Archive photo: Ciaran Ryan
James and Rosina Komape and their eldest daughter, Lydia, sit in the Limpopo High Court in November 2017. Archive photo: Ciaran Ryan
  • In 2014, five-year-old Michael Komape drowned in a pit toilet at his school in Polokwane.
  • Earlier judgments ordered the Limpopo education department to eradicate pit toilets at schools.
  • The Limpopo High Court handed down a judgment on Friday in favour of the family, compelling the state to provide a list of all schools with pit toilets within 90 days, along with plans to eradicate them.

The Limpopo High Court handed down judgment in favour of the Komape family on Friday, with an order compelling the state to provide, within 90 days, a detailed list of all schools in the province with pit toilets, along with plans to eradicate them.

The defendants in the case - the Limpopo Department of Education and national Department of Basic Education - have also been ordered to show how the funds for this programme would be sourced, and to explain what interim measures would be implemented "to address schools' urgent sanitation needs and immediate safety risks, pending the delivery of permanent sanitation measures".

Michael Komape was five years old when he drowned in a pit toilet at Mahlodumela Primary School in Chebeng Village, Polokwane, on 20 January 2014.

The case attracted international attention, and threw a spotlight on the provincial education department and the use of pit toilets in some 1 500 schools across Limpopo.

Public sector law firm SECTION27, which provided legal support to the Komape family, welcomed Judge Gerrit Muller's judgment.

It said in a statement:

The judgment is a vindication of the rights of learners in Limpopo to safe and dignified sanitation. It follows a six-year legal battle to ensure that the Limpopo Department of Education and the Department of Basic Education eradicate pit toilets in that province.

The case was first heard in 2017.

The Komape family initially lost their claim for damages in the High Court, but this was overturned in the Supreme Court of Appeal in 2019 when they were awarded R1.4 million.

The second part of the 2017 case dealt with the family's request for a structural order directing the departments of education and basic education to supply each school in Limpopo with safe and dignified toilets.

ALSO READ | Limpopo education department in breach of order to get rid of school pit latrines, court hears

In 2018, the High Court ordered the state to conduct a comprehensive audit of sanitation needs - detailing the names and locations of all schools with pit toilets in the province - and provide a comprehensive plan for the installation of new toilets.

Since the structural order, the departments have filed two affidavits with the High Court - on 31 August 2018 and 12 May 2020.They proposed replacing pit toilets at 1 498 schools in the province over a period of 14 years, which the High Court found unduly long.SECTION27 returned to the High Court on 6 August 2021 seeking an order declaring their plans unconstitutional and in breach of the structural order.

It asked the High Court to direct the member of the executive council in the provincial education department to remedy the plan's shortcomings to ensure it was constitutionally compliant.

SECTION27 also asked the High Court to supervise the updated plan and its implementation.

In reaching his decision, Muller relied on a judgment in another case, Government of the Republic of SA and Others v Grootboom and Others, which dealt with access to adequate housing.

It was also tasked with finding a way to achieve the progressive realisation of that right, including whether public money could be better spent in the pursuit of these rights.

While SECTION27 argued for the creation of a special task team to implement the structural order, the High Court said such a step was not warranted at the moment.

OPINION | Piles of promises to remove pit toilets are starting to stink

"The defendants must be given the opportunity [to] put up a revised plan which meets the test of reasonableness," read the judgment.

It added while financial constraints were a fact of life, "adequate financial provision should be put in place to address the plight of the learners in schools with pit toilets".

The state is to provide the court with reports every six months with details of steps taken to implement the revised plan.

"We are delighted that the court has recognised the urgent need to eradicate pit toilets in our schools and directed the departments to fulfill the constitutional rights of learners to safe and dignified sanitation," said Faranaaz Veriava, the head of the education rights programme at SECTION27.

The order requires the state to provide a detailed inventory of schools' sanitation needs, including a list of pit toilets in schools across the province, and how the province intends to implement the revised sanitation plan.

The state is also required to provide revised deadlines for the eradication of pit toilets, along with detailed budgets.

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