In 2014, 5-year old Michael Komape tragically drowned in a sludge of human excrement when the pit-latrine at his rural school in the Limpopo province collapsed. While the Supreme Court of Appeal(SCA) awarded damages for emotional shock and grief to the family, the judgement falls short in declining to develop the common law of damages to recognise emotional shock and grief claims without having to prove ‘psychiatric injury’. It also fails in its refusal to recognise the value and importance of punitive Constitutional damages to vindicate violations of Constitutional rights.

Michael’s tragic death was due to the department of education’s failure to upgrade the toilet facilities despite his school’s pleas that it was urgently needed. Although negligence was conceded, an adequate settlement was not offered and the case went to trial – forcing the Komape family to prove damages in the High Court. The High Court dismissed the Komape’s claim for emotional trauma, shock and grief due to lack of sufficient evidence. Instead, it issued a structural interdict to oblige the State to install adequate sanitation facilities in rural schools. It also made an order for future medical treatment in respect of 2 (out of 3) of Michael’s minor siblings.

On appeal, the applicants and Equal Education, acting as amicus, argued that while the common law recognises damages for shock and trauma when coupled with “psychological condition” or a “lesion of the psyche,” it should be developed to also recognise a claim for grief and bereavement without there being any psychiatric condition attached. Alternatively, Constitutional damages could be awarded to compensate for “normal” grief and bereavement. In contrast with the High Court decision, the SCA allowed awards for emotional shock and grief to the value of ZAR 1.4 million.  This amount included an award for future medical expenses for Michael’s youngest sibling, Moses (previously excluded in the High Court order).

Emotional shock and grief without proof of psychiatric injury

Unfortunately, the SCA refused to develop the common law of damages to recognise shock and grief claims without proof of psychiatric injury. Because the claimants in this case had suffered proven psychiatric lesions, the court held that the question whether “normal” grief could be compensated did not arise. This is a missed opportunity to develop the common law to recognise claims for grief without having to establish ‘psychiatric injury’. A process that requires the expensive medical proof and scientific evidence of doctors. On the facts, the grief experienced by the Komape family should have, with or without proof of psychiatric injury, been sufficient to ground a damages claim. The family were treated in an undignified way by the school and the State when their and Michael’s constitutional rights were so abjectly violated. Further, the case could have set a transformative precedent for awarding damages for severe grief caused by negligent State officials.

Punitive Constitutional damages to vindicate Constitutional rights

With regards to Constitutional damages, the SCA held that there is no legal precedent for awarding Constitutional damages when no financial loss occurred or when the victims have already been compensated. According to the court, constitutional damages are not intended to enrich claimants and, on the facts, the complainants had already been compensated for the damages suffered. Instead of paying out limited state resources as damages to a few individuals, the court held that funds should be directly targeted to improving public services more generally. At the time of writing this post, the progress of improving sanitation in South African schools is dismally slow. In 2018, the Sanitation Appropriate for Education (SAFE) initiative was launched in an attempt to rid schools of pit latrines. Almost 4000 still remain.

While it is difficult to prove that an award for constitutional damages would deter the State from continuing its deplorable omissions, the award would at least serve as validation for the individuals wronged and establish that their rights, promised but not provided, are still publicly recognised. On an individual level, the court missed a powerful opportunity to validate the rights infringement and offer greater solace to a traumatised family. On a public level, the court lost out on reminding the state of its Constitutional promises to its people and correspondingly reminding the people of their rights under the Constitution.