Komape v Minister of Basic Education concerns the unsafe, undignified sanitation facilities in schools in the Limpopo province of South Africa, which violate a host of learners’ constitutional rights. The litigation was spurred by the death of Michael Komape, a five-year-old child who fell through and drowned in a pit toilet at his primary school. His family, represented by SECTION27, was successful in seeking damages against the government in the Supreme Court of Appeal (SCA). However, the first High Court judgment in 2018 recognised that the matter was systemic, and thus in included a structural interdict in its order. This mandated that the government urgently develop a plan to eradicate pit toilets in schools in Limpopo. Because the structural interdict was not appealed by the government in the SCA it remained binding.
However, while the government did file a plan and later a progress report with the court, this plan did not comply with the structural order and was inconsistent with the Constitution. For instance, while the structural order mandated the plan be geared at eradicating pit toilets “…in the shortest period of time,” the plan filed by government had an average end date of 2030 for different sanitation projects – 12 years after the original judgment. Therefore, SECTION27 returned to court seeking an order requiring that government create a new reasonable plan, and a task team to be created by government to oversee their creation of the plan – specifically to verify their audit of the number of pit toilets in the province – as well as their implementation of the plan. The task team would then be required to deliver progress reports and feedback on the implementation of the plan to the court every six months.
The High Court ruled in favour of SECTION27 in part, holding that the plan filed by government was unreasonable and was thus unconstitutional. The High Court noted that the situation regarding sanitation facilities in Limpopo constituted a “national emergency” and should be treated as such. The court therefore retained its supervisory jurisdiction and ordered government to file a new, detailed and reasonable plan with the court. Further, the government was ordered to deliver progress reports on the implementation of the plan to the court every six months. However, the court declined to order the creation of a sanitation task team, essentially arguing that the matter was not yet ripe enough and government must be given more opportunity to fulfil their functions before the court intervenes to such an extent.
However, the precedent for remedies that allow courts high levels of control of the implementation of orders requiring government to take positive action is quickly growing. Helen Taylor, in her article on remedial innovation, argues that the persistent failure of the South African government to comply with structural relief mandating positive action has acted as a catalyst for the forging of creative judicial tools. Structural interdicts allowing the retention of supervisory jurisdiction of the court is helpful for public interest organisations where government has failed to adequately comply with orders. Such organisations are able to return to court on the same papers without instituting litigation afresh, thus saving time and resources.
However, there remain instances where a structural interdict has proved inadequate to compel compliance. In these cases, Taylor has observed that the courts have turned to forging novel orders that may address the structural reasons for non-compliance. Such orders have included appointing panels of experts to review the situation, ordering the Auditor General to intervene, and ordering a special master to oversee the implementation of the order. While such orders involve a high level of judicial intervention, this is a small price to pay when the human rights of people are being violated. In this regard, in the most recent Komape judgment the court stated that if government was to prove incapable of replacing pit toilets in Limpopo urgently in another instance, the appropriate solution may well be to appoint a task team. While it is hoped that this solution will not be necessary, it is encouraging to see the increasing willingness of South African courts to intervene and force government to take action to vindicate the rights of people.