The young boy was just three days at school when he drowned in a pit toilet. The family were claiming R2 million each for their loss.
Johannesburg – Michael Komape’s family failed to prove to court that they were overcome with grief following his tragic drowning at his school’s pit toilet.
This was the conclusion of Judge Gerrit Muller, who delivered his ruling on Monday on the litigation the family pursued against the Department of Basic Education.
The family was claiming R2-million for grief suffered by all immediate members. These are mother Rosina Mankone Komape, father James Komape and siblings Mokibelo Komape and Khomotso Komape.
Michael was just at school for three days when he drowned at Mahlodumela Primary School outside Polokwane on January 20, 2014.
Unaccompanied, he had gone to the outside toilets located within the school’s premises during break.
Delivering his judgment at the High Court in Polokwane, Muller dismissed the family’s claim for grief.
He said a report written by Lepoliso Steven Molepo, a clinical psychologist who offered expert testimony on behalf of the Komapes made no mention of grief in the family.
“In short, the expert report simply makes no reference of grief,” Muller said.
“The result is that due to the insufficiency of the expert evidence, the plaintiffs were unable to prove that any of the members of the Komape family suffered from “n erkende psigiatriese letsel’ of treuring (grief as a recognisable psychiatric illness) due to the death of Michael.
“On the contrary the evidence established grief as a process similar to bereavement and mourning, which is not a recognisable psychiatric injury or illness.”
Molepo explained during his testimony that there was no difference between grief and bereavement.
Muller said the expert report largely demonstrated that the family found Michael’s traumatic.
“(It) was followed by a drastic change in the functioning of the family with (the mother) losing her job as a domestic worker during the period of bereavement.”
Muller said claims for grief, which was not a physical injury, were generally not awarded by courts.
“A claim for grief, which caused no recognisable injury cannot be justified, as a psychiatric injury or on any policy considerations.
“It will no doubt lead to bogus and an unwarranted proliferation of claims for psychiatric injuries and pave the way for limitless claims for every conceivable cause of grief whether insignificant without expert psychiatric evidence,” he said.
Muller awarded R12 000 for future medical treatment of two minors in the family, Maria and Onica.
He also granted a structural interdict against the department. This ordered the department to provide adequate and safe sanitation for learners in the Limpopo Province.
The NGO Section27, which assisted the Komapes in the litigation, welcomed the structural interdict.
But it expressed disappointment over losing the R2m grief claim. In a brief statement, Section27 said it was “extremely disappointed that the suffering of the Komape family and the circumstances of Michael ‘s death has been insufficiently recognised and acknowledged”.
“It is our view that this is a missed opportunity for developing the law in respect of constitutional damages.
“The failure to award damages in this case stands in contrast to the damages that were awarded by the retired Deputy Chief Justice Moseneke to the families of the Life Esidimeni victims for the callous treatment of the victims in that case”.
Elijah Mhlanga, spokesperson of the basic education department, said they “noted” the judgment.
“As the Department of Basic Education we continue to sympathise with the family of Michael Komape for the terrible loss they have suffered and commit to comply with the order of the High Court and ensure the delivery of suitable sanitation infrastructure in all of our schools across the country,” he said.
Section27 hinted it would appeal parts of the judgment in the Bloemfontein-based Supreme Court of Appeal.