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[2018] ZALMPPHC 18
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Komape and Others v Minister of Basic Education (1416/2015) [2018] ZALMPPHC 18 (23 April 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 1416/2015
ROSINA
MANKONE
KOMAPE
FIRST PLAINTIFF
MALOTI
JAME
KOMAPE
SECOND PLAINTIFF
MOKIBELO
LYDIA
KOMAPE
THIRD PLAINTIFF
LUCAS
KHOMOTSO
KOMAPE
FOURTH PLAINTIFF
AND
MINISTER
OF BASIC
EDUCATION
FIRST DEFENDANT
MEMBER
OF THE EXECUTIVE COUNCIL,
LIMPOPO
DEPARTMENT OF EDUCATION
SECOND DEFENDANT
PRINCIPAL
OF MAHLODUMELA LOWER
PRIMARY
SCHOOL
THIRD DEFENDANT
SCHOOL
GOVERNING BODY, MAHLODUMELA
LOWER
PRIMARY
SCHOOL
FOURTH DEFENDANT
AND
TEBEILA
INSTITUTE OF LEADERSHIP
EDUCATION,
FIRST AMICUS CURIAE
GOVERNANCE
AND TRAINING
EQUAL
EDUCATION
SECOND AMICUS CURIAE
JUDGMENT
MULLER J:
Introduction
[1]
This case is about a five year old boy named Michael Komape. Michael
was the youngest child of Maloti and Rosina Komape and
attended grade
R at Mahlodumela Lower Primary School at Chibeng village near
Seshego.
[2]
The case is also about the Komape family. The life of this young boy
together with the dreams and expectations of his parents
and his
siblings came to a shattering and tragic end when Michael lost his
life when he fell into a pit toilet situated on the
school premises
[3]
But the case is not only about Michael and his family. The case is
also about the plight of learners attending schools in rural
areas
across the great Province of Limpopo who are without basic sanitation
at schools administered by the National Department
of Basic Education
and the Provincial Department of Education of Province of Limpopo.
The Amici Curiae
[4]
Two
amici curiae
were admitted to participate in the
proceedings, the first of which had been discharged at its request
soon after the trial commenced.
The second
amicus,
Equal
Education, presented evidence by way of affidavit in terms of rule
38(2) of the Uniform Rules of the High Court. The affidavit
was
accepted without demur by the parties. Counsel on behalf of the
second
amicus
attended the proceedings throughout and also
made valuable submissions at the conclusion of the evidence.
[5]
The plaintiffs are all members of the Komape family. The first
plaintiff is Rosina Komape (the mother). The second plaintiff
is
Maloti James Komape (the father). The third plaintiff is Mokibelo
Lydia Komape (the sister) and the fourth Plaintiff is Khomotso
Lucas
Komape (the brother). First and second plaintiff also
instituted action in their representative capacities on behalf
of their three minor children M.1, M.2 and M.3 Komape. (Claim A and B
relate to them only).
The Plaintiffs Case
[6]
The cause action in Claim A is premised on a wrongful and negligent
breach of a variety of duties of care toward Michael which
caused his
death. As a result of his death the plaintiffs together with their
minor children suffered grief, emotional shock.
[7]
In the alternative punitive damages are claimed as a penalty and
deterrence for the wrongful conduct which attributed to the
death of
Michael and also the breach of the defendants constitutional duties.
[8]
It is also averred under the alternative that the plaintiffs and the
minor children suffer from post-traumatic stress disorder
(hereinafter PTSD), bereavement as well as depressive disorder.
[9]
The plaintiffs claim that the common law be developed for two
reasons. The first is that the plaintiffs do not have an effective
remedy for compensation. The second is that compensatory damages in
the factual circumstances of the case are integral to vindicate
the
constitutional rights of the plaintiffs for the loss suffered as a
result of the breach of the constitutional duties of the
defendants.
Put differently, plaintiffs claim is for compensation for loss
suffered as a result of the breach of constitutional
rights and
duties.
Claim A
[10]
Claim A is a delictual claim for damages for emotional trauma and
shock the family members each have experienced.
Claim B
[11]
The plaintiffs claim the amount of R2m for grief suffered by the
plaintiffs as immediate family members. In the alternative
constitutional damages are claimed. on the following basis:
(a) the defendants
failed to discharge various duties of care inclusive of their
constitutional duties to protect Michael;
(b) the plaintiffs
were entitled to expect that Michael will be protected from harm
whilst in the care of the defendants;
(c) the death of
Michael was foreseeable given the condition of the toilets on the
premises.
Claim
C,
D and E.
[12]
Claim C relates to past and future medical expenses as a result of
their impaired mental health resulting from the shock and
trauma they
have suffered because of the death of Michael. In claim D the first
and second plaintiffs claimed for funeral expenses
and in Claim E the
first plaintiff claimed for loss of earnings.
The Declaratory Order
[13]
In addition to the claims for damages, the plaintiffs also seek a
declaratory order that the defendants have breached their
constitutional obligations in respect of the rights contained in
sections 9, 10, 11, 24, 27, 28 and 29 of the Constitution.
Liability
Conceded
[14]
Counsel appearing for all the respondents conceded liability in
respect of claim A, C, D and E in relation to all the plaintiffs
and
the minor children. Foreseeability of harm with regard to secondary
victims has likewise been conceded and need not be determined.
[15]
The amounts claimed in claims D and E were also conceded and judgment
was granted by consent in respect of those claims.
The Disputes
[16]
In respect of claim A, the
quantum
of compensation claimed by
each plaintiff and the minors, as general damages, is disputed. The
whole of claim B as well as the declaratory
order remained in
dispute. With regard to claim C, the necessity for, and number of
sessions required in respect of future medical
expenses for
psychological treatment in respect of the plaintiffs and in
particular the minor children M.1 and M.2 were not conceded.
The onus
to prove the above remained with the Plaintiffs.
The Background Facts
[17]
The Komape family resides at Chebeng village. Michael was in school
for three days when his death occurred. On the day in question
Michael went to the outside toilets situated on the school premises
during break at about 1Oh00. The toilets were pit toilets covered
by
corrugated iron cubicles erected on a concrete base. He was
unaccompanied. When the break ended Michael did not return to class.
The principal, Mrs Malothane, (who was also his class teacher) phoned
the first plaintiff to determine the whereabouts of Michael.
She then
phoned the second plaintiff but was unable to get through to him. At
about 12h30 Mrs Malothane was able to reach the first
plaintiff who
was at home. She was of the opinion that Michael could have gone to
his old creche or back home.
[18]
The first plaintiff proceeded to the school. When she arrived there
she was informed that the staff looked everywhere for Michael,
even
at the toilets, but could not find him. The first plaintiff decided
to go to the toilets, but did not go close to the cubicles,
due to
the long grass that has grown in the area. At Michael's former creche
a small girl who was in Michael's class in school
informed the first
plaintiff and the principal that Michael has fallen into the toilet
at school. Upon their return to school Michael's
body was discovered
in one of the pit toilets.
[19]
The first plaintiff fainted at the sight of her son's hand protruding
from the pit. She requested assistance from the teachers
but was told
to wait because they had called someone to retrieve the body from the
pit. The second plaintiff arrived soon afterwards
in the company of
one Charles Malebana. Second plaintiff also observed the body of his
child in the pit toilet which was filled
with water. He was told by
the principal that Michael had been in the toilet for a long time
already and that they had to wait
for the body to be removed by the
"first aid." He and Mr Malebana remained at the pit toilet
whilst waiting for the body
to be removed. He requested Mr Malebana
to take photographs with his cell phone of the condition of the
toilets. Mr Malebane was
instructed to delete the photographs from
his phone by the principal and the circuit manager stating that they
did not want news
of the incident to spread. When he refused, the
circuit manager took his phone and deleted the photographs he
had taken from
his phone. After the body was removed, he took
further photographs of the toilets. (These latter photographs were
presented as
exhibits during the trial.)
[20]
Soon after the body was removed from the pit (at about 16h00),
Michael's sister Lydia arrived at toilets at school after she
had
heard from her brother Lucas that Michael had died. She viewed his
body on the cement slab where he was placed in front of
the cubicles
before removal of his body.
[21]
A post mortem examination was performed subsequently which revealed
that Michael died due to aspiration of foreign material
which is
consistent with drowning.
[22]
The second plaintiff expected the principal and the Department of
Education to come to his home to discuss the matter and also
expected
the state to tender payment of the funeral expenses. He reasoned that
his child died whilst in the care of the school
and as a consequence
the state is responsible for his death and the resultant expenses for
the funeral.
[23]
The second
plaintiff testified that no one came forward which was upsetting and
angered him. This latter aspect was disputed. Evidence
was presented
by the defendants that welfare officers attended at the home of the
plaintiffs and that certain contributions associated
with the funeral
were made to the family. In my view, the dispute whether the
officials from provincial government should have
come to his home to
show him respect and present their condolences (or to admit
liability) at that time and to offer to contribute
to the funeral
costs is a moral question.
[1]
The resolution of that dispute did not advance the case of any of the
parties to any significant degree and need not burden the
judgment.
[24]
Evidence
was presented of Mr Heywood who is employed by an organisation named
Section 27
[2]
(who also acted as
the attorney for the plaintiff) that the organisation engaged with
the Limpopo Department of Education during
2012 regarding the poor
state of the toilets at schools in Limpopo. The Limpopo department
also reported the critical sanitation
challenges in the Province to
the National Department of Basic Education. Despite the engagement of
Section 27 as well as visits
to schools and reports to the department
no significant progress was made to tackle the problems identified.
[25]
It became apparent during the evidence presented by a budget analyst
called by the plaintiffs that although funds were allocated
in the
2012-2013 budget for provision of sanitation facilities at 66 schools
nothing was achieved because the signing of service
level agreements
could not be attained. What is clear from the evidence, however, is
that the Limpopo Department of Education displayed
a total lack of
urgency or commitment to use the funds allocated for specific
programs foreshadowed in the budget. Millions of
unused funds were
returned to the treasury instead of spending it.
The Expert Evidence in
respect of Claim A and B
[26]
The experts employed by both sides, all of which are clinical
psychologists, agreed in a joint minute:
(a)
that the
plaintiffs suffered severe trauma due to the manner in which Michael
passed away;
[3]
(b) that although there
is a considerable improvement in everyone's functioning, the
plaintiffs' current presentation of the symptoms
is perpetuated by
the prolonged legal process;
(c) Lucas, Lydia and
James are functioning optimally;
(d) Rosina is functioning
moderately;
(e) The plaintiffs have
considerably, objectively and subjectively improved psychologically
due to psychological support they have
been receiving, however, the
plaintiffs require further psychotherapy.
(f) The recommendation
for further therapy for first and second plaintiffs is 12 sessions
each. And for the third and fourth plaintiffs-6
sessions each.
[27]
No
recommendation was made in respect of the minor children in the joint
minute for the need and the number of sessions in respect
of them.
[4]
[28]
The
plaintiffs relied upon the expert evidence of the witness Lepoliso
Steven Molepo a clinical psychologist who testified with
regard to
his expert report that has been filed.
[5]
His report, in my view, fell dismally short of the requirements of
rule 36(9)(b).
[6]
It contains a
relatively brief overview of the history together with the clinical
impressions, without specific reference to the
individual diagnosis
in respect of each of the plaintiffs or minors or the reasons for
such diagnosis, save to state under the
heading "Conclusions and
Recommendations" that the clinical conditions presented may have
caused a clinically significant
distress and impairment in the manner
the family functions. Continuous psychological intervention was
recommended. Under the heading
"PRESENTING PROBLEM" a
superficial summary appears of symptoms the family presented:
"Family members
presented with symptoms that characterised Bereavement. Posttraumatic
Stress Disorder and Major Depressive
as well as Adjustment
Disorders."
[29]
It is significant that the report makes no mention of a diagnosis of
grief nor is there any specific reference to grief as
a psychological
disorder or condition as claimed in claim B. In short, the expert
report simply makes no reference of grief. The
report states that
family members indicated that the death of Michael was a traumatic
experience for them and was followed by a
drastic change in the
functioning of the family with first Plaintiff losing her job as a
domestic worker during the period of bereavement.
And from
consultations with the witness it appeared that the family has been
going through a period of grief. The report further
states that a
differential diagnosis of bereavement, post-traumatic stress disorder
and major depressive disorder were indicated
without stating the
reasons and facts upon which the diagnosis was made in relation to
each of the plaintiffs and minor children.
[30]
In evidence in chief, however, the witness was referred to several
psychological reports prepared by Ms Edzinsani Sodi and
attached to
the amended particulars of claim (Neither was a notice in terms of
rule 36(9)(a) or (b) delivered in respect of the
reports prepared by
her nor was she called as a witness). The evidence of the witness was
not confined to the contents of his report
nor to his interaction
with and diagnosis of the plaintiffs and the minors. Counsel, leading
his evidence, referred him to the
factual findings and conclusions
reached by Ms Sodi in respect of each of the plaintiffs and requested
him to elaborate and comment
on her findings. In this way counsel
attempted to introduce the contents of the reports by Ms Sodi as
evidence without calling
her. Her reports formed the basis of the
conclusions and diagnosis by the witness Malepo in respect of the
plaintiffs and minors.
He explained that it is practice (in their
practice) that one psychologist conduct the initial consultation, who
then makes a diagnosis
and prescribes treatment for the patient. A
second psychologist will then render the psychological services to a
patient, based
on the prescribed treatment. I understood his evidence
to be that the second psychologist accepts the diagnosis and
treatment which
has been prescribed by the first psychologist and
treat the patient accordingly.
[31]
When
leading the evidence of the expert witness Molepo, counsel for the
plaintiffs referred him to the subject matter of claims
A and B and
requested him to give an overview of grief. He explained that it is a
grieving process which a person who suffers a
loss goes through in
order to achieve a form of healing. He explained that it is a
subjective feeling which is precipitated by
death of a loved one and
is sometimes used synonymously with mourning. He explained that the
expressions grief, mourning and bereavement
are often used
interchangeably.
[7]
[32]
Grief, therefore, is not a condition , but subjective feelings which
takes time to process. Bereavement and grief is a common
human
experience which is a natural consequence following the death of a
loved one.
[33]
The presence and intensity of grief will depend on the emotional make
up and the effect of the experienced as well as the closeness
of the
relationship between the person who died and the person who suffered
the loss. It seems that there is no significant difference
between
grief and bereavement if the ordinary meaning of the words are taken
into account.
[34]
Since
Bester v
Commercial Union Versekeringsmaatskappy van SA Bpk
[8]
it has
been accepted that shock which caused psychiatric injury sounds in
damages:
"Om bostaande redes
kom ek tot die gevolgtrekking dat daar in ons reg geen rede bestaan
waarom iemand, wat as gevolg van die
nalatige handeling van 'n ander,
senuskok op psigiatriese besering met gevolglike ongesteldheid
opgedoen het, nie op genoegdoening
geregtig is nie, mits die
moontlike gevolge van die nalatige handeling voorsien sou gewees het
deur die redelike persoon wat horn
in die plek van die onregpleger
sou bevind het. Ek verwys hier nie na niksbeduidende emosionele skok
van kortstondige duur wat
op die welsyn van die person geen wesenlike
uitwerking het nie, en ten opsigte waarvan genoegdoening gewoonlik
nie verhaalbaar
is nie".
[9]
[35]
In
Barnard
v SANTAM Bpk
[10]
the
court stated, with specific reference to the argument that claims for
mental or nervous shock suffered as a result of hearsay
should be
restricted. In rejecting the argument the court stated:
"Tweedens moet n
eiser natuurlik bewys dat hy 'n erkende psigiatriese letsel opgedoen
het en sal hy dus in die reel op ondersteunende
psigiatriese
getuienis aangewese wees."
[11]
[36]
Burchell
[12]
asserts that the court in the
Barnard
case
had either 'psychological or psychiatric harm or injury in mind where
it used the words 'psigiese letsel'.
[13]
The contention cannot be sustained. Emotions such as anxiety, grief
and sorrow not being psychiatric injury do not sound in damages.
[14]
The Court reiterated that a plaintiff must have suffered recognisable
psychiatric harm or injury induced by an event to be successful.
[15]
In my view, the quoted passage explicitly put beyond doubt that
psychiatric harm or injury, has to be proved by means of psychiatric
evidence.
[16]
Damages are not
recoverable, in delict, for normal grief, or sorrow following a
bereavement.
[17]
[37]
In
White
and Others v Chief Constable of the South Yorkshire Police
[18]
Lord Steyn reiterated:
"The classification
of emotional injury is often controversial. In order to establish
psychiatric harm expert evidence is required.
That involves the
calling of consultant psychiatrists on both sides. It is a costly and
time consuming exercise. If claims for
psychiatric harm were to be
treated as generally on par with physical injury it would have
implications for the administration
of justice."
[38]
The
requirement that psychiatric evidence is necessary to prove
recognisable psychiatric harm or injury here, as in England, has
hitherto never been doubted. I think, however, that labelling such a
cause of action for recognisable psychiatric harm or injury
as a
claim for nervous shock or emotional shock is unnecessarily
restrictive and may be misleading.
[19]
[39]
This court
is requested to develop the common law to award damages for grief
which did not give rise to detectable or recognised
psychiatric
injury. In Claim B, grief is claimed as a substantive and different
cause of action from bereavement, emotional shock
and trauma
suffered. There is, in my opinion, neither reason in law nor any
policy consideration to draw a distinction between
grief and any
other psychiatric injury or harm. A claim for grief, if proved to
have resulted in a detectable or recognised psychiatric
injury, as
explained in the
Bester
judgment,
will sound in damages, as any other injury.
[20]
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.
[21]
[40]
Counsel for
the plaintiffs (and the
amicus)
placed
reliance on the recent judgment of
Mbhele
v MEG for Health for the Gauteng Province
[22]
as
authority for the proposition that the Supreme Court of Appeal has
held that grief, generally, without proof of resultant psychiatric
harm or injury by expert psychiatric evidence, is sufficient to
sustain a damages claim. I cannot agree with the submission. The
judgment, on the face of it, is a radical departure from
Bester
and
Barnard
judgments
with regard to the requirement of expert psychiatric evidence to
prove a psychiatric injury.
[23]
No reference is made in
Mbhele
to
either of the two judgments, let alone overrule them. Until such time
that they are overruled as being clearly wrong, this Court
is obliged
to follow them.
[24]
[41]
It must be
recalled that the judgment in
Mbhele
is
premised on an agreed statement of the fact that the appellant
experienced severe shock, grief and depression. The court in
Mbhele
did not
regard grief, as such, separate from emotional shock. Grief was
considered cumulatively with other factors to establish
emotional
shock. Put differently, the court, against the background of the
particular facts of that stated case, regarded grief
as emotional
distress and considered emotional distress, without medical evidence,
as sufficient to sound in damages.
[25]
[42]
Even if I am wrong, Mr Malepo, the clinical psychologist who treated
the members of the Komape family testified, in brief,
with reference
to the facts and conclusions set out in reports written by Ms Sodi
that the first and second plaintiff, presented
with symptoms of
bereavement, post-traumatic stress disorder, and depressive disorders
when they consulted with him. He also mentioned
that they both have
improved since the initial consultation in 2015. Second plaintiff,
according to his observations , did not
experience grief.
[43]
The witness
testified that Lydia Komape (third plaintiff) like her mother, also
presented with symptoms similar to first plaintiff.
The witness,
however, changed his evidence after the facts as set out in the
report of Ms Sodi were put to him and after a leading
question was
put to him that she indeed presented with post-traumatic stress
disorder.
[26]
Mr Malepo
answered the question in the affirmative on the strength of the
diagnosis made by Ms Sodi. He himself was unable to make
such a
diagnosis, because the third plaintiff only presented with symptoms.
The fourth plaintiff, too, only presented with signs
and symptoms of
post-traumatic stress disorder. He also showed signs of, but no
symptoms for, bereavement.
[44]
The witness, with reference to the minor M.2, testified that in his
opinion she only displayed symptoms of post-traumatic stress
disorder
or bereavement at the time he consulted with her. M.1, the twin
sister of M.2, presented with sad mood.
[45]
The presentation of symptoms for post-traumatic stress disorder were
stronger in her case as in the case of M.2. No symptoms
for
bereavement were present. M.3 the youngest only showed symptoms (or
signs) for bereavement.
[46]
The joint minutes drawn up by the respective experts are of very
little value with regard to diagnosis made in respect of each
of the
plaintiffs and the minors individually with regard to psychiatric
injury as a result of trauma, emotional shock or grief.
It contains a
general observation that the plaintiffs suffered from severe trauma
without reference to the minor children. The
joint minute focusses on
the future medical treatment of the plaintiffs with the result that
the reason for the meeting of the
experts to reach common ground on
any recognised psychiatric injuries or harm sustained by the
plaintiffs as a result of the severe
trauma suffered, was overlooked.
The psychiatric treatment for such injury or harm was therefore not
adequately addressed.
[47]
I pause
here to add that counsel for the defendants did not object to the
evidence of the witness Malepo with reference to the contents
of the
reports of Ms Sodi and also did not object to his evidence with
regard to grief of which no mention was made in his report
or the
joint minute. His evidence, apart from deviating from the agreement
between the experts in the joint minute, and the failure
to set out
the facts upon which he relied in his report for his opinion that the
plaintiffs suffered grief or other psychiatric
harm or injury, was
insufficient for finding that the family members suffered grief or
any recognisable psychiatric injury or harm.
He was unable to make a
diagnoses in respect of any of the plaintiffs and minors due to lack
of symptoms being present. The so-called
differential diagnosis made
by him in his report in the face of his clinical findings and the
contents of the joint minute is difficult
to reconcile, understand
and accept. It is evident that the reports prepared by Ms Sodi
contained the information and the diagnosis
required for medico-legal
purposes. Yet the contents of those reports were not proved by means
of the evidence of Ms Sodi and thus
cannot assist the plaintiffs as
evidence placed before this court.
[27]
[48]
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"
[28]
(grief as a
recognisable psychiatric illness) due to the death of Michael.
[29]
On the contrary the evidence established grief as a process similar
to bereavement and mourning, which is not a recognisable psychiatric
injury or illness.
[49]
Having
reached this conclusion, there is no basis upon which the common law
can or should be developed. Policy considerations militate
against
compensation for emotional suffering short of a recognisable
psychiatric illness. Damages cannot be awarded for grief without
the
resultant recognisable psychiatric lesion or illness which is a
requirement for claim A and B to succeed. Grieve, as any other
recognised psychiatric injury caused by foreseeable wrongful
negligent conduct, must be proved by expert psychiatric evidence.
[30]
[50]
As to Claim C, the reports of Ms Sodi, which were not put in as
evidence and cannot be taken into account with regard to the
number
of sessions required for future physiological treatment in respect of
the minor children. Mr Malepo, in his report, has
failed to set out
the reasons for or the number consultations the minor children in
particular are required to attend in future.
The failure is probably
attributable, to his uncritical acceptance of the assessments made by
Ms Sodi.
[51]
Nevertheless, the parties have reached agreement with regard to the
costs per consultation for the future medical expenses
in respect of
the plaintiffs. The court has to determine the number of future
consultations needed, (if any) by the minor children.
[52]
I believe that in terms of the joint minute by the experts that the
necessity for future treatment as indicated for the plaintiffs,
without being diagnosed with a recognised psychiatric injury, has
been established.
[53]
The complex personalities of people who suffer from varying kinds of
emotional distress following upon a traumatic event such
as a
traumatic death of a child and brother, differ from person to person.
The need for psychotherapy to assist patients to overcome
psychological distress caused by such traumatic event, should be
recognised even where the symptoms fall short of a psychiatric
injury
or harm when psychological treatment is indicated to overcome the
effects of such an event or to prevent the development
of a
recognised psychiatric injury as a result. Such treatment is
warranted. A court should, in such cases, always be guided by
expert
evidence.
[54]
It has been acknowledged by the experts from both sides, in the joint
minute, that future treatment as a result of severe trauma,
is
indicated for the plaintiffs. I am minded to make an award in favour
of the minor children for future medical treatment as claimed,
although the witness made no mention of them in his report. The
minors are part of the family the members of which suffered severe
trauma and who are in need of treatment. The defendants consented to
an order in respect of the plaintiffs. The minors too suffered
trauma
and bereavement as a result of the tragic death of their younger
brother and will benefit from treatment. Mr Maleka on behalf
of the
plaintiffs has argued that a case has been made to include the minor
M.3 for which no claim was made in the particulars
of claim. The
simple answer to that submission is that the plaintiffs are bound by
their pleadings. The older siblings Lucas and
Lydia were awarded six
sessions each for future treatment. I am of the view that six
sessions each for M.1 and M.2 are reasonable
for future treatment.
Constitutional Damages
for Violation of Basic Human Rights.
[55]
It is common cause that the defendants failed to perform certain
obligations towards learners from schools in rural Limpopo
including
Michael, in particular, which in his case, resulted in his death. The
claim for constitutional damages as a result of
the failure by the
defendants to perform those obligations. The Constitution places
positive obligations on the state "to
protect, promote and
fulfil" fundamental rights.
[31]
In
Fose
v Minister of Safety and Security
[32]
Ackermann
J stated:
"Particularly in a
country where so few have the means to enforce their rights through
the courts, it is essential that on
those occasions when the legal
process does establish that an infringement of an entrenched right
has occurred, it be effectively
vindicated”.
[33]
[56]
It has been
acknowledged that courts are mandated, if a constitutional duty has
been breached, to grant appropriate relief.
[34]
To do so, courts may fashion new remedies, if necessary, depending on
the nature of the case.
[35]
Usual remedies
[36]
may be held
to be appropriate relief to protect and enforce the Constitution.
[37]
Relief must also be just and equitable.
[38]
[57]
An
appropriate remedy may well be a structural interdict in terms
whereof the defendants, as organs of state, are ordered to perform
their constitutional obligations and in terms whereof the court may
perform a supervisory function to ensure compliance with and
proper
implementation of the order.
[39]
[58]
The plaintiffs also seek a declaratory order that the defendants have
breached various fundamental rights to vindicate the
rights of the
learners at these schools. A declaration of rights, although
discretionary in nature, no doubt, may be a means by
which the
vindication of rights can be achieved.
[59]
I turn to consider whether the different fundamental rights involved
have been breached and, if so, what appropriate relief
should be
granted. The undisputed evidence shows that the witness Heywood from
Section 27 engaged the second respondent by addressing
correspondence
to the second defendant drawing attention to the unsafe toilets at
schools and the need to install safe toilets.
Second defendant
identified schools which needed upgrades. The photographic evidence
adduced revealed distressing, dangerous and
poor sanitary conditions
at a large number of rural schools. In some schools leaners are
forced to make use of open dilapidated
pits, not worthy for use as
toilets by humans which afford those using them no privacy at all.
The evidence also showed that there
are safe and affordable products
available in the market for use by children. It is disturbing to
learn from the evidence that
funds allocated to second defendant in
annual budgets are not utilised for the purpose budgeted for. It is
clear that due to lack
of political will no effort was made to better
the situation at schools of which the second defendant was well aware
of.
[60]
Section
9(2) and (3) of the Constitution guarantees the right to equal
enjoyment of all rights and freedoms and place a positive
duty on the
state not to unfairly discriminate against anyone. In
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs; Thomas and Another v Minister
of
Home Affairs and Others
[40]
the importance of human dignity was explained:
"The Constitution
asserts dignity to contradict our past in which human dignity for
black South Africans was routinely and
cruelly denied. It asserts it
too to inform the future, to invest in our democracy respect for the
intrinsic worth of all human
beings. Human dignity therefore informs
constitutional adjudication and interpretation at a range of levels.
It is a value that
informs the interpretation of many, possibly all,
other rights. This Court has already acknowledged the importance of
the constitutional
value of dignity in interpreting rights such as
the right to equality, the right not to be punished in a cruel,
inhuman or degrading
way, and the right to life. Human dignity is
also a constitutional value that is of central significance in the
limitations analysis.”
[41]
[61]
The
systemic practice or policy, not to take active steps to equip
schools in rural areas with safe and adequate toilets, and by
allowing the lack of adequate sanitation to persist in those schools
is viewed as a breach of human dignity.
[42]
[62]
The right
to an environment which is not harmful, as set out in the
Constitution,
[43]
applied not
only to Michael but applies to all children in the Limpopo Province
faced with the dangerous and harmful effects of
inadequate or
non-existing sanitation at toilets in schools, are beyond doubt.
There is, apart from the direct obligation to the
children attending
schools in the Limpopo Province, also an indirect general overarching
duty resting upon the state to protect
the environment for the
benefit of future generations.
[44]
[63]
Society
presently, and future generations still to come, have the right to
reasonable action to rectify the current state of affairs.
To take
remedial action will ensure that the learners in rural areas (and
their parents) are recognised as human beings and not
as second rate
citizens. The right to basic education includes provision of adequate
and safe toilets at public schools for learners
the failure of which
compromised the best interests of the children referred to in section
28(2) of the Constitution. Provision
of adequate toilet facilities at
schools is not only basic requirement for daily human existence but
it also provides for a healthy
environment where the children spend
their days. The importance of education as one of the pillars of
society since ancient times
which is the means by which every child
is able to realise their dreams by exercising this right can hardly
be over stated.
[45]
I am
satisfied that the evidence proved that the human rights contained in
section 9 10, 11, 24, 28 and 29 of the Constitution
had indeed been
breached.
[64]
During
argument Mr Maleka, was pertinently asked whether a structural
interdict to oblige the state to install proper sanitation
facilities
at rural schools in the province to vindicate the Constitution is not
the appropriate remedy as such an order will benefit
all the learners
where there is a dire need for safe toilets, instead of payment of
compensation as constitutional damages to one
family.
[46]
[65]
The failure
of the Department of Education to utilise funds allocated in the
budget specifically to upgrade existing toilets to
install new and
safe toilets at schools since the tragedy and even prior
to
it is
testament
to
a
complete lack of understanding of the basic human rights of learners
are without question reprehensible. The efforts of Section
27, and
its engagement with the second defendant, as to the plight of all
those learners having to use inadequate and unsafe toilet
facilities
seems to have been lost. Society
[47]
has a substantial interest in the safety of their children when
absorbed into the school system and placed in the care of schools
and
teachers who are charged with upholding the rights of children
protected by the Constitution. Its failure to do so touches
upon
their dignity, safety and health and as such their best interests of
every learner attending school in rural Limpopo.
[66]
Tt is
explained in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
[48]
thus:
"As a general rule,
private litigation is concerned with the determination of a dispute
between two individuals, in which relief
will be specific and, often,
retrospective, in that it applies to a set of past events. Such
litigation will generally not directly
affect people who are not
parties to the litigation. In such cases, the plaintiff is both
victim of the harm and the beneficiary
of the relief. In litigation
of a public character, however, that
nexus
is
rarely so intimate. The relief sought is generally forward-looking
and general in its application, so that it may directly affect
a wide
range of people. In addition, the harm alleged may often be quite
diffuse or amorphous."
[49]
[67]
What then is the object of the claim for constitutional damages and
an order for a declaration of rights? The aim of a claim
for damages
ex
delicto
is
not to enrich a claimant who has suffered loss, but to compensate for
the loss suffered.
[50]
In my
judgment the reality is that the compensation claimed, as
constitutional damages, is nothing short of a claim for punitive
damages.
[51]
A court, faced
with such a claim, must decide whether an award of constitutional
damages is just and equitable. An appropriate
remedy, in my view, is
an order directed at the enforcement, protection and the prevention
of future encroachment of the rights
protected in the Bill of Rights
if the harm suffered is not adequately addressed by an effective
common law claim for damages the
elements of which include violations
of protected human rights.
[52]
[68]
I am not
persuaded that punitive damages can be claimed as appropriate relief.
If such a claim is successful the Komape family will,
be over
compensated, on the one hand, and on the other, not serve the
interests of society.
[53]
No
convincing evidence emerged that punitive damages, will serve to
achieve to protect the rights violated or that such an award
will act
as a deterrence to prevent future violations by the defendants. The
punitive nature of such an award in itself do not
serve to enforce
any of the violated rights.
[54]
[69]
A
declaratory order, to effectively vindicate the Constitution is a
discretionary remedy.
[55]
In
my view a declaration of rights will not sufficiently vindicate the
rights of the learners attending rural schools in this Province.
[56]
A declaration of rights where learners at school are exposed to
danger, when going to a toilet on the school premises, will hardly
be
of any value to the learners and parents and will serve no immediate
purpose.
[70]
I have come
to the conclusion, after a careful consideration of all the facts,
that a structural interdict is the only appropriate
remedy that is
just and equitable which will effectively vindicate the Constitution.
The best interests of all learners at schools
with pit toilets must
take preference. It is the only means by which the state will be
compelled to take active steps to provide
the lacking basic sanitary
requirements to learners in those schools. It will, no doubt be a
mammoth task for the state to undertake.
But that cannot deter this
court from ordering the state to comply with its obligations in terms
of the Constitution. The evidence
shows that efforts were made,
inadequate as they are, to replace old pit toilets at some schools.
Effective remedial action is
to be undertaken to restore the dignity
and wellbeing of learners attending government schools in this
province. The flagrant violation
of their rights cannot be allowed to
continue without remedial steps being taken to enforce, protect and
prevent future encroachment
of the rights of learners protected in
the Bill of Rights. A declaration of rights will not serve the
intended purpose if it is
left to the defendants to observe the law
in due course.
[57]
History has
shown that that the defendants lack the will to act in the interest
of learners.
[71]
It has to be reiterated that this court is ever mindful that an order
that the state replace the pit toilets at rural schools
will place an
additional burden on the resources of the state. Information as to
the time it will take and the program to be developed
to achieve that
goal in the shortest period of time must be placed before the court
to enable this court to play a supervisory
role in the execution of
the order to vindicate the constitutional rights of the children
attending schools with pit toilets in
rural Limpopo.
[72]
The defendants shall be required, for the order to be implemented, to
file a report under cover of an affidavit at this court
which must
specifically deal with the required issues in detail.
Costs
[73]
The
defendants delivered an offer with prejudice of a total amount of
R450 000.00 in full and final settlement of all the claims.
[58]
Judgment has already been granted in respect of Claims C, D and E
which were settled during the trial for R135, 372.65.
[74]
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.
[59]
Counsel for the
plaintiffs requested that a punitive costs order be granted against
the respondents mainly in view of the way in
which the litigation was
conducted. I have, after considering the totality of the case, come
to the conclusion that a punitive
order is not warranted. The
defendants are successful to a limited extent.
[71]
In my view the plaintiffs are entitled to costs. The court was
requested to note that all counsel acting on behalf of the plaintiffs
acted
pro bono.
They, no doubt, incurred costs for
disbursements for their accommodation before and during the trial
inclusive of travelling expenses
to and from Polokwane also when
preparing for trial.
[72]
I am also of the view that the
amicus curiae
is entitled to
costs. The
amicus
assisted this court by advancing
comprehensive and useful argument.
Order
1.
Claim A:
The
claim is dismissed
2.
Claim B:
The
claim for grief is dismissed.
2.1
Alternative to Claim B
2.2 The first and second
respondents are ordered to supply and install at each rural school
currently equipped with pit latrines
in the Province of Limpopo with:
2.2. a sufficient number
of toilets for each school for the use of children which are easily
accessible, secure and safe and which
provide privacy and promote
health and hygiene based on an assessment of the most suitable safe
and hygienic sanitation technology.
2.3 The first and second
respondents, are ordered to furnish this court with the following
information:
2.3.1
a list containing the names and location of all the schools in rural
areas with pit toilets for use by the learners;
2.3.2
the estimated period required to replace all the current pit toilets
at schools so identified.
2.3.3
a detailed program developed by the relevant experts based for the
installation of the toilets on an assessment made in respect
of the
suitable sanitation technology requirements of each school inclusive
of a proposed date (and reasons for the proposed date)
for the
commencement of the work referred to
supra.
2.4 The first and second
defendants shall, for the order to be implemented deliver detailed
reports under cover of affidavits at
this court which must
inter
alia
comprehensively deal with all the issues referred to above
on or before 30 July 2018.
2.5 The plaintiffs are at
liberty to deliver an answering affidavit within 20 days of the
reports being delivered. And if so, the
defendants will have the
right to reply, if necessary within 15 days. Both parties may
thereafter place the matter on the opposed
roll for hearing (and for
further directives, if necessary) on a date to be arranged with the
trial Judge.
3. Claim C:
3.1 The claim for future
medical treatment in respect of the minors M.1 and M.2 Komape
succeeds. The first and second defendants
are ordered to pay for the
future treatment in respect of:
(a)
M.1 Komape the amount of R6 000.00 and
(b)
M.2 Komape the amount of R6 000.00.
4. Costs
4.1 The first and second
defendants are ordered to pay the costs of the plaintiffs jointly and
severely (the one paying the other
to be absolved) which costs shall
include:
4.1.1
the reasonable reservation and qualifying fees (inclusive of the
costs for preparation of the reports, accommodation and travelling
fees) if any, of the following experts:
(i) D Still;
(ii) MS Malepo
(iii) E Sodi and
(iv) Dr Matlala
4.1.2
the reasonable costs for disbursements incurred by or on behalf of
two counsel appearing
pro bono
on behalf of the plaintiffs.
4.2 The defendants are
ordered to pay the costs of the second
amicus curiae.
___________________
GC
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO DIVISION:
POLOKWANE
APPEARANCES
1.
ADV FOR PLAINTIFFS
: V Maleka SC
: U Dayanond-Jugroop
: N Stein
2.
ADV FOR DEFENDANTS
: M.S Phaswane
:
K Ramailela
3.
FOR SECOND AMICUS CURIAE
: K Hofmayer
: N Luthuli
: H Cassim
: A Armstrong
3.
DATES OF HEARING
:13-17 November 2017
: 20-23;27-28 November
2017
:1-2 February 2018
5.
DATE JUDGMENT DELIVERED
: 23 April 2018
[1]
There being no legal duty resting on the state to admit liability.
[2]
A non-governmental organization.
[3]
No reference is made in the joint minute that the plaintiffs or
minors suffer from bereavement or grief. All that is stated is
that
the experts agree that plaintiffs and minors suffer from severe
trauma without stating that the trauma resulted in a recognised
psychiatric injury.
[4]
The experts employed by the defendants intimated that they had no
mandate to discuss the position of the minor children.
[5]
The witness was a party to the agreement in the joint minute.
[6]
Coopers (South Africa) (Pfy) Ltd v Deutsche Gesellschaft Fur
Schadlingsbekampfung MBH
1976 (3) SA 352
(AD) 370E-372A. Ndlovu v
Road Accident Fund
2014 (1) SA 415
(GSJ) par109; 117-119. Also Hing
supra 363H.
[7]
Although he called in doubt having said so when he was
cross-examined.
[8]
1973 (1) SA 769 (A).
[9]
779G-H. Also Hing supra para 21.
[10]
Fn 2.
[11]
216 E-F. Road Accident Fund v Sauls
2002 (2) SA 55
(SCA) para 7; 9;
18. Hing supra para 18.
[12]
Burchell J "An Encouraging Prognosis for Claims for Damages for
Negligently Inflicted Psychological Harm" 1999 The
South
African Law Journal 697-698.
[13]
208H.
[14]
Teff H "Liability for Negligently Inflicted Psychiatric Harm:
Justifications and Boundaries" 1998 Cambridge Law Journal
102-103.
[15]
208H; 216E-F.
[16]
Barnard 210 H-211A.
[17]
Barnard v SANTAM
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA) 217A-B. Also Hing and Others
v Road Accident Fund
2014 (3) SA 350
(WCC) para 24.
[18]
[1998] UKHL 45
;
[1999] 2 AC 455.
Alcock and Others v Chief Constable of the South
Yorkshire Police (1991] 4 All ER 907 (HL).
[19]
Barnard 208I-209A.
[20]
779H. It is unnecessary to distinguish for purposes of this
discussion between pathological grief and non-pathological grief.
There was as a matter of fact no evidence that the grief suffered
was pathologicaI.
[21]
Fn 16 at para 33.
[22]
(355/15)
[2016] ZASCA 166
(18 November 2016).
[23]
Teff H "Liability for Negligence inflicted Psychiatric Harm:
Justifications and Boundaries" 1998 Cambridge Law Journal
95-96; 102.
[24]
Ex Parte Minister of Safety and Security: in re S v Walters
[2002] ZACC 6
;
2002 (4)
SA 613
(CC) para 61; Patman Explorations (Pty) Ltd v Limpopo
Development Tribunal (1250/2016) [2018] ZASCC 19 (16 March 2018)
para 3-4.
[25]
Mbhele par 11.
[26]
Counsel for plaintiff in leading the evidence of the expert followed
a similar pattern in relation to all the plaintiffs and
minor
children.
[27]
s
34 Act 25
of 1965.
[28]
According to the Odendal FF et al Verklarende Handwoordeboek van die
Afrikaanse Taal (HAT) Perskor (1994) "treur" means
"Bedroef wees, verdriet hê."
[29]
Also Hing supra para 25-26.
[30]
Le Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
2011 (3) SA 274
(CC)
para 122.
[31]
s 7(2) of the Constitution states: "The state must respect,
protect, promote and fulfil the rights in the Bill of Rights."
[32]
1997 (3) SA 786 (CC).
[33]
Para 69.
[34]
Modderfontein Squatters Greater Benoni City Council v Modderkl ip
Boerdery (Pty) Ltd (Agri SA and Legat Recources Centre Amici
Curiae); President of the Republic of South Africa and Others v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Recources Centre
Amici Curiae)
2004 (6) SA 40
(SCA) para 18.
[35]
Para 19.
[36]
An interdicts declaratory orders or damages may be awarded as an
appropriate remedy.
[37]
s 38 of the Constitution.
[38]
s 172(1)(b) of the Constitution.
[39]
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) para 96.
[40]
2000 (3) SA 936 (CC).
[41]
Para 35.
[42]
s 10 states: "Everyone has inherent dignity and the right to
have their dignity respected and protected." In so far
as the
right to dignity may be regarded as a socio economic rights, the
absence of proper and adequate sanitation effects the
dignified
existence of those children.
[43]
s 24.
[44]
Section 24(b) of the Constitution. It implies that one generation
must hand the planet over to a new generation in a better condition
than before. Weiss EB. "Our right and obligations to future
generations for the environment" 1990 The American Journal
of
International Law 200.
[45]
Federation of Governing Bodies for South African Schools v MEC for
Education, Gauteng and Another2016 (4) SA 546 (CC) para 1-3.
[46]
Mr Maleka displayed reluctance to accept that a structural interdict
may be an appropriate remedy but persisted with the argument
that
compensation for constitutional damages is the appropriate remedy.
[47]
In this case the parents of children attending school in particular.
[48]
1996 (1) SA 984
(CC). Fose supra para 95.
[49]
Para 229.
[50]
Telematrix {Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 12.
[51]
A claim for punitive damages is against public policy and foreign to
South African law. In Jones v Krok
[1994] ZASCA 177
;
1995 (1) SA 677
(AD) 696C-H. The
claim for compensatory damages is not a delictual claim based on
fault. Neethling J Potgieter JM Neethling-Potgieter-Visser
Law of
Delict 6th ed Lexisnexis Durban (2010) 123-124.
[52]
Modderklip Squatters , Greater Benoni City Council; President of the
Republic of South Africa v Modderklip Boerdery (Pty) Ltd
(AGRI SA
and Legal Recources Centre, Amici Curiae)
2004 (6) SA 40
(SCA) 62;
Darson Construction (Pty) v City of Cape Town
2007 (4) SA 488
(CPD)
509-510 ; Monie/ Holdings (Pty) Ltd v Premier of Limpopo Province
(2007] 3 SA All SA 410 (T) 421-422; Fose supra para 97-103.De
Vos P
(Ed) South African Constitutional Law in Context Oxford University
Press Goodwood (2014) 410-412. City of Johannesburg
Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another
2011 (4) SA 337
(SCA) para70. Courts are also under a general
obligation to develop the common law under section 39(2) of the
Constitution if
the common law is deficient. Carmichele v Minister
of Safety and Security (Centre for Applied Legal Studies
Intervening)
2001 (4) SA 958
(CC) para 44-45; 57.
[53]
With specific reference to parents and learners attending rural
schools in Limpopo without adequate and safe toilet facilities.
National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
2000 (2) SA 1
(CC) para 82.
[54]
It cannot serve as a substitute for an unsuccessful common law
remedy.
[55]
Ex Parte Nell 1963 (1) SA 754 (A).
[56]
JT Publishing v Minister of Safety and Security
[1996] ZACC 23
;
1997 (3) SA 514
(CC)
para15.
[57]
It would necessitate fresh action and unnecessary costs to be
incurred to institute action in due course to enforce t hose rights.
[58]
On 3 October 2017.
[59]
Biowatch Trust v Registrar Genetic Resources and Others
2009 (6) SA
232
(CC) para 16; 19-20