The SCA heard yesterday that the death of Michael Komape (5) in a pit toilet at his school was ‘the ultimate betrayal of the constitutional promise’.

According to Mark Heywood in a lengthy Daily Maverick account of yesterday’s hearing to seek damages for his death, these were the words used in their heads of argument by SECTION27’s Advocates Vincent Maleka SC, Adila Hassim and Nikki Stein.

And Judge Mahomed Navsa set the tone at the start of the hearing when he commented: ‘I can’t think of a death more undignified.’

In April 2018, when Judge Gerrit Muller of the Limpopo High Court (Polokwane) handed down his judgment, he also castigated the government for what he termed the ‘flagrant violations of rights’ of Michael and other learners. But, despite this, he dismissed the Komapes’ claims for general damages due to psychological injury, which he said had not been proved.

He also dismissed their claims for constitutional damages on the grounds that this would have ‘over-compensated them’.

Instead, he ordered the Limpopo government to fix toilets and report on progress to the court (what lawyers call a structural order) – an order it has since then manifestly failed to comply with and which Muller has refused to deal with until the conclusion of the SCA appeal.

Navsa made no bones about his disagreement with Muller's judgment: ‘I was taken aback when I read the judgment and thought: "What’s going on here?’’. Why, if the state had conceded that the Komapes had suffered emotional and psychological harm, had the judge not awarded damages?’ he asked.

According to Heywood's DM commentary, all five judges – Navsa, Boissie Mbha, Zukisa Tshiqi, Eric Leach and Malcolm Wallis – seemed in no doubt that the Komapes had suffered terrible harm. The judges’ outrage at the state of school sanitation was also apparent.

Navsa said: ‘I don’t think a single one of us here (pointing to his fellow judges) would have allowed our children to use these toilets,’ which he described as a ‘system that no decent, educated, human being would want to use’.

In addition to damages for emotional shock, SECTION27 had asked the court to compensate the Komapes for the intense ‘grief’ caused by the uniquely horrible circumstances of Michael’s death. As grief is not recognised in the common law of damages, SECTION27 asked that the SCA bridge the ‘chasm between the values promoted in our law of delict and those promoted in terms of our Constitution’.

If the court couldn’t do that, SECTION27 asked the SCA to make an exceptional award of constitutional damages, just as retired Deputy Chief Justice Dikgang Moseneke had done in his award for the Life Esidimeni victims.

Full Daily Maverick report