Author: Imraan Mahomed - Practice Area Lead, Employment/Labour Law
In mid-December 2019, the Supreme Court of Appeal handed down judgment in Komape & Others v Minister of Basic Education & Others. We are all familiar with the tragic story of the untimely death of five year old Michael Komape who fell to his death in a pit toilet at his school.
After summarising the facts of the family ordeal and dealing with the legal questions at a high level, I want to interrogate, the question of how our existing law can be used to hold government officials responsible for the inaction and negligence as was shown in this case and which is not currently being done. Georgetown Law in Washington D.C have this mantra: “Law is but the means, justice is the end”.
Our Constitutional dispensation is premised on accountability and yet we see so little of this across the public sector which is the largest employer in the country. A public service which is well paid and so often under performs with little to no repercussion for levels of mediocrity and at times apathy (as was demonstrated in this case). It is now time to hold government employees responsible for their conduct as employees and the political party must hold its officials to account separately under its own structures. The courts must simply oversee the machinery of accountability within the workplace and that of the political organisation which deploys MEC’s; MMC’s; Mayors and other political functionaries. The bonds of accountability in SA are very weak. Disgraced former social development minister Bathabile Dlamini, for instance, in November 2019 was appointed the new chairperson of the Social Housing Regulatory Authority interim board. The list is a long one – government employees dismissed by department X only in days ahead are to be appointed by department Y or at some other State Owned Entity or Agency. This phenomenon could be arrested if the bonds of accountability were strengthened and this is where the courts can find some area to play along the margins. In the private sector, banks for instance have a system called REDS – which effectively precludes the appointment of an employee dismissed by another financial institution where the person was dismissed for a fraud related offence. The State should have a similar form of registry. The phenomena of lifetime employment within the State apparatus must come to an end.
These are the sorry facts leading up to the death of young Michael Komape. Michael attended the Mahlodumela Lower Primary School, in a rural area in the Limpopo province. The toilets provided for learners at the school were in an appalling and disgusting condition. For years complaints on behalf of the school had been addressed to the provincial education authorities who had been requested to improve the pit latrines. There had been no response. Issue 1: Who received the complaints at the province and why was it not actioned by the province upon receipt? What was the internal protocols within the provincial department in dealing with complaints of this sort? Who in the province was appointed to liaise with the school?
Eventually, in an attempt to overcome the problem, a local handyman had been employed some five years previously to construct and install an elementary platform and seating structure over the pits. But it had not lasted well and due to corrosion, wear and tear, by January 2014 the toilets were in an abysmal condition. The evidence established that it would have cost as little as R500 per seat for structurally sound seats to have been built, the education authorities failed to do so. This lethargy cost young Micheal his life. Put directly, the death of Michael Komane is at the hands of the ANC lead government in the province of Limpopo – a sad indictment on the organisation which carried our aspirations in the 90’s.
By October 2013, the Mahlodumela Lower Primary School had been placed on a list of schools scheduled to receive sanitation infrastructure support. Issue 2: What was the report back to the school and what was the school to do in the interim?
Unfortunately, no work had taken place before the tragedy that took place several months later.
On 20 January 2014, when Michael went unattended to the toilets to relieve himself, the seat collapsed and pitched him into the pit. Issue 3: Why was Michael and other children allowed to go to the toilet unattended, when the school was aware of the abysmal conditions? Why was there no safeguards put in place at the school? How was the Principal going to protect the children under his care?
When, later, Michael could not be found, enquiries were made to his home to ascertain if he was there. Issue 4: Why could a five year old leave the school on his own with no supervision?
His mother, Mrs K, learning that the school authorities were looking for him, rushed to the school in panic. She was there when, eventually, Michael’s body was found in the pit below the toilet, the seat of which had collapsed. He had drowned, and was lying in the filth in the pit with hand outstretched as if seeking help. The school staff would not let Mrs K remove him, despite her belief that he could still be saved.
His body was left in the pit for hours, covered in muck and human faeces until, eventually, it was removed. Issue 5 - What caused the delay in medical and rescue services? Could EMS have hastened to the scene and saved the young boy?
Such an undignified death in a country that elected the ANC in 1994 to restore human rights and put in place a Constitution which was to entrench basic human rights, so as to break with the unsympathetic, repressive and brutal Nationalist Party system.
The lower court found that negligence was established against the Minister of Basic Education and other government and school officials. The SCA was asked to award damages for emotional shock or constitutional damages, which the family argued they should be entitled to in accordance with the Constitution. The SCA found that was a basis for a claim for emotional shock and trauma and an award of R1.4 million was made in respect of the damage suffered by the Komape family for emotional shock. The Court declined to award constitutional damages on the basis of the breach of their constitutional rights, and to bring home to the education authorities the need to provide adequate sanitation for children at schools. The full bench of the SCA accepted that, in principle, that where, persons have been compensated for their damages suffered by reason of an injury, physical or psychiatric, any further damages would effectively amount to a punishment for breach of a right for which compensation has already been granted. The SCA found that in this case, it would not be justified to bring home to those in authority the necessity of dealing with the appalling state of sanitation facilities provided at schools. The documentation available showed that this had been brought home to them time and again. But, who was being held accountable?
The SCA quoted with approval the judgment of Ackermann J in the landmark judgment of Fose where the learned judge said:
‘ I agree with the criticisms of punitive constitutional damages referred to . . . above. Nothing has been produced or referred to which leads me to conclude that the idea that punitive damages against the government will serve as a significant deterrent against individual or systemic repetition of the infringement in question is anything but an illusion. Nothing in our own recent history, where substantial awards for death and brutality in detention were awarded or agreed to, suggests that this had any preventative effect. To make nominal punitive awards will, if anything, trivialise the right involved.
For awards to have any conceivable deterrent effect against the government they will have to be very substantial and, the more substantial they are, the greater the anomaly that a single plaintiff receives a windfall of such magnitude. And if more than one person has been assaulted in a particular police station, or if there has been a pattern of assaults, it is difficult to see on what principle, which did not offend against equality, any similarly placed victim could be denied comparable punitive damages. This would be the case even if, at the time the award is made, the individuals responsible for the assaults had been dismissed from the police force or other effective remedial steps taken.
 In a country where there is a great demand generally on scarce resources, where the government has various constitutionally prescribed commitments which have substantial economic implications and where there are “multifarious demands on the public purse and the machinery of government that flow from the urgent need for economic and social reform”, it seems to me to be inappropriate to use these scarce resources to pay punitive constitutional damages to plaintiffs who are already fully compensated for the injuries done to them, with no real assurance that such payment will have any deterrent or preventative effect. It would seem that funds of this nature could be better employed in structural and systemic ways to eliminate or substantially reduce the causes of infringement”.
The family also placed emphasis upon the arbitration award in the Life Esidimeni case which involved the death of numerous patients who were moved from a properly equipped medical facility to various institutions incapable of meeting their needs. The arbitrator, the former DCJ Moseneke, recognised that the rights of the families of those who had died had been violated and awarded substantial compensation as constitutional damages. As the award does not have binding force of judicial precedent, and because the facts of that case were substantially different to the Komape case which was to be decided on its own peculiar circumstances the SCA was not moved on awarding constitutional damages based on the Life Esidimeni award.
The SCA made the point, that the court a quo in its judgment castigated the education authorities for failing to provide proper toilet facilities at schools, stating that those which had been provided were not fit for human use and that it was clear that ‘due to lack of political will no effort was made to better the situation at schools of which the [MEC, Department of Education] was well aware’. This stinging rebuke, which the SCA endorsed, so said the SCA “will hopefully in itself move those in authority to take action to improve the situation”. Really?
Our labour laws create enough room to hold those responsible for Michael’s death accountable. On each issue raised above our employment law creates a basis for attack against the inept, non-performing, lassie faire staffer who failed to take action to prevent the untimely death of an aspirant young boy from Limpopo.
Relying upon Fose as a backdrop and the line of separate authority of awarding personal cost orders against State actors who engage in litigation or are the protagonists to litigation, the civil courts need in their analysis of cases such as these to call upon the State to also provide a response on what, if any action, was taken in the sphere of the workplace to hold the staffer to account – by doing so, the spirt of the Constitution would be so developed to inculcate a culture of accountability within the public service which we all so desire (this can simply be done by way of an amendment to existing Rules of Court).
Also, as the SCA was sceptical about the effectiveness of a structured interdict against the department in this case and found that the authorities were already well aware of the problem at the level of the schools and their obligation to overcome it. Thus far said the SCA the authorities seem to have lacked the capability to do so, but that will not be overcome by a declaratory order, so it was held. Moreover the declaratory order sought, namely, that the respondents had breached various sections of the Constitution would not identify the conduct which is the subject of the order nor identify the respects in which constitutional obligations were breached. It would thus be inappropriate it was held to issue a declaratory in such indeterminate terms. The SCA faltered in my view on this aspect as it should have at the least referred the matter to the Public Service Commission to investigate. The very purpose of the PSC is to promote the constitutionally enshrined democratic values and principles throughout the Public Service by-
investigating, monitoring, evaluating the organisation and administration, and personnel practices;
proposing measures to ensure the effective and efficient performance;
issuing directions with regards to personnel procedures relating to the recruitment, transfers, promotions and dismissals;
advising on personnel practices; and
reporting on its activities.
Afterall, the PSC is a constitutionally created and mandated Organ of State. It could be used more tactfully by our courts and through this, I respectfully submit that at least the spirit of the late Michael Komape will live on and this would be his contribution to the continued struggle for a better life for all.
May his soul rest in peace.
Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com