The pits: Komapes get no cash; R27bn to fix loos
Court dismisses compensation bid but orders department to fix infrastructure
The Basic Education Department needs an estimated R27-billion if it is to fix collapsing school infrastructure and eradicate thousands of pit toilets that endanger the lives of South Africa’s children.
The requirements were revealed to Times Select after the Polokwane High Court in Limpopo issued a non-negotiable order against the department: conduct a thorough audit of the number of pit toilets and eradicate them once and for all.
In a scathing judgment delivered on Monday, Judge Gerrit Muller slammed the department for its “reprehensible” lack of understanding of basic human rights of South Africa’s pupils.While the department has until July 30 to come up with its plan on how to replace pit toilets, it is confident its plan will be ready within two weeks. The order follows President Cyril Ramaphosa, in March, instructing the department to come up with a strategy to do away with such toilets.
His instruction came after the death of five-year-old Lumka Mketwa, who drowned when she fell into a pit toilet while at Luna Primary School in Bizana in the Eastern Cape.
The department has however admitted it has no idea how long it will take to replace the country’s nearly 9,000 school pit toilets or whether it will get the necessary funding, which is its entire annual budget, from Treasury.Muller was presiding over a R2-million constitutional damages claim against the department by the family of five-year-old Michael Komape, who drowned in a pit toilet on his birthday at Mahlodumela Lower Primary School near Seshego, Limpopo.
He died after the toilet collapsed while he was relieving himself during a lunch break in 2014.
Komape’s family had sought compensation for their grief, shock, trauma, pain and suffering.
Muller ruled that the case was not only about Michael and his family, but that the “case is also about the plight of learners attending schools in rural areas … who are without basic sanitation at schools administered by the department.“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.”
He said he was not persuaded that punitive damages could be claimed as appropriate relief and that, if such a claim were successful, the Komape family would be over-compensated, on the one hand, with the interests of society not being served on the other hand.
Muller said that “no convincing evidence” emerged that punitive damages would serve to protect the rights violated or that such an award would act as a deterrence to prevent future violations by the department.
The judge did order that Michael’s siblings receive R6,000 each for future medical treatment such as trauma counselling.
Earlier in his ruling, Muller criticised the report of the Komapes’ expert witness – a clinical psychologist – which he said fell “dismally short” in its attempts to explain grief.
“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 short, the expert report simply makes no reference to grief.”He said: “After a careful consideration of all the facts ... 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.”
Muller slammed the department for its “flagrant violation” of pupils’ rights that could not be allowed to continue.
“History has shown the defendants [the department] lack the will to act in the interest of learners. The failure of the department 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 a testament to a complete lack of understanding of basic human rights of learners are without question reprehensible.”Faranaaz Veriava, who heads the education project of Section 27, which represented the Komape family, said while they were happy with certain aspects of the ruling they were disappointed in others.
“We are happy that the judge had ruled that government was failing in its constitutional obligations to provide learners with safe and adequate sanitation at schools and acknowledged that these failures resulted in Michaels death.”
But she believed the judge erred in not awarding the family compensation for the constitutional damages they had suffered. Section 27 was considering appealing that aspect of the judgment.
She said last month the department had revealed there were 2,500 pit toilets in Limpopo schools, while nationally there were 8,679.
Daniel Linde, Equal Education’s law centre deputy director, said while on one hand the judgment was progressive and forward-looking, it did not do justice to a family’s suffering.
“We believe that it is a real injustice for the Komape family.”Linde said the positive side of the judgment was that the judge had fashioned a remedy aimed at fixing sanitation issues at school.
“The judge recognises in his order that pit toilets infringe on learners’ rights to education and their right to dignity, that there has to be relief to address this.”
Department spokesperson Elijah Mahlangu said the judgment was a “carbon copy” of the president’s directive.
"The Department has been working on the plan for the past month on the presidents orders. We will have the information which the judge requires within the next two weeks.”He said it would require a lot of money to implement.
“Just addressing of Limpopo school infrastructure issues and backlogs will require an estimated R3-billion, and Limpopo is not even our biggest province. If you use this figure and multiply it by nine you will have a reasonable estimation as to what the figures will be, which is an estimated R27-billion.”
He said this was the estimation “because one cannot just fix toilets and not other infrastructure at schools which are in bad shape”.
Mahlangu said the time frame on eradicating pit toilets depended on how much money they obtained from Treasury.
"We believe this court order will help us obtain that money which will have to be requested as additional funding."
He said eradicating poor infrastructure would be up to the department and the Public Works Department, who would have to appoint the necessary construction companies.