Komape and Others v Minister of Basic Education and Others

• Jurisdiction: South Africa
• Judge: Navsa JA, Leach JA, Tshiqi JA, Wallis JA and Mbha JA
• Judgment Date: 18 December 2019
• Citation: 2020 (2) SA 347 (SCA)
• Docket Number: 754/2018 [2019] ZASCA 192
• Hearing Date: 18 December 2019
• Counsel: V Maleka SC (with A Hassim and N Stein) for the appellants. MS Phaswane (with K Ramaimela) for the respondents. K Hofmeyr (with H Cassim and A Armstrong) for the amicus curiae, Equal Education.
• Court: Supreme Court of Appeal

Leach JA (Navsa JA, Tshiqi JA, Wallis JA and Mbha JA concurring):

[1] On 20 January 2014 Michael Komape (Michael), who was at the time just 5 years of age, suffered the most appalling and undignified death when he fell into a pit latrine at his school in Limpopo, and drowned in its sludge and filth. In due course the appellants, being Michael's parents and siblings, instituted action in the Limpopo Division of the High Court claiming damages they alleged they had sustained arising out of his death, including separate claims for emotional shock and grief. Their claims succeeded in part but, in the main, were dismissed. They appealed to this court with leave of the court a quo.

[2] I record at the outset that Equal Education, a registered non-profit and public benefit organisation, also appeared as amicus curiae and supported certain of the appellant's claims. The application of Richard Spoor Inc (RSI), a firm of attorneys, to intervene as a further amicus was dismissed at the commencement of the appeal. In dismissing that application, we indicated that our reasons would be given in our judgment in the appeal. They are set out in the paragraphs below.

Leach JA (Navsa JA, Tshiqi JA, Wallis JA and Mbha JA concurring)

RSI's application to intervene

[3] Rule 16 of the rules of this court, which is essentially the same as rule 10 of the Rules of the Constitutional Court, requires a party applying to be admitted as an amicus to briefly describe its interest in the proceedings and the position it intends to adopt; to set out the submissions it wishes to advance and their relevance to the proceedings; and its reasons for believing they would be useful to the court and different to those of the other parties. In attempting to comply with this requirement, RSI explained that it is the class representative in a class action against a large South African company, Tiger Brands, on behalf of the families of 86 children who were amongst more than 200 persons known to have died in an outbreak of listeriosis. That claim, like the present appeal, has attracted nationwide attention. In both that matter and the present, so RSI submitted, the common law needs to be developed in line with the values enshrined in our Constitution, so as to provide equitable redress for close family members of children who are wrongfully killed. It averred that its submissions in this regard differed from those of the other parties and that it would therefore be of assistance to this court.

[4] Despite certain similarities to the present case, there were insurmountable obstacles to admitting RSI as an amicus. In National Treasury v Opposition to Urban Tolling Alliance [1] a political party, the Democratic Alliance, sought to intervene in interdict proceeding brought by the respondents to prevent the appellants implementing a tolling system on certain roads in Gauteng. In refusing its application to be an amicus, Moseneke DCJ stated the following:

'I do not propose to revisit the ideal attributes of a party that seeks to be admitted as a friend of the court. It is sufficient to observe that an amicus must make submissions that will be useful to the court, and which differ from those of the parties. In other words, the submissions must be directed at assisting the court to arrive at a proper and just outcome in a matter in which the friend of the court does not have a direct or substantial interest as a party or litigant. This does not mean an amicus may not urge upon a court to reach a particular outcome. However, it may do so only in the course of assisting a court to arrive at a just outcome and not to serve or bolster a sectarian or partisan interest against any of the parties in litigation.' [Emphasis added.] [2]

[5] RSI's application did not pass the threshold of this test for a number of reasons. First, an amicus should be objective and not seek to advance an interest of its own. That is not here the case. Mr Spoor, who appeared on behalf of RSI, informed us from the bar that he and his firm were acting on a contingency basis in the claim brought against Tiger Brands. That being so, despite their professed intention to be acting in the present matter solely in the interest of developing the common law, there can be no doubt that they enjoyed a financial interest in attempting to

Leach JA (Navsa JA, Tshiqi JA, Wallis JA and Mbha JA concurring)

persuade this court that damages for a claim thus far unrecognised in this country, should be awarded. Should such a claim be established, the beneficiaries of the class action would probably receive a substantially higher payment than would otherwise be the case, and RSI's contingency fee be concomitantly increased. RSI thus also had its own personal financial interest at stake. For that reason alone, it would be inappropriate to admit RSI as an amicus.

[6] Furthermore, in the National Treasury case, the Constitutional Court refused to admit the Democratic Alliance as amicus as its 'overall partisan position is better suited to a litigant than a friend of the court'. [3] This case is even more extreme as RSI is indeed a litigant who seeks in another action to have a different court uphold its argument on an extension of the common law. If this were to be allowed, and RSI admitted as an amicus, it would steal a march on its opposition, Tiger Brands, whose contrary voice in that matter would not be heard. In this way it could obtain a precedent, binding on the High Court which hears its matter, to the obvious prejudice of its opposition. This is both opportunistic and unfair, and for policy reasons should not be allowed. It is inappropriate to allow RSI to advance its own litigious interest under the guise of being an amicus.

[7] The submissions that RSI proposed advancing were in any event unlikely to be of any assistance. As set out below, the appellants' claim against the respondents in this matter is founded on Aquilian liability in which they seek to recover damages sustained by reason of the respondents' negligence. RSI's contention, however, is essentially that the appellants have misconstrued their remedy and ought rather to have relied upon the actio iniuriarum, a claim based not on negligence but on a defendant's intention to injure. To that extent, RSI sought not to support the appellants but, rather, to make out a separate cause of action on their behalf, a cause of action which has not been pleaded, in respect of which the necessary evidence was not led at the trial and was thus not on record before this court on appeal. Accordingly RSI's submissions in that regard, albeit different from those of the parties, would be of no assistance to this court to determine what we are bound to determine in respect of the pleaded claim and the parties' evidence. The argument in respect of the actio iniuriarum is simply not an issue before us, and the question of intent upon which it would have been founded was not explored in the court a quo.

[8] Finally, but no less importantly, apart from suggesting that the appellants ought to have sought to establish liability under a different remedy, RSI's argument in regard to the policy considerations motivating an extension of the common law and the award of constitutional damages was essentially the same as counsel for both the appellants and Equal Education intended presenting. On this aspect as well it was thus

Leach JA (Navsa JA, Tshiqi JA, Wallis JA and Mbha JA concurring)

inappropriate to allow RSI to burden us with argument that was superfluous. For these reasons RSI's application for admission as amicus curiae was dismissed.

The facts

[9] I turn then to consider the background relevant to the issues raised on appeal. Michael attended the Mahlodumela Lower Primary School, in a rural area of 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. 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.

[10] Although 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. By October 2013 the Mahlodumela Lower Primary School had been placed on a list of schools scheduled to receive sanitation infrastructure support. Unfortunately, no work had taken place before the tragedy that took place several months later.

[11] It seems that on 20 January 2014, when Michael went unattended to the toilets to relieve himself, the seat collapsed and pitched him into the pit. When, later, he could not be found, enquiries were made to his home to ascertain if he was there. His mother, Mrs Komape, 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 Komape 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.

[12] Understandably, the terrible circumstances of Michael's death haunted his parents. Mrs Komape testified how she had fainted upon seeing Michael's body in the pit and that she thereafter experienced nightmares during which she was haunted by his hand...