Komape and Others v Minister of Basic Education and Others

• Jurisdiction: South Africa
• Citation: 2020 (2) SA 347 (SCA)

Komape and Others v Minister of Basic Education and Others
2020 (2) SA 347 (SCA)

2020 (2) SA p347

Citation	2020 (2) SA 347 (SCA)
Case No	754/2018; [2019] ZASCA 192
Court	Supreme Court of Appeal
Judge	Navsa JA, Leach JA, Tshiqi JA, Wallis JA and Mbha JA
Heard	December 18, 2019
Judgment	December 18, 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.

Flynote : Sleutelwoorde

Delict — Specific forms — Emotional shock — Claimant parents seeing body of son in toilet in which he drowned — Claimant siblings hearing of manner of death.

Headnote : Kopnota

When 5-year-old Michael Komape went to the pit toilet at his state school, the seat collapsed, causing him to fall into the pit below, where he drowned (see [9] and [11]).

Michael's mother and father and eldest sister (first – third appellants) later saw his body in the pit, while his eldest brother (fourth appellant) and three other siblings heard of the manner of his death (see [12] – [14]).

Everyone, it was agreed, thereafter incurred post-traumatic stress disorder; and in addition Michael's parents developed a depressive disorder (see [52]).

They later instituted claims in the High Court for damages for emotional shock and grief, as well as for constitutional damages (see [1], [15], [17], [32] – [33] and [45]). These claims were denied, and the appellants appealed to the Supreme Court of Appeal (see [20] and [22]).

There a firm of attorneys that was representing a class of plaintiffs in a separate action against a company applied for admission as a friend of the court. The class comprised families claiming damages stemming from the death of their children by bacterial poisoning.

Held

•

The application for admission as an amicus should be dismissed (see [2]). This on the bases that the firm had a financial interest in the matter (should the firm have established the claim it advanced, it would bind the court in the class action, likely result in that court awarding greater damages, and the firm receiving a higher contingency fee) (see [4] – [6]); certain of the firm's submissions would not be useful (the claim the firm asserted was not made in the High Court, and the Supreme Court of Appeal was bound to determine only the claims made there) (see [7]); and certain other submissions did not differ from submissions made by the appellants and the admitted amicus curiae (see [8]).

•

The High Court had erred in dismissing the claims for emotional shock on the basis that a requirement of such claims — psychiatric injury — had not been proved (see [25] – [27] and [47] – [48]).

•

It was unnecessary to develop the common law to recognise a claim of damages for grief not arising from a psychiatric injury (the family's grief was associated with the recognised psychiatric injuries underlying their emotional shock claims, and could be compensated for in the damages awards for those claims) (see [33] – [35], [40], [45] and [49] – [50]).

•

The claim for constitutional damages for breach of appellants' rights to a peaceful family life should be dismissed (see [57] and [63]). There was no authority for such an award in these circumstances (no financial loss; award of damages for psychiatric injury) (see [58]); it could not be justified as a means to bring to the state's attention the need to improve sanitation facilities (this had been done) (see [59]); nor, given the circumstances of the country

2020 (2) SA p348

and the case, and despite foreign authority, was such an award appropriate as a mark of displeasure at the state impairing constitutional rights (see [60] – [61] and [63]).

•

The High Court's refusal to grant a declarator that the court had breached its constitutional obligations, had been an appropriate exercise of the court's discretion (see [64] and [67]): the request for the declarator was based on the court's obligation to declare invalid any unconstitutional policy — but it had not been policy to provide poor sanitation (see [64] – [65]); the High Court had rebuked the state for its failure of provision, and this would hopefully move it to action (see [65]); the declaration would serve no useful purpose (the state was aware of the problem and its obligations) (see [66]); and nor, owing to its lack of specificity, would it be appropriate (see [66]).

Ordered, inter alia, that the High Court's order be altered to uphold the claim for emotional shock (see [73]).

Cases cited

Southern Africa

Barnard v Santam Bpk1999 (1) SA 202 (SCA): referred to

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk1973 (1) SA 769 (A): referred to

Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd2019 (4) SA 331 (CC) (2019 (6) BCLR 661; [2019] ZACC 15): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): dictum in paras [35] – [36] applied

De Vos, Ex parte 1953 (2) SA 642 (SR): referred to

Ex parte De Vos 1953 (2) SA 642 (SR): referred to

Ex parte Institute for Security Studies: In re S v Basson2006 (6) SA 195 (CC) (2006 (2) SACR 350; [2005] ZACC 4): referred to

Fose v Minister of Safety and Security1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): applied

Hing and Others v Road Accident Fund2014 (3) SA 350 (WCC): referred to

Mahambehlala v MEC for Welfare, Eastern Cape, and Another2002 (1) SA 342 (SE) (2001 (9) BCLR 890): referred to

Mbanga v MEC for Welfare, Eastern Cape, and Another2002 (1) SA 359 (SE) (2001 (8) BCLR 821): referred to

Mbhele v MEC for Health for the Gauteng Province [2016] ZASCA 166: referred to

MEC, Department of Welfare, Eastern Cape v Kate2006 (4) SA 478 (SCA) ([2006] 2 All SA 455): dictum in para [28] applied

Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another2016 (1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34): referred to

Minister of Health and Others v Treatment Action Campaign and Others (No 2)2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15): referred to

Minister of Police v Mboweni and Another2014 (6) SA 256 (SCA) ([2014] 4 All SA 452; [2014] ZASCA 107): dictum in para [21] applied

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae)2004 (6) SA 40 (SCA) (2004 (8) BCLR 821; [2004] 3 All SA 169): referred to

2020 (2) SA p349

National Director of Public Prosecutions and Another v Mohamed NO and Others2003 (4) SA 1 (CC) (2003 (1) SACR 561; 2003 (5) BCLR 476; [2003] ZACC 4): referred to

National Treasury and Others v Opposition to Urban Tolling Alliance and Others2012 (6) SA 223 (CC) (2012 (11) BCLR 1148; [2012] ZACC 18): dictum in para [13] applied

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae)2005 (5) SA 3 (CC) (2005 (8) BCLR 786; [2005] ZACC 5): referred to

Regan v Williamson[1976] 1 WLR 305 (QB): referred to

Road Accident Fund v Sauls2002 (2) SA 55 (SCA): referred to

Union Government (Minister of Railways and Harbours) v Warneke1911 AD 657: dictum at 674 applied

Waring & Gillow Ltd v Sherborne 1904 TS 340: referred to.

Australia

Jaensch v Coffey(1984) 155 CLR 549: referred to

Tame v New South Wales[2002] HCA 35: referred to.

Canada

Mason v Peters (1982) 39 OR (2d) 27 (Ont CA): referred to

Odhavji Estate v Woodhouse[2003] 3 SCR 263: referred to

Vancouver (City) v Ward[2010] 2 SCR 28: referred to.

England

Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 311 (HL) ([1991] 4 All ER 907): referred to

Bourhill v Young[1943] AC 92 (HL (Sc)) ([1942] 2 All ER 396): referred to

Kirby v Redbridge Health Authority [1994] PIQR Q1 (QB): referred to

McLoughlin v O'Brian[1983] 1 AC 410: referred to

Vernon v Bosley (1)[1997] 1 All ER 577 (CA): referred to

White v Chief Constable of South Yorkshire[1999] 1 All ER 1 (HL): referred to.

Ireland

Conway v Irish National Teachers Organisations[1991] 2 IR 305: referred to

Kennedy v Ireland[1987] IR 587: referred to.

New Zealand

Dunlea v Attorney-General[2000] 3 NZLR 136: referred to

Liston-Lloyd v Commissioner of Police[2015] NZHC 2614: referred to

Van Soest v Residual Health Management Unit [2000] 1 NZLR 179: referred to.

Case Information

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.

An appeal against a decision of the Limpopo Division.

Order

A.

The appeal succeeds to the extent that the order of the court a quo is altered as follows:

2020 (2) SA p350

1.

The words 'the claim is dismissed' in para 1 of the order are deleted and substituted with the following:

'(a)

In respect of the claim for emotional shock and grief, the first and second defendants are ordered to pay the following amounts, jointly and severally, the one paying the other to be absolved:

(i)

R350 000 for Mrs Komape;

(ii)

R350 000 for Mr Komape;

(iii)

R200 000 for Ms ML Komape;

(iv)

R200 000 for Mr Lucas Komape;

(v)

R100 000 for each of the minor children Maria, Onica and Moses Komape.'

2.

The words 'Claim A' and 'The claim for grief is dismissed' are deleted from para 2 of the order.

3.

Paragraph 3.1 of the order is deleted and substituted with the following:

'3.1

The claim for future medical treatment in respect of the minors Maria, Onica and Moses Komape succeeds. The...