Transforming the Law on Psychiatric Lesions

• Author: Zitzke, E.
• Pages: 253-271
• Published date: 29 September 2021
• DOI: https://doi.org/10.47348/SLR/2021/i2a4
• Citation: (2021) 32 Stell LR 253
• Date: 29 September 2021

https://doi.org /10.47348/ SLR/2 021/i2a4

253

TRANSFORMING THE LAW ON PSYCHIATRIC

LESIONS

Emile Zitzke

LLB LLD

Senior Lecturer, University of the Witwatersrand*

Abstract

In this article, I trace th e development in the law of delict of recog nising

general damages claims on acco unt of psychiatric lesions w ith the aim of making

suggestions on how to tra nsform it. Using the tragic case of Micha el Komape

as a springboard for the discu ssion, I argue that even th ough the Supreme

Court of Appeal has rece ntly brought clarity on the law on psychiatric lesio ns,

more transformat ive work still needs to be done. More specically, this article

contends that the const itutional right to bodily and ps ychological integrit y

might require us to rethink the high evide ntiary threshold that c ourts have set

for proving the element of harm in ca ses related to psychiatric lesions. I argue

that this can be done in at least th ree ways: First, by very cautiou sly bringing

about a development that w ould involve protecting victims of p sychological

harm whose expert w itnesses are shown to be ina dequate despite all other

facts indicating the exi stence of a psychiatric lesion. Secondly, by lowering th e

requirement of “recognise d psychiatric lesion” to “grievous mental injury”, in

line with similar arguments ma de in England. Thirdly, and most controversially,

by acknowledging that p erhaps the time has come for ou r law to recognise

claims for so-called “grie f in the air”.

Keyword s: delict; psychiatric lesions; psychological injurie s; compensation

for grief; common-law develop ment of common-law development of delictual

damages delictual damages; action for pa in and suffering

1 Introduction

When I read the facts of the High Court judgment in Komape v Minister

of Basic Education1 (“Komape”) for the rst time, I cried.2 Michael Komape,

a ve-year-old boy, fell into a poorly constr ucted and maintained pit toilet

*An earlier version of this article was presented at a seminar on the development of the law of delict held

at s 27 in Braamfont ein on 24-02-2020 where I received helpful feedback on my arguments

Section 27 should be commended for the outstand ing work that they do, as is evident from the mai n

case und er discussion I am also thankf ul to And rea Weideman, Brian Prell er, Olwethuthando Ndlovu,

Gabrielle Berkowitz and Errin Brits for c omments on an earlier draft of this pape r Obviously, none of

them are the fa ctual or legal caus e of any mistakes

1 Komape v Ministe r of Basic Educatio n 2018 JDR 0625 (LP)

2 My us e of emotive l anguage in th is piece is a styli stic dev ice that aims to call to attent ion the need

for lawye rs to take emot ions and mental h ealth ser iously, as t he law f ails to engage wit h and respond

appropriat ely to people’s emotions by ten ding to rephrase references to a ny outpou ring of emotion i n

objective ter ms

(2021) 32 Stell LR 253

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https://doi.org /10.47348/ SLR/2 021/i2a4

at school and drowned in horric circ umstances.3 The state knew ab out the

toilet’s defective state and had the money to x it but failed to do so for some

inexplic able reaso n.4 His mother found his outst retched little arm re aching

to the sky for help f rom his death pit.5 She was so traumatised by the event

that she could no longer work. Michael’s broader nuclear family was also

emotion ally scarred as a resu lt of the ordeal that t hey had suffere d.6 However,

after Michael’s death, no one f rom the Department of Education came to

express their regret about wh at had happened.7

The family claimed damages from the state for Michael’s funeral expenses,

his mother’s lost i ncome a nd t he cost of psychological treatment for the

family. These claims for patrimon ial harm were essentially u ncontested

by the state.8 The family also claimed general damages on account of t heir

so-called recognised psychiat ric lesions (“claim A”).9 An additional sum of

damages was claimed for a separate he ad of ha rm labelled “grief” (“claim

B1”). 10 In the alternative to the gr ief claim, the family claime d constitutional

damag es (“claim B2”).11 Claim B wa s for the amount of R 2 million. For clai m

A, the state conceded to the substantive elements of delict ual lia bility as

traditionally set out at common law,12 namely har m, conduct, wrongf ulness,

fault and causation.13 The only disputed issue on claim A related to the

quantum of damages for the non-pat rimonial harm.14 Claims B1 and B2 were

substantively contested by the state,15 and it argued that the South African law

of delict does not re cognise grief as a for m of harm. It also contende d that the

constitutional da mages claim should have been disallowed.

In p art 2 below, I will briey recapitulate how the High Court judgment

dismally failed to respond to Michael’s outstretched hand in awarding a

quantum of zero for claim A and disallowing claims B1 and B2. This will be

done in an attempt to expose some of the aws in having a strict evidence-

obsessed law on psychiatric lesions. In Part 3, I wi ll show how the Supreme

Court of Appeal made great strides towards holding the state accountable for its

malfeasance in thi s case through an i ncremental transformation of the law on

psychiatr ic lesions.16 Even though I will explain why I am of the opinion that

the Supreme Court of Appeal came to the right decision on the delictual issues

in this case, there are certain inte resting hypothetical questions per taining to

psychiatric lesions that the judg ment does not cover. Goi ng forward, these

3 Komape v Ministe r of Basic Educatio n 2018 JDR 0625 (LP) para 2

4 Paras 24-25

5 Par a 19

6 Para 26

7 Paras 22-23

8 Paras 12-15

9 Para 10

10 Par a 11

11 Pa ra 11

12 Par a 14

13 M L oubser & R Midgley (eds) The La w of Delict in South A frica 3 ed (2018) 24-25; J Ne ethling &

JM Potgieter Neethling-Potgieter -Visser Law of Delict 7 ed (2015) 4; cf A Fagan Aquilian Li ability in the

South Afric an Law of Delict (2019) ix

14 Komape v Minis ter of Basic Educat ion 2018 JDR 0625 (LP) para 16

15 Para 16

16 Komape v Minis ter of Basic Educat ion 2019 JDR 2514 (SCA)

254 STEL L LR 2021 2

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