Abstract:
The three Komape cases were spurred by the death of Michael Komape in
2014, when he drowned in a dilapidated pit toilet at his school in Limpopo.
In the first judgment, the High Court recognised that the government had
violated a host of rights – including the right to basic education and the
rights of the children to have their best interests considered as paramount
in any matter concerning them. However, the court refused to grant
common law damages. This refusal was successfully appealed in the
Supreme Court of Appeal. In the first judgment, the High Court also
granted a structural order requiring the government to eradicate all pit
toilets in the province. The plaintiffs did not appeal this part of the order.
Subsequently, the plaintiffs needed to return to court after the government
did not adequately comply with the structural order. The High Court once
again ruled that the government was violating the rights of children by not
urgently eradicating pit toilets in schools. A more detailed structural order
was granted, requiring the government to formulate a new plan on urgent
timelines. However, the court refused to extend its supervisory role.
This article argues that structural orders have proved to be valuable tools in
litigation for the right to basic education in the Komape case in particular.
Further, the article argues that the High Court may have not fully
understood the role of court-appointed agents in not granting a task team
to monitor the government, as requested by the plaintiffs. The granting of
a task team would have been appropriate in the case – given the gravity of
the sanitation crisis, learners’ right to basic education, and children’s right
to have their best interests be considered paramount in all matters
concerning them.
