The Komape litigation – ensuring effective remedies

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.