THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 754/2018 and 1051/2018
In the matter between:
ROSINA MANKONE KOMAPE                                    FIRST APPELLANT
MALOTI JAMES KOMAPE                                      SECOND APPELLANT
MOKIBELO LYDIA KOMAPE                                    THIRD APPELLANT
LUCAS KHOMOTSO KOMAPE                              FOURTH APPELLANT
and
MINISTER OF BASIC EDUCATION                         FIRST RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL,
LIMPOPO DEPARTMENT OF EDUCATION     SECOND RESPONDENT
PRINCIPAL OF MAHLODUMELA LOWER
PRIMARY SCHOOL                                                    THIRD RESPONDENT
SCHOOL GOVERNING BODY
MAHLODUMELA LOWER PRIMARY
SCHOOL                                                                    FOURTH RESPONDENT
and

EQUAL EDUCATION                                                           AMICUS CURIAE

Neutral citation:  Komape v Minister of Basic Education (754/2018 and
1051/2018) [2019] ZASCA 192 (18 December 2019)

Coram:
Navsa, Leach, Tshiqi, Wallis and Mbha JJA
Heard:
2 September 2019
Delivered: 18 December 2019

Summary: Practice – amicus curiae – test as to who should be admitted –
application to be admitted as amicus dismissed.
Emotional shock – principles relevant to such a claim – grief associated with
psychiatric lesion caused by emotional shock recoverable without necessity to
develop the common law in line with the spirit of the Constitution.
Constitutional damages – when to be awarded – where claimants fully
compensated for loss sustained and public funds better served elsewhere –
constitutional damages not awarded.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Limpopo Division of the High Court, Polokwane (Muller J
sitting as court of first instance):

A
The appeal succeeds to the extent that the order of the court a quo is altered
as follows:
‘1
The words “the claim is dismissed” in para 1 of the order are deleted and
substituted by 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 M L Komape;

(iv)
R200 000 for Mr L Komape;

(v)
R100 000 for each of the minor children Maria, Onica

and Moses Komape.
The words ‘Claim A’ and ‘The claim for grief is dismissed’ are deleted
from para 2 of the order.
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 first and second
defendants are ordered to pay for the future treatment in respect of:

(a)
Maria Komape, the amount of R6 000.

(b)
Onica Komape, the amount of R6 000.

(c)
Moses Komape, the amount of R6 000.’

B
The first and second respondents are to pay the appellants’ costs of the
appeal, jointly and severally, the one paying the other to be absolved. Such
costs are to include the disbursements incurred by two counsel who
appeared pro bono for the appellants in travelling to and being
accommodated in Bloemfontein in order to present this appeal.’

________________________________________________________________
JUDGMENT
________________________________________________________________

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

[1] On 20 January 2014 Michael Komape (Michael), who was at the time just
five 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.

RSI’s application to intervene
[3] Rule 16 of the rules of this court, which are essentially the same as Rule 10
of the rules of the Constitutional Court, require 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 of 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
nation-wide 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 Alliance1 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

1 National Treasury & others v Opposition to Urban Tolling Alliance & others CCT 38/12 [2012] ZACC 18; 2012
(6) SA 223 (CC).

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 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 Constitution 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

2 See further Ex parte Institute for Security Studies: In re S v Basson 2006 (6) SA 195 (CC) para 7.
3 National Treasury para 14.

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 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 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 reaching out towards her. A similar nightmare haunted
Mr Komape, who had arrived on the scene after his wife and had sat near the body
until emergency services arrived and removed it hours later. Both Mr and Mrs
Komape were diagnosed with having post-traumatic stress disorder, and for years
had difficulty in sleeping and required psychological counselling.

[13] Michael’s siblings were also affected by the circumstances of his death.
The relationship between Michael and Lydia Komape, the third appellant, had
been close. She had taken on a parental role in relation to Michael and had helped
to bath him and prepare him for school. He slept in her bedroom. Lydia did not
believe that Michael had died until she saw his body in the pit. She, too,
experienced trouble sleeping after the tragedy and had flashbacks to the moment
she had seen him in the pit. She exhibited extreme symptoms of post-traumatic
stress disorder, similar to her mother’s.

[14] Lucas Komape, Michael’s adult brother and the fourth appellant, also
shared a close relationship with Michael. On hearing of his death, he tried to get
to the toilet to see what had happened but the police stopped him from doing so.
He, too, displayed symptoms related to post-traumatic stress disorder and
bereavement. When seen by a psychologist almost two years later, he was still

very sad and was struggling to cope, having difficulty both with his concentration
and in sleeping. Similar difficulties were experienced by the other children,
Onica, Maria and Moses Komape.

The claims
[15] Bearing the above facts and circumstances in mind, I turn to the appellants’
claims. Mrs and Mr Komape were cited, respectively, as first and second
plaintiffs. They sued in their personal capacities as well as in their capacities as
parents and natural guardians of their three minor children, Maria, Onica and
Moses. The third and fourth plaintiffs are two major children of the first and
second plaintiffs. The Minister of Basic Education, the MEC, Limpopo
Department of Education, the principal of Michael’s school and the school’s
governing body were cited as first to fourth defendants, respectively. The
principal and the governing body, however, appear to have been parties in name
only, and at the conclusion of the trial no order was made against them. I also did
not understand them to have been actively interested in this appeal. This judgment
will therefore regard them as not being parties and I shall refer to the Minister and
the MEC as being the respondents.

[16] The claims of the plaintiffs are somewhat tortuously framed in their
particulars of claim. Lengthy averments were made in regard to negligence and
the breach of duties owed to Michael (including allegations of events occurring
after his death). It was then alleged that Michael died as a result of such
negligence and the breach of these duties. In para 26 of the claim, it was alleged
that, as consequence of his death, the appellants had suffered ‘grief, emotional
trauma and shock and damages at common law developed in accordance with
s 39(2) of the Constitution’. At para 28, the appellants went on to also allege that
they had suffered ‘post-traumatic stress disorder and bereavement’ and that in
addition, the first and second appellants (namely Michael’s parents) had suffered

a ‘depressive disorder’. Whether the consequences alleged in para 26 were the
same as those in para 28 is unclear.

[17] Be that as it may, the particulars of claim went on to set out a number of
separate claims:
(a)
In Claim A it was alleged the appellants had suffered various amounts of
damages as a result of the ‘emotional trauma and shock’ they had experienced
(whether this was due to the facts particularised in para 26 or para 28 was not
stated).
(b)
In Claim B they claimed, not individually but cumulatively and ‘as the
immediate family’, the amount of R2 million in respect of grief as compensation
‘based on the common law as developed in accordance with s 39(2) of the
Constitution’. Alternatively, it was alleged that on the basis articulated in para 26,
they were entitled to that sum as constitutional damages ‘in accordance with the
development of the common law under s 39(2) of the Constitution’.
(c)
Claim C was a claim in respect of future medical expenses to be incurred
to treat the appellants’ impaired medical health resulting from the shock and
trauma they had suffered due to Michael’s death. Essentially these related to the
cost of counselling sessions.
(d)
In Claim D, the sum of R34 105,80 was claimed in respect of Michael’s
funeral costs.
(e)
In Claim E the first appellant claimed loss of earnings as a result of the
trauma she had suffered arising from Michael’s death.
(f)
Finally, but without explaining the necessity for such an order, the plaintiffs
sought a declaratory order to the effect that the respondents had breached their
constitutional obligations in respect of the rights contained in various sections of
the Constitution.

[18] At a pre-trial conference, the respondents admitted that the first and second
appellants and their minor children had ‘suffered emotional trauma and shock’ as
a result of Michael’s death. Then, in a joint minute of the clinical psychologists
who were to be called as experts, it was recorded that the appellants had suffered
severe trauma and required further psychotherapy. Further, on 11 October 2017,
the respondents made a without prejudice offer to settle, in which they stated that
they conceded the ‘merits in respect of the delictual claim’.

[19] The offer of settlement was not accepted, and so the matter went to trial.
On the first day of the hearing the respondents’ concession of the merits was
repeated. They accepted that negligence on their part had led to Michael’s death,
that the merits of Claim A were no longer in dispute and that, in respect of that
claim, only the quantum of damages needed to be proved. In the light of this
concession and the circumstances surrounding Michael’s death, if ever a case
called out for settlement it was this one. For some reason, however, the
respondents did not settle and the trial proceeded, undoubtedly at huge cost to the
State. This really ought to have been avoided and the funds better employed in
national interest eg by improving sanitation systems at rural schools.

[20] Be that as it may,  at the end of the day, despite the respondents’ concession
relating to the merits and the subsequent evidence of both the plaintiffs and an
expert psychologist relating to their emotional suffering, it is somewhat startling
to say the least that the court a quo dismissed Claim A for emotional trauma and
shock. It also dismissed the claim for grief in Claim B but, on the alternative in
Claim B (ie the claim for constitutional damages), also somewhat startlingly as it
was relief that had not been asked for, it issued a structural interdict in the
following terms:
‘2.1 Alternative to Claim B
2.2
The first and second respondents are ordered to supply and install at each rural school
currently equipped with pit latrines in the Province of Limpopo with:

2.2.1 a sufficient number of toilets for each school for the use of children which are

easily accessible, secure and safe and which provide privacy and promote health

and hygiene based on an assessment of the most suitable safe and hygienic

sanitation technology.
2.3
The first and second respondents, are ordered to furnish this court with the following
information:

2.3.1 a list containing the names and location of all the schools in rural areas with pit

toilets for use by the learners;

2.3.2 the estimated period required to replace all the current pit toilets at schools so

identified.

2.3.3 a detailed program developed by the relevant experts based for the installation

of the toilets on an assessment made in respect of the suitable sanitation

technology requirements of each school inclusive of a proposed date (and

reasons for the proposed date) for the commencement of the work referred to

supra.
2.4
The first and second defendants shall, for the order to be implemented deliver detailed
reports under cover of affidavits at this court which must inter alia comprehensively
deal with all the issues referred to above on or before 30 July 2018.
2.5
The plaintiffs are at liberty to deliver an answering affidavit within 20 days of the
reports being delivered. And if so, the defendants will have the rights to reply, if
necessary within 15 days. Both parties may thereafter place the matter on the opposed
roll for hearing (and for further directives, if necessary) on a date to be arranged with
the trial Judge.’

[21] In respect of Claim C, the claim for future medical expenses, the merits of
which had also been conceded at the commencement of the trial, an order by
agreement was made in respect of the first, second, third and fourth plaintiffs
during the course of the trial. In respect of two of the younger siblings, Maria and
Onica, the court in its judgment made an order based on a finding that they were
entitled to receive six sessions of psychotherapy to help them deal with the severe
trauma they had suffered. However, no allowance was made for psychotherapy
for the youngest child, Moses, due to no specific claim for this having been made.
In respect of Claims D and E, the parties reached agreement and a separate order

in their regard was made before the end of the trial. However, the declaratory
order sought by the appellants was refused.

[22] The appellants proceeded to apply for leave to appeal against the dismissal
of their prayer for a declaratory order relating to the defendants breach of
constitutional obligations. They also sought leave to appeal against the dismissal
of Claim A, as well as the dismissal of the claim for grief in Claim B, but not
against the award of the structural interdict granted in the alternative to the latter
claim. They also sought leave to appeal against the refusal of future medical
expenses for Moses. The court a quo granted such leave in respect of the grief
claim in Claim B but refused leave in the other respects. This court, however,
granted such leave.

[23] Due to the manner in which the claims were pleaded, I intend to deal at the
outset with Claims A and B. For the reasons set out below, these are substantially
intertwined, both with each other and with the alleged need to develop the
common law so as to entitle the appellants to recover damages for the grief they
have suffered arising out of Michael’s death.

Claims A and B
[24] In common law countries, claims for so-called nervous or emotional shock
have historically been treated with a good measure of suspicion and wariness.
Underlying considerations appear to have been, inter alia, that the shock
experienced by witnesses to gruesome events is one of the many vicissitudes of
life which people have to face and live up to, and should therefore not be regarded
as actionable, and that to recognise shock as actionable might open the floodgates
of litigation. Thus in eg Bourhill v Young4 Lord Porter said ‘the driver of a car or
vehicle, even though careless, is entitled to assume that the ordinary frequenter of

4 Bourhill v Young [1943] AC 92.

the streets has sufficient fortitude to endure such incidents as may from time to
time be expected to occur in them, including . . . the sight of injury to others, and
is not to be considered negligent towards one who does not possess the customary
phlegm’.5

[25] However, for many years now, such a claim has been recognised in this
country where the claimant shows that the nervous shock is associated with a
detectable psychiatric injury. Thus, in Bester v Commercial Union6 this court,
seemingly influenced to an extent by developments in England,7 held a
psychological or psychiatric injury to constitute a ‘bodily injury’ for the purposes
of delictual liability, and that there was no reason in our law why a claimant who
suffered such an injury as the result of the negligent act of another should not be
entitled to receive compensation.

[26] In Barnard v Santam,8 this court subsequently confirmed the existence of
a remedy where a plaintiff sustained ‘nervous shock’, although Van Heerden ACJ
pointed out that the term was outmoded and misleading as the only question
should be whether the plaintiff sustained a detectable psychiatric injury.
Significantly Van Heerden ACJ declined to follow the restrictions applicable in
the United Kingdom as laid down in cases such as McLoughlin and Alcock,
referred to below, that such a claim was not available to a person who suffered
psychiatric injury in consequence of a report of harm to a near relative (in that
case a mother being told of her son’s death in a motor accident). Such a ‘hearsay’
claimant is entitled to recover damages for psychiatric injury whether they are in
proximity to, or come upon, the victim of the accident or are told about it later.

5 At 117.
6 Bester v Commercial Union Versekeringsmaatskappy van SA Beperk 1973 (1) SA 769 (A).
7 See 779D-G.
8 Barnard v Santam Beperk 1999 (1) SA 202 (SCA).

The test for liability is far more dependent upon the relationship between the
claimant and the victim.

[27] The same approach was followed by this court in Road Accident Fund v
Sauls.9 In that matter a plaintiff witnessed his fiancé being struck by a motor
vehicle in his near vicinity. She thought he had been killed or seriously injured
(fortunately neither was the case) and was left in a condition of shock and
confusion. She was subsequently diagnosed with a post-traumatic stress disorder
which became chronic and unlikely to improve. As was summed up in this court,
‘her case is that as a consequence of her witnessing the injury to [her fiancé] she
suffered severe emotional shock and trauma which gave rise to a recognised and
detectable psychiatric injury . . .’. In holding the defendant liable, Olivier JA
explained:10
‘It must be accepted that in order to be successful a plaintiff in the respondent's position must
prove, not mere nervous shock or trauma, but that she or he had sustained a detectable
psychiatric injury. That this must be so is, in my view, a necessary and reasonable limitation to
a plaintiff's claim . . . I can find no general, “public policy” limitation to the claim of a plaintiff,
other than a correct and careful application of the well-known requirements of delictual liability
and of the onus of proof.’

[28] The law in England was more inflexible than ours. Following the decision
in Bourhill, not much changed in the United Kingdom for some 40 years until the
decision in McLoughlin v O’Brian [1983] 1 AC. In that matter, whilst Lord
Wilberforce observed that the law still denied the claim of an ordinary bystander
to an incident ‘either on the basis that such persons must be assumed to be
possessed of fortitude sufficient to enable them to endure the calamities of modern
life, or that defendants cannot be expected to compensate the world at large’,11 he
went on recognise the claim of a wife for damages for shock. She had suffered a

9 Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).
10 Sauls paras 13 and 17.
11 At 422.

severe psychiatric illness as a result of learning of her daughter’s death and being
exposed to the distressing sights and sounds of her husband and children when
she went to the hospital to which they had been taken after having been grievously
injured in a motor accident. The court held that such a claim could be allowed,
subject to policy restrictions as to the class of persons whose claims should be
recognised, the proximity of such persons to the accident, and the means by which
the psychiatric illness was caused (sometimes referred to as relationship, spatial
and sensory policy restrictions).12

[29] Since then, claims for what has commonly, albeit incorrectly, come to be
called nervous or emotional shock have been allowed in England, where it can be
said that the shock gave rise to a psychiatric injury. Thus, in Alcock v Chief
Constable13 although a claim for nervous shock was disallowed, essentially on
the basis that the damages were too remote, Lord Oliver stated:
‘There is . . . nothing unusual or peculiar in a recognition by the law that compensatable injury
may be caused just as much by direct assault upon the mind or the nervous system as by direct
physical contact with the body. This is no more than the natural and inevitable result of the
growing appreciation by modern medical science of recognisable causable connections
between shock to the nervous system and physical or psychiatric illness. Cases in which
damages are claimed for directly inflicted injuries of this nature . . . are not, in their essential
elements, any different from cases where the damages claimed arise from direct physical injury
. . . .’
As appears from these cases as well as the decisions, inter alia, in White & others
v Chief Constable of Yorkshire & others14  and Vernon v Bosley (1)15 in English
law damages are now recoverable for nervous shock or pathological grief disorder
(ie grief which became so severe as to be regarded as abnormal and giving rise to
psychiatric illness), if certain preconditions for recovery are satisfied.

12 See eg C Sappideen and P Vines Fleming’s The Law of Torts 10 ed (2011) para 8.130.
13 Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; [1991] 4 All ER 907 (HL).
14 [1998] UKHL 45; [1999] 1 All ER 1 (HL).
15 [1997] 1 All ER 577 (CA).

[30] The development of the law on this issue in England was, to a large extent,
mirrored in Australia, New Zealand and Canada. In all three of those jurisdictions,
damages for ‘nervous shock’ are now recoverable where the claimant suffers
either a physical consequence or some medically identifiable psychiatric illness
or injury.16 In Tame’s case in Australia, however, the court the court stressed that
many of the concerns relating to the recovery of psychiatric injury receded if full
force was given to the distinction between emotional distress, on the one hand,
and recognisable psychiatric illness, on the other. Doing so reduced the scope for
indeterminate liability or increased litigation, and restricted recovery to disorders
capable of objective determination. As the learned authors of Fleming’s Law of
Torts put it, the court ‘repudiated’ the earlier policy limitations ‘and held that
liability was based on reasonable foreseeability unfettered by other restrictions’.17

[31] It is clear from this that our law is closely aligned to that which prevails in
Australia, and is more flexible than that of England which is bound by certain
policy limitations. However, in all three of these jurisdictions, as well as those of
Canada and New Zealand, a plaintiff can only claim damages for so-called
nervous or emotional shock where it is suffered as a consequence or cause of a
detectable psychiatric injury. Gleeson CJ summarised the position succinctly in
the following terms:
‘. . . save in exceptional circumstances, a person is not liable in negligence, for being a cause
of distress, alarm, fear, anxiety, annoyance or despondency, without any resulting recognised
psychiatric illness.’ (Tame v New South Wales para 7.)
To similar effect in Van Soest v Residual Health Management Unit para 28 it was
said:

16 See eg in Australia, Tame v New South Wales; Annetts v Australian Stations (Pty) Ltd [2003] 211 CLR 317
HCA; in New Zealand, Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at 197-199 NZCA; in
Canada Odhavji Estate v Woodhouse [2003] 3 SCR 263 [41] SCC.
17 Fleming’s Law of Torts para 8.130 at 177.

‘The common law gives no damages for the emotional distress which any normal person experiences
when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet
an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without
psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question
must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion,
but a positive psychiatric illness.’

[32] Accordingly, there is no difficulty in recognising in principle the legal basis
of the appellant’s Claim A, which as I understand the pleading, is a claim for
emotional shock attributable to a psychiatric lesion caused by the circumstances
of Michael’s death. It is a claim long recognised in this country and supported by
the other common law jurisdictions I have mentioned. I shall return to whether
given the facts of this case, liability in respect of that claim was established.

[33] But before doing so, it is necessary to deal with the validity in law of a
claim brought under a separate heading for grief or bereavement, allegedly
suffered as a result of negligence but which does not flow from a psychiatric
lesion (which, as I understand the particulars of claim, constitutes Claim B.)

[34] In that regard, none of the jurisdictions I have mentioned have ever
recognised such a claim at common law. For example in England, in his speech
in Alcock, Lord Ackner said ‘major mental suffering, although reasonable
foreseeable, if unaccompanied by physical injury, is not a base for a claim for
damages’.18 And in his speech in the same case, Lord Oliver explained the reason
for this refusal as follows:19
‘Grief, sorrow, depravation and the necessity for caring for loved ones who have suffered injury
or misfortune must, I think, be considered as ordinarily and inevitable incidents of life which,
regardless of individual susceptibilities, must be sustained without compensation. . . . but to

18 At 917h-j. See further McLoughlin v O’Brian at 418D and 431G-H.
19 Alcock at 931a-b.

extend liability to cover injury in such cases would be to extend the law in a direction for which
there is no pressing policy need and in which there is no logical stopping point.’
Similarly, in his speech in White v Chief Constable, Lord Griffiths said:
‘Bereavement and grief are a part of the common condition of mankind which we will all
endure at some time in our lives. It can be an appalling experience but it is different in kind
from psychiatric illness and the law has never recognized it as a head of damage. We are human
and we must accept as a part of the price of our humanity the suffering of bereavement for
which no sum of money can provide solace or comfort.’

[35] This, too, has been the approach in this country. More than a century ago,
in Waring and Gillow Ltd v Sherborne,20 Innes CJ held there was no authority in
our law for awarding damages ‘for mental suffering unaccompanied by physical
injury or illness in an action founded on negligence’. That conclusion was
reinforced by this court in Union Government (Minister of Railways and
Harbours) v Warneke 1911 AD 658.21 As De Villiers JP stated in his judgment in
that case, after referring to an ancient Scottish decision:
‘. . . the Scotch Court of Session held that a husband was entitled to recover for injury and loss
by the sudden and violent death of his wife in his feelings, comfort and domestic happiness,
but the report is not very satisfactory. . . I have looked in vain . . . for the reasons for extending
the law so far. Voet (l. c.) recognises that damages for dolor . . . can be obtained by a freeman
for an injury to himself, but there is no authority for extending this to injury to his feelings
through the death of another. It may be desirable that a husband should be able to recover
damages as a solatium for his wounded feelings and for loss of comfort and domestic happiness,
but that is an extension of the law which must be made by the Legislature.’

[36] In England, albeit to a limited extent, the legislature indeed came to the
assistance of certain close relatives who were given a statutory right by the
Administration of Justice Act 1982, s 3 thereof having inserted a new section into

20 Waring and Gillow Ltd v Sherborne1904 TS 340 at 348.
21 See at 662, 666 and 673-4 in particular.

the Fatal Accidents Act 1976, so as to found an action to claim damages for
bereavement.22 It was pursuant to this that in Kerby v Redbridge,23 the court said:
‘Mr Coghlan . . . reminds me that the common law, rightly or wrongly, affords no right to
damages for what are described as “the normal emotions by way of grief, sorrow or distress
attendant on the loss of a loved one”. . . . The only entitlement lies in statute . . . by way of
damages for bereavement.’24

[37] Similarly, in both Australia and Canada, where claims for grief are also not
recognised without proof of psychiatric injury, certain relief has been extended
by way of statute.25 However, in this country, despite the lapse of more than a
century and the invitation in Union Government v Warneke, no such statutory
extension has been made and the position remains unchanged.26 This is
presumably for reasons similar to those articulated by Lord Oliver as quoted
above, and the perceived fear of opening the floodgates to claims for grief without
any associated psychiatric injury.

[38] It was argued on behalf of the appellants, however, that our law had relaxed
even further and that this latter requirement was no longer valid. The argument in
this regard was based upon the judgement of this court in Mbhele v MEC for
Health for the Gauteng Province.27 In that matter, due to negligence on the part
of certain hospital authorities, the appellant’s child was stillborn. She instituted
action for damages in the high court. The matter was decided on a stated case
under Uniform rule 33. The court of first instance held that the appellant had
abandoned her claim for emotional shock and her claim was dismissed. This
court, on appeal, found that the high court had erred in finding that the appellant’s

22 Charlesworth and Percy on Negligence 12 ed (2011) 16-27.
23 Cf Kirby v Redbridge Health Authority (QB) [1994] PIQR Q1.
24 See further Regan v Williamson [1976] 1 WLR 305 (QB) at 308D-H.
25 Fleming’s The Law of Torts § 8.170, Mason v Peters et al (1982) 39 OR (2 d) 27; 139 DLR (d) 104: 22 CCLT
(Ontario Court of Appeal). See further Barnard v Santam at 216B-D.
26 See Bester v Commercial Union at 779H and Barnard v Santam at 216I-217B.
27 Mbhele v MEC for Health for the Gauteng Province (355/15) [2016] ZASCA 166.

claim for emotional shock had been abandoned and proceeded to consider
whether it had been proved. It held that it had, and awarded the appellant
R100 000 as damages, saying that there could be no doubt ‘that the appellant
experienced severe shock, grief and depression’. It did so without specific
agreement as to the existence of a psychiatric lesion having been set out in the
stated case.

[39] On the strength of this, it was argued that this court had been prepared to
allow damages for grief without proof of there having been a psychiatric injury
to the appellant. It was unfortunate that the trial court had attempted to decide the
matter on a stated case without all the necessary facts being fully and clearly set
out, as was indeed observed by this court in its judgment. However, the stated
case did record that the appellant had suffered from depression, in itself a mental
illness, and it was further held that the appellant had suffered from emotional
shock justifying damages which, too, by its very nature, implies a psychiatric
lesion. At first blush, then, there was sufficient factual material to show that this
was a case in which psychiatric harm had been suffered. But even more
importantly, no reference was made to any of the authorities which have
previously prescribed that grief, without an underlying psychiatric lesion
associated therewith, cannot be the subject of a damages claim. Without those
cases and the ratio of their decisions having been debated and adjudicated, it
cannot be said that they have been overruled by a simple passing comment
relating to grief. The decision in Mhbele is therefore no authority for the
proposition that our law has changed and that this court has recognised a claim
for grief where there is no psychiatric lesion.

[40] Recognising this difficulty, counsel both for the appellants and for the
amicus argued that the common law should be developed having regard to the
spirit, purport and objects of the Constitution to either recognise a claim for grief

and bereavement experienced as a result of Michael’s death without there being
an underlying psychiatric lesion, or to allow an award to the appellants for so-
called ‘constitutional damages’ flowing from their grief and bereavement.

[41] In considering these arguments, it is important to remember that s 39 of the
Constitution prescribes that when it becomes necessary to develop the law, it
should be done in the light of the ethos of the Constitution. However, courts
should not attempt to develop the common law under the aegis of the Constitution
unless it is necessary to do so, and that the major engine for law reform should be
the legislature rather than the courts – see Carmichele v Minister of Safety and
Security.28 As the Constitutional Court further stated in Fose v Minister of Safety
and Security,29 our common law of delict is flexible and will in many cases be
broad enough to provide all the relief that would be appropriate for a breach of
the constitutional right, depending of course on the circumstances of each
particular case.30

[42] Accordingly, the starting point for the enquiry in regard to both issues,
namely, the development of the common law and the claim for constitutional
damages, is to consider whether the common law provides an adequate or
appropriate remedy for the breach complained of in the present case.31 As was
explained by the Constitutional Court in Mighty Solutions32, the steps to be taken
before developing the common law are as follows:
‘Before a court proceeds to develop the common law, it must (a) determine exactly what the
common law position is; (b) then consider the underlying reasons for it; and (c) enquire whether
the rule offends the spirit, purport and object of the Bill of Rights and thus requires

28 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) paras 35-36.
29 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
30 Para 58.
31 See Minister of Police v Mboweni & another 2014 (6) SA 256 (SCA) para 21.
32 Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd [2015] ZACC 34; 2016 (1) SA 621
(CC) para 38.

development.  Furthermore, it must (d) consider precisely how the common law could be
amended; and (e) take into account the wider consequences of the proposed change on that area
of law.’

[43] I must immediately record that the arguments before us did not address the
question in accordance with this taxonomy, especially in explaining in what way
the current state of the law offended against the spirit, purport and object of the
Bill of Rights or the terms of any amendment and the wider implications eg the
effect on the Road Accident Fund, which we understand is currently in straitened
financial circumstances.33

[44] In any event, as interesting as the arguments may have been, on the facts
of this matter neither issue is ripe for decision as the case can be decided on the
common law principles set out above.

[45] At the outset, the fallacy in the appellants’ argument that the common law
needs to be developed, is that in the light of the facts in the present case no such
development is required for their grief, feelings of bereavement and loss to be
taken into account in the assessment of their damages. As pleaded as part of the
background in the particulars of claim, it is alleged that as a result of the
respondents’ negligence, the appellants had suffered from post-traumatic stress
disorder whilst the first and second appellants had also suffered a depressive
disorder. At a pre-trial conference held on 11 August 2017 the respondents
admitted that the plaintiffs and their minor children had suffered ‘emotional
trauma and shock’ as a result of Michael’s death.34 In doing so, and in conceding
delictual liability as already discussed, the respondents clearly envisaged such
emotional shock and trauma to embrace the psychiatric injuries suffered by the

33 Cf https://www.moneyweb.co.za/news/south-africa/road-accident-fund-hits-the-wall/
34 (CB 13-14).

appellants ie their post-traumatic stress and depressive disorder. After all, as I’ve
described in detail above, liability could only follow if there was a psychiatric
lesion. Indeed in their heads of argument they rely upon the definition of
‘emotional shock’ (the claim in respect of which they conceded) described in
Jaensch v Coffey35 as ‘. . . the sudden sensory perception that is by seeing, hearing
or touching of a person, thing or event which is so distressing that the perception
of the phenomenon affronts or insults the Plaintiff’s mind and causes a
recognizable psychiatric illness’.

[46] Furthermore, at the outset of the hearing, when their counsel informed the
court a quo ‘the defendants have conceded liability in respect of Claim A’ he
stated that the claim for grief ‘is not really dependent on . . . the development of
the common law’. This is the clearest indication that the concession of the ‘merits’
of the claim went beyond a mere concession of negligence on the respondents
part and embraced the psychiatric injury that had resulted. Importantly in this
regard, the respondent’s counsel also stated that the claim of R2 million for grief
(ie Claim B) was ‘intertwined’ with Claim A.

[47] It is clear from all of this that the respondents admitted that Michael’s death
had caused each of the appellants to suffer psychiatric injury with which their
extended period of grief and sense of bereavement was associated. Once the
respondents had admitted this and conceded liability in respect of the claim, there
was no longer a lis in respect of which the appellants bore the onus of proof
beyond establishing the quantum of their damages. This they purported to do, in
part, by the expert evidence led at the trial. In doing so, the evidence further
corroborated that which the respondents had conceded. The psychologist,
Mr Molepo, explained that the symptoms of depression and post-traumatic stress
disorder, suffered as a result of the emotional trauma the appellants had

35 Jaensch v Coffey (1984) 155 CLR 549 at 567 (referred to in 9 Lawsa 2 ed para 545).

undergone, embraced the grief they had experienced. He explained that their
feelings of grief and bereavement were psychological reactions to the significant
emotional trauma they had undergone due to the shock caused by the
circumstances surrounding Michael’s death and contributed to their psychiatric
injuries.

[48] The court a quo dismissed the appellants’ Claim A as it felt that ‘due to the
insufficiency of the expert evidence, the appellants had not suffered psychiatric
lesions. In the light of what I have said, it clearly erred and misdirected itself in
that regard. The existence of the psychiatric lesions was not only common cause
but established by the evidence. The appellants were therefore entitled to claim
and recover damages not for what might be called ‘normal’36 or emotional grief37
but for a pathological grief disorder forming part of their psychiatric injury.
Consequently, the common law does not need to be developed any further to
provide them with redress. This conclusion renders it unnecessary to decide
whether the appellants would have been entitled to damages for grief had they not
suffered the psychiatric injury they did.

[49] The complicating factor in this case is the manner in which the damages
were claimed. By reason of what I’ve said, the damages for grief should have
been included in Claim A as part of the psychiatric injury the shock of Michael’s
death had caused (and in respect of which liability was conceded.) Instead they
were claimed in Claim B on the basis that to recover such damages required
development of the common law (which as I’ve explained in the present case, it
does not.) So what is to be done about this?

36 Hing & others v Road Accident Fund 2014 (3) SA 350 (WCC) para 24.
37 A description used by Van Heerden ACJ in Bester’s case at 217A-C.

[50] It would be extremely unfair to disregard the symptoms of grief and
bereavement which the appellants have suffered because of the manner in which
their claim was pleaded. This counsel for the respondents conceded. He also
conceded that in assessing liability for damages under Claim A, regard should be
had to the appellants’ extended period of grief; and that what was allowable in
respect that claim should not be limited in financial terms to the amounts claimed
in the particulars of claim. This was consistent with his statement at the outset of
the trial that the claim for grief was intertwined with Claim A, and would seem to
be a practical and sensible solution. The result is that the appeal against the
dismissal of claim A must succeed; and to the extent that the appellants are
entitled to damages for grief and bereavement, account must be taken of this in
assessing the proper quantum of damages under that head. The appeal against the
dismissal of claim B fails because the recoverable damages described therein are
to be compensated under Claim A.

[51] In the light of this, I turn to consider the quantum of the damages suffered
by the appellants in respect of the claim for emotional trauma and shock, which
will include allowance for their grief and bereavement. In in doing so, I have had
regard not only to the evidence of the claimants who testified but also to the
psychological assessment reports prepared by the clinical psychologist, Ms Sodi.
Although she did not testify, her reports were adopted and referred to without
demur by the psychologist who did testify, Mr Molepo.

[52] As appears from these reports and Mr Molepo’s evidence, all of the
claimants sustained emotional shock, which is understandable given the
circumstances under which poor Michael met his death. As already mentioned,
they all suffered from post-traumatic stress disorder, bereavement and grief and,
in addition the first and second appellants suffered from depression. Common
difficulties experienced by all were fatigue, difficulty in sleeping, lack of

concentration, poor appetite, labile emotions, sadness and grief; and particularly
in the case of the first and second appellants, nightmares and flashbacks of
Michael lying in the pit with his hand outstretched. They were also angry at the
education authorities for failing to provide meaningful assistance, particularly at
Michael’s funeral. Ms Sodi opined some five months after Michael’s death that
Mrs Komape was suffering a major depressive disorder associated with grief. Her
opinion in regard to Mr Komape was similar. The third and fourth appellants she
felt also was suffering from a stress disorder and grief, as were the two minor
children Onica and Maria, who were then 12 years of age. The youngest of the
family, Moses, who was eight years of age, was the least affected but that is
understandable given the well-known resilience of small children.

[53] The family continued to experience these symptoms for several years,
albeit with diminishing severity. But although time is a great healer, when seen
by Mr Molepo in April 2016, more than two years after the tragedy, they were
still suffering. Even the youngest, Moses, became tearful when the name of his
late brother was mentioned. This notwithstanding, their condition had improved
substantially and will hopefully continue to do so. It was Mr Molepo’s opinion
that they would all benefit from further psycho-therapy.

[54] A common theme running through the evidence of the claimants who
testified, was that their mental agony and grief had been exacerbated by the
unfeeling attitude of the education authorities. Mr Komape was prevented from
removing Michael’s body from the pit, with the principal telling him that it was
too late anyway. When he and another took photographs of the scene, they were
forced to delete them and were threatened with criminal charges. When Lucas
tried to see the body of his brother the police prevented him from doing so. The
family complained that the first contact the school’s staff had made with them
after the tragic events that took Michael’s life was to ask if they could use his

name on certain furniture that had been donated to the school sometime after his
death, but failed at the time to enquire as to how the family were coping. They
also expressed feelings of insult by reason of the lack of support extended to them
from the provincial and national education authorities. The offer of settlement
which they had received years after the incident they regarded as an insult.

[55] Importantly, the respondents’ attitude obliged the appellants to come to
court to obtain redress in proceedings which have been drawn out. Although, as I
have already said, this was a case which cried out for settlement, the appellants
were obliged to go to trial, submit to the rigours of the hearing, and to re-live the
trauma of the past in excruciating detail. This included being subjected to
unsympathetic and, at times, cruel and denigrating cross-examination. All of this
must have aggravated their mental agony. The respondents’ attitude to the
litigation, up to and including this appeal in which in certain respects they
attempted to defend the indefensible, is to be deprecated in the strongest possible
terms. As a result, the appellants have been prevented from getting on with their
lives and recovering from their trauma.

[56] Attempting to determine an adequate solatium for the appellants’ suffering
is, of course, a daunting task as no monetary compensation can ever make up for
their loss. Some guidance may be obtained by having regard to awards in previous
cases but comparisons are always odious, particularly as the facts in different
cases already, if ever, directly comparable. I have however had regard to the
award of R100 000 in Mbhele’s case which, as I’ve mentioned, flowed from the
death of a child at birth, as well as the various cases collected in that judgment.
In seeking guidance from such previous awards, allowance must also be made for
the effects of inflation. At the end of the day, court is called upon to exercise the
discretion to determine amount which it feels is fair and reasonable to both parties
given the particular circumstances of the case in question. Bearing all of this in

mind, I am of the view that, taking into account the emotional shock, trauma and
grief that has been suffered, it would be reasonable in respect of Claim A to award
Mrs and Mr Komape each the sum of R350 000, Lydia and Lucas Komape
(respectively the third and fourth appellants) each the sum of R200 000 and the
minor children Onica, Maria and Moses Komape each the sum of R100 000. This
will be reflected in the order set out below.

Constitutional damages
[57] It was argued on behalf of the appellants, that even if Claim A was to
succeed and include an allowance for grief, this court should make a further award
of constitutional damages in respect of Claim B as the constitutional rights of the
appellants to a peaceful family life had been breached. This it was argued would
vindicate the breach of the appellants’ rights, and such an award would bring
home to the authorities the necessity to provide adequately for children’s
sanitation at schools.

[58] Constitutional damages have been awarded in the past in respect of
financial loss which would otherwise not have been recovered at common law.
Thus in Kate38 where there had a serious delay in processing an application for a
disability grant which was ultimately paid, this court granted constitutional
damages equivalent to the interest which would have been payable on the money
which had been unlawfully withheld. Similarly in Modderfontein Squatters39 this
court, in an award subsequently endorsed by the Constitutional Court,40 ordered
the State to pay damages equivalent to the value of land that had been lost due to
a squatter invasion that occurred after the State failed to provide land for
occupation by the residents of an informal settlement. See further

38 MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA).
39 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA).
40 President of the Republic of South Africa & others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, Amici Curiae) 2005 (5) SA 3 (CC) para 65-66.

Mahambehlala41 and Mbanga42 both judgments in which constitutional damages
were ordered to be paid in circumstances similar to that in Kate’s case. However,
there is no reported decision in this country where constitutional damages have
been awarded as a solatium for breach of a right where there has been no financial
loss, either direct or indirect, or where the compensation had been awarded for a
physical or psychiatric injury.

[59] It seems to me, in principle, that where, as here, persons have been
compensated for their damages suffered by reason of an injury, physical or
psychiatric, any further damages would effectively amount to a punishment for
breach of a right for which compensation has already been granted. Nor, in this
case, would this be justified to bring home to those in authority the necessity of
dealing with the appalling state of sanitation facilities provided at schools. The
documentation available shows that this has been brought home to them time and
again. In this regard, I can do no better than refer at some length to the judgment
of Ackermann J in Fose where the learned judge said:43
‘[71] I agree with the criticisms of punitive constitutional damages referred to . . . above.
Nothing has been produced or referred to which leads me to conclude that the idea that punitive
damages against the government will serve as a significant deterrent against individual or
systemic repetition of the infringement in question is anything but an illusion. Nothing in our
own recent history, where substantial awards for death and brutality in detention were awarded
or agreed to, suggests that this had any preventative effect. To make nominal punitive awards
will, if anything, trivialise the right involved.
For awards to have any conceivable deterrent effect against the government they will have to
be very substantial and, the more substantial they are, the greater the anomaly that a single
plaintiff receives a windfall of such magnitude. And if more than one person has been assaulted
in a particular police station, or if there has been a pattern of assaults, it is difficult to see on
what principle, which did not offend against equality, any similarly placed victim could be
denied comparable punitive damages. This would be the case even if, at the time the award is

41 Mahambehlala v MEC for Welfare, Eastern Cape & another 2001 (1) SA 342 (SE).
42 Mbanga v MEC for Welfare, Eastern Cape & another 2002 (1) SA 359 (SE).
43 Paras 71-72.

made, the individuals responsible for the assaults had been dismissed from the police force or
other effective remedial steps taken.
[72] In a country where there is a great demand generally on scarce resources, where the
government has various constitutionally prescribed commitments which have substantial
economic implications and where there are “multifarious demands on the public purse and the
machinery of government that flow from the urgent need for economic and social reform”, it
seems to me to be inappropriate to use these scarce resources to pay punitive constitutional
damages to plaintiffs who are  already fully compensated for the injuries done to them, with no
real assurance that such payment will have any deterrent or preventative effect. It would seem
that funds of this nature could be better employed in structural and systemic ways to eliminate
or substantially reduce the causes of infringement.’

[60] It was argued on behalf of the appellants that this approach was not set in
stone and that since it had been delivered, other jurisdictions had recognised
claims for constitutional damages flowing from breaches of constitutional
obligations. For example, in Ward44 a Canadian court recognised that harm is
done to society when the State violates constitutionally protected rights as, it felt,
this impairs public confidence and diminishes public faith in the efficacy of
constitutional protection.45 It concluded that the breach of a constitutional right
causes harm to a claimant’s intangible interests and should not preclude a resilient
claimant from recovering damages simply because a substantial psychological
injury cannot be proved.46

[61] In New Zealand, too, compensation has been granted for the breach of a
constitutional rights. In Dunlea v Attorney-General47 such an award was made as
it ‘embraces the extra dimension of vindicating the claimant’s right, a right which
has been vested with an intrinsic value, and it is that intrinsic value to the claimant
for which he or she must be compensated over and above the damages which the

44 Vancouver (City) v Ward [2010] 2 SCR 28.
45 Ward para 28.
46 Ward paras 24 and 27.
47 Dunlea v Attorney-General [2000] 3 NZLR para 67.

common law torts have traditionally attracted’.48 Similarly in Liston-Lloyd v The
Commissioner of Police49 similar sentiments were expressed, with the court
holding that an individual ‘should be able to feel secure in the knowledge that the
State will respect his or her [constitutional] rights, and the State should be
required to compensate him or her for injury or loss resulting from the failure to
do so’.50 And in Ireland, the courts have recognised that aggravated and
exemplary damages may be awarded against the State where the government has
taken ‘oppressive, arbitrary or unconstitutional action’.51 The Irish Supreme
Court also sanctioned exemplary damages for constitutional rights and violations
in order to mark its particular disapproval of conduct.52

[62] The appellants also placed emphasis upon the recent arbitration award in
the Life Esidimeni53 case which involved the death of numerous patients who were
moved from a properly equipped medical facility to various institutions incapable
of meeting their needs. The arbitrator, a former Deputy Chief Justice of this
country, recognised that the rights of the families of those who had died had been
violated and awarded substantial compensation as constitutional damages.
However not only does this lack the binding force of judicial precedent, but the
facts of that case are substantially different to the present and each case must be
decided in the light of  its own peculiar circumstances.

[63] Depending upon the facts and circumstances of any particular case, the
approach of awarding constitutional damages to mark displeasure may well be
justifiable in theory, but there are practical considerations as well. The social and
political circumstances in Canada, New Zealand, Ireland and other jurisdictions

48 Dunlea para 67.
49 Liston-Lloyd v The Commissioner of Police [2015] NZHC 2614.
50 Paras 42-44.
51 Kennedy v Ireland [1987] IR 587 at 594.
52 Conway v Irish National Teachers Organisations [1991] 2 IR 305 at 317.
53 Life Esidimeni Arbitration Award at http://www.saflii.org/images/LifeEsidimeniArbitrationAward.pdf.

abroad are quite unlike those which pertain in this country. Here there is a chronic
shortage of what would in foreign jurisdictions be regarded as basic
infrastructure; and here the public purse could be far better utilised for the benefit
of many than in paying a handful of persons a substantial sum over and above the
damages they have sustained and for which they have been compensated.
Furthermore the breach of rights involved in the failure to provide proper
sanitation facilities at schools is, on the evidence, widespread and affects the
rights of a large number of scholars across Limpopo. I can see no reason why the
Komape family should be the beneficiaries of an additional award of
constitutional damages in order to vindicate the rights of all scholars to proper
sanitation facilities at schools. I do not think things have changed so much in this
country that the approach set out in Fose is no longer appropriate. In my view
there is no room for an award of constitutional damages.

The declaratory order
[64] I turn now to deal with the court a quo’s refusal to grant a declaratory order
relating to the respondents’ breach of their constitutional obligations. It was
argued that in the light of the finding that the respondents’ actions breached the
rights of the Komape family to equality, dignity, life, safe environment and basic
education, the court ought to have issued the declarator the appellants sought
rather than refusing it on the basis that it would serve no immediate purpose. This
argument was based squarely upon s 172(1)(a) of the Constitution which provides
that when deciding a constitutional matter, a court ‘must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency’. Relying upon decisions such as Minister of Health v Treatment
Action Campaign (No 2)54 and National Director of Public Prosecutions v
Mohamed NO55 it was argued that the Constitutional Court had confirmed the

54 Minister of Health & others v Treatment Action Campaign & others (No 2) 2002 (5) SA 721 (CC) paras 99-
106.
55 National Director of Public Prosecutions & another v Mohamed NO & others 2003 (1) SACR 561 (CC) para
56.

existence of this duty insofar as it applies to state policy, and that where a court
finds that a policy is inconsistent with the Constitution it is obliged under
s 172(1)(a) to make a declaration to that effect.56

[65] That is no doubt so, but I do not think it can be said to have been state
policy to have provided only such abysmal sanitation infrastructure, and the
structured interdict issued by the court a quo was aimed at ensuring an
improvement at the school. In addition, the court a quo in its judgment castigated
the education authorities for failing to provide proper toilet facilities at schools,
stating that those which had been provided were not fit for human use and that it
was clear that ‘due to lack of political will no effort was made to better the
situation at schools of which the [MEC, Department of Education] was well
aware’. This stinging rebuke, which this court endorses, will hopefully in itself
move those in authority to take action to improve the situation.

[66] Furthermore, but a compelling factor as was stressed by this court in Kate,57
a declarator is most appropriate where it will serve a useful purpose in clarifying
or settling legal disputes to hopefully present new ones from arising. In that
matter, the invitation to issue a declarator was refused as this court felt that there
could be no doubt that the conduct of the administration was constitutionally
unlawful and there would therefore be no purpose in any further pronouncement
to that effect. In the present case, the authorities are well aware of the problem
and their obligation to overcome it. Thus far they seem to have lacked the
capability to do so, but that will not be overcome by a declaratory order. Moreover
the declaratory sought, namely, that the respondents had breached various
sections of the Constitution would not identify the conduct which is the subject

56 See also Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA
331 (CC) para 101.

57 Kate para 28.

of the order nor identify the respects in which constitutional obligations were
breached. It would thus be inappropriate to issue a declaratory in such
indeterminate terms.

[67] In these circumstances, I do not think this court can say that the court a quo
did not exercise its discretion judicially in not granting the declarator the
appellants sought. That being so, there is no room for this court to interfere on
appeal.

Future medical expenses
[68] I turn now to consider the future medical expenses claimed in respect of
Moses. In respect of Claim C, the court a quo allowed Maria and Onica each
R6 000 in respect of future medical expenses, but disallowed any amount in
respect of Moses as there had been no specific claim on his behalf in the
particulars of claim. Of course there should have been such a claim, and it is
surprising to say the least that an amendment in that regard was not sought. But
it would be unjust to disallow Moses his due merely because of the straitjacket of
the claim as pleaded. Counsel for the respondents was constrained to concede
during argument that justice demanded that the award be altered to allow Moses
a sum in respect of the loss which appears not to have been claimed due to an
oversight. That, too, was a sensible and practical approach to an obvious injustice.

[69] For these reasons, the award in respect of Claim C should be altered. I can
see no reason why Moses should not be awarded the same sum as his siblings, an
amount not challenged on appeal. The award in respect of Claim C will therefore
be altered to include the sum of R6 000 in respect of Moses’ future medical
expenses.

Costs

[70] That brings me to the question of costs. The appellants have succeeded on
appeal, and costs should follow that event. We have been alerted, however, to the
fact that two of the three counsel who appeared for the appellants acted pro bono
and do not seek to be included in the costs order. In these circumstances, those
counsel are not only to be thanked for their services but it is fair and reasonable
to issue an order similar to that in the court a quo allowing them to recover the
reasonable costs of their disbursements in travelling to and accommodating
themselves in Bloemfontein for this appeal.

[71] Further in regard to costs, I should mention that the court a quo ordered the
respondents to pay the costs of the amicus curiae. It did so as it felt the amicus
had been of assistance ‘by advancing comprehensive and useful argument’. I
accept the amicus was of assistance, but that in itself was no reason for it to be
awarded its costs. An amicus appears not as a party, but as a friend of the court,
and it is trite that it is thus not entitled to costs.58 However, there is no appeal
against that order and, wisely, the amicus did not seek its costs in this court – in
which it was, in any event, probably somewhat fortunate to have been recognised
given that its argument was substantially the same as that of the appellants.
Having said that, we are grateful to counsel who appeared on its behalf, whose
argument was skilful and illuminating.

Further evidence
[72] One further issue needs to be mentioned. The appellants filed an application
to place what it referred to as ‘new evidence’ before this court on appeal,
contending it to be relevant to their claim for constitutional damages as well as
the declaratory order that they sought. This ran into hundreds of pages, and
appeared to have been evidence compiled in response to the structured interdict
issued by the court a quo. The essence of the appellants’ contention in this regard

58 Ex parte De Vos 1953 (2) SA 642 (SR) at 643D-H.

was that this evidence showed that the respondents had failed to properly comply
with their undertakings under the structured interdict. This information was really
a matter for the court a quo, which had ordered the first and second respondents
to report to it in respect of various issues as set out in paras 2.3 and 2.4 of the
order it granted.59 In any event, many of the allegations appeared to be disputed
or a matter of political, rather than legal, relevance. And, at the end of the day,
the application was not formally moved before us and no reference was made to
these documents. Nothing further needs be said about the issue.

Result
[73] In the light of what is set out above, the following order will be made:
A
The appeal succeeds to the extent that the order of the court a quo is altered
as follows:
‘1
The words “the claim is dismissed” in para 1 of the order are deleted and
substituted by 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 M L Komape;

(iv)
R200 000 for Mr L Komape;

(v)
R100 000 for each of the minor children Maria, Onica

and Moses Komape.
The words ‘Claim A’ and ‘The claim for grief is dismissed’ are deleted
from para 2 of the order.
Paragraph 3.1 of the order is deleted and substituted with the following:

59 Quoted in para 19 of this judgment.

‘3.1 The claim for future medical treatment in respect of the minors
Maria, Onica and Moses Komape succeeds. The first and second
defendants are ordered to pay for the future treatment in respect of:

(a)
Maria Komape, the amount of R6 000.

(b)
Onica Komape, the amount of R6 000.

(c)
Moses Komape, the amount of R6 000.’

B
The first and second respondents are to pay the appellants’ costs of the
appeal, jointly and severally, the one paying the other to be absolved. Such
costs are to include the disbursements incurred by two counsel who
appeared pro bono for the appellants in travelling to and being
accommodated in Bloemfontein in order to present this appeal.’

_______________
L E Leach
Judge of Appeal

Appearances

For the Appellants:
V Maleka SC (with him A Hassim and N Stein)
Instructed by:

Section 27, Braamfontein

Webbers, Bloemfontein

For the Respondents:
M S Phaswane (with him K Ramaimela)
Instructed by:

The State Attorney, Polokwane

The State Attorney, Bloemfontein

Amicus Curiae:

K Hofmeyr (with her H Cassim and A Armstrong)

Equal Education Law Centre, Khayelitsha

Webbers, Bloemfontein