SCA releases Komape judgment on emotional shock and constitutional damages

The Supreme Court of Appeal handed down judgment in Komape & Others v Minister of Basic Education & Others on 18 December 2019, in which the Court grappled with the topical issues of developing the common law in accordance with the Constitution and the circumstances under which an award of constitutional damages is appropriate.

The case relates to the tragic death of five year old Michael Komape after he fell into a pit latrine at his school when the seat collapsed due to lack of maintenance. The tragedy occurred after education authorities failed to heed prior calls to action to address the situation. Michael’s parents and siblings instituted a claim against the Minister of Basic Education and other government and school officials for various delictual damages, which the High Court largely refused to grant.

On appeal, the SCA was asked to award inter alia the following heads of damage:

• Emotional shock resulting in psychiatric injury, being the traditional head of damage previously recognised and awarded in South Africa; and
• Grief or constitutional damages, which the Komape family argued they should be entitled to in accordance with the Constitution.

The court found that there was sufficient evidence to prove that all of the family members had suffered emotional shock and trauma which had resulted in psychiatric injury, and such injury stood to be compensated. In light of the fact that damages were adequately provided for under the common law in respect of the traditional claim for "psychiatric injury", it was found that there was no need for the development of the common law.  This finding made it unnecessary for the Court to consider if such development would have proved necessary if the grief had not resulted in a “psychiatric injury”. An award of R1.4 million was made in respect of the damage suffered by the Komape family for emotional shock, including grief, which was divided in varying proportions between Michael’s parents and siblings.

The Komape family also asked the Court to award them constitutional damages on the basis of the breach of their constitutional rights, and to bring home to the education authorities the need to provide adequate sanitation for children at schools.  Although constitutional damages have been awarded in the past in respect of financial loss which would otherwise not have been recovered at common law, the court found that in light of the fact that the injuries suffered by the family were being compensated, any such award in this case would be punitive, and that the conduct of the education authorities to date made it clear that any such award would not change their ways. The Constitutional Court’s judgment in Fose v Minister of Safety and Security was quoted with approval, including its summary of the approach to be taken in relation to the award of constitutional damages:

“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 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 on structural and systemic ways to eliminate or substantially reduce the cause of infringement.”

In this matter, having considered the facts, the Court held that the position had not changed in South Africa such that that the approach set out in Fose was no longer appropriate, and consequently refused to make any award for constitutional damages.

The judgment is likely to be one of many which will test and ultimately determine the impact of the Constitution on the damages to which claimants will be legally entitled. It will be interesting to see how this approach may impact the horizontal application of constitutional rights and claims for damages due to breaches which do not involve the State.

 Click here to access a copy of the judgment