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On 3 May 2016, our client, five year old Oratile Diloane fell into an exposed, feaces-ridden pit-toilet at the Tlhotlheletsang Primary School in the North-West Province. As a result of the harms suffered, a claim for damages is being brought by his mother, in her personal and representative capacity, against the relevant MEC for Education: North West Provincial Department of Education in the Mahikeng High Court.
Shamefully, this is not the first time that a damages claim against the State for the harms suffered by a young child after falling into a pit-toilet while entrusted to the safekeeping of their school has been placed before the South African Courts.
On 23 April 2018 judgement was handed down in the Limpopo High Court in the case of Rosina Komape and Others vs The Minister of Basic Education and Others. This matter involved the death of a five-year-old boy, Michael Komape, who fell into an unsecured pit-toilet at his pre-school and drowned on 20 January 2014. Finding for the Plaintiffs, the Court reasoned as follows:
“The systemic practice or policy not to take active steps to equip schools in rural areas with safe and adequate toilets, and by allowing the lack of adequate sanitation to persist in those schools, is viewed as a breach of human dignity. The right to an environment which is not harmful, as set out in the Constitution, applied not only to Michael but applies to all children in the Limpopo Province faced with the dangerous and harmful effects of inadequate or non-existing sanitation at toilets in schools, is beyond doubt. There is, apart from the direct obligation to the children attending schools in the Limpopo Province, also an indirect general overarching duty resting upon the state to protect the environment for the benefit of future generations.”
That many communities in South Africa remain impoverished with a severe lack of infrastructure (including adequate sanitation) coupled with poor, if any, service provision is a source of national shame.
The continued existence of pit-toilets in certain South African schools is perhaps one of the most shameful of examples – and one which poses not only a significant risk to the health and safety of South Africa’s school children but also constitutes a violation of many of our children’s constitutional rights. In addition to the obvious violation of a child’s right to human dignity, the Court’s reasoning in Komape affirms the State duty to take reasonable steps to ensure the safety of children at schools as well as the provision and maintenance of adequate sanitation facilities – going further to require the protection, promotion and fulfilment of the right to an environment that is not harmful. Reasonable steps, that arguably have not been taken adequately to date.
In view of the above, Oratile’s case is more than just a damages claim brought on behalf of one child, it represents but one of many such cases in which the Courts are being asked to provide clarity with regards to the State’s obligations towards children’s safety at under-resourced South African schools and provide compensation where the State fails in this most fundamental of obligations.
While this is not the first case of this nature, we at Malcolm Lyons & Brivik Inc hope it will be the last.
Hayley Galgut (Author)
Senior Attorney at Malcolm Lyons and Brivik Attorneys Inc.
Marco van der Walt (Author)
Candidate Attorney at Malcolm Lyons and Brivik Attorneys Inc.
Malcolm Lyons and Brivik Attorneys are leading experts in the field of personal injury law in South Africa. To discuss whether you have a case, contact our offices below:
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