Leave to appeal gives Komape family second bite

James and Rosina Komape are fighting for fair compensation after their son's death./Simphiwe Nkwali
James and Rosina Komape are fighting for fair compensation after their son's death./Simphiwe Nkwali

The advocacy group representing Michael Komape's family in the lawsuit against the state has vowed to appeal directly to the Supreme Court of Appeal (SCA) for emotional shock and trauma compensation.

The Limpopo High Court yesterday granted Komape's family leave to appeal their refusal on the R2-million in constitutional damages, but dismissed the claim for emotional shock.

Section27 spokeswoman Nomatter Ndebele said they would seek further advice from senior counsel in the case.

"We intend to file an application for leave to appeal directly to the SCA in respect of emotional grief and a notice of appeal in respect of the declaratory relief," Ndebele said.

She added that they also intend to file another notice related to past and future medical expenses, funeral expenses and loss of earnings in respect of Michael's mother Rosina, who had to stop working when he passed away.

The Komape family instituted a civil claim of R2-million for damages against the Department of Basic Education for the wrongful and negligent death of Komape.

In 2014 Komape, a five-year old Grade R pupil, fell into a pit latrine at Mahlodumela Primary School in Chebeng village, 23km northwest of Polokwane.

Judge Gerrit Muller dismissed the family's second claim of R940000 for emotional shock and trauma they suffered due to Michael's death. Last month Muller only awarded the family R12000 for medical expenses for each of Michael siblings Oniva and Maria.

The family will present their case in the SCA.

Michael's father James Komape said he was not aware of the judgment when contacted for comment yesterday.

"I will wait for our lawyers to tell us what happened in court before I comment," he said.

Education Department's Elijah Mhlanga said they had earlier offered the family a R1.5-million out-of-court settlement, but it was rejected.

"We were not refusing to compensate the family, just that they wanted more from the department," Mhlanga said.

"Before the matter could come to court I went with the MEC for education in Limpopo to Tzaneen where we made this offer to Section27 and they rejected it."

However, Komape dismissed Mhlanga's claims.

"What I know is that they offered us R450000 a settlement and we rejected it right away."

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