The law of Delict in South Africa (which would be called “the law of torts” elsewhere) has a complicated legacy. It is part of the South African common law – a colonial artefact originating from Roman Dutch law. After Apartheid ended, racist and authoritarian laws had to be abolished or amended to be consistent with a variety of rights enshrined in the Constitution of South Africa, 1996. The Constitution places a duty on the courts to develop or eradicate common law that is inconsistent with the Constitution or that does not promote the values of the Constitution.
However, the law of Delict was only significantly developed after the case of Carmichele v The Minister of Safety and Security in 2001. The Constitutional Court (“CC”) stated that constitutional rights and obligations form an integral part in deciphering whether there is a private law duty for the state to act in a certain way. Therefore, the rights in the Constitution became a fundamental aspect of the law of Delict. The result of which can be seen in cases such as Komape v Minister of Basic Education, in which the Department of Education was held responsible for violating the rights of Michael Komape by failing to eradicate pit latrines, which led to his death.
The CC has stated that public law duties do not always translate into private law damages. The State having not fulfilled or having violated rights does not automatically translate into Delictual compensation. However, the CC has made clear that State accountability is a weighty consideration in favour of common law damages. Alistair Price points out two aspects to accountability that are potentially fulfilled when the State is sued. One is exposing the State’s wrongdoings. When the State is taken to court for unconstitutional conduct or inaction, it is forced to explain its position. The State’s policies and activity or inactivity in fulfilling such policies are revealed to the court as well as the public. The other aspect of accountability that is fulfilled through Delict is that the State is forced to right its wrongs through compensating the victim.
The State’s duties are thus made clear to it and to the public, and the State is forced to pay-out where it does not fulfill those duties. This is what happened in Komape v Minister of Basic Education. Michael Komape was five years old when he fell to his death through a dilapidated pit latrine at a public school. The Komape family decided to sue the State with the help of the public interest organization SECTION27 in order to hold the state accountable for their son’s death.
The first aspect of holding the State to account was served in the Komape case in that the State was forced to admit liability for its inaction in eradicating pit latrines. The State thus admitted that it had a duty to eradicate them and the resources to do so. This duty is based on the obligation to protect the dignity of students and to fulfill their right to a basic education, as enshrined in the Constitution. The State had to admit that it had failed to fulfill that duty. The inequality in the provision of basic education remains one of the most enduring legacies of Apartheid. The State was forced to admit that they have failed to address that legacy in the case of pit latrines, and that poor black children are suffering the consequences.
The second aspect of accountability, adequate compensation for the Komape family, required protracted litigation – ending up in the Supreme Court of Appeal (“SCA”). The High Court refused to award compensation to the Komapes’ for pain on suffering because of evidential technicalities. The SCA overturned this aspect of the High Court judgment, finally compensating the Komape family for the death of their son. Interestingly, without being asked to do so, the High Court issued a structural interdict against the State – demanding that the state take action to eradicate pit latrines and placing that duty under court supervision.
Some aspects of the judgment remain contentious (the SCA denied the Komape family constitutional damages and refused to develop the common law to include claims for ordinary grief) but it is clear that the two aspects of accountability highlighted by Price were fulfilled. The Komape family were compensated for the State’s violation of their own and their son’s rights. Further, the State’s inaction and lack of political will to eradicate pit latrines was laid bare to the public. One hopes that the structural interdict issued by the High Court will push forward the eradication of pit latrines in South Africa. It may still be too early to tell. Regardless, the case has shown how Delict can be used as a tool in strategic litigation to hold the State accountable for the non-fulfillment of rights. It is certainly apt to note how a colonial remnant has been appropriated by public interest organisations as a tool to help realise constitutional rights in South Africa.
Mila Harding is a legal research intern at SECTION27. Mila holds a Bachelor of Arts in Politics, International Relations and Law and is currently completing her final year of her LLB at the University of the Witwatersrand in Johannesburg, South Africa.