Legal counsel for the family also asked the court to develop common law allowing for the payment of damages for grief, which would set a precedent in future cases of state negligence. Alternatively, the family asked the court to award “constitutional damages” for the breach of the government’s constitutional duties to provide education and ensure the safety and dignity of the children under its care.
This claim was also rejected by the Polokwane court. The only victory for Section27 was the order for the Limpopo education department to institute a plan for the installation of safe and secure toilets across the province’s schools, 73% of which were using pit latrines until 2011.
The line of questioning by justices Navsa and Malcolm Wallis, two of the five judges in attendance, appeared to suggest the court had little appetite for developing common law for damages related to grief when existing remedies are already available in law. Navsa then sounded out both sides on the possibility of a higher monetary award for the family. There were no objections.
Monday’s proceedings kicked off with class action specialist Richard Spoor asking to be admitted as a friend of the court. He asked to introduce arguments that he said would guide the court in reaching its decision, adding that the existing common law was inadequate in terms of addressing claims arising from the wrongful death of a child.
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