For a few days in 2018, Lumka Mkhethwa’s deadly fall into a pit latrine at Luna Junior School in Mbizana elicited widespread condemnation both locally and abroad.
Now, her family’s efforts to press a combined R23.5m claim for negligence against education authorities and the school itself may be jeopardised after lawyers failed to appear in the Bhisho high court this week.
And MEC for education Fundile Gade has argued through his lawyers that “uncertainty and mystery surround the passing of Lumka”.
He says “insufficient facts and circumstances are known ... regarding Lumka’s asphyxiation in a toilet” for education officials to be held liable.
Lumka’s father, Vuyani Mkhethwa, said on Thursday he last spoke to his Johannesburg-based attorney, A Simaya of Dubula Incorporated, two weeks ago.
Efforts to reach either the individual attorney or the law firm were unsuccessful.
In their claim, Vuyani and Lumka’s mother, Mandisa Mkhethwa, alleged that education authorities had failed to take responsibility for Lumka’s wellbeing, care, safety and security.
They said a reasonable official or employee would have ensured the toilet did not constitute a danger to the pupils and would have foreseen that their omission to properly maintain the toilet would lead to a pupil falling in and drowning.
The huge damages are sought from the MEC, the school governing body and the principal of Luna Junior.
Despite receiving notice that the matter was set down for hearing, nobody from Dubula Inc appeared in court on January 28 to counter the MEC’s argument that their case was not properly presented.
The MEC’s lawyers argued that the claim was neither lucid nor logical: No facts or circumstances were presented which pointed to steps the MEC ought to have taken to guard against the death of a child in a pit toilet, and the parents had not established that Lumka’s death was due to official negligence.
“It is an extraordinary tragedy,” said advocate Richard Quinn SC. But that was the end of the matter, he said.
Quinn argued that no case had been made linking Lumka’s drowning in a pit toilet to negligence, or that this could have been foreseen.
Quinn wanted the Bhisho high court to give the Mkhethwa family 30 days to come to court with a properly constructed claim that established the cause of the negligence.
According to Dispatch reports at the time of her death, Lumka disappeared after she went to use the pit toilet at her school on March 12 2018.
Her body was found the after day inside the pit toilet.
The lawyers for the family stated in their claim that education authorities had failed to provide “a safe and secure environment”, properly maintain the toilets at Luna, and ensure that the toilets “did not cause damage to Lumka”.
The claim for damages was initially lodged in court by attorneys Dudula Inc through correspondents Mlonyeni & Lesele in May 2019.
In November, the correspondents withdrew from the matter, though they were reappointed in January 2020.
According to court papers, both parents have suffered extensively from the psychological affect of Lumka’s death.
Her father “has homicidal thoughts towards members of the teaching staff at Luna primary school”, while her mother has suicidal thoughts and tendencies.
Acting judge Justin Laing reserved judgment in the MEC’s application for an exception to the claim for damages.
In his weekly online newsletter this week, president Cyril Ramaphosa said Lumka’s death could have been prevented if adequate measures had been taken.
Ramaphosa said to prevent children falling into pit latrines, the government had launched the Safe (Sanitation Appropriate for Education) initiative to accelerate the provision of appropriate toilets to all schools in the country.