Drowning in Excrement

Centring the devastating case of five-year-old Michael Komape’s drowning in a pit latrine at school, this chapter discusses the ‘dis/empowerment paradox’ inherent in South Africa’s ‘transformative constitutionalism’. Through the example of the Komapes’ 2018 case against the Minister of Basic Education (2018), it reveals the limitations of transformative constitutionalism rooted in Euro-American liberalism, which resonates with a neoliberal political economy that has failed to relieve the impoverished majority of their dehumanising precarity. While the chapter highlights the failure of the South African government to relate and respond to the suffering of the people it is meant to serve, more profoundly, it exposes the limitations of transformative constitutionalism due to its inability to even ‘see’ (let alone, validate) the world-sense of its majority population as legitimate law -sense. The Komape case thus reveals three key insights: (1) the resistance of private law to transformative ideals, (2) the reluctance of South Africa’s legal culture to embrace decolonial transformation and pluralism, and (3) the tension(s) between the legal consciousness of ordinary South Africans and the dominant legal culture. The case therefore underscores the need for Ntu Constitutionalism: a system grounded in indigenous normative priorities and robustly representative of South Africa’s marginalised communities and their needs.