Ntombentsha Beja v. Premier of the Western Cape, Case No. 21332/10
Decision on an application for a declaratory order confirming that the respondents’ conduct was unlawful and violated certain constitutional rights and duties, including the rights to access adequate housing, a healthy environment, human dignity, privacy and children’s rights.
This case concerns the residents from the informal settlement of Makhaza, part of the Silvertown Project in Cape Town. The City of Cape Town had decided to upgrade the informal settlement under the Upgrading of Informal Settlements Programme (UISP).
An agreement had been entered into between the City of Cape Town and individual members of the community in respect of the provision of 1316 toilets for the Silvertown Project. The application to the High Court was regarding 55 unenclosed toilets in Makhaza. The applicants argued that the provision of open toilets violated several of their constitutional rights. In turn, the City justified its conduct by asserting the residents had agreed to enclose the toilets themselves if the City provided one toilet for each household. Indeed, most of the installed toilets had been enclosed by the residents themselves but very inadequately because of the lack of financial means. An official complaint was lodged with the South African Human Rights Commission, which found the City had violated the residents’ right to human dignity.
Upon review, the High Court issued an interim order obliging the City to enclose the toilets referenced in the application but also, upon written request, toilets that had been enclosed by residents themselves. The High Court found that the agreement failed to meet minimum guidelines for agreements with communities with the aim of realising socio-economic rights, and the City’s action therefore did not meet the reasonableness requirement of the Constitution. Furthermore, the Court confirmed there was a violation of the following constitutional rights: human dignity (sec. 10), freedom and security of the person (sec. 12), privacy (sec. 14), environment (sec. 24), housing (sec. 26), and healthcare (sec. 27). The decision affirmed that the primary objective of the Constitution is the protection of human dignity. The Court also found that the unenclosed toilets violated the National Standards and Measures to conserve Water. In its final order, the Court ruled that the City must enclose all 1316 toilets in accordance with the UISP.
On 5 July 2011, the executive mayor of Cape Town indicated that an agreement had been reached between the City of Cape Town and the Makhaza residents on the model of enclosure for the toilets, in compliance with the Cape High Court ruling. The City enclosed toilets with concrete and the construction of the toilet enclosures commenced in July 2011. All toilets were enclosed by March 2012. The city has further increased the provision of toilets in informal settlements and increased budget allocations for building toilets in informal settlements for 2013 and 2014. In April 2014, the first national sanitation summit was held to start drafting a “people’s plan for sanitation and dignity.” However, despite these positive developments, it appears that water and sanitations problems continue to persist for people living in informal settlements in Cape Town.
The Beja judgement provides clarity on the provision of basic services in the context of in situ upgrading of informal settlements and attempts to give substantive and normative content to this process by situating it within a broader constitutional, legislative, policy, and jurisprudential framework. The Court reiterated that the requirements of privacy, protection against the elements, and adequate sanitary facilities are central features of the development of adequate housing in South African informal settlements. Furthermore, the judgement stresses the importance of community participation as outlined in the UISP, as well as the concept of “meaningful engagement”, as provided for in the Constitution and the National Housing Code.
(updated on June 2015)