A Western Cape High Court judgment in the “open toilet” saga has made it clear that municipalities have a responsibility to get input from residents when providing services.
And a Khayelitsha community organisation says the judgment has highlighted the confusion at local government level over basic sanitation norms.
On Friday, Judge Nathan Erasmus delivered his ruling in the case brought by three Makhaza residents, including Western Cape ANC Youth League member Andile Lili.
Judge Erasmus had few kind words for the City of Cape Town in its having violated the rights of residents by concluding a suspect “agreement” to erect more than 1 300 toilets without walls.
“We have a duty, more particularly public representatives and government, to promote human dignity. This dignity must be fulfilled responsibly and with the utmost maturity. A failure to do this diminishes us all,” he said.
The toilet issue had become politicised, at the expense of community members, he said.
Referring to the power tussle between ANCYL members and mayor Dan Plato, Judge Erasmus said Plato and Lili “simply failed to rise above their political contest as opposed to their duty towards those that need to benefit – the poor and vulnerable”.
The judgment was attended by several politicians, including ANCYL president Julius Malema, DA MP Lindiwe Mazibuko, Sports Minister Fikile Mbalula, and ANC Provincial chairman Marius Fransman.
Gavin Silber, who works with the Social Justice Coalition NGO in Khayelitsha, agreed that the community suffered unnecessarily as a result of the political battle.
“We called for a productive solution. It’s clear that people were pushing their political agendas on both sides. This is close to elections. It shouldn’t become ammunition. The needs of the community must come first,” he said.
Silber also said, “it is clear there is confusion about what the policy is around sanitation. There is a lot of confusion around what constitutes basic sanitation” .
The NGO recently held a demonstration in Cape Town in which more than 2 000 people queued for a toilet at the mayor’s office to protest at the state of sanitation in Khayelitsha, Silber said.
Plato said the city still had to study the judgment but he felt it could “have a detrimental effect on all municipalities”.
He maintained that the municipality had “tried to do more for the community” by providing the toilets without walls to the 1 300 households as an alternative to communal toilets and was aware of the affects of communal toilets. “They are not a solution but that’s what the codes prescribe,” he said.
However, Judge Erasmus had said the city had been wrong in its interpretation of the housing code – a point on which Plato would not comment.
Examining the agreement which lead to the toilets being erected, Judge Erasmus found that municipal officials had not consulted sufficiently with residents by speaking to only 60 of the 6 000 people who would be affected by the toilet scheme.
He ordered the city to enclose all 1 316 toilets.
“The requirement of engagement flows from the need to treat residents with respect and care for their human dignity… The alleged agreement made no provision for those who were unemployed and poor and could not fund the enclosure of their own toilets.”
Judge Erasmus said “reference to a vague agreement is simply not good enough”.
“The city is bound by the prescripts of the (National Housing) Code and the Constitution and according must ensure that community participation and negotiated agreements that are entered into, are consistent with the prescripts of the Code. This is patently absent here.”
He also pointed to the fact that many of the toilets which were enclosed by residents were done so with “whatever, often mixed, materials that could be found. Most of the self-enclosed toilets were unsatisfactory to satisfy dignity and privacy”.