Some time last year, I started following the story in the media of the unenclosed toilets (toilets without roofs or walls) in Makhaza, a section of Khayelitsha in the Western Cape. I was horrified when I saw the photographs of these toilets out in the open. I imagined the humiliation of a woman or man having to leave their shacks every morning and walk to this unenclosed toilet in full view of neighbors to perform their morning ablution. That a South African Human Rights Commission (SAHRC) investigation ultimately found the construction of these toilets to be a violation of the right to dignity of the residents of Makhaza is a no-brainer. What continues to be baffling is the City of Cape Town's ongoing justification of the decision to construct these unenclosed toilets in the first place.
Last week the City of Cape Town released the report of its internal investigation conducted earlier this year into the legality of constructing these toilets in Makhaza. The report was released only after the Social Justice Coalition (SJC) made a formal application in terms of the Promotion of Access to Information (PAIA) after the City had failed to accede to previous requests by the SJC to make the report public. The SJC is a community organisation campaigning for safety and security for all, through active citizenship and accountable governance. The request for the report arises out of their campaign calling for safe, clean, secure and private toilets for all people living in informal settlements based on the immediate dangers associated with inadequate water and sanitation services (including being assaulted, raped or robbed using a toilet).
The released report details the history of the construction of the unenclosed toilets. According to city officials interviewed during the investigation, the original intention of the City was to upgrade sanitation facilities in informal settlements on the basis of five families per toilet structure but during the process of constructing the toilets, the community is alleged to have "prevented" the ongoing construction of these toilets and demanded instead that each erf be provided with a toilet. According to the officials, a comprise was then agreed to following a consultation process with residents whereby each erf would be provided with an unenclosed toilet (referred to by city officials as a "loos with a view"), the onus then being on the community to enclose the toilets at their own expense. According to the report, in Makhaza 298, unenclosed toilets were eventually constructed, and while the majority of these were enclosed by the residents of Makhaza, 55 remained unenclosed. The report also notes that once the toilets structures were installed, each beneficiary had to sign a letter "happy letter" recording their satisfaction with the structure.
The findings of the internal investigation reflect a less than perfect consultation process. Procedural irregularities are noted in the way the consultation process was conducted. That is, the National Housing Code requires that all consultations between officials and members of the community be recorded, yet no minutes of meetings with the community could be provided to the investigators of the report. The report also notes that the "happy letters" only made provision for a declaration and signature of the beneficiary but did not provide for any indication of whether or not residents where satisfied or dissatisfied with the toilets.
The investigation also revealed through interviews with members of the community that they had only agreed to the offer as they felt that they had used the bucket system for the past twenty years and were afraid that should they decline the offer they would lose out on the opportunity to have their own toilets. As such the report finds that the community was given a "Hobson's choice" in the installation of the unenclosed toilets.
The report also found that the unenclosed toilets were in violation of the Water Services Act of 1997. In terms of which Regulation 2b sets out the minimum standard for basic sanitation:
"a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather, well ventilated, keeps smells to a minimum and prevents the entry and exit of flies and other disease-carrying pests"
Thus, the City of Cape Town's own internal investigation not only provides clear and damning evidence that the installation of these unenclosed toilets is illegal but it also reveals the City's unwillingness to comply with its human rights obligations which are entrenched in the South African Constitution.
Firstly, there is a certain irony in the fact that the Democratic Alliance (DA) purport to champion transparency and a free media in the interest of a democracy, yet reveal an unwillingness to lead by example and transparent governance in the DA led City of Cape Town by not making the report of its investigation public in terms of it constitutional obligations in respect of the right of access to information (section 32) until it was compelled to do so by the SJC .
Secondly, by its flagrant violation of a long list of rights of the residents of Makhaza. These include amongst others, the right to dignity (section 10); the right to privacy (section 14); to the right of access to adequate housing which would includes adequate sanitation (section 26); and the right of access to basic services (section 27).
Recognising the inhumanity of poverty and deprivation in South Africa, the jurisprudence of our courts and academic writing in respect of socio-economic rights that includes the rights to housing and basic services, recognises the close relationship between the right to dignity and socio-economic rights. According to socio-economic rights expert Sandy Liebenberg, "to value the inherent dignity of human beings as a society is to ensure that the material conditions exist in which people can develop their capacity and participate in shaping their society."
Furthermore, while the jurisprudence on socio-economic rights has been disappointing in its failure to be sufficiently transformative of the material conditions of those living in conditions of poverty in South Africa, the notion off "reasonableness" which has evolved from the seminal Grootboom case on the right to housing, and which sets out the criteria for assessing the constitutionality of state policy in giving effect to socio-economic rights, requires that short-term provision for those whose needs are urgent and who are living in intolerable conditions be made.
Unenclosed toilets would hardly constitute adequate or dignified short-term provisioning for the community. On the contrary while it has become clichéd and almost rhetorical to equate any current state action with the apartheid state, providing as the only option for the upgrade of services to Makhaza residents, the "loos with views," is inhumane, undignified and akin to the actions of the apartheid state that treated Black South Africans as lesser human beings. As such, such action may even be called racist.
In the wake of the public outcry following widespread media attention, the toilets were enclosed but then later damaged and destroyed, allegedly by the ANC Youth League. In May this year, the City removed 65 toilets from Makhaza, these include the 55 toilets in Makhaza that had initially not been enclosed and a further ten. The Mayor has refused to discuss returning these toilets until there is a commitment to non-violence by the ANCYL. Thus, it appears that an entire community is being held to ransom for the alleged acts of the ANCYL, and the standoff between themselves and the City. It is unclear why the City just does act against those responsible for damaging the toilets and return the toilets for the use of the community. Instead, the most basic and daily ritual experienced by every woman and man world-over continues to be a daily struggle for those families who would have accessed those 65 toilets but now have to perform their daily ablution in the open, and in the face of many hazards such as facing the elements, or being at risk of rape or robbery when going to the toilet. The City of Cape Town ought to hang its head in shame for this act of inhumanity.