The Big Read: Some time last year, I started following the story in the media of the unenclosed toilets in Makhaza, 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 these unenclosed toilets in full view of neighbours to perform their morning ablution. That a South African Human Rights Commission 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 into the legality of constructing these toilets in Makhaza.
The report was released only after the Social Justice Coalition made a formal application in terms of the Promotion of Access to Information after the City had failed to accede to previous requests by the SJC to make the report public.
The released report details the history of the construction of these toilets.
According to city officials interviewed during the investigation, the City's original intention was to upgrade sanitation facilities in informal settlements on the basis of five families per toilet.
However, during the construction process , the community is alleged to have "prevented" the ongoing construction and demanded instead that each erf be provided with a toilet. A compromise 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, a total of 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 toilet's structures were installed, each beneficiary had to sign a "happy letter" recording their satisfaction.
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.
The report also questions the "happy letters".
The investigation revealed through interviews with community members that they had only agreed to the offer as they felt that they had used the bucket system for the past 20 years and were afraid that should they decline the offer they would lose out on the opportunity to have proper 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.
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 DA purport to champion transparency and a free media in the interest of 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.
Secondly, by its flagrant violation of a long list of rights of the residents of Makhaza.
Recognising the inhumanity of poverty and deprivation in South Africa, the jurisprudence of our courts and academic writing in respect of socioeconomic rights that includes the rights to housing and basic services, recognises the close relationship between the right to dignity and socioeconomic rights. According to socioeconomic 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 of "reasonableness" 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, providing open toilets as an upgrade of services to Makhaza is inhumane, undignified and akin to the actions of the apartheid state that treated black South Africans as lesser human beings.
Such action may even be called racist.
In the wake of the public outcry, the toilets were enclosed, but then later damaged and destroyed, allegedly by the ANC Youth League.
In May, the City removed 65 toilets from Makhaza, these include the 55 toilets in Makhaza that had initially not been enclosed, and a further 10.
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 only acts against those responsible for damaging the toilets.
Meanwhile, the most basic ritual continues to be a daily struggle for those families.
They have to do it in the face of many hazards such as 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.
Faranaaz Veriava is a public interest lawyer.This is an edited version of the article which first appeared on www.polity.org.za
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 these unenclosed toilets in full view of neighbours to perform their morning ablution. That a South African Human Rights Commission 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 into the legality of constructing these toilets in Makhaza.
The report was released only after the Social Justice Coalition made a formal application in terms of the Promotion of Access to Information after the City had failed to accede to previous requests by the SJC to make the report public.
The released report details the history of the construction of these toilets.
According to city officials interviewed during the investigation, the City's original intention was to upgrade sanitation facilities in informal settlements on the basis of five families per toilet.
However, during the construction process , the community is alleged to have "prevented" the ongoing construction and demanded instead that each erf be provided with a toilet. A compromise 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, a total of 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 toilet's structures were installed, each beneficiary had to sign a "happy letter" recording their satisfaction.
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.
The report also questions the "happy letters".
The investigation revealed through interviews with community members that they had only agreed to the offer as they felt that they had used the bucket system for the past 20 years and were afraid that should they decline the offer they would lose out on the opportunity to have proper 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.
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 DA purport to champion transparency and a free media in the interest of 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.
Secondly, by its flagrant violation of a long list of rights of the residents of Makhaza.
Recognising the inhumanity of poverty and deprivation in South Africa, the jurisprudence of our courts and academic writing in respect of socioeconomic rights that includes the rights to housing and basic services, recognises the close relationship between the right to dignity and socioeconomic rights. According to socioeconomic 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 of "reasonableness" 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, providing open toilets as an upgrade of services to Makhaza is inhumane, undignified and akin to the actions of the apartheid state that treated black South Africans as lesser human beings.
Such action may even be called racist.
In the wake of the public outcry, the toilets were enclosed, but then later damaged and destroyed, allegedly by the ANC Youth League.
In May, the City removed 65 toilets from Makhaza, these include the 55 toilets in Makhaza that had initially not been enclosed, and a further 10.
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 only acts against those responsible for damaging the toilets.
Meanwhile, the most basic ritual continues to be a daily struggle for those families.
They have to do it in the face of many hazards such as 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.
Faranaaz Veriava is a public interest lawyer.This is an edited version of the article which first appeared on www.polity.org.za
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