Vital court battle over what kinds of toilets the state must provide
Ekurhuleni community wants unsafe and unhygienic chemical toilets replaced with flushing ones
- The Ekurhuleni municipality has been taken to court by residents of an informal settlement. They want their chemical toilets to be replaced with some form of flush toilets.
- The applicants have been living in the informal settlement for decades and argue that the government must replace their current unhygienic, unsafe toilets.
- The state’s advocate responds that the dire situation of the applicants is not unique and there are 160,000 people living in 119 informal settlements in the city and “people cannot be treated differently”.
- Judge Steven Kuny has reserved judgment.
Residents of Langaville gathered in a local community hall on Thursday to watch what could be a life-changing (online) court case, in which they are seeking an order that the Ekurhuleni Municipality finally “progressively realises their rights” and replace chemical toilets with some form of flushing loos.
The residents, who live in shacks next to families who have been allocated RDP houses and who have access to proper sanitation, say they have had enough of what were supposed to be “temporary” chemical toilets, installed over 12 years ago.
The toilets are unhygienic, and it is not safe for women, children and the elderly to use them, particularly at night, they say.
There are three applicants in the matter, one of whom has lived in the area for some 30 years. But the outcome of the case will directly impact 153 households, who share 50 chemical toilets on three pieces of land.
The municipality is opposing the application: it says that the land is not zoned residential - and there are no plans to rezone it - that the residents are trying to “jump the queue” for housing and sanitation, that the chemical toilets are adequate, that there are has budget constraints, and that the residents may quality for RDP housing in the ten-year John Dube Village Mega-City Project.
In argument before Johannesburg High Court Judge Steven Kuny, Advocate Sha’ista Kazee, who was briefed by the Centre for Applied Legal Studies (CALS), said: “ We contend the ways in which a person is able to manage their bodily functions, are at the core of human dignity…and indignity causes human embarrassment. This is a daily experience for our clients.”
She said the residents were not seeking to dictate to the municipalitywhat toilets it should provide and they were not “pushing” to be connected to the bulk water and sanitation system already available in the area for formal houses.
“They are just asking for an upgrade. There are six other forms of portable toilets and the community would be amenable to getting any of them - including ablution blocks, flushing water-borne toilets, dry sanitation toilets and toilets with septic tanks.”
Regarding the claim by the municipality that it had no money for any type of upgrade, Kazee said it had just made a bald statement and had not provided any detail of its financial constraints.
She also pointed to the fact that over a three-year tender period, the municipality had spent R1.9-billion on providing chemical toilets across the city.
She said there was no guarantee that the Langaville residents would get RDP houses in the John Dube project, which would only be completed in 2027.
Regarding “queue jumping”, she said the community had been recognised by the municipality for more than 30 years and had been provided with electricity.
There had been no attempts to evict anyone or resettle anyone.
On the rezoning issue, she said the municipality had not in three decades attempted to develop any facility in line with the present zoning (community facility, industry, garage, taxi rank) and it was “difficult to understand why an upgrade of sanitation is impossible without rezoning”.
However, if the court agreed with the municipality that this was a barrier, the community would seek orders directing the municipality to consider the rezoning.
The “meat” of the application, Kazee said, was to review and set aside the decision to continue using chemical toilets and to obtain a declaration that the municipality’s continued provision of these toilets was unconstitutional and unlawful and that it had failed to comply with its constitutional obligations.
Further, the residents sought an order directing the municipality to recognise the community’s right to adequate housing and basic sanitation and to report back to the court, within 30 days, on what measures it has taken or intends to take in this regard.
Advocate Usha Dayanand-Jugroop, for the municipality, said that unfortunately, the dire situation of the applicants was not unique. There were 160,000 people living in 119 informal settlements in the city and “people cannot be treated differently”.
“If this order is granted, they will say we want the same thing.”
“We have improved the conditions, we have increased the cleaning times, given them more toilets, consulted regarding placements … so the municipality has gone out of its way to meet the community’s needs.”
She said the zoning – which was determined in 1996 when Langaville was proclaimed a township before the shack dwellers moved illegally onto the outskirts – was mandatory. One of the erven had been set aside for a school and could not be rezoned without the approval of the Department of Education.
She said the municipality believed that the applicants were not only seeking better sanitation but wanted the residential rezoning so they could claim their stands and “demand RDP houses like the ones across the street”.
Dayanand-Jugroop said while it was technically possible to provide a better, temporary, “not water-borne” system, the area had been categorised as a “C” informal settlement, which meant the municipality had no plans to develop and formalise it. Instead, the municipality had embarked on the mega city project, which aimed to house 10,000 people.
“One cannot just consider the needs of 153 households. These are technical decisions that have huge financial and budgetary implications. As much as the applicants are desperate and say they want an upgrade, one has to look at the context. The municipality is doing its utmost to meet the basic needs of all to make sure they have dignity. It has decided it can only provide interim sanitation.”
In reply, Kazee said her clients just wanted recognition of their rights in light of the fact that the municipality had, in argument and on the papers, said their needs would not be catered for.
Judge Kuny reserved judgment. He said he had not made a final decision on whether or not he wanted to do an inspection in loco (in other words, visit Langaville) and he would keep the parties informed.
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