The Western Cape High Court heard an application for an order (1) declaring the provision of unenclosed toilets to be in violation of sections 9, 10, 12, 14, 24, 26 and 28 of the Constitution, and (2) ordering the enclosure of all the toilets in the informal settlement which was the subject of an upgrade by the City of Cape Town. The Court found that the provision of unenclosed toilets constituted a violation of the community members’ constitutional rights to dignity, freedom and the security of the person, privacy, an environment that is not harmful to one’s health, the right to housing, the right to health care and water in terms of section 27.

The Court was especially concerned that many of the toilets were not respectful of the dignity and privacy of the community members. In addition, there was no account taken of, nor any measures adopted to meet, the needs of especially vulnerable groups such as the disabled, elderly, women, children and those living in such severe poverty as to be unable to pay for the enclosure of toilets provided by the City of Cape Town.

The latter point was central to the Court’s finding that the alleged agreement entered into between the City of Cape Town and the affected community members in terms of which the community allegedly agreed to the provision of unenclosed toilets was incapable of being a lawfully enforceable agreement. The Court stated that any housing programme such as the one in question must recognise and address the needs of the most vulnerable members of a community. The provision of toilets as part of the housing programme provided by the City of Cape Town did not do this. In this case, the most poor could not afford to enclose their toilets and the City did not come to their aid; the disabled could not access the toilets; those most vulnerable to violence were not protected; and the gender impact on women and girls in terms of their different biological functions and vulnerability to gender-based violence was not taken into account.

Even if it were to be found that an agreement, as alleged by the City, was concluded with the community, such an agreement would not be valid and enforceable; it could not legitimise the installation of unenclosed toilets due to the aforesaid fatal legal flaw in the housing programme in question.

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