2 April 2024
Residents of Langaville informal settlement in Ekurhuleni have lost their court battle for toilets. Illustration: Lisa Nelson
Residents of the Langaville informal settlement, which has been in existence for three decades, have lost their court battle to compel the City of Ekurhuleni to rezone the area as residential and to provide proper sanitation in the form of flushing toilets.
Johannesburg High Court Judge Steven Kuny dismissed the application, without costs, after raising concerns about the availability of budget to provide the area with flushing toilets and possible “queue jumping” of formal housing lists.
Ariella Scher, from the Centre for Applied Legal Studies (CALS), which assisted the residents with their court application, said while Judge Kuny had found that “the government departments and agencies responsible for these decisions can and should be held to account”, he did not go so far as to hold them accountable.
“We are obviously disappointed with this outcome,” she said. “The Constitution provides for socio-economic rights to be realised progressively. The provision of temporary chemical toilets for over a decade is certainly not progressive, and violates the municipality’s own sanitation policies.
“In any event, our clients have lived in Langaville for decades without any indication that the municipality seeks to move them to more formal dwellings, and so the effect of this judgment is that the provision of chemical toilets will now continue indefinitely.
“Our clients have no intention of ‘queue jumping’, but are simply seeking state provision of the dignified, permanent forms of sanitation to which they are entitled. We are currently reviewing the judgment with our clients and will decide on a way forward with them.”
Langaville Extension 8 is a settlement made up of formal “RDP” houses interspersed between informal shack dwellings.
The residents argued that while the RDP structures had been provided with water and permanent flushing toilets, people living in the shack dwellings only had access to shared taps and chemical toilets.
The municipality had supplied the chemical toilets via private companies as a “temporary” measure, for more than twelve years.
The residents argued that it was unconstitutional to expect them to use these under-serviced, over-utilised, unsafe and unhealthy forms of sanitation indefinitely.
The municipality, however, said it could not provide permanent sanitation because the land was zoned for “community use” and not residential.
In his ruling, Judge Kuny said the residents’ demand for flushing toilets had to be considered in tandem with financial and budgetary constraints.
While he had no doubt that decisions taken by the City in relation to the provision of chemical toilets could be reviewed by a court, the decisions were “highly policy-laden”.
“These proceedings, although instituted in the name of three individuals, concern the plight of a vast number of people living in informal settlements, who do not have waterborne sewerage and flushing toilets.
“The litigation falls squarely within public interest litigation.
“There are at least 160 other households on the affected erven. The order proposed by the applicants would result in demand being made on the [City] to supply all the residents with flushing toilets. Invariably many thousands of other residents in informal settlements in surrounding areas, would similarly demand the rezoning of their properties and flushing toilets,” he said. “Where is the line to be drawn?”
He said there were deficiencies in the residents’ case: there was a dispute of fact over whether the infrastructure in the area could support waterborne sewerage; and residents had not referred to any developmental studies, cost benefit or budgetary analysis.
“Notwithstanding that, there is much to be said in favour of their complaints,” Judge Kuny said.
“However, in my view, they have not made out a case for the relief they seek. The orders proposed are very general and far-reaching. They will not give finality to the disputes. Instead, they will spawn innumerable arguments and further litigation,” he said.