West Cape News

Khayelitsha Makhaza residents marched to the Cape High Court on Tuesday on the first day of hearings over whether or not the City of Cape Town violated residents' human rights by erecting unenclosed toilets in the area. Photo: Sandiso Phaliso/WCN

The Western Cape police have failed to investigate the conduct of community members who prevented City of Cape Town officials from erecting structures to enclose open-air toilets in Makhaza informal settlement, the High Court heard on Tuesday.The failure by the police to act on an earlier order by Judge Nathan Erasmus that the police should investigate whether any party in the matter should be charged with contempt of court resulted in Erasmus issuing a subpoena for the provincial police commissioner and the Harare police station commissioner to explain their actions to the court.

The court case, in which Makhaza residents represented by Norman Arendse have hauled the City of Cape Town and Executive Mayor Dan Plato before court in a bid to force them to erect concrete enclosures for toilets installed in the area in 2009, follows over a year of protests and counter-accusations.

In 2009 the city installed 1 316 toilets in the Silvertown area of Khayelitsha, including 255 in Makhaza.

According to the city, an agreement was reached with residents that they would enclose their own toilets as the city lacked the budget to do so.

The other alternative was that the city install one enclosed toilet for every five households.

But 55 recipients in Makhaza were unable to afford the material to enclose their toilets, leading the ANC Youth League to lay a complaint of violation of human rights with the Human Rights Commission.

When the city attempted to enclose the remaining 55 toilets with wood and zinc structures in March last year, ANCYL members protested and broke down the structures.

Another attempt in May ended with similar results, prompting the city to remove all the unenclosed toilets until the ANCYL could undertake that they not be vandalized.

This sparked violent protests by residents.

In November an interim order was handed down by Erasmus that the city must reinstall and enclose all the removed toilets with corrugated iron structures, but residents prevented the city from doing so in December.

As a result, Erasmus ordered that police investigate whether anyone should be charged with contempt of court for preventing a court order from being carried out.

Provincial commissioner Arno Lamoer is expected to tell the court why he did not take action on Erasmus’s order to investigate the matter.

Lawyers for three residents, who represent the Makhaza community, had argued that the court must enforce a Human Rights Commission (HRC) finding that the City should enclose 55 toilets with concrete structures.

On Tuesday Arendse argued that the community had not reached an agreement with the city that they would build their own toilet enclosures and the city’s provision of corrugated iron enclosures left the community vulnerable and was unconstitutional.

“There is not agreement in writing to prove that a decision or agreement was taken between the City and (thousands of) Makhaza residents that the community would enclose their own toilets with top structures,” said Arendse.

He disputed the city’s assertion that a meeting was held between city officials and about 60 Makhaza residents where in agreement that residents would enclose their own toilets was signed.

He said the residents sought a court declaration that the city and provincial government violated their human rights.

Representing the city, Advocate Anton Katz SC, said community members mandated their leaders to negotiate with the city on their behalf and the city had entered into an agreement with these leaders that the city would provide a toilet for each house, with residents providing their own top structures.

Additionally, residents were not forced to use the unenclosed toilets, as enclosed communal toilets were also provided at the ratio of one to every five households.

“The community made a choice and they must live with that choice,” said Katz.

The case continues this week. – Sandiso Phaliso, West Cape News