In 2014, five-year-old Michael Komape fell into a pit toilet and drowned at his primary school in Limpopo. With the assistance of public interest law centre Section27, his family sought justice against the government.
The Polokwane High Court recognised that adequate sanitation facilities at schools were a component of the right to basic education, set out in section 29 of the Constitution.
Noting that the scourge of plain pit latrines was still widespread in Limpopo, the judgment included a “structural order”. This was a victory for the potential eradication of plain pit toilets in schools in the province.
However, Section27 is again seeking legal action, alleging that government is not complying with the structural order.
To understand what Section27 is arguing, the legal principles behind the case need to be unpacked.
First, what is a structural order? Second, why was such an order necessary? Finally, why is Section27 once again turning to the courts?
A structural order allows the court to play a supervisory role over government to ensure that the state complies with its judgment. Essentially, the court will order government to take certain steps and inform it of such steps. The reason the high court included the structural order in the Komape case was because government “lacked the will to act in the interests of pupils”.
That lack of will was indicated by the fact that, according to the minimum uniform norms and standards for public school infrastructure, pit toilets were meant to have been eradicated by 2016, yet they still exist in many South African schools.
Further, underspending on a school’s infrastructure budget was common and there was a large amount of fruitless and wasteful expenditure. Therefore, the court believed it was necessary to place government under its supervision through a structural order.
As required by that order, government submitted a plan to the court to eradicate plain pit toilets in Limpopo schools and later submitted a progress report. However, Section27 is alleging that the plan does not meet the requirements in the structural order and is unreasonable (and thus unconstitutional).
Basic education, unlike other socioeconomic rights in the Constitution (such as housing and healthcare), is unqualified (not subject to “progressive realisation” within available resources).
Therefore, the actions taken towards its realisation must be more immediate and the standard of scrutiny a court uses in evaluating government measures should be stricter. However, even using the reasonableness standard developed by the courts to analyse actions taken to further qualify socioeconomic rights, the plan is unreasonable.
In the case of Government of the Republic of South Africa v Grootboom, the Constitutional Court listed certain criteria to determine the reasonableness of governmental plans made to realise the right to adequate housing.
Plans must be coordinated and comprehensive. The roles of different actors in government must be set out. Adequate resources must be made available. The plans must be based on complete and accurate data. They must address short-, medium- and long-term needs. Finally, the needs of the most desperate people must be prioritised.
The “plan” government submitted is not comprehensive and is incoherent. It describes a number of different initiatives, without explaining how they interact.
The roles of different actors and how the eradication of pit toilets will be monitored is unclear. How schools with the most urgent needs will be prioritised is not set out. Further, the data in the plan are inconsistent with other government data sets.
The plan also seemingly allows for the presence of plain pit toilets at schools if they are “unused”, not recognising that their presence at schools is dangerous in itself.
In 2018, Lumka Mkhethwa, a five-year-old girl, drowned in a plain pit toilet that existed alongside other toilets at her school in the Eastern Cape.
The plan also has no general timeline for the eradication of the pit toilets – a requirement in the structural order, which stated that such toilets should be eradicated in “the shortest period of time”.
However, the plan sets the average starting date for the eradication of pit toilets and the construction of new facilities between 2026 and 2028.
This cannot be considered “the shortest period of time”, especially when they were meant to be eradicated by 2016.
According to government, the reason for the delay is that the necessary resources have already been allocated elsewhere. This is an insufficient explanation – “bald statements of resource constraints” do not meet the reasonableness standard.
The failure to comply with the structural order serves as a further indication of government’s indifference to the wellbeing of children in Limpopo.
Notably, government last year delivered temporary toilets and water tanks to 499 schools in that province because of Covid-19 and the need for sanitary facilities. However, this solution was temporary – it was meant to last for six months – and did not cover all the schools using plain pit toilets. Had government met its obligations and eradicated plain pit toilets, such temporary measures would have been unnecessary.
Hopefully, the litigation pursued by Section27 will ensure that government takes its obligations seriously and develops a proper plan for the eradication of plain pit toilets in schools in Limpopo.
The court hearing in the case of Rosina Komape and Others v Minister of Basic Education and Others is scheduled for August 6.
Harding is a legal researcher at Section27