Section 27 | The school pit toilet deadline is unconstitutional

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These are the pit toilets that residents claim pose a health hazard in their lives.
These are the pit toilets that residents claim pose a health hazard in their lives.


Section27 is returning to the Polokwane High Court on May 24 to continue the fight for safe, dignified and sanitary school toilets in Limpopo.

We filed the heads of argument with the court in October to continue our six-year long legal battle against the Limpopo department of education and the national department of basic education for the eradication of the pit toilets responsible for the deaths of pupils at schools.

Among the pupils who drowned in pit toilets was five-year-old Michael Komape in 2014.

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Both the provincial and national education departments claim that all schools in Limpopo will only have safe toilets between 2028 and 2030. This is unconstitutional, and we are demanding that the education authorities craft a plan for the eradication of pit latrines that is coherent and meets their obligations to realise the right to basic education immediately.

The provision of safe toilets is one of the requirements from the structural order handed down in the Rosina Komape and Others v the Department of Basic Education and Others case in 2016.

When that case concluded in 2018, the court ordered that the national and provincial education departments had to:

. Supply each school in the province with safe and dignified toilets;

. Conduct a comprehensive audit of the sanitation needs – detailing the names and locations of all the schools that still had pit toilets in the province; and

. Provide a comprehensive plan for the installation of new toilets.

Since the structural order, the departments have filed two affidavits with the court – on August 31 2018 and on May 12 last year. These documents fail to provide accurate data and do not constitute a comprehensive or coherent plan for the eradication of pit toilets.

For many reasons, we believe these are unconstitutional and we have responded in our own affidavits.

The so-called plan of the education authorities envisions pit toilets being eradicated only by 2030.

The scant timelines provided claim that, due to budgetary constraints, sanitation infrastructure projects will probably only start between 2026 and 2028, and be completed between 2028 and 2030.

Unless a more comprehensive, urgent and coherent plan is implemented, thousands of pupils will be at risk of dying or being injured at schools with unsafe toilets for the next decade. Only a handful of schools have been earmarked for interventions before 2030.

There is no information about why certain schools have been chosen and others have not. And because of the education authorities’ history of missed deadlines, financial mismanagement and a disregard for pupils’ safety, this is not good enough.

The departments have missed their own deadlines according to this new plan.

We paused our enforcement of the court structural order while we pursued justice for the Komape family, taking their case for damages to the Supreme Court of Appeal, where we won.

Something we know for certain is that the tragedy that befell the Komape family is not an isolated incident. And as long as pit toilets exist at schools, pupils will be in danger.

As such, it is crucial that compliance with the structural order be expedited.

We are requesting that the court order both departments to file a new, consolidated plan with the court on how they will urgently eradicate all pit toilets at schools in Limpopo and replace them with appropriate sanitation

Basic education is an unqualified, immediately realisable constitutional right. It includes entitlements to safe, adequate school sanitation. Plans for the delivery of sanitation at schools, then, must be realised immediately for them to be reasonable in terms of the law.

We are calling for the court to rule that the education departments’ “plan” for the abolishment of pit toilets is unconstitutional.

We are requesting that the court order both departments to file a new, consolidated plan with the court on how they will urgently eradicate all pit toilets at schools in Limpopo and replace them with appropriate sanitation.

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The national department rented costly temporary sanitary toilets and water tanks for 499 schools in Limpopo as part of the emergency response to the Covid-19 pandemic, but these were only secured for six months and did not reach all the schools.

Data on the number of pit toilets in Limpopo are contradictory and confusing. Available data show that unsafe sanitation remains a grave issue in the province. We reiterate the need for an accurate audit of the sanitation needs of schools.

We also call for an independent oversight of the distribution of safe toilets at schools. Both education departments have statutory and constitutional duties to demolish the pit toilets and urgently replace them with safe ones.

Section27 is a public interest law centre that advocates access to healthcare services and basic education


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