SAHRC starts legal action against five provincial education departments over pit toilets at schools

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The Commission will take education departments in Mpumalanga, North West, Free State, KwaZulu-Natal and the Eastern Cape to court, in a mission to eradicate pit toilets at more than 3 000 schools.
The Commission will take education departments in Mpumalanga, North West, Free State, KwaZulu-Natal and the Eastern Cape to court, in a mission to eradicate pit toilets at more than 3 000 schools.
Tiro Ramatlhatse, Gallo Images
  • The SA Human Rights Commission will start litigation against five education departments over pit toilets at schools.
  • There are more than 3 000 schools which have pit toilets across the country.
  • The case is expected to be the largest action against the government in the commission's history.

The South African Human Rights Commission (SAHRC) is planning to start litigation against five provincial education departments over a lack of sanitation in schools.

It intends to take the education departments in Mpumalanga, the North West, the Free State, KwaZulu-Natal and the Eastern Cape to court as part of its mission to eradicate pit toilets at more than 3 000 schools.

READ | More than R300m spent in last 3 years to eradicate pit toilets at schools

­In a briefing on Tuesday, deputy SAHRC chairperson Fatima Chohan said it would be the largest case lodged against government since the commission's formation.

The litigation will aim to enforce norms and standards governing public facilities, following several cases in which children died in pit toilets.

Chohan referenced four cases in which the children who died were aged 7 or younger:
  • In 2013, Lister Magongwa, 7, died at Mmushi Primary School in Limpopo.
  • In 2014, Grade R pupil Michael Komape died at Mahlodumela Primary School in Limpopo, when he fell into a pit toilet.
  • In 2017 Siyamthanda Mtunu, 6, and in 2018 Lumka Mkweta, 5, drowned in pit toilets in the Eastern Cape.

The proposed litigation follows a number of engagements with the departments, which started after the Covid-19 outbreak in SA.

The commission wrote to all Education MECs to ask for details on sanitation at all schools. This started a lengthy process of correspondence in which the commission established that thousands of schools in five provinces still used pit toilets.

According to the responses from the provincial education departments, it was established that more than 980 schools in KwaZulu-Natal relied on pit toilets; as well as 19 schools in the North West, 59 in Mpumalanga and more than 2 200 in the Eastern Cape. In addition, nine schools in the North West are without water, 113 in Limpopo; 199 in the Eastern Cape and 10 in the Free State.

The relief which the commission will seek will include an order compelling each department to provide a costed work plan that maps out the installation of sanitation facilities and planned upgrades, along with timelines, to the court and the commission. Monthly or quarterly progress reports will also be required.

Chohan said:

Every day, thousands of children are denied their right to dignity in schools across the country. By law, children between the ages of 7 and 15 are required to attend school. The state has made exercising the right to basic education compulsory while failing to ensure that all children are able to do so in safety and in dignity.

The litigation will focus on five provinces for now, while the commission takes legal advice on the Limpopo Department of Education. There is already an interdict against this department, obtained by Section 27 after Komape's death, which may cover the same scope, commissioner André Gaum said.

The structural interdict granted in September, ordered the Limpopo education department to develop a plan for submission to the High Court for the eradication of pit toilets.

"While the Court order in the Komape matter will address the problem of pit latrines in Limpopo, the problem in other provinces remains unaddressed. Accordingly, the commission believes that the time has come for this level of action to ensure schools are places of safety for all children in South Africa," Chohan said.

Gaum added that the commission had already briefed its attorneys and would explore whether or not the litigation could be taken directly to the Constitutional Court.

The litigation is expected to start next year.

"The commission, having tried engagement with the relevant authorities, sees no other option but to litigate in this regard as no other strategy is likely to produce the desired result, namely measurable progress toward the eradication of pit latrines in all schools and the provision of an acceptable form of sanitation in those schools currently offering none," Chohan said.

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