As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
File Ref No: FS/2010/0231
In the matter between: Van Onselen, Gareth Complainant
Moqhaka Local Municipality Respondent
1.1. Based on the investigation conducted by the Commission and the analysis of the constitutional rights, court judgments and applicable legislation, the Commission finds that:
1.1.1. The Respondent failed to adequately conceptualise, plan and implement its project which resulted in the residents being forced to use unenclosed toilets;
1.1.2. The Respondent’s explanation that it lacked adequate resources was not justified and is therefore unacceptable.
1.1.3. The measures provided by the Respondent do not meet the standard of reasonableness in terms of the progressive realisation of the right to water and sanitation services.
1.1.4. The complaint of violations to the rights of human dignity, privacy, and a clean environment are upheld; and
1.1.5. That provincial and national government have not adequately monitored the work of the Respondent or intervened in respect of the legislative and Constitutional obligations.
2.1. In terms of the preamble to the Human Rights Commission Act, the Commission is entitled to “make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and the Constitution.”
2.2. The Commission recommends accordingly that:
2.2.1. The Respondent must proceed with urgency to enclose all toilets in the area that are required to enable people to have their basic sanitation needs met.
2.2.2. The Commission requires the Respondent to furnish it with a progress report at least every six months in respect of the progressive realisation of the right to water and sanitation services in the Township.
2.2.3. The report to the Commission must demonstrate the following:
220.127.116.11. clear implementation and budgetary plans;
18.104.22.168. the manner in which it has identified and responded to the rights of vulnerable groups like women, children and people with disabilities in the identified community;
22.214.171.124. mechanisms it has put in place to ensure it remains transparent and responsive in its project planning and implementation; and
126.96.36.199. the framework through which meaningful and ongoing consultation with the community will be undertaken.
2.2.4. The provincial and national departments are required to provide a report to the Commission within one month hereof indicating the steps being taken.
2.2.5. The Ministry of Monitoring and Evaluation must provide a report to the Commission on the quality of sanitation services delivered by local government in the country.BACK TO TOP