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.
The judgment in Beja and Others v the Premier of the Western Cape and Others makes for interesting reading, most notably because it emphasises the importance of participatory democracy and sends a warning to local government officials and politicians to stop treating residents as the passive and powerless recipients of the occasional government handout. Neither the DA nor the ANC comes out of this saga – relating to the building of open toilets at the Makhaza informal settlement outside Cape Town – smelling like roses. As judge Nathan Erasmus pointed out:
The Mayor of the City of Cape Town … Mr Dan Plato and second applicant, Mr Andile Lili, who purports to be a political leader and an Executive member of the African National Congress Youth League, … simply failed to rise above their political contest as opposed to their duty towards those that need to benefit the poor and vulnerable.
To me, the Makhaza toilet scandal is illustrative of a much larger problem with the attitude towards governance in South Africa. Officials and politicians – of both the ANC and the DA – tend to believe in a top-down bureaucratic style of governance which treats people not as active citizens with an inherent human dignity but as passive recipients of the largess’s of government. “We know what is best for everyone,” politicians seem to think, “and will therefore make decisions in the best interest of residents – regardless of their personal circumstances and regardless of what their needs might be.”
The City of Cape Town obviously wanted to think outside the box when it built the open toilets. But its officials seemed blissfully unaware that some people hardly have money to buy food – let alone to build enclosures for toilets. Perhaps pumped up with an ideological free-market fervour which assumes that individuals will flourish where they are given choices and opportunities, officials decided to build open toilets for all, rather than closed toilets that had to be shared. In this ideological universe, no one thought that some residents would not have the “opportunity” to enclose their toilets because they hardly had the “opportunity” to eat.
Officials never seemed to consider the possibility that some residents might not be able to enclose their toilets, which suggests a rather surprising lack of knowledge about, and empathy with, the lives of poor Capetonians. And as the judgment in this case makes clear, officials were never going to learn about the conditions under which the poorest residents live because they never really made an effort to engage in a structured and sensitive manner with all the residents.
According to Premier Helen Zille, an agreement of sorts was reached on an ad hoc and informal basis between officials and the community. There was, however, never a formal decision at executive or council level about the provision of open toilets and it seems as if the engagement process was left to officials (some of them ANC leaders) who had an own agenda and who did not do what the Constitution required of them.
This delegation of engagement with the community to underlings and “hired help” – which suggests that there was a lack of respect for the community which the city was supposed to serve – would come back to haunt the city. Premier Zille conceded that the provision of unenclosed toilets, absent an agreement for enclosure, would be an affront to human dignity. The Court found that no proper agreement was in place and hence that the human dignity of residents had been infringed. This finding is in line with the Constitutional Court’s jurisprudence on meaningful engagement.
The Constitutional Court has, on several occasions, stated that the Constitution placed a duty on municipalities to engage meaningfully with affected people before and during any attempts to realise the social and economic rights of individuals and communities. In the case of Olivia Road Justice Yacoob stated that it was “precisely to ensure that a city is able to engage meaningfully with poor, vulnerable or illiterate people that the engagement process should preferably be managed by careful and sensitive people on its side”.
The City claimed that it had complied formally with the engagement process because it had collected “happy letters” from residents who might or might not have provided these letters because they were desperate for toilets. (The court makes no finding on this point as there is insufficient evidence about the reasons why these letters were signed.) But these “happy letters” were not sufficient to satisfy the constitutional requirement of meaningful engagement. As Erasmus J explains in his judgment:
These agreements, to be enforceable, ought to at least satisfy four minimum requirements; (i) it must be concluded with duly authorised representatives of the community; (ii) it must be concluded at meetings held with adequate notice for those representatives to get a proper mandate from their constituencies, (iii) it must be properly minuted and publicised. (iv) it must be preceded by some process of information sharing and where necessary technical support so that the community is properly assisted in concluding such an agreement. None of these requirements were met in this matter. Even if an agreement satisfies all four requirements, an agreement cannot be a vehicle through which a majority within a community approve arrangements in terms of which the fundamental rights of a vulnerable minority within that community will be violated.
At the original meeting where “agreement” was reached between officials and some members of the community, 60 people were present. These 60 people therefore in effect were allowed to make a decision that would affect the living circumstances of 6000 people. As there was no proof of who were present at the meeting, who they represented and to what extent the community supported this “agreement” it could not stand.
In any case, such an agreement cannot erase the constitutional right to dignity enjoyed by all residents. As the Court pointed out, the agreement made no provision for those who were particularly vulnerable and poor and would therefore never be able to enclose their toilets. Concluding and implementing this agreement was therefore not reasonable as required by the Constitution.
The City ought to have come to the assistance of those who, due to poverty and their particular disadvantaged socio-economic status could not afford to enclose their toilets. Also no regard was had to persons with disabilities or to issues of safety for those most vulnerable to violence in terms of the structure. The City failed to take into consideration the gender impact on women and girls both in terms of different biological needs as well as their vulnerability to higher levels of gender-based violence. All of these are to be considered as a violation of fundamental rights of human beings and cannot be waived by the agreements, as alleged here.
The judgment is also rather critical of ANC Youth League executive member Andile Lili, whose role in this saga seems to act as a metaphor for everything that is wrong with the ANC as a governing party. Lili was one of the Community Liaison Officers who supposedly had to liaise between the community and the city. This he did not do. As Judge Erasmus pointed out:
What has become evident is that [Lili] had a core function of promoting the interests of the Citys contractor. In fact the second applicant was being paid by the contractor and the question arises if the second applicant was indeed a community representative who was taking the communities best interests to heart. Not only was the second applicant in the pocket of the contractor but his role undermined the principle of community participation.
Lili’s role is thus described by Erasmus J – in a rather understated manner – as questionable. After protracted negotiations the City went to Makhaza again in March 2010 in an attempt to enclose the toilets. 26 toilets were enclosed and then immediately destroyed and broken down by persons claimed to be ANCYL members. On 17 May 2010 the Mayor met with Lili and other members of the ANCYL, the ward councillor and the senior housing officials of the City. The outcome of the meeting was that construction to enclose the unenclosed toilets was to commence once again.
The construction resumed on 24 May 2010 and several toilets were enclosed until the community members once again became aggressive and demolished the structures. Once again the contractors had to leave Makhaza. The Mayor ordered that the unenclosed toilets were to be removed completely and a further 10 toilets were removed thus making the total of 65 toilets removed from Makhaza.
Reading between the lines, it seems as if Lili was playing a double game. He was taking money from the contractors and making agreements with the city, but then reneged on these agreements, pretending to represent the interest of the community while trying to gain some political capital for the ANC out of the sorry mess and keeping those who paid him on side as well.
The judgment also found that the various pieces of legislation and provisions of the Housing Code did not provide that a city had to provide a minimum of 1 toilet for 5 households only. Cities who could afford to had to provide more and was perfectly entitled to find innovative ways to do so – as long as it engaged in a meaningful manner with the community and as long as it did not infringe on the human dignity of residents. What was required was for the city to engage meaningfully with the community and – within the available resources of the city – progressively to provide better facilities to more people in consultation with the affected community.
The consequence of this judgment is therefore not – as was claimed by the DA – that the city would now be precluded from initiating innovative solutions to benefit the community. If it engaged with the community in a meaningful manner and produced innovative solution in agreement with a community, it could proceed to implement policies that go far beyond the suggested minimum standards prescribed by legislation.
As is the case in most other municipalities run by the ANC, the big problem is that officials as well as politicians do not like the idea that it should provide better services not to passive citizens who should gratefully receive any benefits that flow from bureaucratic planning processes, but rather to active citizens with whom it should continuously engage in a sensitive and structured manner. This will have to change. And the DA as well as the ANC will have to learn that the people they serve must be given the opportunity to engage with officials and politicians in an ongoing manner – or face the legal consequences.BACK TO TOP