The City of Cape Town’s response to social movement Social Justice Coalition’s audit of the janitorial service for communal flush toilets in Khayelitsha raises questions about the City’s understanding of the constitutional requirement of meaningful engagement in the context of socioeconomic rights.
Sanitation is closely linked to a number of fundamental aspects of human welfare – health, housing, safety and security, privacy and human dignity, and environmental wellbeing. For this reason, the socioeconomic right to safe and hygienic sanitation is internationally regarded as a fundamental human right.
In the South African context, sanitation is closely linked to the right to equality.
The daily hazards to health, safety and psychological wellbeing resulting from a lack of access to decent sanitation affect black people disproportionately and have especially severe impacts on women and girls, children in general and people living with disabilities.
“Those who lack most rights, including water and sanitation in informal settlements or schools, are those who were historically deprived of their rights. They remain those who are black and poor,” wrote Pregs Govender, deputy chairperson of the South African Human Rights Commission, in the commission’s 2014 report on access to water and decent sanitation.
Sanitation has a direct impact on people’s ability to participate as equals in all aspects of society and is fundamental to achieving the Constitution’s goals of social justice and a better life for all.
But realising the right to decent sanitation in South Africa’s informal settlements is complex. Challenges include historical backlogs, land tenure disputes, the density of settlements, suitability of the terrain, availability of water, environmental impacts, establishing reliable systems for regular cleaning and maintenance of sanitation infrastructure and community acceptance.
In addition, the provision of sanitation involves many government departments and functions, requiring a high degree of co-ordination and co-operative governance.
The Constitutional Court has emphasised in a number of cases the importance of participatory democracy in realising socioeconomic rights. This has occurred primarily through the development of the principle of meaningful engagement, initially in the context of eviction and housing disputes, but subsequently in the context of other socioeconomic rights such as education.
Many legislative and policy instruments promote citizen participation in service delivery, including the Municipal Systems Act and the Framework for Strengthening Citizen-Government Partnerships for Monitoring Frontline Service Delivery approved by Cabinet in August 2013.
Benefit of experience
Experience in other developing and developed countries has shown the advantages of participatory decision-making and monitoring in a community.
First, it promotes human dignity as people are given a voice in decisions that directly affect their lives and wellbeing.
Second, social programmes can be tailored to local contexts and respond to the actual needs of the community.
Third, a broad range of stakeholders can be aided in reaching consensus on priorities and experimenting with innovative ways of solving seemingly intractable problems.
Fourth, the kind of active citizenship encouraged in the National Development Plan can be fostered and citizens encouraged to be active in solving the problems in their community.
Justice Albie Sachs said in the Joe Slovo informal settlement case that meaningful engagement promotes “the reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the wellbeing of the community as a whole”.
The community is more likely to protect and preserve the service if members have been given a say in its design and implementation.
But meaningful engagement is a process requiring careful planning and nurturing if it is to work in this way.
As the Constitutional Court said in the 2008 Olivia Road case, where large numbers of people were affected, local authorities need to put in place systems and processes to enable “structured, consistent and careful” engagement. These systems should include the employment of “competent sensitive council workers skilled in engagement”.
Engagement should start early in the policy-making process and detailed records should be kept. Successful engagement requires good faith, inclusiveness and a commitment to transparency in sharing relevant information. As Yacoob J said in the Olivia Road case, “secrecy is counterproductive to the process of engagement”.
A high level of organisation, education and solidarity is necessary if communities are to be empowered to participate as equals with local government, contractors and technical experts.
The Social Justice Coalition has spent many hours educating community members on various aspects of sanitation, empowering them to conduct social audits of sanitation and refuse removal services in Khayelitsha, convening broad stakeholder public hearings and seeking information and engagement opportunities with the City.
The report on the janitorial social audit shows the painstaking methodology followed by the Social Justice Coalition in preparing residents to conduct the audit.
This work entailed training residents on policy and budgetary frameworks, developing questions and monitoring criteria, capturing the information in collaboration with volunteers, analysing the results and preparing for a public meeting with the City and other stakeholders to discuss the results and the way forward.
The audit report includes recommendations for improving the distribution, health and safety and training of janitors; better communication with residents regarding the janitorial service and its purposes; a more clearly defined role for ward councillors; and improving the fault reporting system for toilets.
These recommendations stemmed from problems the audit highlighted, such as the cost to poor residents of reporting faults through the City’s call centre and the lack of house numbers and road names in informal settlements making it impossible to direct maintenance teams to specific faulty toilets.
The Social Justice Coalition, in partnership with justice and equality campaigners Ndifuna Ukwazi, has a project to map toilet locations using GPS and to develop a simple, free way to report faults by cellphone. Enabling residents to report faults easily and accurately will make the City’s fault reporting system more effective.
Such work constitutes international best practice in building the kind of community organisation that is indispensable for effective participation. It is what genuine active citizenship is all about.
For local authorities committed to participatory policy-making and monitoring, it is often a challenge to find credible community organisations with whom to engage, particularly in poor communities. So the creation of well organised and empowered community organisations is a significant asset for local authorities. Local authorities in partnerships with such organisations are well placed to develop a systematic, community-driven response to what is not only a collective social problem, but a basic human right – the delivery of accessible, reliable, safe and acceptable sanitation services.
For this reason, it was disturbing to note the public response of Councillor Ernest Sonnenberg, the Cape Town mayoral committee member for utility services, to the Social Justice Coalition audit. The tenor was to seek to discredit the coalition and its social audit work and the response concluded with the ominous warning that the City will not include the Social Justice Coalition in its assessment of the janitorial programme.
This is directly at odds with the ethos of community engagement and partnership in service delivery, even in the face of the disagreements and tensions that are an inevitable part of engagement.
The community organising and social audit work of the Social Justice Coalition and its attempts to facilitate engagement between the City and residents of Khayelitsha in relation to sanitation and other basic services constitutes an excellent model for other parts of South Africa.
The City should embrace the opportunity of working in partnership with the Social Justice Coalition to realise the constitutional commitment to improve the quality of life of the residents of Khayelitsha.
The stakes are too high for our constitutional democracy for the City to squander this golden opportunity for meaningful engagement on a critical socioeconomic right.
Professor Sandra Liebenberg is professor of human rights law at Stellenbosch University and co-ordinator of the Socio-Economic Rights and Administrative Justice Research Project.
This article was first published on GroundUp.