/ 3 May 2021

Section 27 back in court to argue for the eradication of pit toilets in Limpopo

School Toilets Still The Pits
All toilets need some sort of system to deal with the resultant sewage in a safe manner or be connected to a communal treatment system for that purpose.

There is no end in sight for the eradication of pit toilets in some Limpopo schools and, yet again, Section 27 is relying on the courts to pressure the province’s education department into eradicating the foul and dangerous structures. 

It has been seven years since the horrific death of Michael Komape who died after falling inside a pit latrine at Mehlodumela Primary School in Polokwane, Limpopo. 

Michael, 5, had attended school as a grade R pupil for only three days when he died. He went to the toilet during break at about 10am and did not return to class. At 4pm his body was retrieved from a pit toilet.

It has also been three years since Judge Gerrit Muller ordered the department of basic education and the Limpopo department of education to provide the high court in Polokwane with the names of all schools in the province with pit toilets and the estimated time it would take to replace them. 

This was part of Muller’s judgment in the lawsuit brought by Section27 on behalf of the Komape family against the department of basic education and the Limpopo department of education, in which they sought R3-million in damages for Michael’s death. 

The Supreme Court of Appeal eventually awarded the Komape family R1.4-million in damages for emotional shock and grief, after Muller dismissed the family’s claim for grief and constitutional damages. 

On 24 May, Section 27 is returning to the high court in Polokwane. This time it wants the court to order, among other things, that: 

  • The defendants’ plan is unconstitutional and does not comply with the structural order; and
  • The MEC be directed to revise and file with the court, within 45 days, a plan that consists of: 
  • the definition of the categories of schools with sanitation challenges that have been identified;
  • a single consolidated list of schools falling into the categories identified above; and
  • an indication of the estimated time required to address the specific sanitation challenges of the schools identified. 

In its heads of arguments, Section 27 further says that it wants the court to direct the MEC to establish a sanitation task team within two weeks of the order, and for that task team to be headed by an independent expert in infrastructure management. It also wants the team to provide quarterly reports until the plans are fully implemented. 

Section 27 says that an affidavit filed by the provincial department in August 2018 setting out its plans to eradicate pit toilets, and a subsequent progress report filed with the court in May 2020, is neither clear nor coherent — and nor does it provide a comprehensive sanitation plan. 

“There is currently no coherent plan before the court for pit toilet eradication. The effect of this is to frustrate this court’s powers of supervisory jurisdiction to scrutinise the constitutionality of the government’s plan to eradicate pit toilets in the Limpopo province in line with the constitutional obligations enumerated in Komape 1,” read the court papers. 

“We submit on this basis that the only reasonable conclusion to be drawn is that the defendants have not complied with the structural order and that, in order to ensure effective remedial action, the court ought to grant the relief that the plaintiffs seek.” 

In the progress report filed in court by the provincial department in May last year, it provided a list of schools that are in the final completion phase, those in the practical completion phase, and those with toilets still under construction. It also provided a list of schools at which toilet construction was completed in previous years, such as in 2017, as well as those in the planning stages.

Section 27 said this contradicted the sanitation plan filed in 2018, which said that the start date for some of the sanitation projects is 23 April 2027 and the end date is expected to be 18 May 2029. The progress report makes reference to sanitation programmes that were already underway at the time that the sanitation plan — which makes no reference to them — was filed.

“As such, there is no single, coherent, comprehensive programme before the court which can be assessed against the requirements of reasonableness. The defendants cannot simply assert their plan is reasonable. They must establish this through clear evidence of their compliance,” the papers read.

In her maiden budget speech in 2019, Limpopo education MEC Polly Boshielo committed to eliminating pit toilets in the province by the end of that financial year. 

She said that there were 507 schools with pit toilets in Limpopo, and that the national basic education department would replace these with proper sanitation at 300 of the schools. She said her department would do the same at the remaining 207 schools.

Boshielo promised: “There will be no talk of pit latrines in the next financial year.”

However, the February state of readiness for reopening of schools report by the department of basic education showed that Limpopo had 107 schools that the department classified as “dry”. This means they have pit toilets that require major maintenance either because the pit is full, has broken, or is missing seats or doors. 

In August 2018, President Cyril Rampahosa and Basic Education Minister Angie Motshekga launched the Sanitation Appropriate For Education (Safe initiative), a public-private partnership working towards eradicating school pit latrines. According to a government audit at the same time, there were 3 898 schools in the country with only pit latrines and unacceptable sanitation. 

According to the same audit, of Limpopo’s 1 360 schools, 507 fell into that category.