SECTION27 is returning to the High Court of South Africa (Limpopo Division) on 24 May 2021 to continue the fight for safe, dignified and sanitary school toilets in Limpopo. We filed heads of argument with the court in October 2020 to continue our now six-year legal battle against the Limpopo Department of Education (LDOE) and the Department of Basic Education (DBE) to fight for the eradication of the pit toilets responsible for the deaths of learners at school, including Michael Komape.

The DBE and LDOE claim that all Limpopo schools will only have safe toilets between 2028 and 2030. This is unconstitutional, and we are demanding that the education authorities craft a plan for the eradication of pit latrines that is coherent and meets their obligations to realise the right to basic education immediately. The court hearing will be held on 24 May 2021 in Polokwane.

Provision of safe toilets is one of the requirements from the structural order handed down in the Rosina Komape and Others v. Department of Basic Education and Others, 2016 case. When that case concluded in 2018, the court ordered that the DBE and LDOE had to supply each school in Limpopo with safe and dignified toilets, to conduct a comprehensive audit of sanitation needs – detailing the names and locations of all schools with pit toilets in the province – and provide a comprehensive plan for the installation of new toilets.

Since the structural order, the LDOE and DBE have filed two affidavits with the court – on 31 August 2018, and another on 12 May 2020. These documents fail to provide accurate data and do not constitute a coherent or comprehensive plan for the eradication of pit toilets and for many reasons, we believe are unconstitutional. We have responded in our own affidavits.

The so-called ‘plan’ of the education authorities only envisions pit toilets being removed as late as 2030. The scant timelines provided claim that due to budgetary constraints, sanitation infrastructure projects will likely only start between 2026 and 2028, and be completed between 2028 and 2030. Unless a more comprehensive, urgent and coherent plan is implemented, thousands of learners will be at risk of dying or being injured at schools with unsafe toilets for the next decade. Only handful of schools have been earmarked for interventions before 2030, with no information about why certain schools have been chosen and others have not. And because of education authorities’ history of missed deadlines, financial mismanagement and disregard for learners’ safety, we are saying this is not good enough. The departments have missed their own deadlines according to this new plan.

We paused our enforcement of the structural order while we pursued justice for the Komape family, taking their case for damages to the Supreme Court of Appeal, where we won. Something that we know for certain is that “the tragedy that befell the Komape family is, however, not an isolated incident” and that for as long as pit toilets exist at schools, learners will be in danger. As such, it is crucial that compliance with the structural order be expedited.

Basic education is an unqualified, immediately realisable right – and it includes entitlements to safe, adequate school sanitation. Plans for the delivery of sanitation at schools, then, must be capable of being realised immediately for them to be reasonable in terms of the law.

We are calling for the Court to rule the DBE and LDOE’s ‘plan’ for the abolishing of pit toilets as unconstitutional. We are requesting that the court order that the DBE and LDOE file a new, consolidated plan with the court about how they will urgently eradicate all pit toilets at schools in the province, and replace them with appropriate sanitation.

At a time where COVID-19 has illustrated the critical importance of safe sanitation infrastructure, the education authorities’ plan for the eradication of pit toilets – if it could even be called a ‘plan’, because the documents lack a clear blueprint for how and when safe toilets will be provided – fails to provide for the urgency of need, or allocate sufficient financial resources to install safe toilets. The DBE rented costly temporary sanitary toilets and water tanks for 499 schools in Limpopo as part of the emergency response to COVID-19, but these were only secured for six months and do not reach all the schools that need them.

Data on the number of pit toilets in Limpopo is contradictory and confusing. Available data illustrates that unsafe sanitation remains a grave issue in the province, and we reiterate the need for an accurate audit of the sanitation needs of school. We also call for independent oversight of the rollout of safe toilets in schools in the province. The LDOE and DBE have statutory and constitutional duties to demolish the pit toilets and replace them permanently with safe ones urgently.

As we note in our Heads of Argument, “In the context of safe toilets it is a question of life and death for children.” And while conditions of unsafe, unlawful sanitation infrastructure endure at schools, learners’ rights to basic education, equality and dignity are jeopardized.

Read our Heads of Argument here.

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For media queries, contact:

Nontsikelelo Mpulo (+27 82 782 7143 or mpulo@section27.org.za)

Boitumelo Masipa (+27 81 452 9096 or masipa@section27.org.za