Ntombentsha Beja v. Premier of the Western Cape

The City of Cape Town entered into an agreement with the individual members of the community for building over 1300 toilets. The City authorities stated that the residents would enclose the toilets themselves if the City provided one toilet per household. The Applicants argued that due to lack of finances, most of the toilets were shabbily enclosed and some were not enclosed. The South African Human Rights Commission had found that the City had violated the residents’ right to human dignity. The order of the Commission was reviewed by the High Court.

The High Court stated that the agreement between the City and the residents did not meet the reasonableness requirement under the Constitution. The Court found that building unenclosed toilets and leaving it up to the residents to enclose it when there was clearly a lack of means and skills violated several constitutional rights such as privacy and human dignity and further violated the National Standards and Measures to conserve Water. The Court ordered the City to enclose all the toilets.

“At the inspection in loco the court was accompanied by the legal representatives of all the parties. We observed firsthand the living conditions of the affected community. I noted in particular the aspects relating to the toilets. It was apparent that it is an impoverished community where only the basic services existed. Most of the toilets that were enclosed by the residents themselves, clearly showed that it was enclosed with whatever, often mixed, materials that could be found. Most of the self enclosed toilets were unsatisfactory to satisfy dignity and privacy. E.g. I observed a toilet, pointed out by a woman occupier that had no door. The opening faced a public thoroughfare. She indicated she could not afford a door. There was no provision made for the disabled, the elderly and other vulnerable groups. I was particularly disturbed by the conditions observed in the case of an elderly, wheelchair bound, gentleman who had to use a makeshift enclosure. It was constructed with pieces of wood and no roof. Access with a wheelchair was almost impossible. The only access to water for use to him was from the cistern above the toilet bow.” (Para 29) 

“In so far as the agreement that the City purported to have entered into, was unlawful, the City submits that its unlawfulness was occasioned by the unconstitutionality of the Code. In this matter I found that the agreement was unlawful by the City‟s failure to have complied with the peremptory requirements of the Code dealing with agreements and particularly the failure to recognise the basic human rights of the community. Therefore it simply does not follow that the counter-application arises for determination.” (Para 186)