Education department has no 'coherent' plan to eradicate pit toilets in schools, says Section27

Section27 wants the Limpopo high court to rule that the education department has not made progress in eradicating pit toilets in schools.
Section27 wants the Limpopo high court to rule that the education department has not made progress in eradicating pit toilets in schools.
Image: Alaister Russell

Section27 has charged that the education department has no “coherent” plan to eradicate pit toilets in SA's schools.

This as the education lobby group took the Limpopo basic education department to court on Friday in a long-running legal saga over the 2014 death of grade R pupil Michael Komape.

The Limpopo High Court in 2018 ordered the provincial education department to provide an implementation plan that would outline when and how it would remove and replace pit toilets in schools across the province.

On Friday, Section27, a public interest law centre, approached the same court on behalf of Michael's family, asking it to declare that the provincial and national education departments’ submitted plans were unconstitutional and in breach of the structural order.

Equal Education and the Tebeila Institute of Leadership, Education, Governance and Training joined the matter as friends of the court.

Five-year-old Michael suffered a gruesome death when the toilet collapsed and he fell in on January 20, 2014.

Section27 argues that it was Michael's death that triggered the structural order the high court made.

“The tragedy that befell the Komape family is, however, not an isolated incident,” the organisation said.

Section27 has asked the court to:

  • Direct the member of the executive council in the Limpopo education department to remedy the shortcomings of the defendants’ plan to ensure that it is constitutionally compliant and file a revised plan in both physical and electronic format with the court within 45 days. The plaintiffs request that the court retain its supervisory jurisdiction in relation to this updated plan;
  •  Direct the MEC, within two weeks of the order, to constitute a “sanitation task team”, headed by an independent expert in the field of infrastructural management, established in consultation with plaintiffs’ attorneys and the second amicus curiae and which comprises of representatives of the Limpopo department of education, the Limpopo provincial Treasury, the relevant school infrastructure implementing agents, and representatives from civil society. The mandate of the sanitation task team is to verify, update and ensure the accuracy and currency of the national department; and
  • To ensure implementation of a reasonable plan for the elimination of pit toilets.

In its heads of argument, Section27 contended that the department of education did not provide details of how it had identified 1,658 schools with sanitation needs.

This is despite the department’s assertion that it has made “great” strides in addressing the sanitation needs at schools where pit latrines are used.

“The department reports regularly to the presidency on the work done to replace pit toilets with proper facilities and will continue to do so until the pit latrines have been eradicated in all the schools,” the department said in a statement.

“We have improved the standard of reporting and the progress is satisfactory. Underperforming implementing agents have been warned that there will be consequences for poor delivery,” said Mweli Mathanzima, the deputy director in the department.

The department said it had spent just over R3m on the project.

“We are returning to court because we believe the plan provided by government is unconstitutional and unreasonable, as education authorities have said that pit toilets in Limpopo will only become a thing of the past in 2030,” argued Section27.

The organisation said the progress report the department filed on May 13 was not satisfactory.

“The plaintiffs assert that this plan falls short of the defendants’ obligations in terms of the structural order, and in terms of their constitutional and statutory obligations to provide safe and adequate school sanitation facilities to learners attending public schools across Limpopo.”

Section27 said its assertion was based on the following:

  •  There is no clear, coherent and comprehensive sanitation plan;
  •  The defendants have failed to make available adequate financial resources for the provision of safe and appropriate sanitation facilities;
  •  The plan makes no provision for those in urgent need;
  • The plan lacks transparency and responsiveness;
  • The plan is not reasonable in its implementation;
  • The information that the defendants have provided to the court is confusing, incoherent, and does not place the court in a position for it to determine whether its structural order has been complied with;
  • The plan is based on an unduly restrictive and unlawful interpretation of the structural order; and
  • The plan is inconsistent with the defendants’ obligations arising from the Regulations Relating to Minimum Norms and Standards for Public School Infrastructure.

“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 government’s plan to eradicate pit toilets in the Limpopo province in line with the constitutional obligations enumerated in Komape 1,” Section27 contended.

It asked the court to find that the department did not comply with the structural order, and that in order to ensure “effective” remedial action, the judge should rule in the plaintiffs’ favour.

“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.”

Judgment was reserved in the matter.