“Use of long-term contracts for provision of chemical toilets in informal settlements within the City of Cape Town significantly and adversely affected black, African people… in comparison with white, Indian and coloured persons,” notes the damning 71-page report, released on Wednesday.
It goes on to say the vast majority of the chemical toilets – 84.4 percent – are in informal settlements with populations that are “overwhelmingly black”.
The commission has recommended that the city develop norms and standards for basic sanitation in these areas within six months.
It also found:
* The city’s programme for providing basic services in four informal settlements in Khayelitsha was inadequate.
* The use of chemical toilets on a long-term basis violated the right to basic sanitation.
* The city ignored the plight of residents in informal settlements by referring to them as temporary and imposing emergency sanitation measures.
“The respondent’s institutionalisation of disparate, inadequate basic sanitation service provision to residents of informal settlements violated residents’ right to dignity.”
But the city is not accepting the findings, and has indicated it will challenge the commission’s recommendations.
Mayoral spokeswoman Zara Nicholson said: “The city only yesterday received the Human Rights Commission’s report… and we are studying its contents. Our initial impression is that we have serious reservations about many of the findings and we intend to appeal against the recommendations contained in the report.”
The commission’s probe was in response to the Social Justice Coalition’s complaint, lodged last year, about the conditions of portable chemical toilets in Khayelitsha.
The city had contracted Mshengu Services to supply and service these toilets at a cost of R165 million. However, residents complained that the toilets were not being properly cleaned. They were also concerned that there had been no consultation before the toilets were introduced.
The coalition alleged there was maladministration, since Mshengu Services had not fulfilled its contractual obligations to maintain the toilets. Its social audit and inspections had found that 138 of the 256 chemical toilets counted were overflowing, unstable or severely damaged.
The coalition also accused the city of violating residents’ rights to equality, human dignity, privacy and an environment that would not be harmful to their health.
The commission assessed the situation and on July 11 met the office of the public protector. On July 12 last year it wrote to the city asking for a response to the coalition’s allegations, and for further information.
This included details of how the distribution ratios of the chemical toilets were determined and what efforts were made to engage with residents.
The commission meanwhile conducted site visits, led by deputy chairwoman Pregs Govender, and held meetings to see whether there had been human rights violations.
In its report, the commission slammed the city’s use of long-term contracts for chemical toilets that were supposed to be an emergency measure.
Furthermore, the evidence indicated that the adverse impact of these chemical toilets fell “on a single racial group in comparison to others”, which constituted indirect discrimination on the basis of race.
While there was no evidence suggesting that the city intended its actions to unfairly discriminate against a particular racial group, the commission said: “There can be no doubt of the impact of the discriminatory treatment… on this racial group.”
The commission also found the city’s community engagement had been inadequate. Community liaison officers were not employed because they were “more expensive to maintain”.
The city has in the past said it leads the country in service provision. It also used a janitorial programme to clean toilets in informal settlements. Mayoral committee member for utility services Ernest Sonnenberg said previously the city had engaged with the coalition on its concerns about the chemical toilets in Khayelitsha, and provided a detailed response to its social audit. This included information about the tender, invoices and monitoring and tracking information.
The coalition hailed the findings as a “victory” for informal dwellers throughout the country.
The city has been asked to immediately stop using the guidelines for emergency housing as set out in the National Housing Code and to develop guidelines that take human rights principles and the social context of the affected communities into account.
These norms must ensure that services are “available, accessible, acceptable to users, and of the appropriate quality,” said the commission.
The city should also develop its own emergency housing programme.
It also recommended the national Department of Human Settlements develop standards for sanitation in informal settlements that were not defined as emergency housing.
The city has 45 days to lodge its appeal.