The Gauteng housing department apologised in the Constitutional Court on Tuesday for a three-year delay in a decision about the future of a Johannesburg informal settlement.

"In a sense, we are on the back foot here. There has been a delay that one cannot even try or begin to justify... a delay in excess of three years," said Advocate MR Madlanga, representing the local government and housing department.

"For what it's worth and with all humility, we would, on behalf of our client, tender our most sincere apology to this court that obviously looks after the interests of the down-trodden in our society, and obviously the people of Harry Gwala fall into that category."

Judge Johann van der Westhuizen asked Madlanga if he was apologising to the court or to the residents of Harry Gwala informal settlement east of Johannesburg, who have been waiting since August 2006 to hear if their home would be developed into a formal township.

Repeat the apology in Zulu

The residents are now fighting to have latrines and high-mast lights built, pending a decision by the Ekurhuleni municipality on whether the informal settlement would be turned into a township.

Deputy Chief Justice Dikgang Moseneke asked Madlanga to repeat the apology in Zulu.

"I must actually apologise to those people as well. I will say it in isiXhosa," Madlanga said and repeated the apology to the public gallery in Xhosa.

There was little reaction until Moseneke asked the Harry Gwala residents in the public gallery if they accepted the apology, to which several nodded their heads.

"They do accept the apology of the province," Moseneke told the packed court, which was too full to accommodate everyone who arrived to attend the hearing. Dozens of Harry Gwala residents sat in rows on benches in the foyer of the court to follow the proceedings on a screen.

Earlier on Tuesday the residents rejected a new offer by the government to give them one chemical latrine per 10 households, but no electricity.

'Depriving them of a life'

"You are depriving them of a life of basic human dignity... they are living in deplorable conditions," their lawyer, Roshnee Mansingh, told the court.

Harry Gwala residents are seeking leave to appeal a ruling made in the High Court in Johannesburg in favour of the Ekurhuleni municipality. The high court rejected their bid for temporary sanitation facilities and high-mast lighting, arguing the municipality was not yet obliged, in terms of the Housing Code, to provide the settlement with basic services because it had not yet decided if Harry Gwala would be upgraded to a formal township.

"The order I seek for my clients... is an order to the effect that the residents be provided with one VIP (ventilated improved pit latrine) toilet per household with immediate effect," said Mansingh.

She also sought an order to have high-mast lighting installed.

"You cannot have people living in darkness... read by candle light... cook by using paraffin."

Communal unisex toilets

The government's offer was in effect an offer for communal, unisex toilets that women would have to visit in the dark at night, said Mansingh.

No lights at night made was dangerous for residents considering South Africa's high crime rate, she added. And it would take at least another year for Ekurhuleni to decide the fate of Harry Gwala, she said.

Madlanga later confirmed that an environmental impact study would take about a year to complete.

The Ekurhuleni municipality's lawyer, John Campbell, said the municipality could not afford more than what it had offered the residents.

The municipality had already decided to go ahead with putting one chemical toilet per 10 households in all informal settlements in the Ekurhuleni region, at a cost of about R100-million.

The chemical toilets would be in place by end October, said Campbell. But the municipality could not afford to install electricity to the informal settlement.

'No money to do more'

Campbell acknowledged the offer was not ideal.

"It's not great... (but) we've got no money to do more."

He added there was space for the Harry Gwala residents in a nearby township, but that they were not interested in living there.

"They are in Harry Gwala because they chose to stay there."

Earlier several of the judges questioned Mansingh on whether the court was the correct platform to decide which type of latrine should be built in informal settlements.

Moseneke said the real case the applicants should have made, should have revolved around an order to get the municipality to make a decision as soon as possible.

Hold the feet of the government to fire

"Isn't the real vindication a claim under Section 26 (of the Constitution) that would seek to hold the feet of the government to fire? Essentially... (this) has turned out to be a competition about which toilet is most effective...

"The challenge you have, is to show [that] the plan the government (has put forward)... is irrelevant. That is really the crux of the case," Moseneke told Mansingh.

Harry Gwala, with some 400 households, is one of 109 informal settlements in Ekurhuleni comprising about 130 000 households in total.

If the Constitutional Court rules in favour of the Harry Gwala residents, it would have far-reaching consequences for other informal settlements.

Sapa

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