Miscellaneous | The Nokotyana Case

The last case in which Justice Sachs sat on the Constitutional Court, dealt with a claim by occupants of an informal settlement a few kilometres away from the Court that for too long they had had to put up with the use of concrete pit latrines and under their constitutional right to dignity they were entitled to have VIP's (Ventilated Improved Pit Latrines). Justice Sachs did not write a judgment in this matter but remembers the occasion well. Early in the proceedings Mbuyiseli Madlanga, then an advocate and now a member of the Constitutional Court, started his address by offering an apology to the Court for the long delay by the provincial government in providing the promised houses. Deputy-Chief Justice Moseneke, who presided over the hearing, informed him that instead of apologising to the Court, he should apologise to the litigants. When Advocate Madlanga turned to the litigants sitting in the Court and apologised to them in isiXhosa, they were notably pleased. On the facts of the case, it turned out that construction of the promised houses would soon begin. In these circumstances, the Court held that it would not make sense to spend money on VIPs for one year when they would soon be replaced by proper homes with indoor toilets. Justice Sachs comments on how fitting he felt it was that his last case should have been one brought by people living in the humblest of conditions. He recalls a discussion he had had in Paris with Robert Badinter, the famed head of the French Conseil constitutionnel, who had observed that to include the right to sewerage in a Bill of Rights seemed to be going too far, and how he had answered that nothing represented the extreme inequality in apartheid South Africa more than the way people relieved themselves.