The controversial installation of unenclosed toilets in the Western Cape's Makhaza settlement was flawed, but not unconstitutional, counsel for the province's human settlements MEC told the Cape Town High Court on Friday.

Senior counsel Sean Rosenberg said the unenclosed toilets were undesirable for a number of reasons, but nevertheless a practical solution to a pressing problem.

And, although flawed, the solution was not a breach of the constitutional right to dignity.

Two Makhaza residents, Andile Lili and Andiswa Ncani, have asked the court to declare that the open toilets installed at Makhaza a violation of their constitutional right to dignity, and that an agreement reached between the City of Cape Town and individual members of the Makhaza community is unlawful and unconstitutional.

They also want the court to order the enclosure of all toilets installed at the settlement.

The seven respondents in the application include the Western Cape premier, Cape Town's mayor, the City itself and the provincial human settlements MEC. The province is administered by the DA.

The agreement was for the residents to enclose the individual household toilets themselves, rather than have one enclosed toilet for five households to share.

On Wednesday the court was told 96 percent of Makhaza's residents had accepted the unenclosed toilets, which they had enclosed themselves as per their agreement with the city.

Rosenberg said to Judge Nathan Erasmus that the problem was a "telling example of the failure of the National Housing Code to address or provide guidelines for temporary services".

He said the occupation of such a settlement, without formal sanitation, would be intolerable.

The picture painted in the proceedings of sanitation in settlements throughout the country, warranted some kind of intervention, he said.

He submitted that Lili and Ncani had no case.

The ANC Youth League took exception to the unenclosed toilets and last year started ripping the walls down of enclosed toilets and smashing them. They also objected to walls made of corrugated iron and wood.

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