Ready to Learn? A LEGAL RESOURCE FOR REALISING THE RIGHT TO EDUCATION Ready to Learn? A LEGAL RESOURCE FOR REALISING THE RIGHT TO EDUCATION

A book focusing on the efforts of South African civil society to ensure quality basic education in schools.

Contents

Introduction 1

Ready to Learn? A Legal Resource The Legal Resources Centre and the Courts in South Africa: Realising Social, Economic for Realising the Right to Education and Cultural Rights through Litigation – Concept Paper, Pocantico Conference Center 1st Edition 2013 of the Rockefeller Brothers Fund, February 2–4, 2013

Published by Legal Resources Centre Foreword 9 15th and 16th Floor, Bram Fischer Towers, 20 Albert Street, Foreword by Dr Kishore Singh, United Nations Special Rapporteur on the Right to Education Marshalltown, Johannesburg, 2001 P O Box 9495, Johannesburg, 2001, South Africa Overview of Articles and Related Court Pleadings 13 www.lrc.org.za Article 1: Mud Schools 19 © Legal Resources Centre Related Court Pleadings: Centre for Child Law, Infrastructure Crisis Committee of Nomandla 21 Senior Primary School and Others Information in this book may be freely copied and distributed. The publishers request that the book be referenced appropriately Article 2: Norms and Standards for School Infrastructure 33 when used either in whole or in part. Related Court Pleadings: Mkanzini Junior Secondary School, Mwezeni Senior Primary School 35 and Equal Education Production co-ordination: Design for development Copy Editor: Jenna Praschma Article 3: Off the Floor and into a Desk and Chair 51 Proof Reader: Jenna Praschma Related Court Pleadings: Centre for Child Law, Putuma Junior 53 Design: Design for development (www.d4d.co.za) Secondary School and Others Photographs: LRC, Mail and Guardian, Daily Dispatch Article 4: Teachers to Teach 65 Printing: Mathias & Carr Comments on this book may be emailed to: Simone Sonn Related Court Pleadings: Centre for Child Law, Mary Waters High 69 ([email protected]) School and Others Article 5: Across a Bridge, Onto a Bus 91 ISBN 978-0-620-58684-9 Related Court Pleadings: Clairwood Boys Primary School and Siga Village 93 The authors and publisher have made every effort to obtain permission for and to acknowledge and reference the use of Article 6: Securing Access to Education for Learners with Disabilities 101 copyright and academic material throughout this manual. This work represents contributed material from various stakeholders, Related Court Pleadings: Doug Whitehead School and Western Cape Forum for Intellectual Disability 103 expert contributors, and community organisations. Should any Article 7: Access to Education in the Face of Discrimination 127 infringement of copyright or referencing error have occurred, please contact the editor, and every effort will be made to rectify Related Court Pleadings: Rivonia Primary School and Hoërskool Fochville 130 omissions or errors in the event of a reprint or new editions. Article 8: Ensuring Adequate Support for Children in Need 151

Conclusion 155

A Justiciable Right to Education: Designing and Perfecting a Litigation Strategy

Acknowledgements 165 A Legal Resource for Realising Ready to Learn? the Right to Education Introduction

This paper was written by the Southern measures to fulfill those rights. But in spite of Africa Legal Services Foundation (SALS) many significant victories in court, the promise staff based on materials prepared for the of those rights – nearly twenty years later — conference, “The Legal Resources Centre remains elusive to most South Africans. In short, and the Courts in South Africa: Realising an unconstitutional state of affairs prevails in South Africa with respect to the realisation of Social, Economic and Cultural Rights these rights. The situation for South African through Litigation,” hosted by SALS in school children, for example, remains dire. February 2013 at the Pocantico Center Only half of South Africa’s schools have water of the Rockefeller Brothers Fund. and sanitation, 93 percent of its schools do not maintain proper school libraries, and 95 percent The conference was attended by lawyers from the do not have science facilities. Legal Resources Centre (LRC) of South Africa and other human rights organisations from Colombia, India, Israel, South Africa and the United States, as well as experts from the Harvard Law School, New York University School of Law, Turning Paper Rights Northeastern University School of Law, the Open Society Foundations, and Oxford University. The Into Actual Rights conference was made possible through generous support from the Rockefeller Brothers Fund and the Wallace Global Fund. This paper reflects The LRC – South Africa’s largest and oldest public the views of the authors and not necessarily interest law organisation – provides pro bono those of other conference participants, or of the legal services to the poor and vulnerable in the Rockefeller Brothers Fund or the Wallace Global areas of land and housing rights, children’s rights Fund, their trustees or their staff. and education, environmental justice,women’s rights, HIV/AIDS and social services, and refugee matters. The LRC, which took the lead in opposing apartheid law, is a legacy institution An Unconstitutional but today is the champion of communities across South Africa in its quest to realise the rights State of Affairs envisioned in South Africa’s Constitution. The LRC uses a range of creative legal strategies to achieve these ends, including, impact litigation, law South Africa’s first democratic Constitution reform, strategic partnerships and networking of 1994 contains generous social, economic within South Africa, the African continent, and and cultural rights. It guarantees the right of at the international level. The LRC’s work is based access to adequate housing, health care, food on conceptual optimism: its lawyers are willing Only half of South Africa’s schools have water and and water, and social security. It also includes to do the intellectual work required to find a sanitation, 93 percent of its schools do not maintain the rights of children to education, basic way forward where many others have found only nutrition, shelter, health care services and social obstacles, developing an approach for how to proper school libraries, and 95 percent do not have services. It further requires the South African enforce these rights, for turning paper rights into science facilities. government to take reasonable, progressive actual rights.

2 1 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education

The LRC has won a number of crucial cases Discussions were stimulating and productive, 2. Addressing the dire shortage a comprehensive audit of the furniture needs toward this end. For example, in Government and the conference attendees left reinvigorated of all schools in the Eastern Cape by February of the Republic of South Africa and Others v. to tackle their vital, cutting-edge litigation, not of South African educators of 2013. The court order also required the DBE Grootboom and Others, the LRC’s lawyers only before the courts in South Africa, but also to provide a detailed plan, explaining how the LRC lawyers are working hard to address the successfully argued before the Constitutional before the courts in India, Israel, Colombia and required furniture would be provided for each critical and chronic shortage of educators Court that the government was required to the United States. student before the end of June 2013. The DBE provide temporary relief for those in desperate throughout South Africa. More than 20,000 of failed to publish the detailed plan, and so the need of access to housing. In a unanimous the country’s teachers must teach multi-grade LRC prepared a new application to approach decision, Justice Yacoob wrote that the classes, some teaching as many as four grades the High Court on an urgent basis. government was obligated “to take positive Making the Right in one classroom. The government reports that action to meet the needs of those living in nearly 19,000 teacher posts are vacant throughout extreme conditions of poverty, homelessness, to Education Real South Africa, and that nearly half of those 4. Establishing binding standards or intolerable housing.” He argued further vacancies are in the Eastern Cape. Approximately that the courts “can, and in appropriate 9,000 teachers have been on sick leave in the for South Africa’s schools circumstances, must enforce” these obligations. Eastern Cape for up to three years. After the The LRC’s lawyers are making remarkable The LRC’s lawyers are working to establish In a settlement regarding the right to education, LRC took the South African Department of Basic binding standards – including adequate the South African government agreed to establish progress concerning the constitutional right Education (DBE) to court last year, the DBE was classrooms, electricity, water, sanitation, regulations mandating that every school in of South African children to a basic education. ordered to fill 7,000 vacancies in the Eastern Cape libraries, science and math laboratories, sports South Africa must meet an acceptable level As with all of its cases, the LRC has not relied by the start of 2013. The Department consented, and recreational facilities, electronic connectivity of infrastructure conducive to learning, solely on court action, but works closely with but then failed to fully comply. In March of this of schools, and perimeter security – for all South including the availability of classrooms, a range of organisations and interested parties year, the LRC filed court papers showing that the African schools. The LRC represented Equal electricity, water, sanitation, libraries, science to ensure that these public concerns will not Minister of Basic Education was in breach of the Education, an NGO from Cape Town, and two and math laboratories, sports and recreational be ignored. In addition, the LRC attempts to court order. schools in the Eastern Cape (one of them gutted facilities, electronic connectivity of schools, enable the government to settle matters before In 2013, the LRC also represented 25 temporary by fire in 2009). The classrooms of these schools and perimeter security. pursuing litigation. teachers in Grahamstown, asking the High were filled with mud, their teachers avoided Court to order the DBE to pay these teachers, written assignments because the children had 1. Replacing mud schools who had not received any pay since the start of no desks, and untreated drinking water was Holding Those their school year. One of the teachers had last fetched for the students from a stream 2km’s throughout South Africa received a salary in December of 2011. Some of away. Thanks to this litigation, the government the teachers faced eviction from their homes and has completely renovated the two schools. The in Power to Account Last year, the LRC’s representation of seven repossession of their furniture. One teacher sold Minister of Basic Education has published revised mud schools resulted in a settlement in which her refrigerator, washing machine, microwave norms and standards for comment. the government agreed to rebuild the seven and stove in order to buy food and basic The main objective of the SALS’s conference at schools and set aside funds to rebuild all four necessities. The LRC made an urgent application Pocantico was to assist the LRC to determine hundred “mud schools” by the end of 2014. to the Grahamstown High Court on 24 May 2013. 5. Securing access to education how best to hold those in power to account, Thirteen of fifty schools have already been The matter has been settled and the government for learners with disabilities particularly concerning the right of South African rebuilt, and the remaining thirty seven are has paid salaries to the teachers. children to a basic education. nearing completion. The government has begun Four in every one hundred South Africans rebuilding fifty more schools, and hundreds of Central questions posed during the conference live with an intellectual impairment – an other mud schools have received temporary included: What can the LRC expect and ask 3. Providing a desk and chair astonishingly high number compared to the the South African courts to do about the pre-fabricated classrooms as an interim measure. for each South African student worldwide figure of one in every thousand. very widespread failure of the South African However, many schools have been completely While the South African government establishes government to realise these rights? How can omitted from the government’s building lists. The number of South African children who must and funds “special needs” schools for children the LRC make South Africa’s courts useful in The LRC has requested a comprehensive plan sit on the floor or squeeze into desks – with three with moderate to mild intellectual disabilities, enforcement? How can the LRC make the courts from the government, which would include or four students sitting at desks meant for only it does not provide instruction for severely and useful in assisting civil society groups that fight specific time frames for the construction of two students – has reached the point of crisis. At profoundly intellectually disabled children. The for delivery? What legal, institutional and fiscal especially desperate schools, such as one school the end of 2012, the LRC obtained a court order LRC is working to advance the constitutional barriers impede enforcement of these rights? with an average of 116 students per classroom. by consent, which required the DBE to complete right to a basic education for these children as

2 3 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education well: securing the rights of severely intellectually of balancing competing constitutional rights was then appealed to the Supreme Court of the cost implications for the school concerned challenged learners in the Western Cape to in the new democratic South Africa. Under Appeal which heard the case in November 2012, of the placement of the students. equal funding; helping a special needs school in the Constitution, eleven official languages are and again argued before the Constitutional Court Grahamstown – which initially had operated out recognised and children have the right to receive in May 2013. of two shipping containers – to secure adequate education in the official language or languages structures for its students; and working with of their choice, where reasonably practicable. The LRC represents the two amici curiae, Centre 8. Securing safe transportation a Johannesburg area special needs school to In an LRC case involving Hoërskool Fochville in for Child Law and Equal Education, in this matter. and access challenge an eviction order that threatened to Gauteng Province, which is Afrikaans-medium In its submissions before the Constitutional disrupt the instruction of its vulnerable students. and the only secondary school in that town, Court, the LRC urged the courts to consider the In an effort to ensure that all students have 30-plus English-speaking students sought entry effect on children and their access to education safe, reliable and affordable transportation In the Western Cape case, Justice Cleaver ruled in to the school but were denied admission as if a SGB take the final decision over the options and access to their schools, the LRC favour of the LRC’s client, holding that the South they did not have strong command of Afrikaans. enrollment capacity of its school. A situation has supported schools and communities in African government had failed to take reasonable Because neighboring schools are overcrowded, could be envisioned in which a SGB declares their efforts to compel the government to build measures to provide for the educational needs the Gauteng Department of Education intervened its school to be full even if that school had bridges across dangerous rivers and busy roads, of severely and profoundly intellectually disabled to have them admitted as an English-medium some of the lowest enrollment figures and and to provide transportation for displaced children in the province. The judge held that cohort. The LRC has reached an agreement with student-teacher ratios in the area. A child students. Over the last several years, the LRC’s expenditure on education was a legitimate the school that the English-speaking students denied admission would then have to travel Durban office has been involved in litigation to government purpose and that the claimants will remain there, pending ongoing litigation, further away from her home to attend another construct two pedestrian bridges near a busy were arguing for available funds to be fairly and is closely monitoring the situation to ensure school with still available places. The head of and notoriously dangerous intersection, where spread between all children, not for an extra that the English-speaking students are receiving the provincial department for education, who several fatalities have occurred in the recent provision of funds. He furthermore rejected the competent instruction and fair treatment from is statutorily obligated to provide a school place past, in an industrial section of KwaZulu-Natal’s government’s argument that these children could the school. for every South African child, would also be largest city. Three public schools at the heart of not be taught, ordering the government to take constrained from fulfilling his or her duty. the litigation, Clairwood Boys Primary School, reasonable measures to ensure the constitutional Durban South Girls Primary School and Clairwood right to a basic education of these vulnerable The LRC further argued that the court must take Secondary School, have a combined student children, resulting in critical jurisprudence of into account the broader socio-economic context 7. Ensuring that the voices population of over 3,300 coming from formal and national importance for disabled learners. and in particular the legacy of inequality in of students are heard informal settlements in the central and southern education in South Africa. Because SGBs of public areas of the city. The LRC’s efforts to negotiate schools are allowed to charge school fees and In South Africa, the governance of every public with the municipality involved have been almost allocate the monies towards additional facilities school is vested in its school governing body entirely unsuccessful. As the LRC prepares for 6. Securing access in the face and teachers, beyond what government funding (SGB), which is composed of the principal plus trial, two more students have been struck this would otherwise provide, fee-paying versus non- of discrimination parents and others elected by the school’s year by vehicles. fee paying public schools often evince substantial parents, and has the power to administer and The right to a basic education is afforded to disparities in infrastructure resources and The LRC is also engaged in a matter involving control school property, formulate student codes every child who is physically in South Africa, student-teacher ratios. An education department safe access to schools in the KwaMaphumulo of conduct, and determine admissions policies. regardless of his or her immigration status, and without powers to override a SGB’s admissions District, some 30 kilometers from the coast in One LRC case concerning Rivonia Primary School the South African Schools Act 84 of 1996 prohibits policies would be seriously undermined in its rural KwaZulu-Natal. Inkolovuzane Primary highlights the impact that SGB policies can have schools from using immigration status as a basis efforts to distribute educational resources in School, which has 126 students and four staff on the constitutional right to a basic education. for exclusion. Nevertheless, refugee children public schools equitably. members, is located near the wide Mvoti River, The dispute arose in 2011 when the school, having are still frequently denied or delayed entry to known to be both fast-flowing at times and a determined through its admissions policy that it a public school by Department of Education The LRC therefore argued that while a SGB may carrier of debilitating waterborne diseases such officials, who require the children to provide was already full, refused to admit an additional make the initial determination of capacity in its as bilharzia. As there were no bridges within proof of their refugee status. The LRC’s letters student into its grade one class. The Gauteng admissions policy, the SGB admissions policy and walking distance of the school, students and of demand to date against the Western Cape Department of Education (GDE) intervened and determination of capacity is not binding on the community members were obliged to swim Provincial Department of Education have been ordered Rivonia to admit the child. In response, relevant provincial department. It was contended across the river several times a day, which has sufficient to reverse governmental intransigence the school launched court proceedings against that the department may only depart from the resulted in a high rate of illness. Furthermore, and successfully secure the children’s access to the GDE. In 2012, the South Gauteng High SGB’s admission policy and determination of the school lacks regular access to clean drinking schooling. Court ruled in the GDE’s favour and held that capacity where there is good cause to do so, water and has an insufficient number of pit a public school’s enrollment limit is ultimately having regards to such factors as the number of latrines. Indeed, many local residents, including Another barrier concerns the issue of school determined not by a SGB, but by the applicable students having to be placed at the school, the students and school staff members, use river language policy, highlighting the complexities provincial department of education. This decision alternatives for placement of the students, and water for drinking, cooking and washing. The

4 5 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education

LRC met with the Departments of Education on the basis of their revised quintile ranking. and Transport, and as a result, a bridge has been The surrounding communities of these schools constructed near the school which allows both have high levels of poverty and unemployment pedestrians and vehicular traffic to cross the rates. Many of the students come from river. The LRC continues to support this school one-parent households or are cared for by and the surrounding community in an effort to grandparents. Some of the households have no secure access to clean drinking water and proper source of income at all and must rely heavily sanitation. on social grants and government support. Because the schools are classified as Quintile 5, many parents are unable to pay school fees and the schools struggle to cover their day-to-day 9. Ensuring adequate support expenses. The LRC has called on the government for needy students to conduct a proper and fair assessment of the poverty levels of these schools and believes this In early 2007, South Africa established a new case has the potential to compel the government national policy to identify and fund, as a priority, to re-evaluate the effectiveness of the entire its poorest schools. The provincial Departments quintile ranking system nation-wide. of Education would conduct reviews and assign poverty scores to each school, with Quintile 1 schools being the poorest and Quintile 5 schools being the wealthiest. Quintile 1 and 2 schools are A Resource for Expanding considered no-fee institutions and are eligible for the Primary School Nutrition Program, which the Power of Law to provides much-needed food for students on a daily basis. Although the government is obliged Advance Rights to allocate school funds on a pro-poor basis, the ranking procedure used does not genuinely consider the poverty of the students attending As the LRC inspires the courts in South Africa the particular school, but focuses instead to call the elective branches to account, as it only on the poverty levels in the communities creates dialogue between the courts and the surrounding the schools, which has led to legislature, as it engages with civil society about serious discrepancies in government data. As a democracy, and as it articulates the rule of law result, many schools lack the resources that they as a vision of justice that includes schools, health require for feeding their students, performing care, and housing – South Africa’s constitutional vital repairs on dilapidated school infrastructure, rights are becoming real. Through its work and paying utility bills in a timely manner, and hiring accomplishments, the LRC serves as an important full-time security guards where personal security resource throughout the world for those who is of real concern. seek to expand the potential of social, economic The LRC is representing six schools in KwaZulu- and cultural rights, as well as the power of the Natal, which were inaccurately ranked as law to advance those rights. The LRC also gives Quintile 5 schools, in an effort to challenge others – whether their perspectives are local, the inadequate allocation of funding set aside national, regional or global – optimism about for them and to compel the government to their ability to meet the challenge of making reimburse the schools for years of underfunding these rights real.

6 A Legal Resource for Realising Ready to Learn? the Right to Education Foreword

The right to education is an internationally judicial mechanism. The recommendations recognised right. It can be enforced through and decisions of the Commission, even though a wide variety of judicial and quasi-judicial not legally binding, are important as ‘soft’ mechanisms. Judicial mechanisms such enforcement mechanisms. In addition to this, monitoring the implementation of the right to as national, regional and international education and its protection at regional level is courts are important to address claims important within the framework of the African based on national or international law. Charter on Human and Peoples’ Rights, and the Their judgements have proven crucial in African Charter on the Rights and Welfare of defining the specific entitlements available the Child. to citizens under national and international law, and have acted as catalysts by moving Protection and promotion are two normative schools and governments to act according pillars of a human rights system on which a to their obligations. national legal system should be edified. The judicial and the quasi-judicial mechanisms are We must also recognise and appreciate the protective as well as promotional in safeguarding importance of quasi-judicial mechanisms, such and enforcing the right to education. as local administrative bodies, national human “Ready to Learn?” constitutes an important rights institutions, ombudspersons and human step in supporting and concretising the Human rights commissions, which carry out inquiries Rights Council Resolution 23/4 on the Right to and investigations, and recommend the adoption Education, adopted in June 2013, which urges of appropriate measures for protecting the right all countries to adopt legislation on the right to to education in cases of its violation or breach. education; to create independent institutions The justiciability of the right to education has and mechanisms to enforce such rights; and to its basis in national legal systems which provide ensure lawyers, judges and administrators are grounds for the ‘right of action’ to claim full adequately trained on how such rights are to be enforcement of this right when it is not respected enforced. Courts should be empowered to require governments to take action when the right to or fulfilled. A salient feature of the Constitution education is being denied. of South Africa is that it establishes the right to basic education and specifically recognises its Existing jurisprudence on the right to education justiciability as a constitutional right. should be publicised so that both judicial and quasi-judicial mechanisms can draw upon it The Constitution of South Africa provides that in comparative situations. It is very important any citizen has the right to approach a competent to create a database on the right to education court when a right, including the right to and its justiciability: the present volume is an education provided in the Bill of Rights, has important step in that direction. been infringed or threatened. The rulings by the Constitutional Court of South Africa have upheld Lack of awareness of the right – including the The right to education is an internationally recognised this right to education. The South African Human legal, cultural and procedural barriers to its right. It can be enforced through a wide variety of Rights Commission (SAHRC), with its monitoring application, the high cost of litigation and role in respect of all human rights including the the lack of legal assistance – are some of the judicial and quasi-judicial mechanisms. right to education, is also an important quasi- challenges faced in making the right to education

8 9 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education effectively justiciable. States must ensure that I am sure the present volume will prove a very judges, lawyers, members of quasi-judicial bodies useful resource for academics, researchers, and training bodies, and universities are educated human rights defenders, educationists and policy themselves in the application of the right to makers seeking to uphold the right to education education in law and how such claims should and ensure its enjoyment in terms of entitlement. be brought. This is all the more important as the right to education is an overarching right, essential for It is important to emphasise the need for the exercise of all other human rights. Raising concrete ways in which the right to education public debate on issues of critical importance can be made more enforceable. These include for its full realisation is essential for upholding promoting public interest litigation, providing it. I also hope that the present volume will legal aid, engaging with parliamentarians, stimulate further research and reflections in an educating the public on their rights, and endeavour to ensure that the right to education promoting research with academic institutions. is safeguarded and effectively enforced for While the private sector is a partner in generations to come. supplementing the government in providing education, the corporate obligation to Dr Kishore Singh maximise profit must be tempered by clear United Nations Special Rapporteur obligations under the law, so as to ensure social on the Right to Education responsibility in education. September 2013

10 A Legal Resource for Realising Ready to Learn? the Right to Education Overview of Articles and Related Court Pleadings

The Legal Resources Centre (LRC) has 3. In terms of section 38(c) of the Constitution, spent the last five years litigating the in the interests of the learners and their parents right to education in South African courts. at named schools and other schools similarly situated; What follows is an explanation of some of these cases, together with summaries and 4. In terms of section 38(d) of the Constitution, excerpts from related court pleadings. in the public interest; and

Due to the voluminous nature of these pleadings, 5. In terms of section 38(e) as an association they are not included in the original form in acting in the interests of its members. which they were filed at court. All related court pleadings are available on the LRC website: www.lrc.org.za The Constitutional Right All the applications are based on the constitutional right to education enshrined in to a Basic Education section 29 of the Constitution of the Republic of South Africa, 1996. The legal standing of the applicant parties is described in detail in the Section 29(1)(a) of the Constitution provides that court papers but excluded from the summary “everyone has the right to a basic education…”. of the court papers that follows. The right to a basic education is immediately The legal standing of the various clients (non- realisable and is not subject to progressive governmental organisations, civil society realisation in the light of available resources. groups, individual parents, infrastructure crisis In giving meaning to the content and scope committees and school governing bodies) is of the right to a basic education, regard must found in section 38 of the Constitution: be had to its unqualified nature and to the purposes of the right. 1. In terms of section 38(a) of the Constitution, in its own interest as an organisation, school, The purposes of the right to a basic education, parent, committee which /who has an interest as variously described in domestic legislation and policies, and in international covenants in the litigation; and commentaries, are several-fold. The right 2. In terms of section 38(b) of the Constitution, to education is essential, inter alia, to: on behalf of the learners at other schools who 1. the full development of the human personality have been and will be affected by the issue at and the individual’s sense of dignity; stake and who for lack of resources, lack of The right to a basic education is immediately realisable knowledge of their rights, lack of access to legal 2. substantive equality and equal opportunity, and is not subject to progressive realisation in the light services, and because of their number, cannot as education is the primary vehicle by which of available resources. individually bring these proceedings; economically and socially marginalised persons

12 13 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education can lift themselves out of poverty and obtain the we point out that the United Nations Committee in classrooms and environments that are safe and promote and fulfil the rights contained in means to participate meaningfully in society; on the Rights of the Child emphasised in conducive to learning. the Bill of Rights (section 7(2)), as well as with its General Comment 1 that the purpose of other constitutional rights, including: the right and education must be to empower the child: That the adequate component of the right is to equality (section 9); the right to human dignity equally as important as the access component (section 10); the right to freedom and security 3. the enjoyment of democratic participation and “The education to which every child has a right is is apparent from the CESCR’s General Comment of the person (section 12); the rights of children meaningful citizenship. one designed to provide the child with life skills, 13, which uses a “four A” criteria and provides as (section 28); the basic values and principles to strengthen the child’s capacity to enjoy the full follows: The right to a basic education is thus unusual governing the public administration (section range of human rights and to promote a culture 195); and the duty on the State to perform among other human rights in its nature as an 1. Availability which is infused by appropriate human rights and its obligations diligently and without delay ‘empowerment’ right: education is an end in Functioning schools must be available and “are values” (paragraph 2). (section 237). itself, but it is also a means of realising and likely to require buildings or other protection from promoting other rights, including dignity Similarly, the United Nations Committee on the elements, sanitation facilities for both sexes, and equality. Economic, Social and Cultural Rights (CESCR) safe drinking water, traIned teachers receiving domestically-competitive salaries, teaching The White Paper on Education and Training observed in its General Comment 13 on the Right materials and so on; while some will also require Historical Context of (March 1995) accordingly describes the to Education that: facilities such as a library, computer facilities and primary “goal” of basic education as follows: “Education is both a human right and an information technology…”; Education in South Africa “To enable a democratic, free, equal, just and indispensable means of realising human rights. 2. Accessibility peaceful society to take root and prosper in our As an empowerment right, education is the Educational institutions and programmes land, on the basis that all South Africans without primary vehicle by which economically and In addition, the historical context in which have to be accessible to everyone, without exception share the same inalienable rights, equal socially marginalised adults and children can the unqualified constitutional commitment discrimination, within the jurisdiction of the citizenship, and common national destiny.” lift themselves out of poverty and obtain the to this right arises must be appreciated. It was State party. Accessibility has three overlapping means to participate fully in their communities. articulated as follows by O’Regan J in MEC for dimensions: Similarly, the National Education Policy Act Education has a vital role in empowering Education: KwaZulu-Natal and Others v Pillay 27 of 1997 provides that the Minister’s national 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC): women, safeguarding children from exploitative • Non-discrimination: education must be education policy must be directed towards, and hazardous labour and sexual exploitation, accessible to all, especially the most “[121] Education is the engine of equal among other things: promoting human rights and democracy, vulnerable groups, in law and fact, opportunity. Education in South Africa under protecting the environment, and controlling “Enabling the education system to contribute to without discrimination on any of the apartheid was both separate and deeply unequal. population growth. Increasingly, education the full personal development of each student, prohibited grounds...; Notoriously, HF Verwoerd proclaimed in 1953 that is recognised as one of the best financial and to the moral, social, cultural, political and – investments States [sic] can make. But the • Physical accessibility: education has to be economic development of the nation at large, importance of education is not just practical: within safe physical reach …; “Native education should be controlled in including the advancement of democracy, human a well-educated, enlightened and active mind, such a way that it should be in accord with rights and the peaceful resolution of disputes” • Economic accessibility: education has to be able to wander freely and widely, is one of the joys the policy of the State . . . If the native in South (section 4(b)); and affordable to all...; and rewards of human existence” (paragraph 1). Africa today in any kind of school in existence “Achieving equitable education opportunities 3. Acceptability is being taught to expect that he will live his Given the purposes of the right to a basic and the redress of past inequality in education The form and substance of education, including adult life under a policy of equal rights, he is education, the importance of these purposes in provision...” (section 4(c)). curricula and teaching methods, have to be making a big mistake . . . There is no place for a free and democratic society founded on the acceptable (e.g. relevant, culturally appropriate him in the European community above the values of dignity, equality and freedom, and the and of good quality)…; and level of certain forms of labour. . . .” unqualified wording of section 29(1)(a), the right International Law: to a basic education necessarily implies the right 4. Adaptability And the apartheid State implemented this vision. to a basic education that is adequate. Education has to be flexible so it can adapt to Spending on Black school children in 1976 was a Right to Education the needs of changing societies and communities fraction of spending on White school children. The cases covered by the LRC address multiple and respond to the needs of students within their It is not surprising then that education was the issues that are essential for the provision of an diverse social and cultural settings. trigger for the Soweto revolt by Black school adequate education. Educating a child requires children. Throughout the 1970s and 1980s, the International law must, in line with section more than a teacher, or a teacher and a textbook. Section 29(1) must be read with the duty of the issue of unequal education mobilised thousands 39 of the Constitution, be considered when The achievement of an adequate basic education State to ensure accountability, responsiveness of South Africans of all ages to oppose the interpreting the Bill of Rights. In this context, requires, amongst other things, that a child study and openness (section 1) and to respect, protect, apartheid State.

14 15 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education

[122] system by apartheid has not been erased. In 2003 When democracy dawned in 1994, the picture there were 440 396 candidates for matriculation, was bleak. By and large South African children of whom 77,4% were Black, 7,2% were Coloured, of different colours were educated separately 3,8% were Indian and 10,5% were White. Only in institutions which bore the scars of the 73% of these candidates passed and a tiny 19% appalling policy of apartheid. Excellence in the obtained a university entrance pass. While more matriculation examination at the end of twelve than 50% of all white candidates who wrote years of formal schooling reflected this unequal obtained a university entrance pass, only just past. A tremendous challenge faced the new over 10% of Black candidates who wrote did so. government. There is much to be done to achieve educational equality of opportunity.” [123] Things have improved somewhat but the pattern It is against this legal framework that the of disadvantage engraved onto our education litigation described takes place.

16 A Legal Resource for Realising Ready to Learn? the Right to Education Mud Schools

In 2010 the Legal Resources Centre (LRC) 5. were classified by the Department of Education acted for the “Infrastructure Crisis as “mud schools”; Committees” of seven mud structure 6. consisted completely or partially of classrooms schools located in the rural Libode District built by community members, made from mud of the Eastern Cape in the former Transkei and branches (or locally sourced wood), with no homeland. The litigation sought to address ceilings, and roofs that were made of thatch or the long standing problem of unsafe, corrugated iron; crumbling, mud structure classrooms in the Eastern Cape. 7. were exposed to the elements, and posed a serious risk to the health and safety of learners Speeches and policy documents by government and teachers as they were unstable; officials themselves conceded that the conditions at these schools were unacceptable 9. had a serious shortage of desks and chairs; and constituted a breach of the State’s duties 10. complained bitterly about the conditions at under the Constitution. Yet despite repeated the schools and said that teaching and learning requests for assistance, the schools received no was difficult if not impossible in these conditions; help, nor any indication as to when they might receive any. The Education Department’s own 11. had no potable water except rain water documents described the budget allocated for caught in tanks, and had no water for lengthy school infrastructure as “totally inadequate” periods of the dry winter months; and and the province had placed a moratorium on infrastructure projects for the foreseeable future. 12. were omitted from any lists that indicated a plan to replace or improve the infrastructure Using the Department of Education’s 2005 at the school. “District Profiles”, the LRC identified the worst “mud schools” and visited 20 of them in July The LRC assisted the communities around 2009. Comprehensive interviews with the the seven schools to establish “infrastructure teachers and School Governing Bodies (SGB’s) at crisis committees” and organised the signing each school were conducted and a decision was of petitions by the communities stating the taken to assist seven schools in litigation against needs of the schools. The committees then sent the State for failing to provide the schools with the petitions together with letters of demand adequate and safe infrastructure, sufficient desks to the Eastern Cape Department of Education and chairs, or potable water. All of the schools: (ECDOE). The Centre for Child Law (CCL) also joined the litigation as an institutional 1. were in rural villages and the parents of the applicant representing the public interest. The learners were predominantly indigent; CCL also sent a letter of demand to the ECDOE 2. had been placed in quintile 1 (the poorest seeking information on when the seven schools quintile), except for 1 school; would receive the infrastructure they required Speeches and policy documents by government officials (buildings, desks, chairs, water), and what plan 3. were designated as “Senior Primary Schools” was in place to achieve this end. There was no themselves conceded that the conditions at these and catered for learners in grade R (reception) to response from the ECDOE. grade 6, 7 or 8; schools were unacceptable and constituted a breach The application argued that the conduct and of the State’s duties under the Constitution. 4. had between 177 and 421 learners; policies of the respondents did not meet the

18 19 A Legal Resource for Realising Mud Schools | RELATED COURT PLEADINGS Ready to Learn? the Right to Education requirements of the Constitution or relevant Government for the replacement of inadequate legislation and that such conduct and policies school structures countrywide and R6,36 billion were unlawful and unconstitutional. The of that amount was to be used at schools in the In The Eastern Cape High Court, Bhisho (Republic of South Africa) applicants sought orders: Eastern Cape up until 2015. This program is now known as the Accelerated Schools Infrastructure 1. Declaring that the first and second Development Initiative (ASIDI). CASE NO. respondents’ failure to provide the seven schools with proper facilities, access to water and While there has been some delay in the sufficient number of desks and chairs, and/or implementation of the settlement agreement In the matter between: to develop or make known a plan or plans to and roll out of the ASIDI program, overall the provide this, was unconstitutional; litigation has been a huge success. Construction at the seven applicant schools is almost 2. Directing the respondents to develop a plan, THE CENTRE FOR CHILD LAW | First Applicant complete with some schools having already in consultation with the seven schools, to provide taking occupation of new school buildings that THE INFRASTRUCTURE CRISIS COMMITTEE OF infrastructure and water; and include large classrooms, plenty of furniture, NOMANDLA SENIOR PRIMARY SCHOOL | Second Applicant libraries, administration blocks, state of the 3. Directing the respondents to provide the THE INFRASTRUCTURE CRISIS COMMITTEE OF seven schools with sufficient numbers of desks art environmental toilets, and plenty of water and chairs. tanks. Another 42 schools are being replaced TEMBENI SENIOR PRIMARY SCHOOL | Third Applicant simultaneously with the seven litigant schools, THE INFRASTRUCTURE CRISIS COMMITTEE OF The government initially opposed the application with 34 of these already completed and handed and filed papers arguing that the schools were over. Another batch of 50 schools are currently MADWALENI SENIOR PRIMARY SCHOOL | Fourth Applicant not the worst off and would receive assistance under construction, and a further 100 schools THE INFRASTRUCTURE CRISIS COMMITTEE OF in due course, when there was sufficient are scheduled to be replaced in the next SIDANDA SENIOR PRIMARY SCHOOL | Fifth Applicant budget available. In a dramatic about-turn, financial year. Approximately 200 more “mud the government then offered to provide both schools” have received temporary prefabricated THE INFRASTRUCTURE CRISIS COMMITTEE OF temporary and permanent infrastructure relief classrooms, and the latest estimate is that “mud NKONKONI SENIOR PRIMARY SCHOOL | Sixth Applicant to the seven schools. Firstly, it was agreed schools” will be completely eradicated by the end that the schools must be supplied with mobile of the 2016 financial year. THE INFRASTRUCTURE CRISIS COMMITTEE OF classrooms, sufficient desks and chairs, and MAPHINDELA SENIOR PRIMARY SCHOOL | Seventh Applicant water by 31 March 2011. Secondly, construction Monitoring the implementation of the settlement of permanent classrooms at the schools was agreement is ongoing, with the LRC’s attention THE INFRASTRUCTURE CRISIS COMMITTEE OF to commence by 31 May 2011 and was to be now focused on ensuring that all schools in need SOMPA SENIOR PRIMARY SCHOOL | Eighth Applicant completed within one year. Most importantly, are on the ASIDI list and that schools scheduled however, the agreement also recorded that to be built are situated in the most geographically and R8,2 billion would be committed by the National practical locations. THE GOVERNMENT OF THE EASTERN CAPE PROVINCE | First Respondent THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA | Second Respondent THE O R TAMBO DISTRICT MUNICIPALITY | Third Respondent

20 21 Mud Schools | RELATED COURT PLEADINGS Mud Schools | RELATED COURT PLEADINGS

20.2 All seven schools also lack access to 24. The applicants accordingly seek orders: are shown to influence learner achievement Founding Affidavit adequate water. They rely on tanks to catch rain- and teacher attitude towards school. Extreme water but this means that during the dry winter 24.1 declaring that the failure of the first and thermal conditions of the environment are found months there is no water available at the schools. second respondents to provide the seven to increase annoyance and reduce attention span Learners must therefore get water as best they schools with proper school facilities, access I, the undersigned, and learner mental efficiency, increase the rate can from streams that are 1–2 kilometres away, to adequate waterand sufficient numbers of of learner errors, increase teacher fatigue and ANN MARIE SKELTON which streams are often themselves not suitable desks and chairs and/or to develop and/or the deterioration of work patterns, and affect make known a plan or plans to provide such is for obtaining drinking water learning achievement. Good lighting improves unconstitutional and unlawful; state under oath the following: learners’ ability to perceive a visual stimuli and 20.3 All seven schools face a severe shortage their ability to concentrate on instructions. THE NATURE OF THIS APPLICATION of desks and chairs 24.2 directing the first and second respondents to develop a plan or plans, in consultation with A colourful environment is found to improve 17. This application concerns seven primary 21. Speeches and policy documents emanating the seven schools, to provide them with proper, learners’ attitudes and behaviour, attention schools situated in the Eastern Cape in areas from the national DOE and ECDOE make clear appropriate and adequate school facilities and span, learner and teacher mood, feelings about that formerly formed part of the Transkei. The that the above conditions are entirely unaccep- access to adequate water; and school and reduces absenteeism. Good acoustics seven schools are Nomandla SPS, Tembeni SPS, table, that they prevent effective teaching and improves learner hearing and concentration, Madwaleni SPS, Sidanda SPS, Nkonkoni SPS, learning and that they constitute a breach of the 24.3 directing the first and second respondents especially when considering the reality that at Maphindela SPS and Sompa SPS. For the sake of State’s duties under the Constitution to provide the seven schools with sufficient any one time, 15 percent of learners in an average convenience, I refer to them collectively in this numbers of adequate desks and chairs classroom suffer from some hearing impairment affidavit as “the seven schools” 22. Despite this, it appears that the first and that is either genetically based, noise-induced second respondents have no plan in place to or caused by infections. Outdoor facilities and 18. All seven schools are primary schools offering remedy the conditions at these seven schools. THE RELATIONSHIP BETWEEN THE activities have been found to improve learner education from Grade R through to Grade 6, 7 SCHOOL ENVIRONMENT AND ADEQUATE formal and informal learning systems, social or 8. The schools vary in size, with the smallest 22.1 No such plan appears from the various EDUCATION development, teamwork and school-community being Sompa SPS which has 177 learners and the documents emanating from the first and relationships.” largest being Sidanda SPS which has 421 learners second respondents nor have the seven schools 28. On 11 June 2010, the Minister published in the Government Gazette “The National Policy for an themselves been informed of such a plan (See also pages 29–30 of the National Policy) 19. These seven schools are located in two of the Equitable Provision of an Enabling School Physical poorest regions in South Africa. The learners who 22.2 Despite repeated written and verbal Teaching & Learning Environment”. A copy of this 31. The National Policy goes on to state that the attend these schools and their parents are, on the pleas by the schools for assistance, often in document is attached marked Annexure “AMS3”. I physical teaching and learning environment whole, indigent response to emergencies caused by weather, refer to it as “the National Policy” has “historically been one of the most visible they remain entirely in the dark as to why they indicators of unequal resource provision” (page 20. The conditions at these seven schools are are not being dealt with by the first and second 29. The National Policy makes quite clear that 17). In this regard, it defines the “physical truly appalling. They are the worst or, at least, respondents, whether they will be dealt with in there is a real and substantial link between the among the worst of any schools in the area teaching and learning environment” as the future and, if so, when physical environment in which learners are “comprising school infrastructure; basic services; that previously formed part of the Transkei. As taught and the adequacy of the education that furniture; equipment, books, teaching and is detailed below and in the affidavits filed on 22.3 Attempts by the first applicant, the CCL, to they receive behalf of the second to eight applicants, the obtain clarity in this regard have similarly been learning materials, and co-curricular facilities seven schools all lack the basic infrastructure met with complete silence 30. Thus, for example, the document states as and equipment.”(page 18) It adds that school necessary for effective teaching and learning follows at page 9: infrastructure is broadly conceived to include the 22.4 It moreover appears from the ECDOE’s physical teaching and learning spaces and basic 20.1 All seven schools are classified as “mud- own documents that the budget allocated for “Significance of the Physical Teaching and services, including clean and safe water schools” by the first and second respondents. dealing with school infrastructure is “totally Learning Environment: Six have classrooms built from mud and one inadequate” and that the ECDOE has placed a 32. Identical sentiments have been expressed (Sompa SPS) has classrooms made from cinder moratorium on infrastructure projects for the Yet as recent studies show, there is a link between by the ECDOE. For example, I refer in this blocks. The fact that their classrooms are built foreseeable future the physical environment learners are taught [in], regard to the 2010/2011 version of the ECDOE’s from these materials rather than from bricks and and teaching and learning effectiveness, as well “Infrastructure Plan 2005–2014”. I refer to this as mortar or pre-fabricated material means that the 23. It is the applicants’ case that the conduct as learning outcomes. Poor learning environments the 2010/11 Infrastructure Plan. A copy is attached structures provide little or no protection from and policies of the first and second respondents have been found to contribute to learner irregular as Annexure “AMS4”. It states at para 2.1.2 that: the elements for learners at the schools. Indeed, as described in these papers do not meet the attendance and dropping out of school, teacher many have become entirely unusable. Many of requirements of the Constitution or the relevant absenteeism and the teacher and learners’ ability “A consequence of poor infrastructure is an those that remain useable to some extent are legislation. Such conduct and policies are to engage in the teaching and learning process. environment that does not promote effective massively over-crowded accordingly unlawful and unconstitutional The physical appearance of school buildings quality teaching and learning”.

22 23 Mud Schools | RELATED COURT PLEADINGS Mud Schools | RELATED COURT PLEADINGS

33. The pronouncements in the government to eights applicants. I pray that those affidavits no option. Despite this, the grade R class is indication of when the seven schools will have documents just cited are not only plainly correct be read as incorporated herein still being accommodated in a community their mud structures replaced as a matter of logic, they are also confirmed by member’s home, a mud flat, as it cannot practical experience. I refer in this regard to the 34.1 By way of example, Nomandla SPS was be accommodated at the school. Moreover, 38.1 The national DOE’s 2001/2002 Annual affidavit of Ms Ntloko, the principal of Sizane founded in 1991. Until recently, it consisted of Grades 1 to 5 continue to be taught in the five Report set a goal of replacing all mud structure Junior Secondary School which is located in the five mud structure classrooms, all of which mud classrooms that have fallen into disrepair schools, lowering classroom shortages Libode district have fallen into an advanced state of disrepair. and providing water, sanitation, telephone The classrooms have dirt floors and holes in 34.7 There remains severe overcrowding at lines and fences to all schools needing such 33.1 Ms Ntloko’s affidavit speaks about the roof, which are made of corrugated iron Nomandla SPS. Thus, for example, the Grade infrastructure by 2010. A copy of the relevant her experience at her school, and the or thatch. The classrooms have walls that 1 class has 61 learners accommodated in pages of the annual report is attached marked extraordinarily positive effect that the are crumbling and which provide little or no a mud classroom which is approximately Annexure “AMS6” replacement of mud classrooms with proper protection from the elements. 30m2 in size. The grade 3 class has 31 38.2 The national DOE was not able to meet pre-fabricated classrooms has had on teaching learners accommodated in a mud classroom this goal and amended the target date within and learning at the school. This took place in 34.2 The situation became particularly severe in approximately 19m2 in size and the grade 5 three years of setting it. Its 2004/2005 Annual 2008 May and June 2009 when two storms resulted class has 67 learners accommodated in a mud Report pushed the date for achieving this goal in the roofs of two of the classrooms being classroom approximately 30m2 in size 33.2 While I pray that the entire affidavit be destroyed, the corrugated iron roofs of two of back to 2014. A copy of the relevant pages of read as incorporated herein, I emphasise the the classrooms being blown off, the collapsing 35. The effect of the inadequate infrastructure the annual report is attached marked Annexure conclusion of Ms Ntloko: of two walls of the classrooms and the roof on school attendance at the seven schools is “AMS7” being blown off of a newly constructed block palpable. For example, in respect of Tembeni 38.3 Despite this extended timeline for “The improvements in the school have had a of pit latrine toilets SPS, approximately only 30% of learners attend achieving the broad range of goals concerned, profound effect on the students’ morale and school when it rains due to the poor state of the the national and provincial governments made quality of teaching. Students now come to 34.3 Despite the repeated requests by classrooms and its inability to accommodate the clear that the replacement of mud schools school on the weekend, and on holidays, where Nomandla SPS for emergency assistance, none learners adequately and the provision of water and sanitation before they would often be absent from school. was provided by the Department. Instead, the was to occur much faster. Thus, in 2004, then Students frequently arrive at school early, and Department wrote saying that “the provincial 36. The question of safety is also highly President Thabo Mbeki stated in his state of leave late – something which never happened office has no funds available at this stage to concerning. For example, the Madwaleni SPS the nation address that all mud schools would when the school was comprised solely of mud entertain your request. The request will be re- affidavit makes clear that a number of Madwaleni be replaced within a year: structure classrooms. visited in future once funds improve / become SPS learners have been pulled out of school by their parents who are concerned about sending available together with all other cases on the “- By the end of this financial year we shall Teachers are much more effective now, as a their children to learn in unsafe and unhealthy needs register” ensure that there is no learner and student result of the improvements. It is now easier to conditions learning under a tree, mud-school or any ensure students are attending class. Before, 34.4 Due to the damage to the school, four dangerous conditions that expose learners and because of the shortage of classrooms, most grades at the school had to be accommodated 37. The first and second respondents have teachers to the elements; of the students spent their time outdoors. It is in community members’ homes repeatedly recognised the inadequacy of these mud structures and the need for them to be also easier for teachers to take attendance, by - By the end of the current financial year we 34.5 In the absence of any sign that the speedily replaced. (I point out in this regard that going from class to class to see which students expect all schools to have access to clean water first and second respondents would assist the term “mud structures” includes the cinder are missing. Furthermore, the new classrooms and sanitation.” allow for the safe and tidy storage of textbooks Nomandla SPS, the school began to construct block structures at Sompa SPS – which has been and their effective distribution to learners. three brick and mortar classrooms. 60% of repeatedly and rightly classified as a mud- 38.4 A copy of the relevant page of President It is now easier for students to progress in the funds for this project was raised from structure school by the ECDOE) Mbeki’s speech is attached marked Annexure their lessons, and for teachers to monitor the parents of learners, while the remaining “AMS8”. These goals were not met 38. However, the general promises from the first their development. There has been a marked 40% used the school’s entire budget for and second respondents regarding when the improvement in learner achievement.” “maintenance” and “municipal services”. This 38.5 Three years later, in 2007, then Eastern is not permitted by DOE policy replacement of mud structures would be effected Cape Premier Nosimo Balindlela stated MUD SCHOOLS have repeatedly not been fulfilled. Moreover, in her state of the Province Address on 16 34.6 In April 2010, the school began using despite the strong general sentiments expressed February 2007 that the eradication of mud 34. The state of the classrooms at the seven the three brick and mortar classrooms, even by the first and second respondents concerning structures was a key priority of the Provincial schools is appalling. This is dealt with in detail in though they had not been completed due mud schools, the first and second respondents Government and would be completed by the the seven affidavits filed on behalf of the second to lack of funds, because the school had have been unable or unwilling to provide any end of 2008. She stated:

24 25 Mud Schools | RELATED COURT PLEADINGS Mud Schools | RELATED COURT PLEADINGS

“The mud structure eradication programme 38.11 Yet, subsequently, the ECDOE’s Fourth “We understand that you cannot attend to all • Shortages of accommodation / facilities will see all mud structures replaced by Quarter Performance Report for the period 1 our demands but the following items need to (ie overcrowding / backlogs) permanent structures by the end of 2008.” April 2008 to 30 March 2009 stated that only be provided urgently: 137 schools with mud and unsafe structures • Condition of existing facilities (particularly 38.6 A copy of the relevant page of the were eradicated at the end of 2008/09. A copy • Properly built classrooms, storeroom, if these are considered unsafe or unsuitable Premier’s speech is attached hereto and of the relevant pages of the Report is attached staffroom, and admin block. for tuition)” marked Annexure “AMS9”. However, this did marked Annexure “AMS13” • School furniture not occur • Water tanks” 46.3 Yet, the seven schools satisfy both 40. The seriousness of the problems afflicting the requirements 38.7 In the foreword to the ECDOE’s 2007/2008 seven schools in relation to their mud structures 43. No substantive response was ever received 47. This lack of transparency is at odds with the Annual Report, the MEC for Education then is further re-affirmed by the recently enacted to the Nomandla SPS petition, or the similar sentiments expressed on a paper obtained by the stated that eradicating “mud and other National Policy for an Equitable Provision of an petitions by the other six schools. Indeed, the applicants’ attorneys from the ECDOE website unsafe school buildings” was a “key priority” Enabling School Physical Teaching and Learning only school even to receive a confirmation of and titled “Discussion Paper on Infrastructure”. for the ECDOE and “[d]espite the problems Environment, to which reference has already receipt was Madwaleni SPS, which received a A copy of the paper is attached marked Annexure encountered in infrastructure delivery, the been made. In assessing the different kinds of letter on 19 November 2009 confirming receipt “AMS20”. It states: Department aims to complete this initiative learning environments concerned, the policy of the petition and saying it had been handed in the 2009/10 financial year.” A copy of the document breaks down such environments into on to acting superintendent-general. No further “The criteria used and the basis for identifying relevant page of the report is attached marked three main areas: basic safety, minimum level of response has been received since then new projects must be transparent to ensure Annexure “AMS10”. This too did not occur functionality and optimum level of functionality. universal support for the project list. This is In respect of the first of these it states as follows 45. I stress that whatever the process the ECDOE 38.8 Premier Balindlela’s successor, Premier of paramount importance” (at pp7–8) at paragraph 4.10.1: has embarked on in order to determine which Sogoni, committed his administration to the schools are to be built, the schools themselves 48. In an effort to achieve some clarity on the following at the end of July 2008: “Basic safety entails the bare minimum of safety are entirely unaware of this procedure. There position of the seven schools, on 30 April 2010, requirements below which a school will be “... We will also be tackling blockages in our appears to be no communication whatsoever to the first applicant, the CCL addressed a letter to deemed inoperable and immediately closed. For school-building programme to intensify our the schools regarding what the criteria used are numerous parties, including the Minister and example, if a school does not have safe water, efforts to eradicate mud-schools and class- or how schools can get on to the list. Nor is there MEC. A copy of the letter is attached marked room backlogs sanitation facilities that meet national health any indication as to when the schools are likely Annexure “AMS21” standards, if learners are exposed to intolerable to be built For these things to happen, we need to deploy elements such as intolerably bad weather, toxic 48.1 The letter explained that the CCL was more capacity and authority to our district substances in their environment; extremely 46. I point out, for example, that the only concerned over certain policies adopted by offices to enable them to better monitor and unsafe building structures that could crumble on way in which the applicants’ attorneys were the ECDOE and the effect of those policies support schools in their area of jurisdiction; to learners, classrooms overcrowded beyond a able to obtain a copy of the 2010/2011 version on schools in the Eastern Cape and indicated and also inequities in the provision of both pre-defined threshold of classroom size, etc” of the ECDOE Infrastructure Plan 2005–2014 that its concerns fell into three main areas: the professional and non-professional staff at (which has already been attached) was to get the replacement of mud schools with proper school level” 41. Despite all of these sentiments, there is no a copy from the Public Service Accountability facilities; the lack of desks and chairs available sign at all that the seven schools are likely to Monitoring Group to schools and access to adequate water at the 38.9 A copy of the relevant page of the speech have their mud structures replaced with proper schools is attached marked Annexure “AMS11”. classrooms in the foreseeable future. The seven 46.1 The 2010/11Infrastructure Plan is plainly 48.2 In respect of the mud schools issue, the schools have had no indication at all as to when intended as a policy document – it contains 38.10 In the ECDOE’s 2008/2009 Annual letter emphasised that of great concern to the their mud classrooms will be replaced, if at all. no details as to which specific schools will Report stated as follows under “Standard of CCL was that there appeared to be no proper This is despite the fact that each of the schools be dealt with when. Service”: “Eliminate mud structures by 2010 has written letters and/or petitions pleading for financial and operational plan to achieve the at the rate of 20% per annum”. The same page urgent assistance 46.2 However, even taking this into account, replacement of mud schools and that the stated as follows under “Actual achievement the document sheds no light on why no plan existing budgetary allocation for the objective against standards”: “It was reported by 42. For example, on 24 February 2010, the has yet been developed for the seven schools. was hopelessly inadequate. Moreover, the infrastructure that 450 mud structures would Nomandla SPS Infrastructure Crisis Committee For example, it states: letter emphasised that the CCL was aware of be demolished in 2007/2008 and 376 would sent a petition to the MEC. A copy of the petition nine primary schools in the Eastern Cape, all remain for demolition after March 2009.” A is attached to the second applicant’s affidavit. “the two main criteria for the provision of which were mud schools with appalling copy of the relevant page of the Annual Report After recounting the massive problems facing the of new facilities, or upgrading / replacement conditions, and none of which appeared to be is attached marked Annexure “AMS12” school, the petition concluded: of facilities are the following: specifically catered for in any plan to replace

26 27 Mud Schools | RELATED COURT PLEADINGS Mud Schools | RELATED COURT PLEADINGS

the mud schools. This included the seven “The Department’s infrastructure delivery year, is totally insufficient to fund all the needs two kilometres away, which is often inadequate schools at issue in the present proceedings programme since 1995 has unfortunately suffered already on the database as well as needs still to for obtaining drinking water. I point out that a number of setbacks. These have usually been be identified and/or submitted. The budget of these facts concerning Madwaleni SPS were 48.3 The letter concluded by saying that it was a result of unfortunate budget cuts, but the Facilities Management has been reduced inadvertently omitted from the affidavit signed the CCL’s preliminary view that the policies most recent disruption (2007–2008) was due to by approximately R360m for the 2009/1010 by Mr Vula on behalf of the fourth applicant. It and conduct of the ECDOE were unlawful and a management decision on the delivery model financial year. All District Directors are requested has not been possible to obtain a further affidavit unreasonable in at least the respects set out in (which has since been reversed) to inform all principals and SGB’s including the in this regard prior to launching the present the letter and, in the circumstances, requested offices of Facilities Management of the current application. However, Mr Vula has confirmed clarity on a series of issues. These included: The infrastructure unit has also been grossly state of affairs the correctness and accuracy of these facts understaffed, a situation that has grown steadily telephonically in a conversation with Cameron “8.1 What efforts, if any, had been made or are worse over the past few years” All forwarded information and requests from on going to ensure that adequate budgetary McConnachie, one of the applicants’ attorneys the Districts and schools will not receive provision is made to allow for the replacement 52. The same paper added that until fairly immediate attention or action due to the 60. The first and second respondents have of mud schools? recently the ECDOE “was acknowledged recognised the critical importance of access to nationally as a leader in the field of infrastructure financial environment described above” water for schools. Thus, for example, in then 8.4 Is the Department in a position to indicate delivery” but that this “has changed to such an 55. The CCL understands that the effect when the following schools will have their mud extent (over a period of only some 2 years) that President Mbeki’s state of the nation address in of this letter was to impose a moratorium on structures replaced, receive adequate desks and the Department now lags behind most provinces” 2004, quoted above, he emphasised all buildings projects and school infrastructure chairs and have access to adequate water and maintenance needs for the 2009/10 financial year, “By the end of the current financial year we if not, why not? 53. The paper also acknowledges that the existing budgets will not be sufficient to meet all existing only five months into that year. It is not clear expect all schools to have access to clean water [The CCL listed nine schools in this letter, needs whether this moratorium has yet been lifted. I and sanitation” including the seven schools at issue in the invite the first and second respondents to provide 61. Similarly, the recently enacted National Policy, present proceedings] 53.1 It states the budgets “are hopelessly full details in this regard inadequate to eradicate the backlogs in the already attached, in defining “the bare minimum 8.5 What is the reason that none of the schools province” and goes on to say: ACCESS TO WATER of safety requirements below which a school will concerned is aware of whether and when they be deemed inoperable and immediately closed” “To eliminate the backlogs … within a 56. In respect of water, the affidavits filed will receive proper facilities to replace their stated that amongst these situations would be “if reasonable timeframe will require a quantum on behalf of the second to eighth applicants mud structures, the necessary desks and chairs a school does not have safe water [and] sanitation step up from existing budget levels” demonstrate the severe problems concerned. and access to adequate water?” facilities that meet national health standards” I pray that they be read as incorporated herein 53.2 It concludes that: 48.4 The CCL received a helpful reply from the 62. In the National Minimum Uniform Norms 57. None of the seven schools has a consistent and Standards for School Infrastructure published Department of Water Affairs concerning the “[T]he current budget levels for infrastructure supply of potable water and all are dependent on by the Minister, the following is stated regarding issue of access to water, which is dealt with provision and maintenance are wholly rain water caught on roofs and stored in water basic services: below. Apart from this, no other response was inadequate. A serious effort needs to be made received by the CCL from any of the recipients tanks. This is inadequate, particularly during the to source redress funding to address the “Water: All schools will be provided with of the letter, including from the Minister and dry winter season backlogs within an acceptable timeframe. minimum / basic water supply as stated in MEC Given the magnitude of these backlogs, this will 58. Thus, for example, during the dry winter Section 3 of the Water Service Act 1997 (Act 108 require a major political intervention from a 49. It is therefore clear that, as things stand, season, Tembeni SPS is often completely without of 1997). As in [the] case of sanitation the choice national level” there is simply no sign – let alone a reliable water. The closest source of water when the of appropriate water technology to be used will tanks are empty is a stream that is approximately undertaking – that the seven schools will be dealt 54. The inadequacies of government’s conduct be made at the discretion of the MEC after all two kilometres from the school’s grounds. with in the foreseeable future in this regard are further confirmed by an ECDOE environmental assessments have been made. No memo sent by one Z. Tom, the Chief Director: Moreover, the stream is often muddied by school is allowed to function without portable 51. Moreover, it is clear that the first and second Facilities and Infrastructure Management, to livestock and is not suitable for drinking clean water.” (para 3.20) respondents’ lack of progress in addressing mud- Cluster Chief and District Directors on 13 May 59. The position is almost identical in respect of 63. There is no sign that the problems of lack of schools in the Eastern Cape is substantially due 2009. A copy is attached marked Annexure Madwaleni SPS, which has four water tanks to access to adequate water and sanitation facilities to difficulties caused by government conduct. “AMS22”. It states: Thus, in the ECDOE’s “Discussion Paper on catch the rain but these are usually empty for will be resolved in the foreseeable future. The Infrastructure”, which has already been attached, “The object of this letter is to inform all districts about three months of the year. At that stage, the schools themselves are entirely unaware of when, the following is stated: that the allocated budget for this financial learners are forced to get water from a stream if at all, this might occur

28 29 Mud Schools | RELATED COURT PLEADINGS Mud Schools | RELATED COURT PLEADINGS

64. In its letter of 30 April 2010, referred to earlier, 66.1 In that letter, the Department of Water “As noted, learners are exposed to environments requires that the first and second respondents the CCL dealt with the lack of access to adequate Affairs set out in some detail its programme that pose both a safety and health hazards. file an affidavit with this Court and the water. It stated that it was aware that rain water for the delivery of water and sanitation services Ablution facilities are particularly inadequate. applicants’ attorneys setting out the plan or tanks had been provided to numerous schools to schools Nearly 80% of schools have more than 50 learners plans developed in this regard and details of that did not have access to running water, but per toilet. For the girl child in particular, such when and by whom the necessary steps will emphasised that these were inadequate during 66.2 It also made clear that the primary aim constraints may adversely impact on attendance be taken by the first and second respondents the dry winter months. The CCL emphasised of the Schools Water and Sanitation and consequently in schooling and learning to implement the plan or plans concerned further that: Programme was primarily to eradicate all outcomes. Inadequate provision may translate water and sanitation services backlogs “in into denying these children substantive access 84.2 In respect of desks and chairs, prayer 64.1 it had been unable to find any policies that schools that are formal structures but have to ETSD, and thus violating their constitutional 4.3 requires the first and second respondents the Department had in place in respect of the no water or sanitation services” rights” to provide the schools with sufficient numbers provision of water to schools that did not have of desks and chairs as per annexure “A” to the access to running water; and 66.3 The letter went on to say as follows : APPROPRIATE RELIEF Notice of Motion. This entails the provision of one desk space and chair for each learner at 64.2 it appeared clear that the seven schools 83. The relief sought by the applicants in this “It was agreed by the two Departments (i.e. the school to the extent that such desk spaces at issue in this matter were not receiving matter can be divided into two parts. The Water Affairs and Education) that the schools and chairs are not presently available to the sufficient water to meet the needs of learners that fall outside the scope of this programme first part, consisting of prayers 1–3, concerns declaratory orders that the failure of the first and school during the school days (e.g. the mud schools and farm schools) will be second respondents to provide the seven schools addressed by the Department of Education 85. Prayers 5 and 6 then require the first and 65. The letter concluded by saying that it was with proper school facilities, access to adequate second respondents to file reports on affidavit the CCL’s preliminary view that the policies and water and sufficient numbers of desks and chairs The nine (9) mud schools referred to in your with this Court and the applicants’ attorneys at conduct of the Department were unlawful and and/or to develop and/or make known a plan correspondence, were not part of the original least every three months setting out the progress unreasonable in at least the respects set out in or plans to provide such is unconstitutional list of schools that the Department of Water that has been made pursuant to the other orders the letter and, in the circumstances, requested and unlawful. I submit that the applicants are Affairs implemented as they did not meet the and allows any of the parties to re-enrol the clarity on a series of issues. These included: entitled to such a declaratory order said criteria matter for hearing at any stage, if necessary on “... 84. The second part, consisting of prayers 4–6, duly supplemented papers, to deal with any need Ensuring access to adequate water at the mud concerns the need to create an appropriate for further orders arising out of the other orders. schools is the responsibility of the Department 8.3 What policies exist and what efforts have been mechanism to ensure that this long-standing This I submit is plainly appropriate in light of the of Education in consultation with the OR made, if any, to ensure that schools have access unlawful and unconstitutional state of affairs is situation, including but not limited to the lack Tambo District Municipality in this case” to adequate water, particularly in the dry winter rectified. The applicants have been mindful of the of communication from government to seven months when there is insufficient rainfall? need to allow the first and second respondents 67. The letter from the Department of Water schools and the lack of progress that has been sufficient flexibility to properly address the issues made in respect of the seven schools, despite 8.4 Is the Department in a position to indicate Affairs is helpfully informative. However, in concerned government’s repeated statements concerning when the following schools will have their mud respect of the seven schools, it is extremely the eradication of mud schools structures replaced, receive adequate desks and worrying. It appears that the seven schools will 84.1 Accordingly, prayer 4.1 affords the first chairs and have access to adequate water and if all be excluded from the Department of Water and second respondents 30 days in which to not, why not? Affairs programmes for as long as they have not develop a plan or plans, in consultation with had their mud structures replaced. Until that the applicants, to provide proper, appropriate WHEREFORE the applicants pray [The CCL listed nine schools in this letter, happens, access to water is the responsibility and adequate school facilities and access to for the relief set out in the Notice including the seven schools at issue in the present of the Department of Education and the OR adequate water to the schools. Prayer 4.2 of Motion. proceedings] Tambo District Municipality, neither of which has 8.5 What is the reason that none of the schools addressed the problem, or shown any intention concerned is aware of whether and when they of doing so. In other words until the first and will receive proper facilities to replace their mud second respondents provide adequate school structures, the necessary desks and chairs and buildings, (of which there is no sign or plan) the access to adequate water?” schools will also continue to be without access to adequate water 66. On 17 May 2010, the Department of Water Affairs responded in writing to the CCL’s letter. 68. This has significant consequences for A copy of the Department’s letter is attached learners. For example, in the National Policy, marked Annexure “AMS25” the Minister states as follows :

30 31 Norms and Standards for School Infrastructure

Among the most trenchant legacies of 2013 promulgation deadline, the agreement apartheid are the poor building conditions mandated that the Minister publish draft norms that persist in former black-only schools. and standards for public comment by 15 January In a May 2011 report by the national 2013 and consider comments by 31 March 2013. In addition, the Minister agreed to address the Department of Basic Education (DBE), it infrastructure problems of the applicant schools was admitted that over 3,500 schools in and pay the costs of the application. In the event South Africa still do not have any access to of the Minister’s noncompliance with its terms, electricity, over 900 schools are without any the agreement made specific provision for the sanitation facilities, and over 2,400 schools applicants to approach the High Court. are without access to water. A major obstacle to resolving the infrastructure Encouragingly, the DBE succeeded in providing sufficient classrooms, security fencing, toilets, crisis in schools is the absence of water and furniture to the applicant schools. regulations defining what a school in The Minister also released a draft (albeit a South Africa must consist of. very poor draft) of the minimum norms and standards. Extensive comments on the draft In March 2012 the Legal Resources Centre (LRC), were submitted by EE and more than 20 other acting on behalf of the non-governmental organisations during March 2013. organisation Equal Education (EE) and two Eastern Cape public schools, filed a High However, the Minister failed to publish revised Court application seeking an order directing and final regulations by the May 2013 deadline the Minister of Basic Education to set binding and asked for a further extension of “at least” minimum norms and standards to regulate six months to do so. This precipitated another adequate school conditions throughout the round of litigation where the LRC and EE country. The 600 page application included sought to convert the Minister’s November affidavits from 26 public schools illustrating the 2012 “undertaking” to set minimum norms pervasiveness of dire infrastructure problems. and standards, into a court order compelling their creation. After the exchange of pleadings On 19 November 2012, the parties entered an order was granted (by agreement between into a settlement agreement. The Minister of the parties) that the Minister would publish Basic Education undertook to provide the two a revised draft of the regulations for public applicant schools with sufficient infrastructure, comment by 12 September 2013, and the final and more importantly, to promulgate regulations version by 30 November 2013. The Minister has that would establish minimum norms and thus far complied with the order by publishing standards providing for the availability of: the revised draft. The draft does address some of classrooms; electricity; water; sanitation; a the previous deficiencies in that it provides for Among the most trenchant legacies of apartheid library; laboratories for science, technology, specific reporting procedures that provinces must mathematics, and life sciences; sport and follow when communicating their plans and are the poor building conditions that persist in recreational facilities; electronic connectivity; progress in implementing the minimum norms former black-only schools. and perimeter security. Prior to the 15 May and standards to the Minister. This should greatly

32 33 A Legal Resource for Realising Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Ready to Learn? the Right to Education enhance provincial accountability and ensure that proper planning (something that is sorely In The Eastern Cape High Court, Bhisho (Republic of South Africa) lacking at present) becomes compulsory.

The latest draft unfortunately still lacks the CASE NO. much-needed specifics on what facilities must be provided to schools. The timeframes proposed for achieving the implementation of In the matter between: the minimum norms and standards are also extremely long: 10 years for basic things like sanitation facilities and classrooms, and 17 years EQUAL EDUCATION | First Applicant for libraries and science laboratories. Comments on the draft are currently being prepared and it INFRASTRUCTURE CRISIS COMMITTEE OF is hoped that the final version will incorporate MWEZENI SENIOR PRIMARY SCHOOL | Second Applicant shorter time frames for implementation and greater specificity on infrastructure. Should the INFRASTRUCTURE CRISIS COMMITTEE OF Minister’s final version be unreasonable or fail MKANZINI JUNIOR SECONDARY SCHOOL | Third Applicant to uphold children’s right to basic education, and a further legal challenge on particularly problematic sections is possible. MINISTER OF BASIC EDUCATION | First Respondent MEC FOR EDUCATION: EASTERN CAPE | Second Respondent GOVERNMENT OF THE EASTERN CAPE PROVINCE | Third Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA | Fourth Respondent MEC FOR EUCATION: FREE STATE | Fifth Respondent MEC FOR EDUCATION: GAUTENG | Sixth Respondent MEC FOR EDUCATION: KwaZulu-Natal | Seventh Respondent MEC FOR EDUCATION: LIMPOPO | Eighth Respondent MEC FOR EDUCATION: MPUMALANGA | Ninth Respondent MEC FOR EDUCATION: NORTHERN CAPE | Tenth Respondent MEC FOR EDUCATION: NORTH WEST | Eleventh Respondent MEC FOR EDUCATION: WESTERN CAPE | Twelfth Respondent MINISTER OF FINANCE | Thirteenth Respondent

34 35 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

kilometres north west of Port St Johns. I refer minimum norms and standards for school 9. As a result of the pre-existing inadequacies and Founding Affidavit in this regard to the affidavit by Fikile Billi, infrastructure constitutes a breach of the the severe storm or fire damage, the condition the chairperson of the Infrastructure Crisis constitutional right to a basic education, of the school infrastructure at these schools Committee of Mkanzini JSS. a breach of the constitutional right to endangers the physical safety of the learners, and What follows are extracts from the final founding equality, a breach of the constitutional right impedes their ability to attain a basic education. 2. The Infrastructure Crisis Committee of each affidavit prepared by the Legal Resources Centre to dignity, a breach of her statutory duties school and the members of that committee 10. The issue of safety is urgent, as described in for its client Equal Education and deposed under section 5A of the SA Schools Act, and approach this Court in their own interests, in the the second and third applicants’ affidavits: to by Yoliswa Dawne the Head of the Policy, a breach of the values of accountability, interests of the learners and parents of learners responsiveness and openness which Communication and Research Department of 10.1 At Menziwa SSS, all of the five shutter- at the school, and in the public interest. underpin the Constitution; and Equal Education, the first applicant. Yoliswa board classrooms lack significant portions Dwane was a co-founder of Equal Education. THE NATURE OF THIS APPLICATION 5.2.2 directing the Minister to make of their walls; heavy metal gutters dangle She grew up in Dimbaza Township in the Eastern regulations which prescribe minimum norms from classroom roofs; all of the windows Cape and finished school in King William’s Town 3. This is an application in two parts. and standards for school infrastructure in in the school have been smashed or blown EE is a community- and membership-based 4. The first part of this application concerns terms of section 5A of the SA Schools Act, out; and electrical wiring is exposed in many organisation. It advocates for quality and equality two schools in the Eastern Cape, Mwezeni SPS, within 3 months of the date of judgment. classrooms. in the South African education system, and and Mkanzini JSS. Both have suffered serious The legal obligations and underlying statutory 10.2 At Mwezeni SPS, learners are being engages in evidence-based activism for improving infrastructural damage caused by severe weather schemes are well described in the attached heads educated in a structure that appears to be the country’s schools. Youth and particularly storms and fire, resulting in a situation of danger of argument in imminent danger of collapse. Parents and learner leadership development is central to our and emergency. The first part concerns the State’s educators fear for the safety of these children, work. duty to provide adequate emergency relief to EMERGENCY CONDITIONS AT THE but are left with no other option during Mwezeni SPS and Mkanzini JSS. It is of a more APPLICANT SCHOOLS AND THEIR IMPACT inclement weather conditions. EE works to promote quality education for all urgent nature and concerns narrower questions through campaigns grounded in detailed research ON THE LEARNERS’ EDUCATION of fact and law than the second part. 10.3 At Mkanzini JSS, learners are taught in and policy analysis and supported, where 6. Mwezeni SPS is a Senior Primary School that corrugated iron shacks that are overcrowded, appropriate, by litigation. 5. The second part of this application concerns provides education to 295 learners in Grade the failure by the Minister to make regulations poorly constructed, leak badly when it R through Grade 6. Mkanzini JSS is a Junior 1.1 EE has approximately 1500 members who prescribing the minimum norms and standards rains, and provide little protection from the Secondary School providing education to 408 are active on a weekly basis in approximately for school infrastructure as contemplated in elements. Two of the school’s five corrugated learners in Grade R through Grade 9. 80 schools around the country. It has many section 5A(1)(a) and (2)(a) of the SA Schools Act. iron classrooms become unusable in wet more active supporters. Its membership weather due to seepage which turns the dirt 7. These schools are in the area which previously consists of learners, parents, teachers and 5.1 The Relief that the applicants seek: in floors into pools of mud. constituted the Transkei. This is one of the community members. The largest section of respect of the first part: poorest areas in South Africa. The learners the membership is made up of high school 11. The effect of the inadequate infrastructure on who attend these schools and their parents are learners. http://www.equaleducation.org.za/. 5.1.1 declaring that the failure of the school enrolment, attendance and learning at the MEC and the provincial government to impoverished people from rural communities. Menziwa SSS, Mwezeni SPS and Mkanzini JSS is 1.2 The second applicant is the INFRASTRUC- address and resolve the dire conditions at 8. As appears in more detail from the affidavits demonstrable. TURE CRISIS COMMITTEE OF MWEZENI SENIOR Mwezeni SPS and Mkanzini JSS by at least of the second and third applicants, these schools PRIMARY SCHOOL (“Mwezeni SPS”), and its providing adequate emergency structures, 12. High absenteeism and unfit conditions for have been severely damaged either by extreme members. Mwezeni SPS is located in the is unconstitutional and unlawful; directing teaching and test-taking have severely impacted weather conditions or by fire. Mwezeni SPS was Mbashe Local Municipality, approximately sixty the MEC and the provincial government on the quality of education at Menziwa SSS.: seriously damaged by heavy rains in January kilometres south east of Mthatha. I refer in this immediately to provide emergency relief to and February 2011. Mkanzini JSS was gutted by 12.1 Absenteeism increased among both regard to the affidavit by Nokhululekile Mshu- Mwezeni SPS and Mkanzini SPS in the form fire on 15 July 2009. Menziwa SSS was struck by learners and educators following the storm mayeli, the chairperson of the Infrastructure of safe and adequate structures, temporary a tornado on 20 December 2010 and by a severe Crisis Committee of Mwezeni SPS. or otherwise; damage to the school, in part due to frequent storm in March 2011. Even before the schools illnesses resulting from exposure to extreme 1.3 The third applicant is the INFRASTRUCTURE 5.2 The relief that the applicants seek in were struck by these disasters, the learners at weather conditions. CRISIS COMMITTEE OF MKANZINI JUNIOR respect of the second part: these schools had suffered deplorable conditions SECONDARY SCHOOL (“Mkanzini JSS”), and its for years. These schools now operate under 12.2 Enrolment numbers dropped from 416 to members. Mkanzini JSS is located in the Port 5.2.1 declaring that the failure of the Minister appallingly unsafe conditions, and require 306 following the storm damage. Parents who St Johns Local Municipality, approximately 15 to make regulations which prescribe emergency infrastructural relief. are able to afford transport, send their children

36 37 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

elsewhere. This leaves the poorest and most iron shacks provide inadequate shelter and and have made it practically impossible for the 21.2 An order requiring the MEC to provide vulnerable students continuing to suffer the are inappropriate structures for teaching and learners to obtain adequate basic education. the second and third applicants with crisis at Menziwa SSS. learning to take place in. The corrugated iron immediate emergency relief in the form of shack classrooms are dark and dirty and too 18. By failing to remedy these conditions, the safe and adequate infrastructure, temporary or 12.3 Due to the deteriorated condition of the small to accommodate the learners. Many chil- respondents have denied the learners at the otherwise. classrooms, teachers have found it impossible dren have to be taught outside at some stage of applicant schools the enjoyment of an adequate to maintain discipline in the classrooms. the day. Learner absenteeism is extremely high, basic education. I submit that the respondents 21.3 Structural relief to ensure the MEC’s In part because of the difficulty of teaching particularly when there is wet weather and have failed to fulfil their constitutional duty to compliance with that order. in such circumstances, many teachers are the shacks’ leaking roofs result in the school’s respect, protect, promote and fulfil the learners’ Part Two currently attempting to transfer to other entire enrolment of 408 children being taught constitutional right to a basic education, and schools. in the two classrooms that are built of bricks. have violated the learners’ constitutional right to Section 5A of the South a basic education under section 29(1)(a). African Schools Act 12.4 Matriculation exam pass rates have 14.2 The corrugated iron shack classrooms declined over the past five years – from 47% are unstable. Two are completely unusable 19. I submit further that, in failing to respond to 22. One of the mechanisms created by Parliament in 2006, to 29% in 2008, to 10% in 2010. During the repeated requests from the applicant schools for weeks after rainfall due to seepage which to ensure adequate education for all, and some the matric exams in November 2008, 2009, and for emergency relief and assistance, the MEC turns the dirt floors into a quagmire. In warm measure of equality, is contained in section 5A 2010, examination monitors stated that the has breached his duties under the Schools Act to weather the tin shacks become unbearably of the SA Schools Act. It was inserted in the Act conditions were unfit for any assessments to provide public schools, which must necessarily hot and students struggle to concentrate in in 2007 in order to give effect to the recognition take place. At the time of these exams, some mean safe and functioning schools. In particular: the extreme heat. There is also a dire lack of in the Preamble to the Act that it is “necessary” learners collapsed due to the extreme heat in furniture at the school. to set uniform norms and standards for the the school. 19.1 The MEC failed to fulfil his duty under GOVERNMENT’S FAILURE TO REMEDY section 3(3) of the Schools Act (read with education of learners at schools throughout the 13. At Mwezeni SPS, the following effects are EMERGENCY CONDITIONS section 3(1) of the Schools Act) to ensure that Republic. described: there are sufficient places and infrastructure at 23. I submit that the prescription of minimum 15. In the many months following these disasters, the public schools in the province to meet the 13.1 After the damage to the classrooms, 220 norms and standards for school infrastructure these schools have not received any emergency basic education needs of every child required children in grades R through 4 were taught is (in the words of the Preamble to the Act) or other relief from the government. Damaged to attend school in the province. outside, because of the instability of the walls, fallen roofs, fire gutted classrooms and “necessary” for at least the following reasons: remaining standing classrooms. During periods broken windows at the schools have not been 19.2 The State has breached its duty under 23.1 It provides a legal standard and of rain, learners simply did not attend school. fixed since they were destroyed by the storms or section 34(1) of the SA Schools Act by failing mechanism for ensuring that government fire. The schools remain unsafe, and present a to “fund public schools on an equitable basis 13.2 Teacher morale at the school has meets its constitutional obligation to fulfil the dangerous environment for the learners. in order to ensure the proper exercise of the steadily declined due to the poor condition right to an adequate basic education. rights of learners to education and the redress of the classrooms. Learner absenteeism has 16. Both applicant schools have repeatedly of past inequalities in education provision”. 23.2 It provides a legal standard and increased. This is attributable in large part written letters to the government pleading for mechanism for ensuring that a basic level to the unsafe and deteriorating conditions in urgent assistance. Despite these efforts, neither 20. I submit further that, by failing to develop of educational facilities is provided to every which the teachers and learners must operate. of the schools has received a response to any of policies to address emergency situations at learner, thus addressing the issue of equality. Classrooms are overcrowded, many of the its correspondence, or any form of assistance. poorly-resourced, poorly-built and historically- mud walls have serious problems with damp, The schools have been given no indication of disadvantaged schools such as the applicant 23.3 It enables government to meet its roofs leak in many classrooms, there is a severe when they will be provided with emergency schools, the MEC has failed to comply with constitutional obligations within a clear shortage of furniture, and classrooms are classrooms, if at all. section 4(1) of the EC Schools Education Act. framework of targets and priorities. As I show dark because of a lack of windows. Teaching below, on the Government’s own admission and learning is extremely difficult in these RESPONDENTS’ BREACH OF THEIR RELIEF this is necessary for the equitable provision of conditions. CONSTITUTIONAL AND LEGISLATIVE DUTIES 21. The Applicants accordingly seek the adequate school infrastructure. Spending and 14. At Mkanzini JSS, the Infrastructure Crisis following relief in respect of the first part of this development of infrastructure planning must Committee describes the effects of the poor 17. The unsafe and otherwise unacceptable application: be guided by a clear policy framework with infrastructure on teaching and learning as conditions at the applicant schools make them defined and measurable targets. follows: wholly inadequate as a learning environment. 21.1 A declarator that the failure of the MEC to The physical conditions at these schools threaten provide the applicant schools with adequate 23.4 It enables national government to exercise 14.1 After the fire gutted the four permanent the safety of the learners and teachers on a daily emergency structures is unconstitutional and its oversight and monitoring role in respect of classrooms, the hastily constructed corrugated basis; result in high absenteeism among learners; unlawful. provincial education departments.

38 39 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

23.5 It sets legal standards by which MEC’s designated as a computer centre but are not For instance, 76 per cent of principals reported published, and then enforced – applies to all are bound. stocked with computers. not having the required facilities to run their infrastructure indicators in schools. Publishing schools and a further 52 per cent of learners norms and standards will not ensure that 23.6 It enables communities, learners and 25. The NEIMS Report shows that inadequate indicated that they are not always provided with the necessary results are achieved unless the educators, civil society organisations, and school infrastructure exists particularly in the a desk.” norms and standards are made binding. If they the public at large to know what they are former Bantustan areas. Although the Eastern are binding, it will be possible for the school entitled to require of government. It enables Cape and KwaZulu-Natal are in the worst 28. The Report of a study by the “SACMEQ III authorities to be held to account, including by them to monitor government’s performance, condition, the problem of poor infrastructure Project in South Africa”, which was released the learners and their parents, and if necessary hold government accountable for meeting is also found in other provinces. on 18 January 2012 by the Department of Basic through the courts. While non-binding its obligations, and ensure that government Education and the Southern and Eastern Africa recommendations are no doubt helpful, they are 26. Some of the very worst conditions are meets those obligations. This is an element Consortium for Monitoring Educational Quality inadequate in ensuring that learners achieve their found at the schools which are known as “mud of the participatory democracy which is (SACMEQ), again highlights the problem of right to basic education, their right to equality, schools”, because they are constructed of mud. contemplated by the Constitution. inadequate school infrastructure in South Africa. and their right to dignity. The existence of these schools has become more WIDESPREAD LACK OF ADEQUATE widely known as a result of litigation which was 29. SACMEQ III is titled “A Study of the Conditions 32. A major cause of the widespread inadequacy INFRASTRUCTURE AT SCHOOLS instituted in this regard in the Eastern Cape. of Schooling and the Quality of Education”. It and inequality in infrastructure and amenities in As a result of that litigation, the government found as follows in relation to school toilets: schools is the legacy of the apartheid education 24. Today there are still thousands of schools committed funds towards addressing that system. Racist apartheid laws and policies, and across South Africa that are operating without problem in the Eastern Cape and other provinces. “Provision of adequate separate sanitation the apartheid government’s deliberately unequal adequate resources and in unsafe conditions. That is a welcome development, however: facilities such as separate toilets for boys and girls Government reports, most notably the National is another basic requirement. Otherwise female allocation of resources, favoured schools reserved Education Infrastructure Management System 26.1 If uniform and legally binding minimum learners may feel unsafe in the absence of these for white learners, to the detriment of black Report (NEIMS), detail the lack of resources at norms and standards had been in place, facilities and be forced not to stay long in school. learners (African, Coloured and Indian). This public schools in the country. Relevant pages provincial education MEC’s and departments In Table 1, the average numbers of learners per resulted in massive racial inequality in school of the most recent NEIMS Report, published by and school governing bodies would have been toilet in 2000 and 2007 are shown separately for resources and infrastructure. the national Department of Basic Education placed on notice that the existence of these boys’ toilets and girls’ toilets. For boys and girls it 33. This is recognised by the Minister in the (DBE) in May 2011, are attached as annexure mud schools was unlawful, and would have is worrisome that the ratio of learners to toilets National Policy for an Equitable Provision YD10. The Report notes that of the 24 793 public been prompted to take steps to remedy the increased between 2000 and 2007. Although no of an Enabling School Physical Teaching and ordinary schools: situation. norms for numbers of learners per toilet were Learning Environment (“the National Policy for available for South Africa, the recommendation an Equitable Provision”). She states that the a) 3 544 schools still do not have electricity, 26.2 If uniform and legally binding minimum of the World Health Organisation is a ratio of 1:30, physical teaching and learning environment while a further 804 schools have an unreliable norms and standards had been in place, and i.e. 30 learners should be sharing a toilet. Using “has historically been one of the most visible electricity source; made widely known, affected communities this norm (in the absence of a national norm) it is indicators of inequitable resource inputs” (pg 7). would have been empowered to insist that the evident that Grade 6 learners in South Africa were b) 2 401 schools have no water supply, while a The National Policy for an Equitable Provision is situation be remedied, and it is unlikely that in schools where toilets were overcrowded as can further 2611 schools have an unreliable water annexed as YD12. the situation would have continued for as long be evidenced from the relatively high learner- supply; as it has (and still does). toilet ratios and the fact that these increased 34. The official statistics show that inadequate considerably during the period in question.” c) 913 schools do not have any ablution 27. The problem of poor infrastructure at infrastructure is still widespread. This situation (page 41) facilities while 11 450 schools are still using pit schools was highlighted in a study conducted has a clear racial dimension. Overwhelmingly, it latrine toilets; is black children who attend the schools where by Transparency International, which looked at 30. The report’s recommendations in relation to primary schools in the Gauteng, North West, and the infrastructure is inadequate. Most schools d) 22 938 schools do not have stocked libraries, toilets are clear: Mpumalanga provinces. The study was released in South Africa, including the original Mwezeni while 19 541 do not even have a space for a in August 2011. It states: “the Physical Planning Unit of the Department SPS and Mkanzini JSS buildings, were built during library; of Basic Education should immediately seek to: apartheid. The infrastructure reflects the racial “There are major problems related to the e) 21 021 schools do not have any laboratory (i) establish and publish norms and standards inequality which was then a matter of policy. learning environment, both in terms of safety facilities, while only 1 231 schools have stocked for provision of separate toilets for boys and girls; Many schools in poor rural communities had and infrastructure. Three out of four principals laboratories; and (ii) monitor that all schools adhere to the to be and were built by community members estimate that they don’t have the means required norms and standards.” (page 87) themselves, using the limited resources that f) 2 703 schools have no fencing at all; and to run the schools, and one out of two learners they had. says she is not always provided with a desk. About 31. I submit that the SACMEQ III report’s g) 19 037 schools do not have a computer 15 per cent of schools had no electricity and 10 per recommendation in relation to toilets – that 35. It is of course no longer policy to maintain centre, while a further 3267 have a room cent no water supply. norms and standards should be established, this inequality. But the inescapable fact is that 40 41 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

gross inequality continues with regard to school to engage in the teaching and learning process. SUPPORTING AFFIDAVITS FROM SCHOOLS Secondary School in the village of Lefiso in infrastructure. It has a clear racial dimension, The physical appearance of school buildings are Mpumalanga, describes the debilitating problem with black children suffering the consequences shown to influence learner achievement and 41. Equal Education’s work in the Western Cape, of overcrowding in classrooms with as many as of under-provision. It is the most disadvantaged teacher attitude toward school. Extreme thermal Limpopo, Mpumalanga, Gauteng, KwaZulu-Natal, 58 learners: learners whose education and opportunities in conditions of the environment are found to Eastern Cape and North-West had shown it that life are compromised by the continuing failure to increase annoyance and reduce attention span the problem of inadequate school infrastructure “The challenges the learners face in these provide adequate infrastructure. and learner mental efficiency, increase the rate is widespread. In order to document this and its poor quality classrooms that leak, don’t have of learner errors, increase teacher fatigue and impact on school education, Equal Education electricity, and have crumbling floors are THE IMPACT OF INADEQUATE the deterioration of work patterns, and affect and attorneys from the Legal Resources Centre exacerbated by the fact that the classes are INFRASTRUCTURE ON THE EDUCATION learning achievement. Good lighting improves collected 24 affidavits from schools situated overcrowded and the school’s furniture is old OF LEARNERS learners’ ability to perceive a visual stimuli and throughout South Africa during November and and inadequate. Learners are forced to share December 2011. Learners, parents, teachers and desks and this is uncomfortable and distracting. 36. There is a direct relationship between their ability to concentrate on instructions. principals discussed, at length, the infrastructure Completing writing tasks is virtually impossible adequate school infrastructure and learner A colourful environment is found to improve problems facing their schools and their impact when there are up to four learners squashed into performance. Adequate infrastructure is a key learners’ attitudes and behaviour, attention on teaching and learning. They deposed to a desk made for two. These cramped conditions element of providing an adequate education. span, learner and teacher mood, feelings about school and reduces absenteeism. Good acoustics supporting affidavits that are attached to this make it difficult for learners to write and 37. The Minister and her Department have improves learner hearing and concentration, affidavit. focus, which is especially problematic during acknowledged this causal relationship. This especially when considering the reality that at examinations.” (annexure YD34) 42. These affidavits paint a bleak picture of is made clear both in official government any one time, 15 percent of learners in an average schools with poor or absent infrastructure, 45. SGB member Makhaya Bophi of Sakhikamva documents, and in government’s correspondence classroom suffer from some hearing impairment demotivated teachers and learners, frustrated Senior Secondary School in East London, Eastern with the first applicant. that is either genetically based, noise-induced parents, and schools that are rarely provided Cape explains the effects of having only one or caused by infections. Outdoor facilities and with any information regarding the Department’s classroom for 80 grade 8 learners and one 38. For example, in the Minister’s foreword to activities have been found to improve learner plans, if any exist, to provide desperately needed classroom for 90 grade 9 learners. the National Policy for an Equitable Provision formal and informal learning systems, social infrastructural improvements. Classroom she highlighted the significance of school development, team work and school-community shortages and classrooms that are structurally “The overcrowding means that learners do not do infrastructure as follows: relationships.” (Page 7. See also pages 23–25). unsafe or leak; a lack of electricity; inadequate their work properly. On average, three learners share one desk… It is difficult for teachers to give “School infrastructure remains a critical issue on 40. These statements are consistent with water and sanitation; absent or non-functioning learners individual attention. Classes are crowded the social agenda for South Africa for a number international and local research on school libraries, science laboratories and computer and there is poor ventilation so classes are hot of reasons. In the first place, infrastructure infrastructure and its relation to learner facilities; and poor security were prevalent and stuffy. There have been instances where differentials are so large in South Africa and some performance. A review of the international infrastructural problems at the schools. learners are taking drugs at the back of classes of the infrastructure available so inadequate research compiled by Specialist Researcher, 43 An overview of some of the problems at these and fighting. But teachers can only teach from the that it is inconceivable that it DBEs [does] not Debbie Budlender, demonstrates that: impact on learner performance. Secondly, the schools including some examples that illustrate door as they can’t move around the over-crowded highly unequal access to quality facilities remains 40.1 International research supports the finding their impact on the education of learners at these space.” (annexure YD18) critical in the light of our Constitution and the that a causal relationship exists between the schools follow. Further detail is contained in the 46. At Mabu-a-tlou Primary School near Suurman Bill of Rights which demand equity and equality.” quality of school infrastructure and learner individual school affidavits. in Gauteng Province, the minimum number of (page 4) outcomes and performance. Shortage of Classrooms/ learners in a classroom is 50. Dikeledi Shabalala, 39. The National Policy for an Equitable Provision 40.2 The causal relationship is stronger in Overcrowding an SGB member at the school, describes the states: disadvantaged schools where the state of impact of overcrowding on teaching and learning 44. The shortage of classrooms at many schools school infrastructure is poor and inadequate. as follows. “Significance of the Physical Teaching and causes extreme disruptions and seriously impedes Learning Environment: 40.3 The causal relationship is stronger in teaching and learning. Of the 24 schools visited “The overcrowding is compounded by the limited developing countries. that deposed to affidavits, 15 reported problems amount of furniture. Teaching is not as effective Yet as recent studies show, there is a link between with overcrowding. While the accepted, but as it could be. Because there are too many the physical environment learners are taught [in], 40.4 There is a strong relationship between non-binding, number of pupils that should learners for each teacher, the teachers are not and teaching and learning effectiveness, as well the lack of adequate school infrastructure be in a single classroom is 35 in high schools able to give the students the individual attention as learning outcomes. Poor learning environments and the negative impact this has on learners’ and 40 in primary schools, many schools are they require. Students are forced to resort to have been found to contribute to learner irregular self-esteem and the importance of school. forced to accommodate more than double that relying largely on the help of fellow students to attendance and dropping out of school, teacher It ultimately increases absenteeism among number. Steven Matsimbi, the chairperson of assist them if they fail to grasp the lesson taught. absenteeism and the teacher and learners’ ability other things. the School Governing Body (SGB) at Malatse While peer teaching can be beneficial when it

42 43 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

is in addition to teachers providing explanation schools nationally that do not have any ablution are broken seats, tap handles and door handles. Absence of libraries, science laboratories, and and assistance, on its own it is insufficient. This facilities, and the 11 450 schools that are still This creates hygiene and privacy issues for the computer facilities is apparent especially in mathematics where the using pit latrine toilets (as per the NEIMS Report learners and often they have to wait to use the poor performance of the majority of the students referred to above). At Lehabe Primary School near bathroom.” 56. The absence or inadequacy of library facilities indicates there is a systemic problem.” (annexure Hammanskraal in the North West Province, the and the severely negative impact it has on YD36) Department of Health declared during a 2004 53. At Samson Senior Primary School near Libode education was widespread at the schools visited. visit to the school that the 13 pit latrines were in the Eastern Cape, the roof on the block of Only 5 of the 24 schools visited had a library. This Deteriorating Infrastructure unsuitable for use by the school. Eight years later pit latrine toilets was blown off by a storm is consistent with national government statistics there has been no improvement to the situation, in November 2010. At the time of signing this (see the NEIMS report referred to above), which 47. Poor quality buildings and leaking roofs and students constantly complain to the principal affidavit, 15 months after the storm, the toilets show that 22 938 schools do not have stocked are a major source of frustration at 18 of the about the terrible smell of the latrines. The have not been repaired. libraries, while 19 541 do not even have a space 24 schools deposing to affidavits. Creating an structure is old and unstable and the roof is not for a library. The principal of Nape a Ngwato environment conducive to teaching and learning properly secured. In fact, the pit latrines are the “The teachers have no choice but to use the Secondary School in Tsimanyane village Limpopo, is extremely difficult at many schools due to leaks same ones used by the principal when she was a damaged toilets, even though there is no roof or Mathabethe Hlokoa, stated: or crumbling walls. At some schools it is bearable student at the school. shelter. There is no privacy, humanity or dignity and simply a nuisance to be contended with, “The school does not have a library or even when they have to use the open toilets. More while at others it is so problematic that a large a space for a library. The lack in variety of 51. At Meadowridge Primary School in Mitchell’s importantly, the toilets are a health hazard. Most portion of the teaching year is lost due to having reading and media resources inhibits the kinds Plain (Western Cape), there are sufficient learners use the fields surrounding the school to close classrooms during inclement weather. of assessments that teachers can set for the flushing toilets for the students but they are in to relieve themselves because the toilets are learners. Those who can afford to travel to Marbel a deplorable state of disrepair. The principal, unusable. Livestock often enter the toilets and 48. At Bogosi Primary School in the village of Hall to visit the town public library are able to Norman Daniels, states in his affidavit that make a terrible mess.” Moretele in the North West Province, go there and source additional information for “The pipes are very old and have corroded, the their projects. They often perform much better “The structure of the buildings is dangerous, as 54. At Ashburton Primary School, located near lids are broken, there is no tiling, and there is than those who cannot afford to travel to the the buildings are very old. They were built in 1967 Pietermaritzburg in Kwazulu-Natal, the poor urine seeping into the cement. It is unhygienic, public library. The fact that the school does not and have not been renovated or improved since. state of the school’s three pit latrine toilets that and some parents instruct their children not to have a library limits the teachers’ ability to teach, When it rains or when there are strong winds we are used by 133 children has a particularly harsh use the toilets at the school…. The poor state and the learners’ ability to study in a suitable have to send the students home because we are impact on female students. of the toilets means that many learners do not environment and access resources for their scared that the structure may collapse and fall on go to the toilet all day which also then affects education.” them.” (affidavit of Amos Hlungwane, principal, “The toilets are smelly and unhygienic. The fact their concentration in class. It is also extremely that there are no doors on the toilets also means annexure YD37) 57. The principal of Maceba Secondary School in unhygienic and we even had 2 separate cases that you have no privacy. This is degrading and Nqutu, KwaZulu-Natal, Mr Bethwell Mweli, refers 49. Maceba High School is located in Nqutu, where learners caught Hepatitus C from the humiliating and grossly violates their dignity. not only to the negative impact on education KwaZulu-Natal. The principal of the school, Mr toilets. This was verified by their doctors, who You think twice before using the toilet. You which results from the absence of a library, but Bethwell Mweli, describes the impact of leaking told the parents that it was most likely from a think whether you can’t just wait until you get also to the fact that donated resources cannot be roofs on teaching and learning as follows: toilet, and since the toilets at their homes were home, and if you really have to use the toilet, you hygienic, it was likely to be the school’s toilets accepted because of a lack of infrastructure for sometimes go the schools’ neighbours and ask “When it rains learning and teaching has to stop that caused the diseases. An adequate learning storing them. them if you can use their toilet. When the girls in half of our classrooms, because learners, their environment is one in which there is no health and teachers are experiencing menstruation, they “Without a library, learners do not have access books and the desks get wet. It rains on up to risk.” do not have the necessary privacy or facilities to to reading and reference books, only textbooks. half of the school days in the year. Learners and take appropriate care of themselves. As a result, This affects their ability to do research and teachers also fear that the roof, which has holes 52. August Filander, a senior teacher at Alpine some of the girls stay away from school when complete assignments, which is a crucial part in it, could blow off or collapse on them. Many Primary School in Mitchell’s Plain, describes they are experiencing menstruation, which can of their education… When the learners need to of the wooden ceiling beams are also broken and the toilets for the school’s 1300 students as very mean they are away for up to a week.” (affidavit do research, we have to take them to Town. This bent and could easily fall on the learners and problematic. of C E Ntshangase, principal) costs a lot of money. It costs R60 to transport a teachers.” (annexure YD26) “There are approximately 6 (toilet) seats available learner by taxi to Town and back home again. The Toilets for 700 girls, but many of the toilets are broken 55. At Lehlaba Primary School outside Tzaneen school has to pay for this. We can’t afford to pay and not functioning and often there are only in Limpopo, there is one pit latrine toilet for 90 for everyone, so we usually select a few learners 50. The absence of clean, functioning, adequate 2 working toilets. The boys toilets have similar learners. At Iqonce High School in King William’s to go to Town to do the research for everyone. toilets at schools was a major concern at 20 of 24 problems. Our janitors work hard to keep the Town, Eastern Cape, there are two toilets for the The learners who do not get to go to Town schools that were visited. These are 20 of the 913 bathrooms clean but often because of theft there 254 learners at the school. complain to me, but there is nothing that I can

44 45 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

do to change this… Not having a physical space “Although we would like a computer lab and a “The school does not have running water and teachers are constantly monitoring the premises for a library also means that the school loses out science lab for our learners at the school, these therefore relies on two water tanks provided by and the safety of the learners during school on books which ELITS, the Department’s Library are not our most urgent problems, we need to the community. There are weeks when the school hours. We are very concerned about the safety Services Unit wants to donate to us. We cannot have the roofs and toilets fixed as a necessity is unable to obtain any water and the tanks run of learners within the school vicinity after school accept these books because we have nowhere to before we can begin to think about the luxury of dry. When the tanks are dry the school must hours. The school is not adequately fenced in put them. As a result, our learners suffer.” a computer lab or a science lab.” purchase water with money from its own limited and is therefore vulnerable to acts of vandalism budget. We then have to sacrifice the purchase of and petty theft. The fence is constantly being 58. The lack of science laboratories, particularly Electricity additional educational resources for the students. cut leaving gaping holes for persons to pass in high schools, has had devastating We have wanted to purchase an extra computer through. We do our best to repair it, but it is consequences for many matric students. At 61. Six of the 24 schools stressed that the absence for student to use but have had to postpone this always cut again. There is a security guard but Iqonce High School in King William’s Town all of electricity was a major problem for the purchase because we do not have the funds.” he only arrives at the school late in the evening. 10 matriculants writing science in 2010 failed proper administration of the school. This echoes Our school needs a proper fence or wall to better the subject. At Sakhikamva Secondary School the national picture, described in government 64. Five of the 24 schools are totally reliant on protect our learners and the school during and in East London, only two out of approximately statistics, which show that 544 schools still do seasonal rain for their water supply. At Samson after school hours.” 40 matric students passed science in 2010 and not have electricity, while a further 804 schools SPS near Libode in the Eastern Cape, storms have have an unreliable electricity source. At Malize both received an E symbol or lower. At Malatse damaged the school’s limited capacity to collect 66. The schools whose stories are told in the Secondary School in Mpumalanga only 10 out Senior Primary School near Lusikisiki in the seasonal rainwater. affidavits attached are by no means the worst of the 39 candidates writing matric science Eastern Cape, public schools in terms of infrastructure. I submit passed the subject in 2010. None of those schools “Previously, the school relied on rain water tanks. “The lack of electricity frustrates the teachers’ that they give a fair representation of the types have science laboratories. Virtually all of the However, the metal gutters of the buildings ability to effectively run the school as teachers of problems faced by many public schools. They schools visited stressed the difficulty of trying to have been damaged by storms and now hang off struggle to communicate with the DOE. In the show the consequences for learners of the facts teach complicated scientific concepts without the buildings. The water tanks no longer collect absence of a school phone and fax, energy and set out in the NEIMS Report. the assistance of a laboratory where practical rainwater and pose a serious danger to learners time is wasted in travelling to meetings to receive experiments can be performed. The overall and teachers. The nearest tap is approximately information that could have been relayed via GOVERNMENT’S RESPONSE TO THE national picture is that 21 021 schools do not have five kilometers away. The lack of water negatively fax. This comes at the expense of being able to WIDESPREAD INFRASTRUCTURE any laboratory facilities. affects the learners as they are often extremely singularly focus on the students. The absence of PROBLEMS thirsty and lose concentration easily.” electricity also means that should we be able to 59. The negative impact of the absence of 67. The national Government has acknowledged secure a computer through a donation, it would computers and computer laboratories on Security that the problem of poor school infrastructure education in primary and secondary schools be almost impossible to use it at the school.” 65. For nine of the 24 schools, security issues is widespread. It has taken some steps was referred to by two thirds of the schools 62. Similar problems face Samson Senior Primary were a major infrastructural concern. This towards addressing this problem. However, I visited. Nationally, 19 037 schools do not have School near Libode in the Eastern Cape. supports government statistics which show that submit below that the Government has acted a computer centre, while a further 3267 have 2 703 schools in South Africa have no fencing unreasonably and unlawfully by failing to take a room designated as a computer centre but “Samson SPS has never had an electricity supply. at all. For many schools in rural areas, the lack the steps it has acknowledged are needed not stocked with computers. The impact of not This means that we cannot operate a photocopier of perimeter security means that livestock to address these problems adequately and having computers was summed up by Makhaya to prepare for lessons, we don’t have computers can wander freely through the grounds after comprehensively. Bopi, an SGB member at Sakhikamva Senior for students to use, and administrative tasks are school hours, and leave droppings which must Secondary School in East London, Eastern Cape. made much more difficult without fax machines 68. I submit that in light of the repeated be cleaned up. For some schools, the lack and computers.” affirmations by the Minister and her Department “There are five computers in the school, however of fencing and security has a more sinister of the critical need for minimum norms and only three of them work. The members of staff use impact on education. At Mabu-a-tlou Primary Water standards for school infrastructure, and the the computers to prepare lessons. Our learners School in the village of Suurman, Gauteng, SGB undertakings to prescribe them, the Minister’s have no exposure to the computers themselves 63. At more than one third of the 24 schools member Dikeledi Shabalala describes the need abrupt and unexplained about-turn and her and will leave the school with no computer skills. deposing to affidavits the absence of a for perimeter security as the most pressing decision to adopt non-binding “guidelines” This directly and negatively impacts on their reliable source of potable water was a serious infrastructural need at the school. (which have still not been published for public ability to study further or seek employment that infrastructural concern, having a negative impact comment) is irrational and unlawful. Her is better than irregular physical labour.” on teaching and learning in many ways. This “During the 2011 school year we have had three problem of access to potable water is national, incidents of theft. Thieves break the doors and decision is not rationally related to the purpose 60. For schools like Lehabe Primary School in the with 401 schools having no water supply, and steal the food meant for the learners as part of for which she is to exercise her powers. Her North West Province, the infrastructure needs a further 2611 schools having an unreliable the feeding program. Older boys who are not decision will inevitably have a negative impact on are even more fundamental than computers and water supply. At Milente Secondary School near learners at the school loiter near the premises. the provision of school infrastructure, and result science laboratories: Polokwane in Limpopo, They smoke and disturb the students. The in children not achieving their right to an

46 47 Norms and Standards for School Infrastructure | RELATED COURT PLEADINGS

adequate basic education. This is contrary to the Some of them overspend, whilst the province in purpose for which she is given the power. greatest need, the Eastern Cape, had only spent 28% of its school infrastructure allocation at the 69. The absence of binding minimum norms and start of the fourth quarter. As a result of this, standards for school infrastructure contributes the Department of Basic Education decided to directly to the continuing failure to provide withhold additional funds. adequate infrastructure at public schools. This in turn undermines and prevents the achievement 72. The result of the failure to prescribe legally by learners of their right of learners to adequate binding Norms and Standards is twofold. First, education. It impacts disproportionately on black the national Department of Basic Education learners, and on learners from poor families, who is unable to exercise the necessary oversight are overwhelmingly black. and enforce “top-down” accountability, as has been demonstrated most vividly but not only 70. The absence of prescribed minimum norms in the Eastern Cape. Second, local communities and standards impacts particularly harshly on lack both a standard by which to assess their learners at thousands of poor and historically entitlements, and a mechanism for enforcing disadvantaged schools, such as the second and them. They have therefore not generated an third applicants. In the absence of prescribed effective bottom-up accountability mechanism. norms and standards, the poor and hazardous condition of infrastructure at these schools RELIEF IN RESPECT OF PART TWO is allowed to persist, leaving the learners and 73. In respect of the second part of the teachers in an unsafe environment that is application, the applicants seek orders which unconducive to learning. may be summarised as follows: 71. In saying this, Equal Education recognises a) declaring that the failure of the Minister that government wishes to remedy the to make regulations which prescribe national school infrastructure crisis, and has taken minimum uniform norms and standards for material steps in that direction. Its financial school infrastructure constitutes a breach commitments include an R8.3bn allocation of the constitution and of section 5A of the for school infrastructure in the Medium Term Schools Act; and Expenditure Framework, announced in the 2011 budget speech. Various new initiatives including b) directing the Minister to make regulations the Accelerated Schools Infrastructure Delivery which prescribe national minimum uniform Initiative (ASIDI) and the Priority Spending Unit norms and standards for school infrastructure (PSU) are intended to address the situation, and in terms of section 5A of the Schools Act, have made some progress. However, these efforts within three months of delivery of judgment in are bedevilled and undermined by the absence this application. of legally binding Norms and Standards. The provinces are the sphere of government which 74. The applicants accordingly pray for an order are responsible for the construction of schools. as set out in the notice of motion.

48 Off the Floor and into a Desk and Chair

To see one of the most vivid disjuncts Litigation has successfully resulted in furniture between the promise proffered by South delivery for some of the applicant schools, Africa’s economic might and progressive however, the matter remains ongoing due to Constitution, and the actual reality on the ECDOE’s substantial non-compliance with the ground, one should go to the public the terms of a 29 November 2012 court order. schools in the former Black “bantustans” Instead of a comprehensive recording of furniture in Eastern Cape Province. There, almost shortages in all Eastern Cape schools, the ECDOE’s audit omitted a number of schools and twenty years after the advent of democracy failed to verify data from those schools that it and the dissolution of race-based disparities did include. Of concern is that data similarities in educational funding, thousands of across multiple school districts raise strong schoolchildren still sit on the ground because suspicions of falsification. their classrooms have no, or an insufficient numbers of, desks and chairs. They hunch The ECDOE was also directed to deliver all over workbooks and crane their necks to furniture needs noted in its audit by 30 June 2013. see the blackboard. They often get sick from Instead the ECDOE has neither informed the sitting for hours on cold, dirty floors. identified schools about the numbers of desks and chairs they will receive, nor when they will Those who do manage to get a seat still have receive them. On its own estimated need of R360 to share a desk with several others. Discipline million to satisfy the province’s school furniture problems arise in the daily fight for desks and shortfall, the ECDOE has allocated less than 10% chairs. It cannot be said that these students are of the amount needed in its 2013/14 budget. deriving the same teaching and learning benefits as their peers in adequately resourced schools. It does not appear that the ECDOE has a reliable mechanism of establishing or funding the actual In a series of ongoing cases against the Eastern furniture needs of its schoolgoing children. In the Cape Department of Education (ECDOE), the nine months since the ECDOE agreed to the court Legal Resources Centre (LRC) is currently order in seemingly good faith, the situation on representing Eastern Cape parents whose the ground remains frustratingly much the same. children attend public schools with severe furniture shortages. The goals for litigation are The LRC filed an urgent court application on two-fold: to have the ECDOE provide a desk and 23 August 2013 to have the ECDOE declared chair to every schoolchild in every public school in breach of the 29 November 2012 order. We in the province, and to develop the jurisprudence have further requested that the High Court is and substantive content to the constitutional requested to order the ECDOE to: They hunch over workbooks and crane their necks right to a basic education. The LRC and its to see the blackboard. They often get sick from sitting clients firmly believe that desks and chairs are 1. provide the schools involved in this matter non-negotiable components to achieving a with the quantities of furniture they need within for hours on cold, dirty floors. meaningful right to education. 90 days;

50 51 A Legal Resource for Realising Off the Floor and into a Desk | RELATED COURT PLEADINGS Ready to Learn? the Right to Education

2. advertise a summarised form of the court 4. Procure and deliver the furniture recorded by order in the media with an invitation for other the independent body in respect of all schools in In the Eastern Cape High Court, Mthatha public schools to report their furniture needs; the province within 90 days of the revised audit being filed at court. (Republic of South Africa) 3. appoint and pay an independent body or person to: The LRC and its clients believe that the granting of a structured court order and the appointment CASE NO. 2144/2012 • receive the reports from any public of an independent auditor is within the South schools in the Eastern Cape whose African courts’ powers in this matter. Moreover, furniture needs are not accurately it is believed that such an order is warranted recorded in the current audit; In the matter between: and necessary in light of the ECDOE’s repeated • visit the schools and verify the furniture violations of the immediately realisable, requested; constitutional right to a basic education. The LRC will be closely monitoring the implementation of M MADZODZO obo PARENTS OF LEARNERS this order in the ensuing months. We also expect • file a revised audit at court reporting the AT MPIMBO JUNIOR SECONDARY SCHOOL | First Applicant furniture needed within 90 days of being that Eastern Cape school children will soon be off appointed; and the floor, and into proper desks and chairs. S MGCANYANA obo PARENTS OF LEARNERS

AT MBANANGA JUNIOR SECONDARY SCHOOL | Second Applicant P VUKAPHI obo PARENTS OF LEARNERS

AT SIRHUDLWINI JUNIOR SECONDARY SCHOOL | Third Applicant

CENTRE FOR CHILD LAW | Fourth Applicant

S NOKUBELA obo PARENTS OF LEARNERS

AT PUTUMA JUNIOR SECONDARY SCHOOL | Fifth Applicant

R NOLUGXA obo PARENTS OF LEARNERS

AT GWEBITYALA SENIOR SECONDARY SCHOOL | Sixth Applicant

A ZITENA obo PARENTS OF LEARNERS

AT UPPER MPAKO SENIOR SECONDARY SCHOOL | Seventh Applicant

S SULWANA obo PARENTS OF LEARNERS

AT MILTON DALASILE SENIOR SECONDARY SCHOOL | Eight Respondent

and

MINISTER OF BASIC EDUCATION | First Respondent

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA | Second Respondent

MEC FOR EDUCATION: EASTERN CAPE | Third Respondent

GOVERNMENT OF THE EASTERN CAPE PROVINCE | Fourth Respondent ACTING SUPERINTENDANT GENERAL OF THE

EASTERN CAPE DEPARTMENT OF EDUCATION | Fifth Respondent

52 53 Off the Floor and into a Desk | RELATED COURT PLEADINGS Off the Floor and into a Desk | RELATED COURT PLEADINGS

urgency of the matter that I set out in my It directed the respondents to furnish the three above, are informed in writing when they will Supplementary founding affidavit to the main application at applicant schools with adequate furniture, and receive furniture and what furniture (including paragraph 25 be read as incorporated herein. further directed the respondents to complete the specific number of desks and chairs) they will Founding Affidavit a comprehensive audit recording the furniture receive, by 30 April 2013. C. BACKGROUND shortages of all schools throughout the Eastern Cape. The court order recorded that the 5. The respondents will endeavour to ensure that 5. The Eastern Cape Province has been gripped by respondents would “endeavor to ensure” that the furniture needs of all the schools listed in the I, the undersigned, a crisis in the education sector for many years, all furniture needs recorded in the audit would audit will be met by 30 June 2013. one aspect of which lies in the chronic failure be delivered to the schools by 30 June 2013. The ANN MARIE SKELTON to provide adequate furniture to a significant 7. The respondents will report by way of an court order also required the respondents to take portion of the schools in the province. affidavit to the attorneys of the Applicants by 20 state under oath the following: the following steps: July 2013 indicating the extent of their compliance 6. Thousands of learners in the Eastern Cape 1. I am the Director of the Centre for Child Law, “3. Ensure that a comprehensive audit to assess with paragraphs 3, 4 and 5 above. do not have desks and chairs, and the absence the fourth applicant in this matter. I am duly the furniture needs at all public schools in the of adequate furniture constitutes a significant 7.1 In addition to detailing compliance with authorised to bring this application on its behalf. Eastern Cape is conducted and finalized on or impediment to effective learning. prayers 3, 4, and 5, the affidavit shall state the before 28 February 2013. 2. The respondents’ failure to comply with the names of each school and the quantity and type 7. According to an audit of furniture needs court order granted by this Honourable Court, 3.1 The Respondents will furnish a copy of the of furniture delivered to each school; and by agreement between the parties, on 29 conducted in the province in April/May 2011, audit report to the applicant’s attorneys before 14 7.2 To the extent that there is a dispute about the November 2012 (“the court order”) has given the total cost of furniture needed for learners March 2013. The audit report must be combined furniture delivered to each school, the Applicants rise to this application. Paragraph 6 of the court in the province was R274,2 million. The audit with a comprehensive plan detailing when each are hereby given leave to bring proceedings on order reserved the applicants’ right to approach indicated that out of 5,700 schools in the child at the schools listed in the audit report will an urgent basis for the resolution of any such this Court on two weeks’ notice, with duly Eastern Cape, there were nearly 1,300 schools have his or her own separate reading and writing disputes.” supplemented papers, for an appropriate order in need of furniture, affecting 605,163 learners space delivered. in the province. (The results of this audit were should the respondents fail to comply with the 11. The respondents did deliver the required reported by the former Superintendant-General 3.2 For the purposes of conducting the audit, the court order. furniture to the three schools represented by the of the Eastern Cape Department of Education in First Respondent will ensure: first through third applicants in January 2013 in B. URGENCY answering papers in the matter Save our Schools accordance with paragraph 1 of the court order. and Communities and others v President of the 3.2.1 By 10 December 2012 a “Furniture Task The first through third applicants therefore no 3. This matter is inherently urgent. In August Republic of South Africa and four others, case no. Team” for the Eastern Cape will be constituted longer form part of the proceedings as the relief 2012 Justice Griffiths of this court agreed that this 50/2012, Bhisho High Court.) by the Respondents; matter was sufficiently urgent to dispense with sought by them has been obtained. 3.2.2 the publication and communication of a the normal rules of court regarding timeframes 8. In August 2012, the first through fourth circular to all schools in the Eastern Cape on 12. Further, to the extent that the respondents for the exchange of pleadings and gave directions applicants launched the main application in or before 1 December 2012 informing them of have attempted to comply with the court order, for them to be shortened appropriately. this Court, on an urgent basis, seeking the relief the audit and inviting schools to submit their their compliance has been only partial, and Furthermore, as I have indicated, paragraph 6 set out in the original notice of motion. The furniture needs to the department on or before the steps they have taken have been largely of the court order permitted the applicants to applicants sought, inter alia, an order directing 21 January 2013; ineffectual. approach this Court for further relief on two the respondents to provide furniture to the weeks’ notice. schools represented by the first through third 3.2.3 the circular referred to at 3.2.2 will also be 12.1 It is clear that the requisite budgetary applicants, and to conduct an independent audit measures have not been taken to give effect to 4. As will be set out below in more detail, the included in every Eastern Cape public school’s across the province and provide all schools with the court order. The audit conducted recorded respondents have not only failed to produce a set of documents to be collected by the schools the furniture they required by 30 June 2013. that R360 million was needed to satisfy the legitimate audit recording the furniture needs of from their respective district offices prior to the school furniture needs of students in the all public schools in the Eastern Cape, but they first day of the 2013 school year. 9. In their answering papers, the respondents did province, yet less than 10% of this amount have failed to deliver the furniture needed by not dispute the extent of the furniture crisis, nor 3.2.4 that each school requesting furniture (only R30 million) was allocated to furniture in those schools that were recorded on the audit. I that the shortage of furniture in schools was a is visited and that the furniture needs of all the EC DOE’s 2013/2014 budget. submit that with each passing day that learners serious impediment for children attempting to schools visited are properly recorded and there are required to be at school without adequate access their right to basic education. is a thorough verification of the furniture needs 12.2 At the time of signing this affidavit, no furniture, the urgency increases. The absence submitted. furniture has actually been delivered to schools of furniture in schools on such a large scale is 10. After the exchange of pleadings and using the R30 million budget despite the a violation of learners’ right to basic education. settlement negotiations, the parties obtained the 4. Ensure that all schools requiring furniture in court order directing the respondents to take I ask that all of my submissions regarding the court order of 29 November 2012 by agreement. terms of the audit referred to at paragraph 3 reasonable steps to meet all furniture needs

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at all schools identified in the audit in the D. RESPONDENTS’ FAILURE 24.3 Thirdly, many schools in dire need of 26.7 The new audit would be sent through province before 30 June 2013. TO COMPLY WITH MATERIAL PARTS furniture did not appear on the audit at all. shortly. OF COURT ORDER In the Mthatha district for example, Upper 13. As a result of the respondents’ non- Mpako Senior Secondary School (SSS), 27. A Daily Dispatch article dated 10 June 2013, compliance with the court order, there are 21. Despite the respondents having agreed to the Lutubeni SSS, Lutubeni JSS, Milton Dalasile attached as “AS Sup 5”, suggests that the thousands of learners in the Eastern Cape that terms of the court order, there has been gross SSS, Zanokhanyo JSS, Mpako JSS, and Sea View department’s plan to purchase recycled school still do not have a chair to sit on or a desk to non-compliance on their part with the most JSS were all excluded from the audit despite furniture from the King Hintsa FET College was write at during school hours. This constitutes important terms of the order. While three schools suffering from severe furniture shortages. not as far advanced as our attorneys were led to a serious and ongoing breach of the learners’ received furniture and a Furniture Task Team was believe. As regards the other statements made constitutional right to basic education, to dignity, set up (in terms of paragraphs 1 and 3.2.1 of the 25. When submitting the March audit, the by the department’s legal representative, I have and to equality; it is a gross and inexcusable court order respectively), the department failed department also failed to comply with paragraph no knowledge of their status or the department’s failure by the State. to conduct a proper audit of the school furniture 3.1 of the court order, which directed that the progress in their implementation – save for the shortages in the province and failed to deliver audit “must be combined with a comprehensive last. An updated audit was delivered to the LRC’s 14. The applicants are compelled again to furniture where it is desperately needed. plan detailing when each child at the schools offices in late May. approach this court for an order that will ensure listed in the audit report will have his or her own that the respondents supply the necessary 22. In what follows, I detail the nature and separate reading and writing space delivered.” Incomplete May audit furniture so that all children in the province can instances of the respondents’ non-compliance. No explanation for the respondents’ failure to 28. In late May 2013 the amended audit (“the May enjoy their rights. The applicants seek a new provide the plan was given. order for the following relief: No circular was issued audit”) was made available to our attorneys. The 26. On 22 May 2013 the department’s legal audit is 86 pages in length and is attached. 14.1 a declaration that the respondents are in 23. Paragraph 3.2.2 of the court order (cited representative telephoned our attorney of record 29. There were some improvements in the May breach of material parts of the court order above) directed that a circular be sent to all and advised him of the following: audit, in that – granted by this court on 29 November 2012; schools in the province on or before 1 December 2012 “informing them of the audit and inviting 26.1 The furniture budget for the 2013/14 year 14.2 a mandatory interdict that the 29.1 it included the furniture needs of the East schools to submit their furniture needs to the was R30 million but that the Eastern Cape respondents: London and Mount Frere education districts; department on or before 21 January 2013.” None Department of Education was hoping to obtain more funding from provincial treasury and the 14.2.1 provide the schools represented by of the schools contacted by the LRC had received 29.2 it appeared to include more schools in national Department of Basic Education in the the fifth through eighth applicants (the new a circular or were aware of the audit. most of the districts, and form of a conditional grant; applicant schools) with the quantities of Incomplete March audit and failure 29.3 fewer “priority lists” were submitted. furniture required within 90 days; to submit a plan 26.2 The department was currently trying to purchase all existing stock in the Eastern Cape 30. However, despite these improvements, many 14.2.2 advertise a truncated form of the 24. The audit submitted to our attorney’s offices from furniture manufacturers and suppliers glaring irregularities were still evident. It has court order in the media with an invitation and that they had authorisation to avoid obviously not been possible for our attorneys for schools to record their furniture needs before the 15 March 2013 deadline (“the March normal tender procedures which would cause to verify the entire May audit. But even their (as set out in Addendum 2 attached to the audit”) was obviously incomplete. delay; limited investigations have highlighted numerous supplementary notice of motion); 24.1 Firstly, only 21 of the 23 education districts problems with the audit which are sufficient to 26.3 The department was currently putting warrant an independent verification process and 14.2.3 appoint and pay an independent submitted audit information (East London together a plan to provide furniture to the an investigation into the irregularities uncovered. person/body to receive the reports from any and Mount Frere districts were excluded). The 25 schools most in need in each district; I detail some of the problems below. public schools in the Eastern Cape whose failure to include these districts means that the furniture needs of tens of thousands of furniture needs are not accurately recorded 26.4 Furniture manufactured by the King Many schools excluded children were not taken into account at all. in the current audit lists, to visit the schools Hintsa FET College would soon be distributed; making requests and verify the furniture 31. Many schools left off of the March audit, 24.2 Secondly, eight of the districts that did requested, and to file a revised audit at court 26.5 Furniture obtained from a donor in including those that the LRC had specifically make submissions only included a “priority enumerating the furniture needed within 90 London England would also be distributed highlighted in their letter of 8 April 2013, are still list” of between 18 and 45 schools that needed days of being appointed; and soon; excluded from the May audit, or are recorded as furniture, despite many more schools in these not needing student furniture. 14.2.4 procure and deliver the furniture recorded districts desperately needing furniture. Again 26.6 The department was identifying furniture by the independent body in respect of all schools this means substantial numbers of learners in excess at schools that were being closed 31.1 While Upper Mpako SSS is now cited, in the province within 90 days of the revised were excluded from the audit and their and would arrange for its distribution to it is recorded in the May audit as not having audit being filed at court. furniture needs were not taken into account. schools in need; any shortage of student furniture. The school,

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however, still needs 442 desks and chairs. audit is attached as annexure “AS Sup 6”. 40.1 Mjobo SPS informed the LRC that their Irregularities in other districts The school’s governing body chairperson, school was not contacted regarding the Aron Zitena, has therefore made application 35. An LRC intern and law student Jon Tepe audit, and that while their school does need 43. In Graaf Reinet some schools appeared on on behalf of the parents of the learners at the telephoned Ntaphane JSS, which confirmed that some furniture, the shortages listed do the March audit but were inexplicably left off school to join this matter and is requesting they were not contacted by the respondents for not accurately record their school’s needs. of the May audit. Thembalesizwe Primary School, that the school’s furniture needs be recorded the audit, that they did not report any furniture Alarmingly, Mjobo SPS only goes up to grade for example, submitted their furniture needs and supplied to the school. His affidavit is shortages to the department, and that they do 6, but the audit still lists them as needing 50 to the district director on 24 January 2013. The attached hereto. not have any furniture shortages. A confirmatory desks for grades 9–12. The unneeded furniture submitted needs, however, do not correlate affidavit deposed to by Jon Tepe in this regard will in the audit for Mjobo SPS is estimated to cost with those recorded on the audit. The school 31.2 Milton Dalasile SSS, Lutubeni JSS, and be filed before the hearing of this matter. R181 643.70. has confirmed with LRC attorneys that they Lutubeni SSS are not listed in the May audit have not received any furniture in 2013 and at all. This is so despite our attorneys’ letter 36. Using the lowest quote provided by the 40.2 Hillside JSS in the Lusikisiki district also still desperately need furniture. It is extremely to the respondents of 8 April 2013, specifically Department in its “Provincial Schools Furniture said that they were not contacted for the audit, problematic that Thembalesizwe has been pointing out that these schools had been Needs Estimates: 2013/2014”” attached as that they did not report any furniture needs to removed from the May audit which is, seemingly, excluded from the March audit. Simona annexure “AS Sup 7”, the unneeded furniture the department, and that they do not have any the audit used by the respondents to quantify and Sulwana, Milton Dalasile school’s governing allocated to Ntaphane JSS in the audit would furniture needs. The furniture needs recorded budget for the furniture needs of the province. body chairperson, has made application to join cost R559,086. If this furniture were delivered it in the audit for Hillside JSS is also estimated to this matter and for the school’s furniture needs would constitute wasteful expenditure and would cost R184 143.70. 44. In Fort Beaufort, Cwaru Primary School was of 149 desks and chairs to be recorded and potentially deny (or at least seriously delay) recorded in the May audit as only needing 20 supplied, and his affidavit is attached hereto. another school’s ability to receive the furniture 41. Our attorney of record, Cameron educator chairs and no student furniture. The it desperately needs. McConnachie, also contacted Canham JSS school’s principal has informed the LRC that the 31.3 Putuma JSS and Gwebityala SSS in the which is recorded as needing 400 double desks. school in fact needs 50 desks and chairs for its Dutywa district are not part of the March or 37. Similarly, the May audit recorded Coza JSS in The school confirmed that it did have serious students. May audits. They both have serious furniture the Libode district as needing 130 desks for grades furniture shortages but that it only had 700 shortages and have applied to join this matter. R–3, 130 desks for grades 4–5, 130 desks for grades learners in the school and that 400 double desks 45. The respondents’ legal representative In this regard I refer you to the affidavits of 6–8, and 130 desks for grades 8–12. would be in excess of what the school required. forwarded documents to our attorneys on 28 May Sanyana Nokubela and Radebe Nolugxa filed in The school does not offer grades 10, 11, or 12, 2013, one of which was entitled “School readiness 38. Jon Tepe also telephoned Coza JSS, which support of this application. and only needs five double desks in grade 9. assessment: 09–18 January 2013–Key Challenges in likewise confirmed that they had not been The school needs a total of 145 double desks. Inland Schools” and is attached as annexure. This 32. The failure to include schools in such dire contacted by the respondents regarding the The Lusikisiki audit data also records 27 Senior report identified 37 schools that were in need of need is unconscionable. It is reasonable to believe audit, that they had not reported furniture Primary Schools as needing a total of 1,413 single furniture, but there are major inconsistencies that there are many more schools, in many of the shortages to the department and that they too desks for grades 9–12. None of these schools, between this report and the audits. Seventeen of other 21 districts in the province, whose furniture do not have any furniture shortages. The however, offer grades 9 to 12 as Senior Primary the listed schools were not included in the audits needs have not been recorded in the May audit. furniture Cosa JSS was recorded as needing would at all. Among the schools that were included in Schools only offer grades R through 6 or 7. Using cost R420 641.70. the audits, the audit and the assessment report the lowest price tendered by a company for 33. In addition to failing to include all needy often differ regarding the amount of furniture 39. These inaccurate audit entries call into this item (R481.26 per unit), as recorded on the schools, the May audit appears to record needed. While the “school readiness assessment” question whether the respondents conducted an “Schools Furniture Supply for 2013–2015” attached inaccurate, and possibly falsified, shortages at is more likely to be accurate – as it was arrived audit in the Libode district at all. above as annexure “AS Sup 7” above, the cost of other schools. The Libode and Lusikisiki districts at by officials visiting schools – the May audit these unneeded desks in the Lusikisiki district is both include information which appears to be is seemingly being used by the department to Lusikisiki district just over R680,000. This is not an insignificant false. determine the procurement and allocation of error. Libode district 40. In the Lusikisiki District there are also school furniture in the province. numerous sections of the May audit where the 42. The above discrepancies highlight the Ongoing failure to inform schools 34. In Libode, the numbers listed for many of the shortages for many schools are remarkably complete failure of the department to conduct what furniture they will receive and schools are very suspicious, as the exact same uniform. Twenty-one schools are listed in a row a credible audit (at least in some districts) and number of desks is recorded as needed for every as needing 50 desks for every grade-grouping makes it impossible to estimate the budget when grade at 55 schools. For example, Ntaphane JSS (R–3, 4–5, 6–8, 9–12). The chances of these required to comply with the court order. It also 46. Contrary to paragraph 6 of the court order, is listed as needing 110 desks for grades R–3, 110 numbers being accurate are virtually nil. Jon Tepe means that there are large numbers of learners the respondents have still not informed schools desks for grades 4–5, 110 desks for grades 6–8, and contacted two of the 21 schools to verify the whose furniture needs remain unknown and listed on the audit when they will receive 110 desks for grades 8–12. The relevant page of the recorded information. cannot be catered for. furniture and what furniture they will receive

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(including the specific number of desks and 51. A Daily Dispatch newspaper article dated having adequate furniture for every learner and This has proven to be a grave error. chairs). This process was supposed to have been 22 June 2013 reports that the Eastern Cape’s classroom, to conduct an inspection and audit of completed by 30 April 2013. education portfolio committee chairperson, the furniture needs of all the schools concerned; 56. To date the respondents have failed to Mzoleli Mrara, confirmed that the R30 million acknowledge the shortcomings of the May audit. 47. As a result, hundreds of schools continue to furniture budget was inadequate. In a report 8. Directing the fifth respondent to contact, by I submit that the audit irregularities I have struggle without adequate furniture and still tabled and accepted in the Eastern Cape way of written communication, each and every highlighted above justify the relief set out in have no idea if or when it will be delivered. This legislature he is reported to have said that, public school in the province within 10 days of the supplementary Notice of Motion. It is clear constitutes poor governance by the respondents, “The province is faced with a huge backlog in the granting of this order, informing schools of that the respondents are either incapable of or and a failure to comply with both their statutory school furniture that was estimated at R300 this court order and inviting them to contact unwilling to comply with the court order of 29 and constitutional duties to provide basic million in 2011/2012. Despite these backlogs, the independent firm of auditors appointed in November 2012. education. It is also a demonstrable failure to the pace of delivery is still very slow”. paragraph B.7 above in order to report furniture comply with the court order and to uphold the shortages to the auditors within 30 days of receipt 57. The new court order that the applicants rule of law. This will be addressed further during 52. I do not wish to unnecessarily burden this of the written communication by the school; seek is imperative to ensure that a reliable and argument. application by repeating what is stated in my comprehensive audit of the school furniture replying affidavit to the main application on 9. Within three months of the order the shortages in the province is conducted, and that all of the schools receive adequate furniture 48. The Department does not have any reliable the budgetary issue. I do wish, however, to independent auditors designated in terms of in compliance with the original court order. mechanism of establishing the actual furniture foreshadow any possible continued reliance paragraph B.7 above shall submit a report which In addition to the verification by the first needs of learners in the province. The Court by the respondents on “budgetary constraints” details the furniture needs of the schools named respondent of the May audit, the applicants Order was structured so as to produce a reliable and draw the court’s attention to paragraphs in the April/May 2011 audit and the schools require the following further measures to be measure of establishing the furniture needs of 6 to 15 of my replying affidavit where I indicate that have reported shortages to the auditors, taken: learners in the province. My experience is that why such a position is not sustainable in law. by way of an affidavit to the Registrar of this the furniture needs of learners in poor schools In particular, I repeat that – Court and a copy thereof shall be delivered to the are dire. The absence of a reliable database in Legal Resources Centre at the same time as it is 57.1 First, the appointment and payment of an independent person or body to receive relation to the furniture needs of the learners has “Learners have an unqualified right to a basic provided to the Registrar of this Court; furniture requests from schools that are an obviously adverse impact on poor learners. education under section 29 of the Constitution. not captured, accurately or at all, in the This right is immediately realisable and not 10. Each school that has been identified in the May audit and to visit those schools and E. INSUFFICIENT BUDGET subject to the internal limitations that can be report referred to in paragraph B.9 above shall verify their furntisture needs (prayer 5.1 of found in the other socio-economic rights, such be entitled to receive adequate furniture, to 49. The respondents’ legal representatives and ensure that each child has adequate, age and the supplementary notice of motion). The as the right of access to adequate housing in numerous schools have told our attorneys grade appropriate furniture to have his or her appointment of an independent person or body section 26 of the Constitution. That means the that schools have not been provided with the own separate reading and writing space (“school to focus solely on this issue is far more likely to government is under a direct constitutional furniture they need. A failed audit and tardiness furniture”), which shall be delivered within deliver an accurate account of what furniture obligation to give effect to the rights with in procuring furniture with the budget that has one month of the delivery of the report to the is required and where. With independently immediate effect. Any reliance by the government been approved for the 2013/2014 financial year are Registrar of this Court; verified information the respondents will on budgetary constraints is inconsistent with that largely to blame. However, in addition, it is clear then be able to make the necessary budgetary right.” (para 6) that the respondents’ failure to allocate sufficient 11. Directing the Respondents to ensure that each arrangements to ensure that all learners have funds to the procurement of school furniture has, school named in paragraph B.9 above receives 53. This issue will be addressed further in sufficient, age-appropriate furniture. and will continue to, thwart the implementation furniture to ensure that his or her own separate argument if necessary. of the court order. reading and writing space within 3 months of the 57.2 Second, it is necessary to advertise the F. NEED FOR A NEW COURT ORDER report…” audit in newspapers and on radio because of 50. A document titled “Costed Provincial – the respondents’ failure to make the audit Furniture Needs 2013” estimates that the cost 54. Part B of the original Notice of Motion in the 55. During negotiations prior to the court order known themselves. The respondents’ failure of providing the furniture recorded in the audit main application launched in August 2012 sought that was made by agreement, the respondents’ to inform schools and school governing bodies to be approximately R360 million. (This figure the following relief: legal representatives strongly objected to the of the audit robbed the audit and verification is arrived at after subtracting the R270 million appointment of an independent auditor on procedure of transparency, integrity and recorded for teacher furniture which does not “7. Directing the Respondents to appoint and pay the grounds that an audit had already been regularity. It has also denied thousands of form the subject matter of this application, from an independent firm of auditors to contact, by conducted and that it merely needed updating. learners the possibility of receiving furniture. the total of R630 million). Even though there are direct visits or written communication, each and From the aforementioned analysis of the March The responses from many of the schools serious irregularities in the furniture audits, it every school identified in the audit conducted and May audits it is clear that this representation contacted by our attorneys indicate that the is evident that the R30 million budgeted by the in April/May 2011 (the list of which is attached was extremely misleading. We negotiated in good respondents’ complete reliance upon district respondents to supply the necessary furniture is to this Notice of Motion marked “8a–8i”), faith with the respondents and granted their officials to carry out the audit resulted in many wholly inadequate. as experiencing furniture shortages, by not request to leave the audit process in their hands. schools having no knowledge of it. Advertising

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the court order and the audit process to the 59 In the circumstances I submit that the relief public increases the chances that schools, sought in the supplementary Notice of Motion parents, teachers, learners, and communities must be granted, including an appropriate order will be made aware of the audit and ensure as to costs. that furniture needs are submitted. Prayers 4.2 and 4.3 of the supplementary notice of motion ANN SKELTON are directed at ensuring proper publication of I hereby certify that the deponent stated that the court order and audit process. she knows and understands the contents of this affidavit and that it is to the best of her 58 I submit that the disparity in the Eastern knowledge both true and correct. This affidavit Cape between the amount of school furniture was signed and sworn to before me at PRETORIA required and the amount that has been provided on this the ___ day of AUGUST 2013. The represents a serious failure by the department to Regulations contained in Government Notice meet its constitutional and legislative obligations R.1258 of 21 July 1972, as amended, have been to provide for an equitable and enabling learning complied with. environment as well as a breach of the right to basic education. COMMISSIONER OF OATHS

62 A Legal Resource for Realising Ready to Learn? the Right to Education Teachers to Teach

Introduction Background to the Case

As it is in the game of chess, successful In early 2012 it had become apparent that the litigation requires planning several moves state of education in the Eastern Cape was dire. ahead. This observation may seem banal, Problems included inadequate infrastructure, failure to provide necessary furniture, budgetary however, the experience of the Legal shortfalls and administrative inefficiencies. Judge Resources Centre (LRC) in certain matters Plasket described the effect of these as, “a crisis relating to the right to education in the of immense and worrying proportions” and that, Eastern Cape suggests that it is less vapid “the right to basic education of those who attend than one may at first consider. A case public schools in the Eastern Cape province is has to be built on the basis that it may affected or threatened.” These concerns were be contested in court, while at the same echoed in a statement issued by the Minister time recognising that the Eastern Cape of Education in February 2011, where one of Department of Education (ECDOE) will likely the foremost concerns in this regard was the “effective and credible allocation of educators – if its track record is anything to go by – to schools”. By late 2012 it had become apparent agree to the LRC’s terms which will that there were more than 4,000 vacant teaching then be made an order of court. posts as well as over 7,000 teachers in excess in the Eastern Cape. Furthermore, due to union Then, over and above the usual considerations intervention and lack of political will, these requisite for building a robust case, experience surplus teachers had not been moved. has shown that measures must be built into one’s case in anticipation that the Department will The Department’s failure to take the necessary fail to comply with the court order. In crafting steps to allocate teachers to vacant posts, as well these measures, the LRC has had to ensure as its unwillingness to move teachers in excess that they are forceful without being inflexible. between schools, reached a crescendo in early Furthermore, given the myriad of potential ways 2012: the peak in over a decade of failures in this a party may find themselves in breach, the LRC regard. The result was that many public schools has had to craft ways to coerce compliance were being placed in a situation of crisis and while reserving scope to facilitate its continued financial peril. A number of schools had taken it constructive involvement in the matter. upon themselves to appoint temporary teachers at their own expense, the consequence of which This section traces the development of a case was financially crippling. Some schools were the LRC has been involved with since May 2012, unable to afford such measures and had to rely Problems included inadequate infrastructure, failure as an example of the extent to which strategic on emergency donations from parents to pay litigation requires anticipating all potential their teachers. There were cases in which such to provide necessary furniture, budgetary shortfalls outcomes and especially non-compliance with an teachers were working for as little as their bus and administrative inefficiencies. order by agreement. fare. There were schools, however, that were

64 65 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education completely without the means to pay additional sought to rectify the dire financial situation that this was the case. Instead, the reports made it would not be sufficient to rectify the problems educators and, in these cases, either the teachers the schools and teachers were faced with by clear that a combination of internal inefficiency, that Eastern Cape public schools were facing. went without pay, hoping to be compensated asking the court to order that the salaries of all of incompetence and trade union resistance was Clearly the threat of being in contempt of a court in the future, or the learners went without a the educators that were appointed, be paid from to blame for the failure to appoint the necessary order was not an incentive that would spur the teacher. the date on which they assumed duty. educators. By this stage, according to statistics Department into action. Instead, the LRC would provided by the Department of Basic Education, have to craft its notice of motion in anticipation In a province with increasingly dismal matric In drafting its notice of motion, the LRC the number of teachers in excess had reached a that the Department would likely agree to its results, this lack of educators was set to have recognised from past experience with the total of 7,152 while the number of vacant posts terms, and then fail to abide by the court order. disastrous results. Not only did thousands of Department that there was a strong likelihood had risen to 8,479. Furthermore, many schools children go without an educator, in many cases that the terms of their application would be continued to endure the financial crisis caused The approach taken by the LRC and CCL was, for over a year, but the financial strain on many accepted without substantial variance and made by the Department’s failure to remunerate the therefore, a departure from the first round of schools was impairing their ability to adequately an order of court by consent. It was, therefore, teachers as they had agreed. litigation. At the heart of their new approach was fund other critical items such as nutrition possible to be reasonably bold with its requests. a shift in the onus placed on the Department. programs, textbooks, stationary, infrastructure This approach was warranted given the severity As the 2013 academic year advanced, it became In the past the Department had always been and scholar transport. In broad terms this meant of the situation as well as the strong case that increasingly clear that the ineptitude of the required to act positively to achieve the desired over 100,000 learners now having to commute to had been built against the Department. Department placed it in contempt of the court result. Such positive action was, however, never school on foot, many learners not being fed at order that it had agreed to. This seriously undertaken. In the face of this failure, the new least one meal per day, and countless hours of In addition, recognising the need to monitor undermined the dignity of the court, the notice of motion was drafted in such a way productive learning undermined. compliance with the court order, the LRC built effectiveness of the Constitution, and respect of that the desired result would be achieved if into their application reporting requirements. the rule of law. More distressingly, this ineptitude the Department failed to act. The focus of the These were designed to enable interested parties was shepherding a whole generation of students litigation was also narrowed in order to monitor to inspect the Department’s progress as well as to the gates of failure, not only in the classroom, compliance more effectively. Thus the LRC and facilitate constructive assistance from all sides. The First Round but also in becoming productive members of CCL moved from an approach that would benefit society. The terms of the application were largely all schools in the Eastern Cape to an approach of Litigation that would benefit a select number of schools. accepted by the respondents and on the 3rd of Furthermore, this flagrant disregard for the August 2012 were made an order of the court. court order occurred despite a sequence of This nuanced approach to the onus on the The only term that was not accepted by the communication between the LRC and the After numerous letters to the Minister and senior Department was achieved in two phases. The respondents was the appointment of non- Department, beginning on the 3rd of August officials within the Department and the National first phase, which was agreed to by the parties educator posts to schools, which culminated in 2012, specifically designed to facilitate the latter’s Department setting out concerns with the on- and made an order of court on the 7th of March an argument and a judgment of Plasket J on compliance. Through this communication, going failure to appoint teachers, the overall 2013, provided for the temporary appointment 3 August 2012. the LRC continually provided information on response was nebulous at best. On the 10th of of over 140 teachers. Instead of requiring that the position in various schools, warned the May 2012, after being approached by a number the Department take the necessary steps to Department of anticipated breach, and advised of schools facing desperate situations, the LRC appoint such educators, this order provided a them on the full scope and application of the sent a letter stating that if necessary steps list of temporary appointments that the LRC Failure to Comply court order. By the 25th of January 2013 the LRC were not taken to rectify the situation, it would had arranged in consultation with the relevant and CCL were left with no choice but to advise become necessary to approach the court. When schools, i.e. named educators appointed with the Court Order the Department of their intention to launch no substantial response was received, the LRC – to named schools with effect from date of further legal proceedings if the situation was not amongst others – launched a court application. assumption of duty. In addition, the Department rectified. was given the right to terminate such The relief sought by the LRC on behalf of the Over the following months the Department appointments under certain circumstances. Centre for Child Law (CCL) in an application continued to fail to appoint and remunerate the made in the Grahamstown High Court on the educators as required, although they did take A vital part of this agreement was an undertaking 31st of May 2012 was largely two fold. In the first steps to appoint and pay some educators on a The Second Round by the Department to remunerate all of the regard, it asked that the court order the Minister temporary basis. They did this despite consenting listed educators from the date that they assumed or the Head of the Department of Education to to the order of court and despite the provincial of Litigation duty. The benefit of this approach was realised fill all vacant posts on a permanent basis within legislature voting for a budget providing for these when the Department failed to pay the newly three months of the court order. Furthermore, posts. In the reports filed by the Department it appointed educators by its agreed deadline and, as a stepping-stone to this, that temporary became apparent that not only had the vacant When conceptualising a second round of on the 13th of May 2013, the LRC was able to educators were to be appointed to all such posts posts not been filled by as late as 31 January litigation, the LRC and CCL recognised that make an application for the payment of these within one month. In the second regard, the LRC 2013, but they raised no legal defence as to why securing a judgment against the Department amounts. This effectively made the Department

66 67 A Legal Resource for Realising Teachers to Teach | RELATED COURT PLEADINGS Ready to Learn? the Right to Education liable for an ascertainable debt, which could be LRC has taken steps under the State Liability Act enforced in terms of the State Liability Act 20 20 of 1957 to get satisfaction for such amounts. In the High Court of South Africa of 1957. Under the threat that State assets may This entails the attachment of State assets which be attached to satisfy the debt, the Department can be sold if the debt is not satisfied within 30 (Eastern Cape High Court: Grahamstown) made the necessary payments. This was a major days of attachment. It would appear further that breakthrough in a long line of attempts to this new approach to litigation has begun to be remunerate many teachers for the work that they taken seriously by government, with the Minister CASE NO. 1749/2012 had been doing. of Finance seeking to arrange a meeting with the DATE HEARD: 26/07/2012 LRC to discuss the remuneration of educators in The second phase was to provide for the DATE DELIVERED: 03/07/12 permanent appointment of teachers. The same the Eastern Cape. shift in onus was adopted and, on the 6th of June 2013, the Department agreed to a court REPORTABLE order confirming that certain named educators were to be appointed on a permanent basis Conclusion In the matter between: and remunerated accordingly. Furthermore, it THE CENTRE FOR CHILD LAW | First Applicant empowered schools that still had vacant posts to THE GOVERNING BODY OATLANDS take the steps necessary to advertise, shortlist, The experience of the LRC and CCL in recent interview and recommend educators to the dealings with the Department has shed new PREPARATORY SCHOOL | Second Applicant Department for appointment. Importantly, it light on the importance of strategic litigation. THE GOVERNING BODY ST MARY’S RC SCHOOL | Third Applicant was agreed that if the Department failed to take By anticipating noncompliance with a court order action on the recommendation after a certain and building provisions into one’s application to THE GOVERNING BODY time period, these educators would be deemed to adequately deal with this eventuality, it becomes MARY WATERS HIGH SCHOOL | Fourth Applicant be appointed. possible to achieve results beyond what would BETHELSDORP SGB UNIT | Fifth Applicant Also included in this second phase was a have ordinarily been possible. In this way the LRC provision for dealing with the non-payment of has been able to capitalise on the Department’s THE GOVERNING BODY educators. The LRC anticipated a failure to pay willingness to avoid litigation, and by placing a ALPHENDALE HIGH SCHOOL | Sixth Applicant the salaries and the court order declared that if reverse onus on the Department, it was possible THE GOVERNING BODY there was such a failure to pay the salaries, they to make significant advances in the process of were declared to be an ascertainable debt. This appointing and remunerating educators in the CAPE RECIFE HIGH SCHOOL | Seventh Applicant avoided having to approach the court again for Eastern Cape. The importance of thinking ahead THE GOVERNING BODY this relief. At the date of writing this article, the and thoroughly planning for all possibilities Department had failed to meet certain agreed when undertaking public interest litigation must, PJ OLIVIER HOERSKOOL | Eighth Applicant deadlines for the payment of educators and the therefore, not be under estimated. and THE MINISTER OF BASIC EDUCATION | First Respondent THE DIRECTOR-GENERAL, DEPARTMENT OF BASIC EDUCATION | Second Respondent THE MEMBER OF THE EXECUTIVE COUNCIL, DEPARTMENT OF BASIC EDUCATION EASTERN CAPE PROVINCE | Third Respondent THE HEAD OF DEPARTMENT, DEPARTMENT OF BASIC EDUCATION EASTERN CAPE PROVINCE | Fourth Respondent and NATIONAL ASSOCIATION OF SCHOOL | Amicus Curiae GOVERNING BODIES

Education – Effect of intervention in terms of s 100(1)(b) of Constitution – whether respondents obliged to declare post establishment of non-educator staff of public schools in the Eastern Cape Province, and to fill such posts

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school in Port Elizabeth, and the PJ Olivier High certain constitutional and statutory powers and the interests of another province or to the Judgment School in Grahamstown applied successfully to obligations by virtue of his office and because he country as a whole.’ intervene as applicants. In addition, the National is the employer of all teachers at public schools Association of School Governing Bodies, a in the province. 7. The Constitutional Court has given a succinct answer as to the effect of s 100(1)(b). PLASKET J voluntary association of 7000 school governing bodies, was admitted as an amicus curiae. The 5. Much was made in the papers and, to an In Johannesburg Metropolitan Municipality v 3 1. This case concerns the fundamental right of standing of the applicants, in terms of s 38(a), extent in argument, about what the implications Gauteng Development Tribunal and others children attending public schools in the Eastern (b), (c), (d) and (e) of the Constitution, is not of the intervention in terms of s 100(1)(b) were J afta J said: 2 Cape province to a basic education, which is challenged. in respect of the powers, functions and duties of ‘The scope of intervention by one sphere in enshrined, without qualification, in s 29(1) (a) of the Minister and her Director-General. In view the affairs of another is highly circumscribed. the Constitution, which states that everyone has 4. The respondents are the Minister of Basic of the fact that there has been a divergence of The national and provincial spheres are permitted the right ‘to a basic education, including adult Education and her Director-General, in the opinions expressed on this issue, and consequent by ss100 and 139 of the Constitution to undertake basic education’.1 It is no exaggeration to say national sphere of government, and the confusion as to where powers, obligations and interventions to assume control over the affairs that as a result of what, on the respondents’ own MEC for Basic Education and the head of his responsibilities ultimately lie, it is necessary to of another sphere or to perform the functions admission, is a crisis of immense and worrying department, in the provincial sphere. The deal with the issue briefly. of another sphere under certain well-defined proportions, the right to basic education of those Minister and her Director-General were cited circumstances, the details of which are set out who attend public schools in the Eastern Cape as respondents because the Minister took a 6. The Constitution allocates powers to three below. Suffice it to say that the national and province is affected or threatened. That fact decision to place the Eastern Cape Department spheres of government, the national, the provincial spheres are not entitled to usurp renders the dispute in this matter justiciable and of Basic Education under the administration of provincial and the local sphere. Generally the functions of the municipal sphere, except makes the dispute the business of the courts. the national government in terms of s 100(1)(b) speaking, one sphere of government may not of the Constitution, and her Director-General is usurp the powers of another sphere. Section in exceptional circumstances, but then only 2. This case arose when the six original applicants the functionary responsible for the execution of 100 of the Constitution, however, allows for the temporarily and in compliance with strict brought an urgent application in which they that administration. The MEC for Basic Education national government to intervene in a provincial procedures.’ (in essence) sought orders to compel the is cited as a nominal respondent on behalf of administration in certain defined instances. 8. While the court was dealing with powers respondents to implement the 2012 educator post the Eastern Cape provincial government, as Section 100 (1) reads as follows: assigned to the local sphere of government, the establishment, which had already been declared, the ‘bearer of the constitutional and statutory observations that it made apply equally to the by making appointments to vacant posts by a powers and duties’ related to basic education in ‘(1) When a province cannot or does not situation where, as in this case, the national specified date; to pay by a specified date the the province, as the ‘administrator’ for purposes fulfil an executive obligation in terms of sphere of government has, in terms of s 100(1) salaries of temporary teachers who had not been of the Promotion of Administrative Justice Act the Constitution or legislation, the national (b) intervened in a province’s administration: paid; to employ and pay teachers appointed 3 of 2000 and as the functionary who ‘declared/ executive may intervene by taking any when it does so, it assumes the powers of the by school governing bodies to vacant posts; to established the Educator Post Establishments for appropriate steps to ensure fulfilment of that provincial administration, and it also assumes its declare the 2013 educator post establishment, the Eastern Cape Province in terms of section obligation, including- obligations. This must be so in the light of what which would include non-teaching staff, by 5(1)(b) of the Employment of Educators Act 76 the Constitutional Court said of the purpose of specific dates; to make appointments to all of 1998’. The head of the provincial department (a) issuing a directive to the provincial the s 100 power in Ex Parte Chairperson of the vacant established posts, in respect of teachers is cited as a respondent because he bears executive, describing the extent of the failure Constitutional Assembly: In re Certification of and non-teaching staff; and to report to the to fulfil its obligations and stating any steps required to meet its obligations; and the Constitution of the Republic of South Africa, court on progress in the implementation of these 4 1996. It held that s 100 provides that ‘when a orders and to make the reports available for 1. See governing body of the juma musjid primary school (b) assuming responsibility for the relevant province cannot or does not fulfil an executive inspection at district offices and to the parties. & others essay no & others (centre for child law & another as amici curiae) 2011 (8) bclr 761 (cc), para 37. obligation in that province to the extent obligation the national executive may take They also sought costs. 2. Section 38 of the Constitution reads: necessary to- appropriate steps to ensure fulfilment of that Anyone listed in this section has the right to approach a 5 3. The original applicants are the Centre for obligation , and that what is contemplated is competent court, alleging that a right in the Bill of Rights (i) maintain essential national standards or ‘either to put the province on terms to carry out Child Law, the governing bodies of Oatlands has been infringed or threatened, and the court may grant meet established minimum standards for the its obligations . . . or to assume responsibility Preparatory School, Saint Mary’s RC Primary appropriate relief, including a declaration of rights. The rendering of a service; School, Mary Waters High School (all in persons who may approach a court are- (a) anyone acting in their own interest; Grahamstown) and Alphendale High School (ii) maintain economic unity; 3. Johannesburg Metropolitan Municipality v Gauteng (b) anyone acting on behalf of another person who cannot in Port Elizabeth, as well as a body called the Development Tribunal & others 2010 (6) SA 182 (CC), para 44 act in their own name; Bethelsdorp SGB Unit which represented a (iii) maintain national security; or 4. Ex Parte Chairperson of the Constitutional Assembly: In (c) anyone acting as a member of, or in the interest of, number of school governing bodies, mostly a group or class of persons; re Certification of the Constitution of the Republic of South (iv) prevent that province from taking in the northern areas of Port Elizabeth. Later, (d) anyone acting in the public interest; and Africa, 1996 1996 (4) SA 744 (CC). the Cape Recife High School, a special needs (e) an association acting in the interest of its members.’ unreasonable action that is prejudicial to 5. Para 263.

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for such functions itself to the extent that it is result is that some schools have more teachers 16. This case now only concerns one of the areas a multidisciplinary team of remedial teachers, necessary to do so for any of the purposes set out than necessary while others have too few of concern identified by the Minister, namely physiotherapists, occupational therapists, in NT 100(1)(b)’.6 Ms Collett, who appeared for teachers, with consequent prejudicial effects the provincial department’s failure to provide speech-language therapists, a nursing sister and the Minister and the Director-General, accepted, on teaching and learning. As the provincial effective support for administrative processes psychologists. As the school also has a boarding correctly in my view, that the position set out department failed to take steps to transfer in schools in the province. That failure has the establishment and runs a transport service for above is indeed correct. surplus teachers to where they were required, the same effect as the failure to effect proper post scholars still more support staff is needed for budget spiralled out of control because teachers provisioning for teaching staff: without proper these and related activities. 9. The parties have settled all of the issues at under-resourced schools were appointed to fill administration in schools, the right of scholars in dispute save one, which I am required to 20. Its educator establishment has been vacant posts on a temporary basis. to basic education is threatened. I shall illustrate determine. (The settlement envisages an order determined to consist of 50 posts but at present the point with reference to the situation at similar to that which had been sought in the 13. This created its own set of problems when, 18 posts are vacant. In 2008, the school received two schools, Mary Waters High School in notice of motion.) The issue that was argued in order to cut costs, the provincial department a post allocation for non-teaching staff. The Grahamstown and Cape Recife High School in before me and which I am required to decide dismissed some 4 000 temporary teachers, provincial department decided that it required Port Elizabeth. is whether, for purposes of 2013, the respondents only to be compelled by the court to re-instate 77 such posts but because of what is described are under a statutory obligation to declare the them. Other casualties of this abject lack of 17. Mary Waters High School is a non-fee paying as a moratorium on the appointment of non- post establishment on non-teaching staff at management were the school nutrition program, teaching staff only 22 of those posts are filled. school. It is attended by 1087 scholars, most of public schools and to ensure that those posts which provided a meal a day for school children, Mr Dakin says that there are vacancies for one whom are members of poor families. The school are filled. and the school transport scheme, which allowed administrative officer, one senior housekeeper, has not received funding from the provincial for scholars to be conveyed to and from school eight cleaners, four drivers, 12 therapy aides, 16 department for 2012 and so has been unable 10. The prayers in which reference to non- instead of having to walk long distances. teacher aides, three security guards, two social to fund such programs as the school nutrition teaching staff appear are prayers 8 and 9 of the workers, three nurses, two psychologists, one program. Its post establishment for teachers draft order. They read: 14. The nature and extent of the crisis was hostel superintendent and one hostel supervisor. recognised by the national Department of Basic in 2012 is 38 but it only has 27 permanently ‘8. The First and Fourth Respondents are directed Education. In a document dated 24 February 2011 employed teachers plus four teachers who are 21. The situation at Mary Waters High School to declare the 2013 establishment(s) for public entitled ‘Statement of Intent on the Remediation employed on a temporary basis. As far as non- and Cape Recife High School in respect of the schools in the Eastern Cape in terms of section of the Present Challenges in Basic Education in teaching staff is concerned, Mr Errol Goliath, shortages of non-teaching staff only has to be 5(2) of the EEA or the Public Service Act, Proc the Eastern Cape Province’ (that strangely and the chairperson of the governing body, says the stated for the size and nature of the problem 103 of 1994 (as applicable) by not later than 30 inexplicably has been classified as top secret) the following in his affidavit: to be apparent. If the administration and September 2012, such establishment(s) to include Minister expressed the view that ‘the problems support functions of a school catering for over posts in respect of educators [and non-educator being encountered in basic education in the ‘Mary Waters also has a severe lack of non- 1 000 scholars, as in the case of Mary Waters personnel]. Eastern Cape province are extremely serious’ teaching staff. It was only allotted one cleaner High School, or of the nature and complexity and that the ‘consequences of these problems and one security guard for its entire school. It 9. The First to Fourth Respondents shall ensure of Cape Recife High School, cannot perform are such that many learners in the province are was allotted no administrative posts and the that the 2013 educator establishment(s) for properly because of staff shortages, not only already being denied their full rights to quality SGB must pay for these positions through its own public schools declared in terms of paragraph does this have a knock-on effect on the right basic education’. funds. There has been no secretary or receptionist 8 above consist of posts that are fully funded, to basic education but it also has the potential at the school for 10 years.’ to threaten other fundamental rights. Where and to ensure that educators [and non-educator 15. The Minister identified a major cause of hostels are understaffed, for instance, or security personnel] are appointed to, and assume, these the crisis as being ‘the weak capacity of the 18. Cape Recife High School caters for scholars is lacking, the rights to dignity and to security posts, by no later than 31 January 2013.’ Eastern Cape Education Department to discharge with special education needs due to specific of the person, as well as children’s rights in its obligations effectively in respect of policy 11. The background to the dispute between learning disabilities, physical disabilities, terms of s 28 of the Constitution, may be compliance; effective and efficient budgeting, the parties is set out in detail in the papers. cerebral palsy, autism, hearing impairment, implicated. When administrative capacity in a planning and expenditure; and effective support It is, I believe, fair to say that most of it is sight impairment and multiple disabilities. It complex institution like a school is non-existent, of the pedagogic and administrative processes in common cause and that all of the parties is, according to Mr John Dakin, the chairperson administration either breaks down or has to be schools . . .’. She concluded that the cumulative acknowledge that a serious problem exists in of its governing body, ‘well known for its high performed by teachers who have to deviate from effect of the problems that she identified ‘have respect of the administration of basic education educational standards and excellent matric their core functions to perform tasks that they given rise to a situation where many learners in the Eastern Cape. results’ and it is regarded as ‘one of the leading are not trained or expected to perform. are being deprived of their Constitutional right schools of its kind in the country’. 12. At the heart of the problem lies the to education’. This document proposed the s 100 22. The importance to the provision of education longstanding failure of the provincial Department intervention that duly came to pass. 19. The school has 385 scholars from grade R to of non-teaching staff at public schools is of Basic Education to attend to post provisioning. grade 12. The classes are, of necessity, small and recognised in the Amended National Norms and This failure has endured for over a decade. The 6. Para 265. the teaching staff is supported by Standards for School Funding (2006) published

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by the Minister of Education.7 They apply, (c) the cost of personnel establishments must and 1(c)(ii)(ee) of the regulations made in terms of the according to s 7, ‘uniformly in all provinces, and also be sustainable within provincial budgets.’ Employment of Educators Act.9 It states: are intended to prevail in terms of Section 146(2) (b) the recruitment, appointment, performance of the Constitution’. Sections 29 and 30 are of 25. Section 21 sets a policy target which is management, transfer, dismissal and other ‘In determining the post establishment of significance. They state: based on local and international evidence career incidents of employees of that a provincial department of education, the that ‘personnel: non-personnel spending in department, including any other matter which Member of the Executive Council must – ‘29 . The allocation of non-teaching staff to ordinary public schools should be in the order relates to such employees in their individual . . . schools, including administrative and support of 80:20’ and s 23 provides that within the total capacities, staff, is extremely uneven. The provision of such personnel allocation in provincial departments (ii) take into account personnel has been severely lacking in historically ‘teaching personnel costs should be targeted at and such powers and duties shall be exercised disadvantaged and small schools. Inequalities 85%, to allow for the appointment and proper or performed by the executive authority in (ee) the fact that the division between in the provision of such staff members is almost distribution of administrative and support staff’. accordance with this Act.’ expenditure on educator and non-educator certainly associated with major inefficiencies in personnel costs in the budget should be 26. Section 5(2) of the Employment of The term ‘executive authority’ is defined, in schools which serve poor communities. educationally, administratively and financially Educators Act provides that the head of a relation to a provincial department, to be ‘the justifiable and in accordance with national provincial department determines the educator member of the Executive Council responsible for 30. The Minister of Education is responsible for policy that may exist in this regard.’ determining norms for the provision of non- establishment of public schools in a province but such portfolio’. educator personnel, including non-teaching it makes no mention of non-teaching staff. Their 31. Finally, in order for governing bodies to be 29. Two sections of the South African Schools personnel at school level.’ situation is governed by the Public Service Act, able to budget for, and fill, posts additional to Act 84 of 1996 clearly contemplate that both 1994 (Proclamation 103 of 3 June 1994) and it is to the establishments for both teachers and non- establishments for teaching and non-teaching 23. This brings me to the central issue in this this statute that I now turn. teaching staff, they of necessity need to know case, namely whether the respondents are staff must be determined. First, ss 20(1)(i) and first what both of those establishments are. In 27. Section 1 contains definitions of three under a statutory obligation to declare a post (j) empower governing bodies to recommend other words, they cannot exercise their powers in key terms. ‘Establishment’ is defined as ‘the establishment for non-teaching staff at public to the head of the provincial department ‘the terms of ss 20(4) and (5) properly and rationally posts which have been created for the normal schools in the province for 2013 and, if so, to appointment of educators at the school, subject without knowing how many teachers and non- and regular requirements of a department’. A fill the posts so declared. Mr Budlender, who to the Employment of Educators Act’ and ‘the teaching staff are provided for by the provincial department is defined to include a provincial appeared together with Mr Brickhill for the appointment of non-educator staff at the school, department. This point was made in relation to department. A post means ‘a post on the applicants, argued that the statutory obligation subject to the Public Service Act’. Secondly, ss s 20(4) by Eksteen J in Federation of Governing establishment for which financial provision resting on the respondents is to be gleaned from 20(4) and (5) empower governing bodies to create Bodies of South African Schools & others v exists’.8 Section 8(1)(a) provides that the public the applicable legislative scheme as a whole. Mr posts additional to the establishment for both MEC for the Department of Basic Education & service consists of persons who are employed Mbenenge, who appeared with Mr Benningfield teachers and non-teaching staff. They state: another10 but his observations apply equally to s ‘in posts on the establishment of departments’ for the MEC and his head of department, and 20(5). He stated:11 and s 8(1)(b) includes posts ‘additional to the Ms Collett took the view that while teacher post ‘(4) Subject to this Act, the Labour Relations establishment of departments’. establishments must be declared in terms of the Act, 1995 (Act 66 of 1995), and any other ‘21. The structure of the Schools Act applicable law, a public school may establish accordingly provides for the Minister to lay Employment of Educators Act 76 of 1998, no such 28. Section 3(7) provides: obligation rested on any of the respondents to posts for educators and employ educators down norms and standards in respect of declare a post establishment for non-teaching ‘An executive authority has all those powers and additional to the establishment determined by various issues relating to public schools, staff. duties necessary for – the Member of the Executive Council in terms including the number of teachers and class of section 3(1) of the Educators’ Employment sizes (section 5A(2)(b)(i)), the appointment 24. The norms and standards that I referred to (a) the internal organisation of the department Act, 1994. of teachers by the governing bodies of public above stipulate what are termed policy targets concerned, including its organisational schools (section 20(4)) and the funding of in respect of personnel. Section 20 states that structure and establishment, the transfer of (5) Subject to this Act, the Labour Relations the national department’s personnel policy for functions within that department, human Act, 1995 (Act 66 of 1995), and any other 9. Regulations for the Creation of Educator Posts in a schools embodies the following principles: resources planning, the creation and abolition applicable law, a public school may establish Provincial Department of Education and the Distribution of posts and provision for the employment of posts for non-educators and employ non- of Such Posts to the Educational Institutions of Such a Department, Government Notice ‘(a) schools must be supplied with an adequate persons additional to the fixed establishment; educator staff additional to the establishment R1676, Government Gazette 19627 of 18 December 1998, as number of educator and non-educator determined in terms of the Public Service Act, amended by Government Notice R1451, Government Gazette personnel; 7.Published in Government Notice 869 in Government 1994 (Proclamation 103 of 1994).’ 24077 of 15 November 2002. Gazette 29179 of 31 August 2006, and made in terms of 10. Federation of Governing Bodies of South African Schools (b) such staff members must be equitably s 39(7) of the South African Schools Act 84 of 1996, and 30. Not surprisingly, the two sets of post & others v MEC for the Department of Basic Education distributed according to the pedagogical amended from time to time thereafter. establishments are linked. This is clear from the & another ECB 2 March 2011 (case no.60/11) unreported. requirements of the schools; and 8. Emphasis added. norms and standards and also from regulation 11.Paras 21-24.

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public schools (section 35). In addition to the unless the head of the department complies the fundamental right to basic education, respondents have failed to pay, by 17 August obligation of the State, as set out in the Act, with his obligations in terms of section 58C(6) in terms of s 7(2) of the Constitution. 2012. the governing bodies of public schools have by advising each school of a maximum and an obligation to take all reasonable measures minimum capacity in relation to the availability 34. My conclusion is consequently that the 5. Where an educator has within its means to supplement the resources of, inter alia, educators, by no later than 30 respondents are obliged to declare post 5.1. been duly identified by the School Gov- supplied by the State in order to improve the September 2007. It is significant that the date establishments for both teaching staff and non- erning Body concerned, in accordance with qualify of education provided by the school to of 30 September is not set as a target date in teaching staff for 2013 for public schools in the the Memorandum of 10 November 2011 or all learners at the school. The means by which some policy document or regulation, rather province and that they are required to fill those the Circular of 19 April 2012, to fill a vacant it is empowered to give effect to this obligation it is stipulated by statute as the latest date by posts which, after all, they would have budgeted substantive post recognised in the 2012 post placed upon it is by the appointment of which the HOD must complete that function. to do. The applicants are accordingly entitled establishment for public schools; and additional educators pursuant to the provisions If he does not do so the system breaks down.’ to the orders that they sought. I have, with the knowledge and consent of the parties, changed of section 20(4) of the Act. The decision of a 5.2. been performing the functions of that 32. In summary, the Public Service Act empowers certain of the implementation dates that had governing body to employ educators may have post, a huge impact on school fees. For this reason the MEC to determine the establishment for been agreed upon in the order to make provision section 20(9) of the Schools Act requires of a non-teaching staff at public schools in the for the delay occasioned by reserving judgment. such educator will be deemed to have governing body, when presenting an annual province; the norms and standards that apply to been appointed as a temporary educator in 35. The following order is issued: budget to provide sufficient details of any posts the provincial department postulate an adequate terms of the EEA pending the permanent number of both teaching and non-teaching staff envisaged in terms of section 20(4), including 1. The first to fourth respondents are required appointment of an educator against that to be employed at each school and a correlation the estimated costs relating to the employment forthwith to implement the 2012 educator vacant substantive post on the 2012 educator between the teaching and non-teaching of staff in such posts and the manner in which establishment of the Department of Basic establishment for public schools. establishments; and the South African Schools it is proposed that such costs will be met. Education, Eastern Cape Province, declared by Act requires both teacher and non-teacher 6. The first and fourth respondents are the third respondent in terms of section 5(1) establishments to be known by governing bodies directed to pay the salaries of the educators 22. The budget must be prepared annually. (b) of the Employment of Educators Act 76 of before their budgets can be approved and to referred to in paragraph 5 and/or reimburse According to prescriptions determined by 1998 (the EEA) (the 2012 provincial educator allow them to determine how many additional the school concerned from the date on which the MEC it must show estimated income and establishment) and the educator establishment posts are needed at their schools. The only the educators assumed duty. In order for such expenditure at the school for the following of public schools in the Eastern Cape interpretation of the legislation that is consistent payments to be made: financial year (see section 38(1)). Before such declared by the fourth respondent in terms a budget is approved by the governing body with the obligation on the respondents of section 5(2) of the EEA (the 2012 educator 6.1. by 17 August 2012, the third and fourth it must be presented to a general meeting of to respect, protect, promote and fulfil the 12 establishment for public schools). respondents will provide the applicants’ parents convened [on] at least 30 days notice fundamental right to basic education is that the attorneys with contact details for each for consideration and approval of a majority of MEC is empowered to and obliged to determine 2. The first to fourth respondents are district office in the province; and parents present and voting (see section 38(2)). the establishment for both teaching staff and directed to implement the 2012 provincial non-teaching staff at public schools in the educator establishment and the 2012 6.2. by 3 October 2012, the relevant schools 23. Clearly the need and desirability for the province. As, in terms of s 1 of the Public Service educator establishment for public schools, will provide the relevant district office with appointment of additional educators over Act, a post means a post on the establishment for in full, by appointing educators to all vacant the following details: and above the establishment determined by which financial provision exists, any posts which substantive posts declared in the 2012 the MEC can only be considered once the have been determined can, and must, be filled. educator establishment for public schools on a 6.2.1. the documents demonstrating the establishment determined by the MEC is permanent basis by 2 November 2012. approval of the School Governing Body; known. Once this is conveyed to each public 33. As the posts that are part of the establishment school it is in a position to commence with have been budgeted for, there can logically be no 3. The first and fourth respondents are directed 6.2.2. the name of the educator; the planning of its budgets, the raising of moratorium on filling them. That can only arise, to appoint educators on a temporary basis 6.2.3. the post in respect of which the funds, the advertising of educator posts by the assuming that some or other functionary has the pending the permanent appointment of all educator assumed duty; governing body, interviewing of candidates and power to impose a moratorium, if a fiscal crisis educators against all vacant substantive posts befell the provincial department at a later stage. the recommendations for the appointments to on the 2012 educator establishment for public 6.2.4. the date and terms on which such In any event, the imposition of a moratorium the HOD as envisaged in section 20(1)(i) of the schools by 2 September 2012. educator assumed duty; Schools Act. in such circumstances would, assuming it could otherwise validly be imposed, place the 4. The first and fourth respondents are 6.2.5. proof of attendance and/or rendering 24 It is readily apparent that the structure respondents in breach of their constitutional directed to pay the salaries of all educators of service by the educator concerned; and of the system provided by the legislature for obligations to respect, protect, promote and fulfil whose appointment on a temporary basis the organisation, governance and funding of has been approved by the Department of 6.2.6. proof of payment by the school, if schools in the Schools Act cannot be achieved 12. Constitution, s 7(2). Basic Education, Eastern Cape, which the applicable.

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6.3. The payments will be made by the first 10.3. the steps taken to ensure payment of to fourth respondents within one month of educators in terms of paragraphs 4 and 6 the submission of the information referred above; to in paragraph 6.2 above. 10.4. the steps taken to declare the 2013 7. The first and third respondents are directed establishments in terms of paragraphs 7 to to declare the 2013 educator establishment of 8 above, and the steps taken to implement the Department of Basic Education, Eastern them. Cape, in terms of section 5(1)(b) of the EEA. 11. Any party may subsequently set the matter 8. The first and fourth respondents are directed down for hearing on reasonable notice to declare the 2013 establishments for public on the papers already filed of record, duly schools in the Eastern Cape in terms of section supplemented as appropriate. 5(2) of the EEA and the Public Service Act, Proc 103 of 1994 (as applicable) by not later than 12. The respondents are ordered, jointly and 30 September 2012, such establishments to severally, to pay the applicants’ costs, including include posts in respect of educators and non- the costs of two counsel. educator personnel. 13. The respondents are ordered, jointly and 9. The first to fourth respondents shall ensure severally, to pay the disbursements of the that the 2013 educator establishments for amicus curiae. public schools declared in terms of paragraph 8 above consist of posts that are fully funded, and shall ensure that educators and non- C Plasket educator personnel are appointed to, and Judge of the High Court assume, these posts, by no later than 31 January 2013.

10. The first respondent, in consultation with APPEARANCES the second to fourth respondents, shall make a report available for inspection at each district Applicants: S Budlender and J Brickhill office and to the parties on 3 September 2012, 4 December 2012 and 31 January 2013, such Instructed by: reports to contain at least details of: Legal Resources Centre, Grahamstown First and second respondents: S Collett 10.1. the steps taken to appoint educators on a permanent or temporary basis to fill Instructed by: vacant posts against the 2012 educator NN Dullabh and Co, Grahamstown establishment for public schools in terms of Third and fourth respondents: SM Mbenenge SC and paragraphs 2 and 3 above; PG Benningfield

10.2. the steps which have been taken to Instructed by: transfer and/or ensure the movement of NN Dullabh and Co, Grahamstown teachers who are additional to the educator Amicus curiae: M Chaskalson SC and A Hassim establishment of their schools in terms of the 2012 educator establishment for public Instructed by: schools; and Legal Resources Centre, Grahamstown

78 Teachers to Teach | RELATED COURT PLEADINGS Teachers to Teach | RELATED COURT PLEADINGS

Eastern Cape, which the Respondents have failed In the High Court of South Africa Notice of Motion to pay, within ten days of the date of the order; (Eastern Cape High Court: Grahamstown) 6. Declaring that educators who have been appointed on a temporary basis against The Applicants launched an application on vacant substantive posts recognised in the 12 July 2012 in the Eastern Cape High Court , 2012 post establishment for public schools by CASE NO. Grahamstown, for an order in the following the Governing Bodies of public schools in the terms: Eastern Cape Province as at the date of the order are deemed to be employed by the Fourth 1. Directing that this matter be heard as a Respondent; In the matter between: matter of urgency and that the Applicants’ non-compliance with the rules of court relating THE CENTRE FOR CHILD LAW | First Applicant 7. Directing the First and/or Fourth Respondents to compliance with time limits and the service to pay the salaries of the educators referred to THE GOVERNING BODY OATLANDS of documents be condoned on account of such in paragraph 6 from the date on which they urgency; assumed duty; PREPARATORY SCHOOL | Second Applicant 2. Declaring that the First to Fourth Respondents 8. Directing the First and/or Third Respondents THE GOVERNING BODY ST MARY’S RC SCHOOL | Third Applicant are required forthwith to implement the 2012 to declare the 2013 educator establishment of the educator establishment of the Department of Department of Basic Education, Eastern Cape, in THE GOVERNING BODY Basic Education, Eastern Cape Province, declared terms of section 5(1)(b) of the EEA by not later by the Third Respondent in terms of section 5(1) MARY WATERS HIGH SCHOOL | Fourth Applicant than 30 August 2012; (b) of the Employment of Educators Act 76 of BETHELSDORP SGB UNIT | Fifth Applicant 1998 (“the EEA”) (“the 2012 provincial educator 9. Directing the First and/or Fourth Respondents establishment”) and the educator establishment to declare the 2013 educator establishment for THE GOVERNING BODY of public schools in the Eastern Cape declared by public schools in the Eastern Cape Province in the Fourth Respondent in terms of section 5(2) terms of section 5(2) of the EEA by not later than ALPHENDALE HIGH SCHOOL | Sixth Applicant of the EEA (“the 2012 educator establishment for 30 September 2012, such establishment to include and public schools”); posts in respect of both teaching and non- teaching staff at public schools; THE MINISTER OF BASIC EDUCATION | First Respondent 3. Directing the First to Fourth Respondents to implement the 2012 provincial educator 10. Directing the First to Fourth Respondents to THE DIRECTOR-GENERAL, establishment and the 2012 educator ensure that the 2013 educator establishment for establishment for public schools, in full, by public schools declared in terms of paragraph 9 DEPARTMENT OF BASIC EDUCATION | Second Respondent appointing educators to all vacant substantive above consists of posts that are fully funded, and posts declared in the 2012 educator establishment to ensure that educators and non-teaching staff THE MEMBER OF THE EXECUTIVE COUNCIL, for public schools on a permanent basis within are appointed to, and assume, these posts, by no DEPARTMENT OF BASIC EDUCATION three (3) months of the date of the order; later than 31 January 2013;

EASTERN CAPE PROVINCE | Third Respondent 4. Directing the First and/or Fourth Respondents 11. Directing the First Respondent to report to to appoint educators on a temporary basis the Court and to make the report available for THE HEAD OF DEPARTMENT pending the permanent appointment of all inspection at each district office and to the educators against all vacant substantive posts parties within one month of the order and every DEPARTMENT OF BASIC EDUCATION on the 2012 educator establishment for public three months thereafter until the end of March 2013, such report to contain at least details of: EASTERN CAPE PROVINCE | Fourth Respondent schools within one (1) month of the date of the order; 11.1 The steps taken to appoint educators on 5. Directing the First and/or Fourth Respondents a permanent or temporary basis to fill vacant to pay the salaries of all educators whose posts against the 2012 educator establishment appointment on a temporary basis has been for public schools in terms of paragraphs 3 and approved by the Department of Basic Education, 4 above;

80 81 Teachers to Teach | RELATED COURT PLEADINGS Teachers to Teach | RELATED COURT PLEADINGS

11.2 The steps which have been taken to issued a statement titled “Statement of Intent resulted in a settlement agreement being made required and redistributing teachers from over- transfer and/or ensure the movement of on the Remediation of the Present Challenges an order of court on 20 March 2012. In terms of staffed to under-staffed schools in accordance teachers who are additional to the educator in Basic Education in the Eastern Cape Province”. this order: with an equitable formula. This formula was establishment of their schools in terms of the A copy of this statement is annexed hereto calculated on the actual number of children 2012 educator establishment for public schools; marked Annexure 3. It outlines the crisis which 20.1 The national executive is to “continue to enrolled in school and the number of children has developed in the EC Department. The implement the section 100(1)(b) intervention of school going age in the province. This process 11.3 The steps taken to ensure payment of statement highlights specific areas of concern, … in co-operation with the provincial is known as ‘post provisioning’. educators in terms of paragraphs 5 and 7 one of which was the “effective and credible government” above; and allocation of educators to schools” (paragraph 4, 26. The ‘right-sizing’ or rationalisation of the 20.2 The applicant is required to be provided page 3 of the statement). education sector and post provisioning are 11.4 The steps taken to declare and implement with copies of all delegations made by the necessary to establish a more equitable and the 2013 educator establishments in terms of 17. In the Statement of Intent, the Minister Minister in relation to the intervention; and effective educational system. One of the results paragraphs 8 to 10 above. observed that the problems were “extremely of the failure to implement post provisioning and 20.3 The national executive is required to serious” and that the consequences were that redistribution of teaching posts in the Eastern 12. Permitting any party subsequently to set the report quarterly to the National Council of the learners were “being denied their full rights Cape has been the disastrous continuation of matter down for hearing on reasonable notice on Provinces, and to provide the applicant with to quality basic education”. The Statement also inequality, with some schools being over-staffed these papers, duly supplemented as appropriate. such reports. quoted a statement made by the President on 17 while others are under-staffed. This inequality 13. The Respondents are ordered, jointly and February 2011 during the debate on the state of 21. Notwithstanding this order, the problems has a direct impact on the educational outcomes severally, to pay the Applicants’ costs. the nation Address, where he said, “as of now, with post provisioning in the Eastern Cape of learners in the province as a whole, and the triple T call to priorities teachers, textbooks persist. It also remains unclear whether the particularly in the poorest schools. FOUNDING AFFIDAVIT - EDITED and time, cannot be implemented in the Eastern implementation failures arise at national or Cape”. The present application is concerned with The impact of the failure to implement post FACTUAL BACKGROUND provincial level, or both. the first ‘T’ in the set of three key priorities – provisioning on education service delivery in the TO THE APPLICATION teachers. Teacher Allocation: Post Eastern Cape 14. The situation in the Eastern Cape in 1994 Provisioning in the Eastern Cape 18. The Statement of Intent identified four 27. The Province’s inability to comply with was complex. The new EC Department inherited focal areas for proposed national intervention, 22. At the heart of the inequality and failures in policies, norms and standards relating to post the three tricameral education departments. In one of which was the implementation of post education in the Eastern Cape is the failure to provisioning has resulted in the over-expenditure addition the Eastern Cape inherited the education provisioning and addressing the “present problem implement post provisioning, not merely in 2012 of the budget for payment of employees and departments of the former Ciskei and the former around the employment of temporary teachers” but for over a decade. placed an enormous strain on the overall budget Transkei. The pupil to teacher ratio in the Ciskei (paragraph 2.b, page 4 of the statement). for education in the Province. It has impacted in 1993 was 34:1, and in the Transkei the ratio was 23. The affidavit filed by Jonathan Godden in the on the Province’s overall budget and spending 51:2. 19. On 2 March 2011, Cabinet directed the Save our Schools case highlights the importance trends. Minister carry out an intervention in terms of 15. The problems that face the EC Department of the implementation of post provisioning and section 100 of the Constitution to address the 28. With more than three-quarters of the are numerous and complex. Among them is the the problems that have beset the Eastern Cape challenges in education service delivery in the Province’s annual budget already allocated development of a single education department Province in this regard. Eastern Cape Province. There were delays and to paying teachers – of whom 5,000 have which incorporates highly unequal components problems in implementing the section 100(1)(b) 24. In 1994, the existing education system been identified as being surplus in the post previously constructed on a racial basis, and in intervention. reflected a highly inequitable allocation of posts. establishment – the provincial education particular the departments in the very poor and The democratic government therefore embarked authorities have had to introduce dramatic underdeveloped former homelands. 20. In February 2012, Save our Schools and on the task of ensuring equality in educational cost-cutting measures. Community and the Catholic Institute for The current crisis in the Eastern funding and provisioning. A critical part of this Cape and the national intervention Education, represented by the Legal Resources process was post provisioning. The history and 29. If the post-provisioning method was in terms of section 100 of the Centre (LRC), Grahamstown, launched an context of post provisioning are set out in more implemented, these 5,000 teachers in excess Constitution urgent application to compel the Respondents detail in the affidavit of Mr Godden. would have been moved to under-staffed schools. to take steps to implement the section 100(1) However, because of union intervention and a 16. For several years now, the EC Department has (b) intervention in full, which would oblige the 25. In summary, a fundamental element of lack of political will, the teachers in excess have been beset by a series of problems which have led national executive to clarify what obligations it what was needed was the transformation of not moved. This forced the EC Department to to its inability to deliver basic services, including has assumed, to exercise those obligations, and the education system by redistributing funds hire temporary teachers at understaffed schools ensuring teaching and learning at schools. As a to account for its exercise of those obligations and resources in a more equitable manner. to fill the void. This measure is not financially consequence, on 24 February 2011, the Minister (“the Save our Schools case”). This application This required assessing the number of teachers sustainable because it forces the EC Department

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to pay two teachers to perform one job, also students, fed over 1.6 million learners at least one 39. A further consequence of the failure to educators occupying substantive posts on the known as ‘double parking’. meal per day. implement the post establishment has been post establishments of Public Schools have that the Department failed to fill vacant to temporarily vacate their post on account 30. In 2011, the cost-cutting measures included 35. In a document entitled “Eastern Cape posts, thus allowing vacancies to escalate to of incapacity, illness, maternity leave or for terminating the services of more than 4,000 Department: section 100(1)(b): Detailed Progress dangerous proportions. Vacancies are created any other lawful reason. The Department has temporary teachers filling vacancies at critically Report as at 27 January 2012 (week 19)” the by processes of natural attrition. This involves traditionally filled those posts with substitute under-staffed schools. The termination of severity of the problem is acknowledged educators retiring, dying, becoming promoted educators so as to ensure continuity and that temporary teachers without the redeployment (at page 28. Under “Urgent Service Delivery and resigning. The Department is obliged to fill learners are not left without education. of teachers through post provisioning has its Areas – Provisioning of school furniture (5) those posts as and when they fall vacant. This greatest impact on poorer schools, which are by 31 December 2011” the report states that a is a process involving advertising the posts, and 43. For unknown reasons many vacant posts have not able to supplement their teaching staff with comprehensive audit of furniture needs was then having School Governing Bodies interview not had substitute teachers appointed. Thus, in additional posts created by the SGB through the conducted in April/May 2011 and that the total candidates and make recommendations to the example of Alphendale in East London, two use of school fees. The poorer schools already cost of furniture needed for learners in the the Second Respondent who must then make teachers who have been sick for more than five suffer the burden of a shortage of resources. They province is R274,2 million. The original amount appointments. years are still on the payroll and have not been will in addition suffer the burden of a higher budgeted in the provincial budget for furniture replaced. This means that the school is funding learner-teacher ratio unless the distribution of was R58 million but this was reduced to R5 40. When vacancies are not published regularly two substitute teachers in these posts. Schools teachers takes place on an equitable basis. million during the “Adjustment Estimate”. as provided for by the Personnel Administration resources however are not inexhaustible and A paltry 600 desks and 600 chairs had been Measures, self-evidently, the posts will not many schools have now reached the stage where 31. The failure to implement post provisioning delivered to schools by the end of January be filled. If this process is not pursued on they can no longer subsidise the State. They has had a dramatic effect on the quality of an ongoing basis, the vacancies escalate to will not be able to pay substitute educators or education. When the EC Department terminates 2012. According to the audit, there are 1295 unmanageable levels. permanent educators or temporary educators for temporary teachers’ contracts or fails to appoint schools requiring furniture in the Eastern Cape (Cluster A- 202; Cluster B- 731; Cluster C-362) and that matter. They are in danger of losing those and pay temporary teachers, it creates serious 41. In addition to the vacant posts occupied by approximately 605,163 learners are affected at the educators and the posts will then remain vacant. risk to teaching and learning in the poorest the temporary educators, there are many other schools. schools, especially in critical subjects like posts also of a substantive nature which have still 44. The teacher redeployment process has accounting, maths and sciences. Meanwhile, 36. Although the EC Department receives funds not been filled by the Department. It has failed never been completed in the EC Department. teachers in excess at over-staffed schools may earmarked for school infrastructure from the to discharge its statutory duties by publishing All attempts have failed administratively and have few responsibilities. National Treasury, its budget shortfall prevents the posts as vacant. When the Department fails politically. Even where officials have been to do this, the entire process grinds to a halt. deployed by the national Department of 32. The ‘double parking’ of teachers contributes it from taking the necessary steps to make use Learners suffer because there are no educators Education to assist in this process, their efforts to the EC Department’s high personnel spending. of these funds to implement improvements. in the classrooms. The schools suffer because have not achieved equitable distribution of posts It diverts funding from away from other critical Consequently, this funding is returned unused. their Governing Bodies cannot provide the quality items such as scholar transport; school nutrition; The EC Department has the largest backlog in the across the province. This has meant that where education which the Schools Act requires them textbooks and stationery; and infrastructure country for provision of infrastructure to schools. there is an excess of posts in one school, there to provide. All the learners and schools are in the development. Cutting infrastructure funding will only worsen have been no procedures by which teachers ‘in hands of the Respondents in this regard who, the situation and, once again, prevent students excess’ might be redeployed to schools where by failing in their administrative and executive 33. Funding cuts forced the EC Department to from accessing a quality and equitable education. there are vacant posts. suspend its school transportation program in duties, have created a crisis in the Province the first quarter of 2011. As a result, over one The failure to implement the post establishment where many schools now face closure and the 45. In the absence of a teacher redeployment hundred thousand learners across the Eastern in 2010 and 2011 prospect of sending children home because mechanism, it has been necessary to employ Cape, primarily in rural areas, had to commute to there are no educators to teach them. Financial teachers on a temporary basis in those school on foot. This cuts down on learners’ study 37. For the year 2010, the MEC determined the hardship follows to the extent that many schools schools where posts are vacant. The continued time; causes learners to arrive at school tired; post establishment at 69 390 educators for the have had to devote precious financial resources employment of temporary teachers, in addition and it raises safety concerns, particularly for Province. However this post establishment was to the payment of those educators, in effect, to teachers who might be in excess, is a massive girls, because of the potential dangers (such as not implemented in full. subsidising the Department in its failures. They additional burden on the public fiscus and is not crime, abuse, and accidents) that can occur while have done so facing the emergency visited upon sustainable. 38. In respect of 2011, however, the MEC failed travelling long distances to and from school. them by the Respondents and without having to meet the deadline of 30 September 2010 budgeted for such an eventuality. 46. In addition there has been a “moratorium” on 34. The school nutrition programme has also for determining the 2011 post establishment. the appointment of non teaching staff at school. been negatively impacted by the EC Department Eventually he proclaimed that only 64 252 would 42. There is another category of vacancies Many schools in the Eastern Cape function over-expenditure on personnel. This programme, be distributed. Subsequently, the High Court set which are created in consequence of these entirely without any administrators, clerks, which was invaluable to many disadvantaged aside the 2011 post establishment. failures by the Respondents. This is where secretaries or ground staff. The situation at

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Alphendale and Mary Waters is particularly acute. Mary Waters High School 70. the efforts of the Applicants and their legal (which regulates the transfer of educators for SGB’s have become accustomed to funding these representatives to resolve the problems afflicting operational reasons, remains the agreed tool posts but to carry this burden in addition to the 67. Mary Waters is a Quintile 3, non-fee paying the individual schools and other schools in the to manage the incidence of any educators who temporary teachers is unsustainable. school. It has 1 087 learners and is a dual medium Eastern Cape without the need to resort to become additional to the post establishment of school. The official 2012 post establishment for litigation were detailed in this affidavit. They are schools. A copy of this collective agreement is The 2012 post establishment Mary Waters consists of 38 educators. The post excluded for the purpose of this application. attached marked Annexure 24. and its implementation establishment consists of 1 principal, 2 deputy principals, 5 HODs, and 30 post level 1 posts. EC 71. The HoD has a statutory obligation to 76. Educators can only cater for so many learners 62. On 27 September 2011 the Executive Council Department funds only 27 permanent teachers. determine the post establishment of each within a classroom context. The higher the approved the 2012 post declaration for the Of the eleven unfilled posts, the EC Department individual school and to convey such information learner number beyond what is reasonable and Eastern Cape and approved that it be fully has appointed four temporary teachers who they to such school by no later than 30 September of above the ‘critical mass’, the less effective the funded. only started paying in 2012. One HOD position the preceding year. education becomes. Classes and learners are also curriculum driven and accordingly a mathematics 63. According to a statement made by the has been vacant for over 8 years. Further, six post 72. In line with the aforementioned provisions educator would not be able for example, to former HoD Mr Mannya in April 2012 there are level 1 positions remain vacant. The SGB was able the MEC declared an educator post establishment absorb Life Sciences learners into his class. 7 947 educators who are currently additional to to afford to fill one of these positions for only on 27 September 2011 and the Head of the post establishment of their schools. These one term. The failure to implement the full post Department allocated these posts to schools 77. All schools and learners affected have a clear educators should have moved in accordance with establishment in 2011 and 2012 has exhausted throughout the Eastern Cape. Despite this right to have their statutory rights enforced. the Collective Agreement described below. all of the SGB’s funds. As a consequence, many declaration and allocation of educator posts, classes remain without a teacher, which has 78. With the passage of time, the urgency in the Respondents have failed to implement the 64. The failure to implement post provisioning caused hundreds of learners to go without fact escalates because the longer learners 2012 post establishment in full. There appear to has had a dramatic effect on quality of education. instruction in certain subjects. remain without educators in the classroom, the be a variety of reasons for the First to Fourth When the EC Department terminates temporary greater the prejudice because the impact of an Alphendale High School Respondents failure to implement the 2012 post teachers’ contracts or fails to appoint and interruption or delay in education has a rolling remunerate temporary teachers to fill vacant establishment which I will deal with below. 68. Alphendale High School has 1 068 learners. Its effect during the course of a learner’s education. posts, it creates serious threats to teaching 2012 post establishment consists of 44 educators. 73. Any appointment, promotion or transfer This will seriously affect the learners’ rights and learning in the poorest schools, especially Alphendale qualifies for 1 principal, 2 deputy to any post on the educator establishment because to the extent that they are not able to in critical subjects like accounting, maths and principals, 6 HODs, and 35 post level 1 posts. The of a public school may be made only on the pass their examinations at the end of the year sciences. Meanwhile, there are teachers in excess EC Department has appointed and paid for only recommendation of the SGB of the public school many of them would fail and have to repeat the at over-staffed schools. 38 educators. The HOD posts remain vacant and and, if there are educators in the department same grade in 2012. This constitutes irreparable harm. 65. A key financial implication of post the SGB is funding four temporary post level 1 who are in excess of the educator establishment positions. In addition, two teachers have been of a public school due to operational provisioning is that temporary teachers will 79. The Respondents have failed to take the on temporary disability leave for the last 7 to requirements, that recommendation may only be be needed where posts are vacant at the necessary steps to discharge their statutory 8 years. One teacher, Mr. Saunders, is listed on made from candidates identified by the HoD, who commencement of the 2012 school year, and duties or even to respond meaningfully or at the post establishment but has never taught at are in excess and suitable for the post concerned. steps should have been be taken to ensure that all to the correspondence addressed to them. Alphendale. The EC Department does not provide (Section 6(3)(a).) they are appointed. This means that, in the They have therefore left the Applicants with no any funds for administrative positions and only absence of post provisioning, the current pattern alternative but to proceed. If this Honourable funds one cleaner and one security guard. The Collective Agreement 2 of 2003 of over-expenditure on personnel will be repeated Court does not grant the relief sought herein, all SGB pays for four cleaners and one administrative in the Eastern Cape in the 2012/13 budget year. 74. The movement of additional educators to learners affected will be deprived of their basic post. schools where they are mostly needed in terms education. 66. If the steps to achieve equitable teacher of operational requirements is regulated through distribution are undertaken timeously, it should 69. Alphendale has now exhausted all its funds the Education Labour Relations Council [ELRC] 80. If there is to be a consideration of the balance be possible to ensure that personnel expenditure raised from fees and fundraising, due to the Collective Agreement 2 of 2003. of convenience in the granting of urgent interim in the 2013/14 financial year will be brought in ongoing failure to implement the 2012 post relief, it would be my submission that this would line with the provincial personnel budget, as this establishment. The school is in danger of facing 75. In terms of this Collective Agreement, the also favour the Applicants. This is because all the will have been taken into account in the educator bankruptcy in the next two months. In addition, identification of additional educators takes place Applicants require is the discharge of statutory post provisioning scale implemented. to make matters worse, the school has not at school level and the curriculum needs of a and constitutional duties in reference to the received any funding from EC Department this school are critical in such identification. The provision of educators to serve the constitutional THE AFFIDAVIT THEN DESCRIBED THE year and cannot afford to pay its utility bills. SITUATION AT ALL THE INDIVIDUAL identification of additional educators, therefore, imperatives set out in sections 28 and 29 of the CLIENT SCHOOLS- ONLY TWO EXAMPLES ATTEMPTS AT RESOLVING THE ISSUES cannot be a desk top exercise nor can it be done Constitution. The imminent closure of classes outside the school. The Collective Agreement and even schools looms ominously.

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81. The prejudice and harm extends also to the schools involved and to the entire staff and the professional management and governance of the schools. SGBs will not be in a position to discharge their own statutory duties in terms of the Schools Act, which obliges them to provide quality education. They remain in the hands of the EC Department in the appointment of educators. CONCLUSION

82 In all the circumstances I submit that an order in terms of the Notice of Motion attached hereto is appropriate.

88 A Legal Resource for Realising Ready to Learn? the Right to Education Across a Bridge, onto a Bus

In an effort to ensure that all learners have pedestrian bridges at the troubled intersection. safe transportation options and access to LRC Durban’s efforts to negotiate with the their schools, the Legal Resources Centre municipality involved have been almost entirely (LRC) attorneys have been involved in unsuccessful. As the Durban office prepares for trial, two more students have been struck this strategic litigation in both KwaZulu-Natal year by vehicles. The LRC therefore continues to and North West Province. In particular, monitor the situation in this community closely. the LRC has endeavoured to support schools and communities in their efforts LRC Durban has also been actively engaged in to compel the State to build bridges across another matter involving safe access to places dangerous rivers and busy roads, and to of learning in the KwaMaphumulo District, some provide scholar transport to displaced 30 kilometres from the coast in rural KwaZulu- learners. The LRC takes the view that in Natal. Inkolovuzane Primary School, with its 126 learners and 4 staff members, is located near order to be in a position to realise their full the wide Mvoti River, known to be both fast- potential, children across South Africa must flowing at times and a carrier of debilitating be afforded safe, reliable and affordable waterborne diseases such as bilharzia. As there means of accessing their fundamental were no bridges within walking distance of constitutional right to a basic education. the school, students and community members had no choice but to swim across the river Over the last several years, the LRC’s Durban several times a day, which resulted in a high office has been involved in litigation to construct rate of illness. Furthermore, poverty in the pedestrian bridges near a busy, and notoriously surrounding communities is such that many local dangerous, intersection in an industrial section residents, including learners and school staff of KwaZulu-Natal’s largest city. Three public members, have no option but to use river water schools at the heart of the litigation – Clairwood for drinking, cooking and washing. LRC staff Boys Primary School, Durban South Girls Primary found there to be a high rate of illness among School and Clairwood Secondary School – community members, and noted with concern have a combined learner population of over that the school itself lacked regular access to 3,300 coming from both formal and informal clean drinking water and had an insufficient settlements in the central and southern areas of number of pit latrines. the city. After having travelled long distances to school, learners must then disembark from their As a result, the LRC sought not only to engage trains, taxis and buses at an intersection that has with local and provincial officials to facilitate safe borne witness to several fatal accidents in the transit across the river, but also to advocate for recent past. the improvement of the sanitation facilities for learners, educators, and the wider community. After having travelled long distances to school, learners As a result of the very real danger posed by the Representatives of the LRC met with the industrial and vehicular obstacle course that Departments of Education and Transport, and a must then disembark from their trains, taxis and buses students face at the beginning and end of each bridge was later constructed near the school that at an intersection that has borne witness to several school day, the schools argue that the best allowed both pedestrians and vehicular traffic interests and very lives of their learners can to safely cross the river. Although this served fatal accidents in the recent past. only be protected by the construction of two to address one element of this community’s

90 91 A Legal Resource for Realising Across a Bridge, onto a Bus | RELATED COURT PLEADINGS Ready to Learn? the Right to Education infrastructure needs, access to clean drinking system on their daily journey to and from the water and proper sanitation remains illusory distant new schools. In the High Court of South Africa for Inkolovuzane Primary School and others like it in deep rural areas of the province. The LRC Fundamentally, a lack of safe, reliable and (Durban and Coast Local Division) will therefore continue to support this school, affordable scholar transport made available by and the surrounding community, in an effort to the State stood in the way of these children secure much needed additional resourcing for the realising their right to a basic education. Case No. 2336/2007 overall health and well-being of local residents. Although the government initially ignored all intervention efforts made by the LRC, the Elsewhere in the country, in the remote North LRC was able to secure an interim settlement West Province, members of the LRC legal team following the institution of legal proceedings on CLAIRWOOD BOYS PRIMARY SCHOOL | First Applicant represented a group of parents from Siga Village behalf of the affected parents and the Centre for who were struggling to secure reliable scholar SAMUEL ERIC VEDANAYAGAM JOHN | Second Applicant Child Law (CCL), which is based in the Faculty transport for their children. The provincial of Law at the University of Pretoria. This interim Department of Education had advised the parents DURBAN SOUTH PRIMARY SCHOOL | Third Applicant settlement agreement required the provincial verbally that the local school would be closed Departments of Education, Public Works and KISTEN KISTEN | Fourth Applicant and their children would therefore need to be Transport to provide transport for learners to transferred to one of two schools located in a and community 25 kilometres away. The protests of and from Siga Village, on the understanding that necessary plans for long term measures these concerned parents, and their reasonable ETHEKWINI MUNICIPALITY | First Respondent requests for state assistance in providing for scholar transport for Siga Village would be transport for the scholastic displacement of forthcoming. Considering the disruption to the MEC FOR EDUCATION (KWAZULU-NATAL) | Second Respondent their children, went unanswered for nearly two education of these learners, and the potential MEC FOR TRANSPORT, COMMUNITY SAFETY AND years. The high cost of funding scholar transport for the violation of their rights in the future, it is critical that the LRC continue to monitor this without state subsidies led to increased dropout LIASON (KWAZULU-NATAL) | Third Respondent rates in the community: those parents who could case to ensure enforcement of the settlement afford to pay the R200 per month transport fee agreement and continued access to safe and SOUTH AFRICAN NATIONAL ROADS were left to worry about how their unsupervised reliable scholar transport for this remote children would navigate the public transportation community. ACENCY LIMITED | Fourth Respondent

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third or fourth respondents, is not fully and (c) situated at 10 Blamey Road, Clairwood, The First Defendant commissioned a road safety Notice Of Motion satisfactorily complying with this order, to enrol KwaZulu-Natal. audit along a section of South Coast Road that this application on reasonable notice to the included the above intersection, which was respondents, for such further relief as might 3. The Fourth Plaintiff is KISTEN KISTEN, an adult obtained from VKE Engineers in March 2004, in be appropriate to ensure full and satisfactory male, principal of the Third Plaintiff and resides which: KINDLY TAKE NOTICE THAT the applicants intend compliance with this order. at 625 Silverglen Drive, Silverglen, Chatsworth. to make application to his court for the following (a) the latter investigated the conditions at the orders: 5. Pending the final determination of this matter, 5. The First and Third Plaintiffs are public schools said intersection and made recommendations alternatively the period it will take for the first situate in the vicinity of Blamey and South Coast for upgrades to be carried out at the 1. THAT it is declared that: respondent to obtain the resources needed Roads, Clairwood, KwaZulu-Natal, with a large intersection; 1.1 The eThekwini Municipality is under a to build the pedestrian bridge(s) described learner population of minors in excess of 3000, (b) recommended the construction of a constitutional duty to provide diligently and in paragraph 1 hereof, the first respondent is many of whom are below the age of 7 years and without delay, a pedestrian bridge(s) at the ordered with immediate effect to institute many others below the age of 14 years. pedestrian bridge, to address the dangers intersection of South Coast and Blamey Roads, urgent and appropriate traffic calming measures facing learners of young age. 6. (a) Blamey and South Coast Roads lie in an Clairwood, Durban, KwaZulu-Natal, to ensure to ensure the safety of the learners using industrial area forming part of the Durban South 10. Following thereon further representations that the safety of learners attending public intersection described in paragraph 1 hereof. Basin. were made to the First Defendant to improve schools in and around the intersection are 6. The first respondent is ordered to pay the the conditions at the intersection to provide for respected, protected and promoted; and applicants’ costs of suit, such costs to include the (b) Learners from the First and Third Plaintiffs are the safety of the learners and to construct the required to cross South Coast and Blamey Roads 1.2 The failure of the eThekwini Municipality, costs of two counsel and to be paid jointly and pedestrian bridges. that intersect each other, at street level, to reach to do so diligently and without delay, has severally with any other respondent opposing the First and Third Plaintiffs and to return home 11. On 4 April 2005 the governing bodies of the been and continues to be unlawful and this application. First and Third Plaintiffs, made representations in contravention of their constitutional after school. PLAINTIFFS’ DECLARATION through their attorneys to the First Defendant, in obligations. (c) The conditions at the said intersection present terms of the public process initiated by the First The First Plaintiff is THE CLAIRWOOD BOYS 2. The first respondent, alternatively the first pedestrians with abnormal and challenging Defendant to receive representations in preparing PRIMARY SCHOOL which is:- respondent assisted either the second, third or conditions arising inter alia from the high traffic the municipal budget for 2005/2006, to include volumes on these roads, an unusually high the cost of erecting the pedestrian bridge. fourth respondents is ordered, without delay, to (a) a public school as contemplated in Chapter provide a pedestrian bridge(s) at the intersection percentage of heavy vehicles, complex signal 3 of the South African Schools Act No. 84 of 13. The First Defendant thereafter took no of South Coast and Blamey Roads, Clairwood, settings for pedestrians, small pedestrian islands 1996; steps to improve the conditions to provide for Durban, KwaZulu-Natal, to ensure that the and narrow pedestrian crossing widths. the safety of learners at the intersection, and safety of learners attending public schools in and (b) a juristic person in terms of the provisions 7. Many of the learners are culpa incapax and maintained that it taken all reasonable measures around the intersection are respected, protected of Section 15 of the South African Schools Act are incapable of coping with the challenging in this regard. and promoted; and No. 84 of 1996; conditions facing pedestrians to cross the said 14. In a recent report dated 15 April 2009 from the 3. The first respondent, alternatively the first (c) situated at 43 Doone Road, Clairwood. roads safely in the prevailing conditions. CSIR, obtained for the purposes of attempting respondent as assisted by the second, third 8. Over the years: to resolve the application, the following and fourth respondents is ordered to deliver an 1. The Second Plaintiff is SAMUEL ERIC VEDANAAYAGAM JOHN, an adult male, principal concerns were expressed regarding the safety of affidavit reporting to this court and to deliver it (a) the intersection has been the site of of the First Plaintiff whose address for the pedestrians, in the report: to the applicants within one month, detailing, numerous accidents involving young learners; purposes of these proceedings is 43 Doone Road, “With respect to pedestrian safety and the 3.1 the progress they have already made Clairwood, Durban. (b) the community has made numerous general pedestrian mobility perspective, four towards compliance; representations to the First Defendant and its 2. The Third Plaintiff is THE DURBAN SOUTH main issues emerged as being negative with and PRIMARY SCHOOL which is:- predecessor to address the dangerous situation respect to the safety performance of the facing young learners at the intersection, and intersection. These are: 3.2 the manner in which and dated by which (a) a public school as contemplated in Chapter to construct a pedestrian bridge. they will fully comply with the order in 3 of the South African Schools Act No. 84 of 1. As a result of the need for vehicular traffic paragraph 1 above. 1996; 9. During or about March 2003 the First capacity, the intersection is big with pedestrian Defendant effected certain improvements at crossings over 6 to 8 traffic lanes which 4. The applicants are given leave, if they contend (b) a juristic person in terms of the provisions the intersection, however these have failed to mean that pedestrians are highly exposed to that the first respondent, alternatively the of Section 15 of the South African Schools Act improve the safety aspects of the intersection for vehicular traffic when crossing. The median first respondent as assisted by the second, No. 84 of 1996; the learners. islands are also narrow and are not safe

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as refuge areas so as to allow multi-stage consideration, the pedestrian timings must 19. Such improvements as are foreshadowed in streets, pavements, sidewalks and bridges, for the crossings; accommodate their needs, and the waiting the undertaking do not take into account that: public benefit, in its municipal area. periods to cross should not be as long as it is 2. The traffic signal cycle time is extraordinary at present; (a) the learners are a vulnerable section of the 25. The learners attending the First and Third long and the phasing is focused on vehicular community; Plaintiffs: traffic. The result is that pedestrians have (c) traffic signs ought to be erected warning (b) many of the learners travel to the schools to wait very long to receive respective green drivers of the traffic signal ahead and of (a) are children who enjoy the constitutional from their homes from far distances and have indications which will lead to the pedestrian scholars crossing; rights in section 28 of the Constitution; signals being ignored and this has been to return home without adult supervision; observed as actually being the situation. (d) the traffic islands ought to be free of (b) enjoy the right to life in terms of section 10 (c) a large proportion of the learners use public During the inspection in the off-peak period, unnecessary items such as an unusable of the Constitution; transport to get to school and to return home; no pedestrians were observed obeying the traffic pole and a precast concrete litter bin, (c) enjoy the right to freedom and security pedestrian signals. as they impede pedestrians and limit the (d) many of the learners are culpa incapax, of their person in terms of section 12 of the capacity of the traffic islands; 3. Slipways have been provided on the they do not have the capacity to act diligently Constitution; and according to the standards expected of two quadrants of the intersection where (e) the rail barriers fail to protect reasonable pedestrians; (d) enjoy the right to an environment not pedestrian movements, specifically also scholar pedestrians; movements are prominent. Filtering phases harmful to their health and well-being in terms (e) the learners are prone to acting impulsively have also been provided and these limits (f) the intersection suffers from general of section 24 of the Constitution; and to be confused by the complicated traffic the time available for pedestrians to use the lack of maintenance with overgrown tree signals, to also mimicking older pedestrians (e) enjoy the right to basic education in terms intersection. branches that limit the sight vision of taking unreasonable risks whilst crossing of section 29. drivers; 4. Fencing has been implemented on the the intersection and lack the capacity for a sufficient understanding of the duty of 26. The First Defendant is under a legal obligation median islands on three of the four approaches (g) the warning traffic signs of scholars motorists and to take avoiding action in the to take reasonable measures to minimize the risk of the intersection notably to prevent ahead are inconspicuous and placed in an face of negligent motorists. of injury to the learners attending the First and pedestrians from crossing these approaches inappropriate position to cause information haphazardly. There is however other safety Third Plaintiffs by upgrading and improving the overload to drivers; 20. In the result the learners face an implications in that pedestrians move conditions at the intersection. unreasonable risk to their own safety that will alongside the fence on a very narrow median (h) the southern approach has a lack of a 27. Despite its statutory and constitutional where they are highly exposed to the vehicular not be abated in a reasonable manner by the kerbed median, the pedestrian fencing lacks obligations to take reasonable measures to traffic particularly since they cannot walk improvements referred to in the undertaking. a clear demarcation from the rest of the provide for the safety of learners crossing the on the median in a stable manner. A further roadway, pedestrians have no protection 21. The First Defendant is a juristic entity intersection the First Defendant has failed to: implication is that the fencing will inhibit the whilst crossing on the pelican marking and contemplated within the scope of Chapter 7 of free access to any incident on the approaches are placed in an unsafe situation. the Constitution. (a) upgrade and improve the conditions at the to the intersection and contribute to longer intersection and provide for the safety of the response times which may be particularly 16. The above upgrades and improvements 22. Section 152(1) of the Constitution provides young learners crossing the intersection; critical when emergency services have to mentioned in the CSIR report that were required that municipalities such as the First Defendant attend to a crash involving injuries.” to the intersection, were only accepted by the must ensure the provision of services to (b) construct a pedestrian bridge or bridges First Defendant on 15 October 2009 as being communities in a sustainable manner, promote or implement other improvements to the See: annexure “C”, pg 567 necessary to improve the conditions at the social and economic development and promote a intersection that would provide reasonably for 15. The report of the CSIR raised the following intersection, in a Notice served in terms of Rule healthy and safe environment. the safety of learners crossing the intersection. concerns relating to the safety of pedestrians 34 (2). A copy thereof is annexed marked “A”. 23. In terms of Section 208 of the Local 28. The failure to take reasonable measures as wishing to cross the intersection: 17. The undertaking by the First Defendant in Authorities Ordinance No. 25 of 1974 the aforementioned, infringes the constitutional (a) that the pedestrian timings do not terms of annexure “A” was one to only implement ownership, management and control of all public rights of the learners referred to above. accommodate the large pedestrian traffic the recommendations in the CSIR report. streets in its municipal area vests in the First demands during certain peak periods in the Defendant. 29. The failure by the First Respondent to improve day; 18. The said undertaking is insufficient to the conditions at the intersection constitutes constitute compliance with the First Defendant’s 24. Section 209(1) of the Ordinance gives the First conduct that does not meet with the precepts (b) inasmuch as the intersection is used constitutional obligations to take reasonable Defendant statutory powers “to make, construct, for legality in terms of the Constitution, and is mainly by learners who require special measures to provide for the safety of learners. lay, alter and keep clean and in repair” public unlawful.

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30. The Plaintiffs aver that the First Defendant has breached its constitutional obligation to take reasonable measures to address the unsafe situation facing learners at the intersection.

31. The Plaintiffs accordingly aver that the granting of the declaratory orders and a structural order as sought herein are necessary and appropriate to provide for effective relief arising from the breach of the First Defendant’s constitutional obligations.

98 A Legal Resource for Realising Ready to Learn? the Right to Education Securing Access to Education for Learners with Disabilities

Over the past several years, the Legal from any instruction, in clear violation of their Resources Centre (LRC) has been actively constitutional rights. involved in strategic litigation efforts to One of the LRC’s organisational clients, the advance the constitutional right to a basic Western Cape Forum for Intellectual Disability education of disabled learners and children (WCFID), is a not-for-profit support network with special educational needs across the that represents 150 schools, centres and non- country. In particular, the LRC has worked governmental organisations that care for some tirelessly to secure the rights of severely 1,200 severely and profoundly intellectually intellectually challenged learners in the disabled children who would otherwise be Western Cape to equal funding, helped a denied access to a quality education. Critically, “special needs” school in Grahamstown however, none of the WCFID’s member centres to secure adequate structures for its or organisations received any measure of funding or support from the provincial Department of learners, and worked with a Johannesburg Education. The LRC represented WCFID in its area special needs school to challenge an struggle to secure access to education for these eviction order that threatened to disrupt the vulnerable children before the High Court. The instruction of its vulnerable learners. Government of the Republic of South Africa, who was named as first respondent for strategic The South African Federation for Mental Health reasons linked to the national scope of the reports that four in every 100 South Africans issues at hand, along with the Government of live with an intellectual impairment – an the Western Cape, argued that the inequity astonishingly high number compared to the within its funding of special schools was as a worldwide figure of one in every 1,000. While the result of budgetary constraints as well as doubts South African government establishes and funds surrounding the effectiveness of schooling special needs schools, which seek to provide children with severe intellectual disabilities. specialised care for children with moderate to mild intellectual disabilities (IQ levels of between On 11 November 2010, in what constituted a 35 to 70), it does not afford the same level of major victory for children with severe intellectual funding to children living with severe or profound disabilities in this country, Justice Cleaver intellectual disabilities (IQ levels of 20 to 35, and ruled in favour of the WCFID, holding that less than 20, respectively). the respondents had failed to take reasonable measures to make provision for the educational These young learners, among the nation’s most needs of severely and profoundly intellectually vulnerable, are therefore left with no choice disabled children in the province. The judge The South African Federation for Mental Health reports but to rely on the assistance of centres funded dismissed the government’s two principal claims by non-governmental organisations. In reality, on the basis that their reasoning was flawed. that four in every 100 South Africans live with an however, the limited number of such educational Firstly, he held that expenditure on education intellectual impairment – an astonishingly high number facilities nation-wide means that many was a legitimate government purpose and severely and profoundly intellectually disabled that the claimants were arguing for available compared to the worldwide figure of one in every 1,000. children have simply been unable to benefit funds to be fairly spread between all children,

100 101 A Legal Resource for Realising Securing Access to Education for Learners with Disabilities | RELATED COURT PLEADINGS Ready to Learn? the Right to Education not for an extra provision of funds. Secondly, facilities, the improved structures and facilities he rejected unequivocally the government’s at Amasango mean that the school now finds argument that these children could not be itself in a far better position to reach out to other In the High Court of South Africa taught, citing evidence that demonstrated that it vulnerable learners in the community. was internationally accepted that education and (Western Cape High Court, Cape Town) training benefited children with such disabilities. In addition to litigation in the Eastern Cape, the The Court found that the respondents had LRC has also been working actively to advance breached the children’s rights to basic education, access to education for intellectually disabled CASE NO. 18678/2007 protection from neglect or degradation, equality, students in Gauteng. The Doug Whitehead and human dignity. Consequently, the Court School, a public special needs school in the ordered the government to take reasonable Johannesburg East area, provides a basic measures to ensure the constitutional right to education to 171 learners with mild to severe WESTERN CAPE FORUM FOR INTELLECTUAL DISABILITY | Applicant a basic education for these vulnerable children, cognitive and mental disabilities. Disabled and resulting in critical jurisprudence of national learners between the ages of five and nineteen importance for disabled learners. travel from across the city to learn an adapted GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA | First Respondent Grade R to Grade 1 curriculum that serves as Elsewhere in the country, in the small Eastern a springboard to further vocational training GOVERNMENT OF THE PROVINCE OF THE WESTERN CAPE | Second Respondent Cape city of Grahamstown, the Amasango and skills development. In a scene that is being Career School sought to provide a safe learning reproduced elsewhere in the country, this environment for its special needs students. institution provides vulnerable children and Despite its status as a fully-recognised, public young adults with an opportunity to realise their special needs school, the Department of rights to dignity, equality and a basic education. Education had never in fact provided Amasango with proper buildings. Initially the school Since its inception, however, this school has operated out of two shipping containers, and been a public school on private property. later moved into three rented, abandoned railway Consequently, a legal battle ensued to determine buildings which were overcrowded and barely the status of the school’s occupation of the habitable, with broken windows and peeling property. The very existence of this vital place of walls. The LRC worked alongside Amasango to learning for an extremely vulnerable segment of assist the school with its ultimate goal: to compel society was at risk when the private land owner the Department to build a permanent structure brought an application for the eviction of the with proper facilities that would foster a positive school. Although the private owner eventually learning environment. withdrew the application following successful By February 2012, following the initiation litigation on the part of the Department and the of contempt proceedings and subsequent LRC, the owner has since resumed his threats negotiations between the school and the on the grounds that the Department has failed Department, Amasango was provided with five to enter into a lease agreement with the school. new classrooms, a library, a toilet block and a The work in Gauteng is therefore ongoing, with storeroom. The school’s librarian was justifiably the local LRC office monitoring the delicate ecstatic that learners finally had a proper situation at the Doug Whitehead School closely. library in which to house learning materials and In addition, LRC staff members have now begun encourage a lifelong love for learning. While the conducting research on the delivery of special school and the LRC continue to work hard to needs education in the wider Johannesburg East compel the Department to construct permanent area.

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Special Care Centres receive no education 4.1 Very much less than is provided for other steps taken by the government to transform the Judgment Delivered at all. children. 14 race based departments of education which it inherited from the pre-1994 government. The this Thursday, 3.6 There are insufficient Special Care Centres 4.2 Inadequate to cater for the educational respondents explain that the following steps 11 November 2010 to cater for all such children. needs of these children; and were taken:- 3.7 The only contribution which the State 4.3 Only made available where a non- 8.1 In March 1995 the Department of Educa- makes to the education of such children is a governmental organisation provides such tion published the White Paper on Education subsidy paid by the Department of Health to facilities, and Training which was published in draft CLEAVER J the organisations which provide this service. form for consultation and was given extensive The policy and practice of the respondents media coverage. It was noted in that paper that 1. This application concerns the rights of severely 3.8 The financial support is less than the State infringes the rights of these children in services for learners with special educational and profoundly intellectually disabled children in respect of their right to education, their right provides for the education of children who are needs (LSEN) as well as education support the Western Cape. to equality, the right to human dignity and not so disabled. In the Western Cape systems, which included all education-related their right to protection from neglect and services in relation to health, social work, vo- 2. The applicant is a body corporate which has 3.8.1 the Department of Health pays an degradation. cational and general guidance and counselling as its members non-governmental organisations annual subsidy of R5 092 per child for were racially based. which care for children in the Western Cape with children with severe or profound intellectual 5. Each of these issues will be dealt with severe and profound intellectual disabilities. The separately. disabilities who attend Special Care Centres. 8.2 New education and training policies to members of the forum care for approximately address the legacies of under-development and 1000 children with such disabilities. 3.8.2 the respondents spend R6 632 per THE RIGHT TO EDUCATION inequitable resources had to be established child per annum on children who attend 6. Section 29(1)(a) of the constitution provides based on the constitutional guarantees of non- 3. The following facts are not in dispute: mainstream schools. that everyone has the right to a basic education, discrimination and equal education for all. 3.1 The State establishes and funds schools 3.8.3 the respondents spend R26 767 per including adult education. This right has both 8.3 All the vast needs in education could not which include schools known as “special child per annum on children with mild to a positive and negative dimension as was recognised by the Constitutional Court in ex be met at once or satisfied in a short period schools” which cater for the needs of children moderate intellectual disabilities who attend parte Gauteng Provincial Legislature in which and in the result it took some ten years and who are classified as having moderate to mild special schools. intellectual disabilities (IQ levels of 30–70). the court stated, with reference to the interim five further white papers to develop the educa- 3.9 Although counsel for the State submitted constitution, that tional policy now in place which is spelled out 3.2 Children with an IQ of under 35 are during the course of argument that for children in great detail in White Paper 6 which bears the “Section 32(a) creates a positive right that basic considered to be severely (IQ levels of 20–35) who do not qualify for admission to special heading ‘Special Needs Education Building an education be provided for every person and not Inclusive Education and Training System’ which or profoundly (IQ levels of less than 20) schools, no amount of education would be merely a negative right that such a person should was published in July 2001. intellectually disabled. Such children are not beneficial, that was not the case put forward admitted to special schools or to any other not be obstructed in pursuing his or her basic for the respondents in the papers. In the 1 State schools. education.” 9. The main features of White Paper 6 are papers the parties were ad idem that children summarised in the heads of argument provided 3.3 The State makes no direct provision for the with severe or profound intellectual disabilities 7. The respondents recognise the right of by the respondents’ counsel and the following education of children with severe or profound are able to benefit from education and training everyone, including the affected children, to extracts are relevant:- intellectual disabilities (the affected children). and the applicants made it clear in their papers education, but submit that the steps taken by the It also does not provide schools in the Western that this view has long been internationally respondents in this regard must be interpreted 9.1 “The policy does not exclude the children Cape for such children. accepted. in the light of the socio-economic history of the concerned. On the contrary, it is acknowledged country and that when this is done, it will be that different learning needs arise from a range 3.10 Such children have needs which are much 3.4 In the Western Cape the only education seen that the rights of the affected children are of factors including physical, mental, sensory, available to such children is at special care greater than those of children who do not have not being infringed. neurological and developmental impairments, centres which are run by non-governmental this degree of disability for the majority of the and differences in intellectual ability. It also organisations, such as the members of the children have secondary disabilities such as 8. A substantive portion of the answering acknowledges that the learners who are most applicant. As already mentioned approximately epilepsy, visual and/or hearing impairment and affidavits is taken up with an explanation of the vulnerable to barriers to learning and exclusion 1000 of these children are cared for by the cerebral palsy. in South Africa are those with disabilities and members of the applicant at what are termed 1. Ex Parte Gauteng Provincial Legislature: In re dispute impairments.” 4. The applicant contends that since the State ‘Special Care Centres’. concerning the constitutionality of certain provisions of the provision for children with severe or profound Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) at 9.2 “There is a systematic moving away from 3.5 Children who cannot obtain access to intellectual disabilities is paragraph [9]. using segregation according to categories

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of disabilities as an organising principle for converted to full-service schools, beginning particular expertise and support, especially beginning with the 30 school districts that institutions. The provision of education for with the 30 school districts that are part professional support in curriculum, assess- are part of the national District Development learners with disabilities is based upon the of the National District Development ment and instruction as part of the district Programme. These are schools that will intensity of support needed to overcome the Programme. support team to neighbourhood schools, be equipped and supported to provide for debilitating impact of those disabilities. There in particular full-service schools. Special the full range of learning needs among is an emphasis placed on supporting learners 9.4.4 Within mainstream education, schools will also provide life-skills, training learners. As stated in White Paper 6, it is through full-service schools that will have a governing bodies and professional staff and programme-to-work linkages. For ex- impossible in the medium term to convert bias towards particular disabilities depending should be introduced to the model of ample, a special school has specialised skills all 28 000 schools and colleges to provide on need and support. The policy also directs inclusive education. The range of diverse available among its staff and has developed the full range of learning needs. Despite how initial facilities will be set up, how the learning needs and intervention in the learning materials to assist learners who are this, the Department pursues a policy of additional resources required will be assessed Foundation Phase should be identified early. visually impaired. There may also be facilities inclusion of learners with disabilities who and it indicates how learners with disability for Braille available at the school. The profes- do not require intense levels of support, 9.4.5 District-based support teams, will be identified, assessed and incorporated sional staff at such a special school could designated full-service and other primary in full-service schools. These schools will into special, full-service and ordinary schools run a training workshop and produce learn- schools and educational institutions should be assisted to develop their capacity to in an incremental manner.” ing materials in their district for other educa- be established, to provide a coordinated provide for the full range of learning needs tors on how to provide additional support in and to address barriers to learning. Special 9.3 “The policy states that special needs professional support service that draws on the classroom to visually-impaired learners. expertise in further and higher education and attention will be paid to developing flexibility education is a sector where the ravages of For these reasons, White Paper 6 proposes in teaching practices and styles through local communities, targeting special schools. a qualitative upgrading of the services of apartheid remain most evident. Apartheid training, capacity-building and the provision special schools were organised according to special schools and a focus on the training 9.4.6 Learners are not categorised or of support to learners and educators in these two segregating criteria, race and disability. of staff for their new roles. This process of excluded from a school according to their schools. The impact of this policy was that only 20% of upgrading would take place once an audit of level of intelligence. Instead, the policy learners with disabilities were accommodated the programmes, services and facilities in all provides for basic education of learners with 9.4.10 The policies outlined in White in special schools. In 2001 statistics showed 378 special schools and independent schools intellectual disabilities at three types of Paper 6 will lead to more cost-effective that only about 64 200 learners with disabilities is completed. schools, namely special schools, full-service usage of resources in the long term when or impairments were accommodated in the proposed model is fully operational. schools (ordinary public schools that have 9.4.8 All special schools will be strengthened about 380 special schools. At that stage it was However, in the short-term additional the capacity to accommodate learners with with further resources and capacity. These estimated that there were 280 000 learners funding will be required for special needs mental disabilities), and mainstream schools. include specialised staff providing support with disabilities or impairments who were education. This funding will be sought from The school at which a child will be enrolled in the form of trans-disciplinary support unaccounted for.” a range of sources, more particularly from will depend on the level of need, ranging teams based at schools or visiting schools from one to five. Children at levels four and provincial education budgets and donor 9.4 “The following objectives are outlined as on an itinerant basis. The trans-disciplinary five who are severely disabled and receive funding, both local and international. key strategies in White Paper 6:” teams consist of staff from provincial, disability grants have the greatest need. district, regional and head offices and from 9.4.11 Given the funding constraints, the 9.4.1 “Special schools should be qualitatively special schools granting educators access 9.4.7 Children with severe intellectual dis- first respondent has proposed a realistic improved and gradually converted into to appropriate pre-service and in-service abilities whose needs are greatest may be timeframe of 20 years for the attainment of resource centres providing professional support education and training; and professional able to access support at special schools on the inclusive education and training system. to neighbourhood schools, and integrated into support services. Special schools will also a full-time or part-time basis. Special schools There is a detailed implementation plan district-based support teams. fulfil the role of resource centres for full- comprising immediate to short-term steps provide education to learners who require service schools and main stream schools. (2001–2003); medium-term steps (2004–2008); 9.4.2 The process of identifying, assessing intense levels of support, such as accom- To this end, the provincial departments and long-term steps (2009–2021). For the and enrolling learners in special schools modation in settings requiring secure care have successfully trained staff at 30 special short to medium term, i.e. the first five should be overhauled and be replaced by one or specialised programmes with high levels schools in all nine provinces to work at years, a three-pronged approach to funding that acknowledges the central role played by of support. These learners often require resource centres. In addition there are 30 is proposed. The chief sources of funding are educators, lecturers and parents. services by specialised health care; access to district-based support teams to provide new conditional grants from the national specialised equipment; and facilities which support in an integrated way as outlined 9.4.3 Disabled children and youth of school- are accessible to, for example, learners who above. government, funding from the budgets going age who do not attend school should are blind or bound to a wheelchair. Learners of provincial education departments and be mobilized. Approximately 500 out of who do not require this support on a fre- 9.4.9 White Paper 6 proposes the designation donor funds. It is however important that 20 000 primary schools within mainstream quent basis would be placed in mainstream and conversion of about 500 out of 20 000 the limited financial resources available for schooling should be designated and schools. Special schools will also provide primary schools to full-service schools, the education and training of individuals

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with barriers to learning are targeted to 12.1 The Conceptual and Operational Guidelines placement and that no learner with very high 18. As to the submission that steps taken by the those with the greatest need on the basis of for the Implementation of Inclusive Education: needs may be refused admission on the basis of respondents to implement White Paper 6 are poverty/income/socio-economic status. Full-Service Schools. These guidelines the severity of the learner’s support needs. sufficient to comply with the provisions of s 29(1) explain the main principles upon which full- (a) insofar as the affected children are concerned, 9.4.12 As regards staffing, the objective of the service schools are founded, describe their 15 Thirty ordinary schools have been identified the fact is that at present children with severe post-provisioning strategy is to allocate posts characteristics and outline the institutional for conversion into full service schools and or profound intellectual disabilities are excluded in accordance with the actual educational development process of such schools. physical infrastructure improvements were being from special schools. More importantly White support needs of the learners concerned and completed in 12 of these. In 2006 and 2007 district Paper 6 or the current implementation of not on the basis of category of disability. 12.2 The Conceptual and Operational Guidelines based support teams had been established in 30 government policy makes no provision for such The revised resourcing model will create a for the Implementation of Inclusive Education: designated districts and had started to provide children to be catered for by special schools at dedicated pool of posts for the educational Full-Service Schools as Resource Centres. These support services to special school resource present. The respondents only say that their support system. The post-establishment guidelines provide a conceptual framework for centres. objective is to ensure, at an unspecified time in model will have to be revised. The revision an inclusive system of education. They provide the future, that such children are catered for 16 With all this as background, counsel for the will focus on the development of an inter alia that disability should be seen not by special schools. Moreover, the furthest that respondents submitted that the right of the appropriate post-distribution mechanism, only in medical terms, but also in terms of the respondents go at this stage is to say that affected children to education, being a socio- guidelines for post-utilisation and structural the rights of the disabled person and contain such children “may be able to access support” at economic right, should not be seen in isolation and organisational arrangements to operation procedures for a paradigm shift from special schools. They do not indicate what form but together with other socio-economic rights ensure flexibility in the deployment of special education to inclusive education. this support will take, when it will occur, where such as housing, food, water, health care and posts. Particular attention will be given it will be provided and to what extent it will be 12.3 The Conceptual and Operational Guidelines social security. to optimising the expertise of specialist provided. The defence, as I understand it is that for the Implementation of Inclusive Education: support personnel, such as therapists, for the foreseeable future, the SIAS Strategy will District Support Teams. These guidelines sketch 17. Ultimately the defences put up by the psychologists, remedial educators and health continue to be employed. This in turn means the roll of support providers employed by the respondents are:- professionals.” that at least some of the affected children will National Department of Education to assist * The SIAS Strategy and policy expounded in continue to be taught at the special care centres 10. The respondents say that the objective of the education institutions such as schools and White Paper 6 indicates how the State intends inclusive education and training system proposed early childhood centres to identify and address provided by the applicant’s members for which to deal with the affected children. Having in White Paper 6 is to create a wider spread of barriers to learning and to promote effective no subsidy is received. regard to the scarceness of resources available educational support services in line with what teaching and learning. to the respondents, there will be children 19. As to when some of the affected children may learners with disabilities require. This means that who meet the SIAS criteria who will receive be admitted to special schools, the respondents learners who require low intensive support will 13. Provincial and Education Departments education and there will also be children who say that they will only be admitted if they are receive this in ordinary schools; those requiring have thus far trained 800 district officials and do not meet the criteria. In respect of these able to “acquire sufficient skills” or if they moderate support in full service schools; and educators of full service and special schools in it is submitted that no amount of education “achieve the minimum outcome and standards learners who require high intensive educational the implementation of the SIAS Strategy. will be beneficial for them and they will be linked to the grade of education”. Admission support in special schools. 14. In November 2007 the National Department dependent on the imparting of life skills to to a special school will be on the basis of an 11. In 2005 the National Department of Education of Education published guidelines to ensure them by their parents. assessment of a child’s level of educational need. developed the National Strategy on Screening, that all special schools become fully functional Children who fall inside Levels 4 and 5 of the * The respondents have limited resources and Identification, Assessment and Support (“the and contain the preparatory steps for the SIAS Strategy will be admitted to special schools. have to make difficult policy choices as to the SIAS Strategy”). This is directed at determining development of special schools as special school Those whose level of need are higher than that distribution of these resources in the face of the nature and level of support required by resource centres. Such resource centres are “will receive education through Partial Care learners with special education needs and to have professional teaching and specialist competing demands and are accordingly not Centres” such as those run by the applicant’s also outlines the procedures to ensure that all support staff, physical infrastructure such as in a position to make any further contribution members. On the respondents’ case therefore it learners with Level 4 and 5 needs (learners who facilities for learners with physical disabilities, to the education of the affected children. In is clear that when their policies are implemented require moderate and high levels) of support therapy rooms, incontinence facilities and rooms this connection it is argued that the right to there will be children with severe or profound such as learners who are disabled and receive for orientation and mobility training and the education should not trump rights to housing, intellectual disabilities who will be excluded from social security grants are admitted to schools and fitting and adjustment of assistive devices. The food, water, health care and social security. It the schooling to be provided by the respondents receive the necessary support. guidelines also provide that a special school may is also submitted that because of the size of as they will fall outside Levels 4 and 5 of the SIAS admit only learners who require support in the the problem facing the State, the court should Strategy. Perhaps it is for this reason that counsel 12. In June 2005 the National Department of area of specialisation; that learners must undergo be inclined to soften the budgetary impact of for the respondents submitted that no amount Education published three sets of guidelines for a screening and assessment process in terms of an unqualified reading of the right to education of education would be beneficial for children the implementation of White Paper 6. the SIAS Strategy before being considered for referred to in s 29(1)(a) of the constitution. failing to qualify for admission to special schools.

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This was a surprising submission for which Article 28 confirms the right to education. Article over the past decade away from treating them as on the basis of equal opportunity, States Parties no support is to be found in the papers. The 29(1)(a) states that objects of pity and towards respecting them as shall ensure an inclusive education system at applicant’s expert, Professor Christopher David equal citizens... The underlying vision of Article all levels and lifelong learning directed to: Molteno who is currently Emeritus Professor in “the education of the child shall be directed 15 is one of equal citizenship for persons with the Department of Psychiatry and Mental Health to... [t]he development of the child’s personality, disabilities and, fittingly, the primary rights (a) The full development of human potential at the University of Cape Town and an authority talents and mental and physical abilities to their are those of ‘independence, social integration and sense of dignity and self-worth, and the in the field says the following inter alia in support fullest potential”. and participation in the life of the community’. strengthening of respect for human rights, of the application:- Securing a right to education for children and fundamental freedoms and human diversity; 21. The African Charter on the Rights and Welfare others with disabilities plays an obviously of the Child provides in Article 11(1) and (2)(a) (b) The development by persons with “* It is necessary to adopt a holistic approach important role in advancing these citizenship that disabilities of their personality, talents for severely or profoundly disabled children, to rights. This explains why education is now enable them to develop their ability and potential and creativity, as well as their mental and “[e]very child shall have the right to an education” specifically mentioned in the revised Article 15 and to the fullest extent. I describe below the nature physical abilities, to their fullest potential; and “[t]he education of the child shall be directed why such an emphasis is placed on achieving that of the education which they need, and from to... the promotion and development of the child’s education ‘in the framework of general schemes, (c) Enabling persons with disabilities to which they can benefit. wherever possible’. It should be noted that personality, talents and mental and physical participate effectively in a free society. Article 15 applies to all persons with disabilities * For many years it has been internationally abilities to their fullest potential...” regardless of the nature and origin of their 2. In realizing this right, States Parties shall accepted that children with severe or profound 2 Article 13 provides: disability and irrespective of their age...” ensure that: intellectual disabilities are entitled to and are capable of benefiting from education. “1. Every child who is mentally or physically 23. Closer to home is the Convention on the (a) Persons with disabilities are not excluded disabled shall have the right to special measures Rights of Persons with Disabilities and its from the general education system on the * Their needs are different from those of other of protection in keeping with his physical and optional protocol which were ratified by South basis of disability, and that children with children, but are no less vital. They go to the moral needs and under conditions which ensure Africa on 30 November 2007. disabilities are not excluded from free heart of the ability of the children to lead a life his dignity, promote his self-reliance and active and compulsory primary education, or with the necessary dignity, fulfilment and as The preamble of the Convention provides: participation in the community. from secondary education, on the basis of much independence as is possible. disability; 2. States Parties to the present Charter shall “(m) Recognizing the valued existing and ...... potential contributions made by persons with ensure, subject to available resources, to a (b) Persons with disabilities can access an disabled child and to those responsible for his disabilities to the overall well-being and diversity * It is my professional experience and opinion inclusive, quality and free primary education care, of assistance for which application is made of their communities, and that the promotion of that children with profound or severe intellectual and secondary education on an equal basis and which is appropriate to the child’s condition the full enjoyment by persons with disabilities of disability are able to benefit very substantially with others in the communities in which and in particular shall ensure that the disabled their human rights and fundamental freedoms from appropriately designed and supported they live; child has effective access to training, preparation and of full participation by persons with educational programmes. Their needs are for employment and recreation opportunities disabilities will result in their enhanced sense substantially greater than those of children (c) Reasonable accommodation of the in a manner conducive to the child achieving of belonging and in significant advances in the without these disabilities.” individual’s requirements is provided; the fullest possible social integration, individual human, social and economic development of society and the eradication of poverty,.. The submission made on behalf of the development and his cultural and moral (d) Persons with disabilities receive the development.” support required, within the general respondents is also inconsistent with White (r) Recognizing that children with disabilities Paper 6 which makes it clear that all children education system, to facilitate their effective 22. Article 15 of the Revised European Social should have full enjoyment of all human rights require education. education; Charter provides for the right of persons with and fundamental freedoms on an equal basis disabilities to independence, social integration with other children, and recalling obligations (e) Effective individualized support measures and participation in the life of the community, to that end undertaken by States Parties to the are provided in environments that maximize 20. The need to provide fully for mentally or and recognises the importance of education Convention on the Rights of the Child... academic and social development, consistent physically disabled children is recognised world- for those purposes. In dealing with a complaint with the goal of full inclusion. Article 24 of the Convention provides wide. The United Nations Convention on the under the Revised European Social Charter, the 3. States Parties shall enable persons with Rights of the Child states in article 23 European Committee of Social Rights held as “1. States Parties recognize the right of persons disabilities to learn life and social development follows: with disabilities to education. With a view to “a mentally or physically disabled child should skills to facilitate their full and equal realizing this right without discrimination and enjoy a full and decent life, in conditions which “... the Committee views Article 15 of the Revised participation in education and as members of ensure dignity, promote self-reliance and facilitate Charter as both reflecting and advancing a the community. To this end, States Parties shall the child’s active participation in the community.” profound shift of values in all European countries 2. Autism of Europe v France (Complaint No 13/2002). take appropriate measures...

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4. In order to help ensure the realization of or her capabilities and skills to the maximum and attack on the equality provision and does not The relevant portions of s 9 of the Constitution this right, States Parties shall take appropriate will hasten the process of social integration and apply to an attack on the breach of s 29(1)(a). This read as follows: measures to employ teachers, including reintegration”. must be so, for otherwise the government would teachers with disabilities, who are qualified be able to resist every bill of rights challenge “9 Equality in sign language and/or Braille, and to train This process will work differently for each child, on the basis that it was pursuing a legitimate (1) Everyone is equal before the law and has professionals and staff who work at all levels according to the child’s own natural gifts, or government purpose and was therefore not the right to equal protection and benefit of of education. Such training shall incorporate lack thereof. In the case of the child who is deaf, bound by the bill of rights. In any event, the the law. disability awareness and the use of appropriate dumb, blind, or otherwise physically or mentally reliance on a rational connection to a legitimate handicapped, a completely different programme augmentative and alternative modes, means government purpose does not address the issue (2) Equality includes full and equal enjoyment of education has to be adopted and a completely and formats of communication, educational as to why the affected children have been singled of all rights and freedoms. To promote the different rate of progress has to be taken for techniques and materials to support persons out for manifestly less favourable treatment achievement of equality, legislative and with disabilities.” granted, than would be regarded as appropriate 4 than others and why any shortage in funds is not other measures designed to protect or for a child suffering from no such handicap.” imposed on all children, including the affected 24. Inasmuch as the State currently cooperates advance persons, or categories of persons, ones. A government purpose which imposes a with and relies on organisations such as the 26. The defence that the respondents are unable disadvantaged by unfair discrimination may differential treatment on the affected children applicant to provide education for mentally to afford further expenditure on education be taken. cannot in my view be said to be rational. It must disabled children, it must be borne in mind and that the government’s failure to do so be remembered that the applicants do not ask (3) The State may not unfairly discriminate that this does not relieve the State from its is justifiable for its rational connection to that the needs of the affected children be met directly or indirectly against anyone on one constitutional obligation. This is clear from a legitimate government purpose is in my by the provision of extra funds. What they ask of or more grounds, including race, gender, the Modderklip Boerdery case in which the view misplaced. The question as to whether a the respondents is to spread the available funds sex, pregnancy, marital status, ethnic or constitutional court held:- differentiation bore a rational connection to a legitimate government purpose was dealt with fairly between all children, including the affected social origin, colour, sexual orientation, age, “45 ...It is unreasonable for a private entity such by the Constitutional Court in Harksen v Lane children. I am accordingly of the view that the disability, religion, conscience, belief, culture, as Modderklip to be forced to bear the burden and Others5, which dealt with an alleged unfair appellant has established that the rights of the language and birth. which should be borne by the State, of providing discrimination in terms of the equality clauses in affected children to receive a basic education are ... the occupiers with accommodation...”3 the interim constitution. During the course of his being infringed. judgment, Goldstone J dealt with the stages of (5) Discrimination on one or more of the 25. A case in point is that of O’Donoghue which THE RIGHT TO EQUALITY enquiry which become necessary where an attack grounds listed in subsection (3) is unfair unless was heard in the Irish High Court where the is made on a provision in reliance on the equality 27. The respondents resist the contention that it is established that the discrimination is fair.” court held that the failure of a government to clause in the interim constitution. He recorded they do not infringe the rights of the affected provide ‘primary education’ in the context of the first stage in the following manner:- children to equality as provided for in s 9 of the 28. Points 1 and 3 are inter-related and I will deal the Irish Constitution for Intellectually Disabled Constitution for the following reasons: with them first. The respondents are of course Children was in breach of the constitution. The “(a) Does the provision differentiate between correct in emphasising that the policy set out obligation of the Irish State was expressed as people or categories of people? If so, does the 1. They contend that there is no differentiation in White Paper 6 does not in terms differentiate follows:- differentiation bear a rational connection to a in the manner in which the affected children between the affected children and other children. legitimate government purpose? If it does not are treated when compared with the manner That is conceded by the applicant whose case “I conclude, having regard to what has gone then there is a violation of s 8(1). Even if it does in which other children are treated. is, as already set out, that the policy spelled before, that there is a constitutional obligation bear a rational connection, it might nevertheless out in the paper does not assist the affected imposed on the State by the provisions of Article amount to discrimination.” 2 If there is indeed a differentiation, they children at present and that on the available 42.4 of the Constitution to provide for free basic contend that such differentiation is linked evidence, the affected children are not likely to elementary education of all children and that this In my view, the portion of the judgment quoted to a legitimate government purpose and is be accommodated into the schooling system involves giving each child such advice, instruction relates clearly to the situation when there is an therefore justified. and teaching as will enable him or her to make until about 2021. As in the case of the education the best possible use of his or her inherent and 3. President of the Republic of South Africa and another v 3. They point out that the educational challenge, the respondents place much store potential capacities, physical, mental and moral, Modderklip Boerdery (Pty) Ltd (Agri SA and others, Amici policy as spelt out in White Paper 6 contains on the steps taken prior to the publication of however limited these capacities may be. Or, Curiae 2005 (5) SA 3 (CC). no reference to the differentiation of the White Paper 6 and what has been done since. to borrow the language of the United Nations 4. O’Donoghue (a Minor) suing by his mother and next treatment of the affected children. They set out in great detail how the educational friend O’Donoghue v The Minister for Health, The Minister Convention and Resolution of the General policy was altered after 1994 so that when White for Education, Ireland and the Attorney General [1993] 4. If it is found that they in fact do infringe the Paper 6 saw the light of day, the government’s Assembly - “such education as will be conducive IEHC 2; [1996] 2 IR 20 (27th May, 1993). This judgment was to the child’s achieving the fullest possible social approved by the Irish Supreme Court in Sinnott v Minister rights of the affected children to equality, they policy had moved from categorising children integration and individual development; such for Education [2001] IESC 63; [2001] 2 IR 505 (12 July 2001). contend that such infringement is justified with disabilities by providing special education education as will enable the child to develop his 5. Harksen v Lane NO and Others 1998 (1) SA 300 (CC under s 36 of the Constitution. for them in a non-racial system in which

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they are to be included in the school system consideration. The question is accordingly with all its ramifications be provided for the 1. The South African Schools Act 84 of 1996 as explained in para [9]. Affidavits have also whether the differentiation between the affected children. Their case is simply that the (“the Schools Act”) been filed by the respondents dealing with the affected children and other children bears a respondents are expected to indicate why the restructuring of the social security system, the rational connection to a government purpose. available funds are spread in such a manner that 2. National Education Policy Act 27 of 1996 provision of social security grants to alleviate In my view the answer is the same as that the affected children are cut out of the picture (“NEPA”) poverty and payment made in respect of child which was reached when examining the entirely. Such information as the respondents did 3. The Mental Health Care Act No 17 of 2002. support for more than 8,6 million children under educational challenge. As Woolman and others provide in respect of expenditure does not in my 7 Children’s Act No 28/2005 which gives effect have remarked and the manner in which the view meet point 3 above. It is clear that none of the three Acts referred to the right of children to social services and Constitutional Court has approached both to contain any provision which authorises THE SECTION 36 ARGUMENT the right to be protected from maltreatment, qualified rights and unqualified rights suggests an infringement of the rights of the affected neglect, abuse and degradation. As to the that it will be hesitant to read s 29(1)(a) in a full 31. The defence that the failure to provide children and in my view the fact that they are implementation of the policy set out in White and unqualified manner. Presumably the same education to the affected children and their laws of general application does not have the Paper 6 the first respondent has proposed what will apply to the implementation of the equality unequal treatment, if so found by the court, is result, as respondents’ counsel will have it, is termed a realistic time frame of 20 years provisions in s 9(3) of the Constitution, but I justified in terms of s 36 of the Constitution was that s 36 kicks in. For this to happen, the Acts for the attainment of the inclusive education agree with counsel for the applicant that before not raised in the pleadings, but only in counsel’s must limit the rights of the affected children and training system. The implementation this can be done, the respondents should at the to be treated equally. Were this not so, any heads of argument. This is not permissible for the plan comprises immediate to short term steps very least have law of general application could be relied applicant was not given a proper opportunity to (2001–2003); medium term steps (2004–2008); and upon as a source for the limitation referred 1. Explained why the budgetary shortfall should deal with the issue. Should I be wrong however long term steps (2009–2021). The respondents to in s 36, even though no such limitation is be carried by the affected children instead of in disregarding the submissions made by counsel say that the implementation of the strategies contained in the Act. That the limitation is to being shared by all. for the respondents I will nevertheless deal with which I have outlined have started to have an be contained in the law of general application impact on the enrolment of children and youth these submissions. 2. Explained why it is reasonable and justifiable itself was made clear in August and Another v with disabilities, for in 2008 there had been a 9 that the most vulnerable should pay the price 32. Section 36(1) sets out the requirements for a Electoral Commission and Others . In that case significant increase in the enrolment of learners in contradiction to what the Constitutional justified limitation. the Electoral Commission, acting in terms of who previously did not attend school. There Court held in Grootboom8 and the Electoral Act, a law of general application, is in fact no further information as to what “(1) The rights in the Bill of Rights may had ruled that prisoners were not entitled to impact the strategies have had on youth with 3. Provided a budgetary analysis which shows be limited only in terms of law of general vote in the general election. The Constitutional disabilities save that the respondents say that what resources are available and what would application to the extent that the limitation Court found that the Commission was more than 10 000 learners have been enrolled in be the additional cost of meeting the rights of is reasonable and justifiable in an open and obliged to take reasonable steps to create the special and main stream schools. The case for the these children. democratic society based on human dignity, opportunity for eligible prisoners to register respondents is that the steps which have been equality and freedom, taking into account all and vote and its failure to do so constituted a taken have been addressed through large scale 30. The respondents sought to explain just how relevant factors, including - threatened breach of s 19 of the constitution. intervention much of which was made possible much it would cost to provide full equality of Section 19 provides for every citizen to be free by donor funding from the Nordic countries, education for the affected children by referring (a) the nature of the right; to make political choices and for every adult since the Department of Education has been to portions of the affidavits filed on behalf citizen to be entitled to vote in the elections for (b) the importance of the purpose of the forced to rely on this funding due to its extremely of the applicant. In doing so they applied a any legislative body established in terms of the limitation; limited resources and competing demands on monetary value to the ideal form of education constitution. The submission on behalf of the the public purse such as housing, health care and which they perceived to be the applicant’s case. (c) the nature and extent of the limitation; Electoral Commission that the infringement of social services. In the light of this, it is submitted, This approach misconceives the information the prisoners’ rights was justified in terms of 6 relying on the Bel Porto decision, it recognised put up by the applicant, for nowhere does the (d) the relation between the limitation and its s 36 of the constitution was dealt with by the the grossly unequal education system which had applicant ask that the ideal type of education purpose; and court in the following manner in paragraph 23 been inherited by the State that the steps which of the judgment. I have outlined are rationally linked to legitimate (e) less restrictive means to achieve the 6. Bel Porto School Governing Body and Others v Premiere, government purpose and that accordingly such purpose.” “In the absence of a disqualifying legislative Western Cape and Another 2002 (3) SA 265 (CC). disparity which exists between the affected provision, it was not possible for respondents 7. S Woolman & H Botha ‘Limitations’ in S Woolman, T 33. As I understand the submissions advanced children and other children is justified. Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) to seek to justify the threatened infringement Constitutional Law of South Africa (2nd Edition, OS, July on behalf of the respondents, it is that of prisoners’ rights in terms of s 36 of the 29. The portion of the judgment in Harksen 2006) s 348. v Lane and Others quoted in paragraph [26] 8. Government of the Republic of South Africa and Others v three Acts were laws of general application, is apposite for the issue of equality is under Grootboom and Others 2001 (1) SA 46 (CC). namely 9. 1999 (3) SA 1 (CC).

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Constitution as there was no law of general 35. Reference was made to s 2(1) of the Schools The third enquiry, namely whether this violation the onus of establishing that the provisions of application upon which they could rely to do so.” Act which provides that the Act refers to school was justified, does not arise. We are not dealing s 36 apply. education throughout the Republic. In terms here with a law of general application...... ” 11 34. That brings me to what I consider to be the of s 2(2) of the Schools Act, the member of the 42. If it should be found that s 36 is applicable, main thrust of the submission made by the Executive Council of a province responsible for 39. The weight of South African academic writers my view is that in any event the respondents respondents’ counsel which is to the effect that if education must exercise any power conferred is against the submissions made on behalf of have failed to establish that the limitation a power is sourced in a law of general application upon him or her under the Act after taking full the respondents. Currie and De Waal are of the is reasonable and justifiable in an open and and the effect or determination of the law brings account of the applicable policy determined in view that a mere policy or practice (even of an democratic society based on human dignity, 12 about a limitation of rights, s 36 kicks in. As I terms of NEPA. organ of State) cannot qualify as law. Professor equality and freedom. The case for the understand counsel’s submission, it boils down to Liebenberg relying also on Hoffmann is of the respondents is that having regard to the steps this; that the policy contained in the white paper 36. Reference was also made to the Mental view that:- which it has taken to address the inequities is authorised in terms of NEPA and therefore that Health Care Act in order to highlight the fact that of the past in providing education to as many policy which applies countrywide and which in its object is to provide for the care and treatment “Policies, practices and programmes do not learners as possible, the budgetary constraints 13 effect discriminates against the affected children of persons who are mentally ill and the fact that generally constitute laws of general application.” which they are faced with are such as to justify is justified in terms of s 36 of the constitution. In s 3(a) of that Act provides that the objects of the the limitation. In doing so considerable reliance advancing this argument counsel made reference Act are to regulate mental health care in a way while Woolman states that is placed on the judgment in Bel Porto.16 to the following: that: makes the best possible mental health care, “Whether ‘mere’ norms and standards, directives treatment and rehabilitation services available “The fact that there may be more than one or guidelines issued by government agencies 34.1 The objectives of NEPA as set out in s 2 of to the population equitably, efficiently and in rational way of dealing with the particular or statutory bodies qualify as laws of general that Act include the determination of national the best interest of health care users within the problem does not make the choice of one rather application remains unclear.” 14 policy by the minister in accordance with limits of available resources; and coordinates than the others an irrational decision. The making certain principles and the monitoring and of such choices is within the domain of the access to mental health care, treatment and Cheadle, Davis and Haysom, relying on evaluation of education. Executive. Courts cannot interfere with rational rehabilitation services to various categories of Hoffmann’s case, are of the view that a limitation decisions of the Executive that have been made mental health care users. of right must have its source in a law of general 34.2 Section 3(1) of NEPA enjoins the lawfully, on the grounds that they consider that application. minister to determine national education 37. In the ultimate analysis the submission by a different decision would have been preferable.” policy and in terms of s 3(4) the minister is the respondents’ counsel is that the authority to “It cannot be located in an executive act or required to determine national policy for the 43. To start with, regard must be had to the discriminate between the affected children and policy, unless an authorising law permits such planning, provision, financing, coordination, other children including less severely mentally concept of reasonableness as explained by the limitation.” .17 management, governance, programs, affected children is to be found in the policy Constitutional Court in Grootboom Writing for monitoring, evaluation and well-being of the spelled out in the White Paper. Counsel went They go on to explain the court Jacoob J held as follows:- education system. on to submit that having regard to the nature “43… A program that excludes a significant and extent of the limitation, the benefits that “The policy underlying this requirement is partly 34.3 The directive principles of national segment of society cannot be said to be the White Paper seeks to achieve outweigh the premised on the foundational democratic values. education are set out in s 4 of NEPA which reasonable. ... immediate needs of the children concerned. It is only a democratically elected legislature that provide for the education system to contribute has the power to limit rights in order to advance to the full personal development of each 38. Respondents’ counsel was unable to refer us or defend social interests. This requirement is also student; to the moral, social, cultural, to any authority which supported his submission based on a fundamental assumption underlying 11. At paragraph 41. 12. Ian Currie and Johan De Waal (Eds) The Bill of Rights political and economic development of that the determination of the policy in terms the rule of law, namely that a law must apply Hand Book, 5th Edition, p169. the nation at large; to achieving equitable of NEPA was sufficient to bring the provisions equally to all and not be arbitrary in the scope of 13. Socio-Economic Rights: Adjudication Under a education opportunities and the redress 15 of s 36 into play. Such authority as was made its application...... ” Transformative Constitution, Sandra Liebenberg, p94, Juta, of past inequalities in education provision; available to us, Hoffmann v South African 2010. endeavouring to ensure that no person is Airways10 does not support the respondents’ case. 40. In the present case, it is clear that none of 14. Constitutional Law of South Africa, 2nd Ed (Vol 2), denied the opportunity to receive an education In Hoffmann the court held:- the Acts referred to authorise any limitation on Woolman and Others, Chapter 34 (34-53), Juta. to the maximum of his or her ability as a the rights of the affected children. The white 15. South African Constitutional Law, The Bill of Rights, result of physical disability; to recognising the “I conclude, therefore, that the refusal by SAA paper on which the respondents seek to rely is Cheadle Davis, Haysom, LexisNexis Butterworths, p30-8 in fine. aptitudes, abilities, interests, prior knowledge to employ the appellant as a cabin attendant merely a document issued by the Department of 16. Bel Porto School Governing Body and Others v Premiere, and experience of students; and achieving a because he was HIV positive violated his right to Education. Western Cape and Another 2002 (3) SA 265 (CC) at paragraph cost-effective use of education resources and equality guaranteed by s 9 of the Constitution. 45. sustainable implementation of education 41. On what has been put before us I am not 17. Government of the Republic of South Africa and Others v services. 10. 2001 (1) SA 1 (CC). persuaded that the respondents have discharged Grootboom and Others 2001 (1) SA 46 (CC).

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44…Reasonableness must also be understood in the costs of including permanent residence in the in relation to the overall budget. The special care “Section 38 of the Constitution contemplates the context of the Bill of Rights as a whole…. The system would only be a small proportion of the centres in the Western Cape provide education to that where a right in the Bill of Rights has been right of access to adequate housing is entrenched total cost. In the matter before us, the case for approximately 1000 children while it is estimated infringed, a court may grant ‘appropriate’ relief. because we value human beings and want to the applicants is not that the affected children that there are approximately 1500 children with Section 172(1)(b) states that when deciding a con- ensure that they are afforded their basic human should be fully provided for, but merely that they severe or profound intellectual disabilities in the stitutional matter, a court may make ‘any order needs. A society must seek to ensure that the should not be excluded from the provision of any Western Cape. that is just and equitable’. basic necessities of life are provided to all if it is to assistance. be a society based on human dignity, freedom and 49. The applicant accepts that what it terms the Appropriate or just and equitable relief is relief equality. To be reasonable, measures cannot leave 45. In view of the aforegoing, I conclude that the systemic and sustained breach of the rights of which will be effective. The relief must be chosen out of account the degree and extent of the denial applicant has established that the respondents the affected children cannot be cured overnight for its ability to protect the constitutional right of the right they endeavour to realise. Those are infringing the rights of the affected children, and that it is not possible or appropriate for which is infringed, and fashioned to meet the whose needs are the most urgent and whose both in respect of the positive dimension of the court to prescribe in detail what program nature of the infringement. What will be effective, ability to enjoy all rights therefore is most in peril, the right, by failing to provide the children should be established to meet the needs and depends on the factual context of the case. If the must not be ignored by the measures aimed at with a basic education and also in respect of rights of the children. As to the ‘systemic’ relief is not effective, the right is not vindicated. achieving realisation of the right. It may not be the negative dimension of the right, by not breach, the applicant’s deponent says that In Fose v Minister of Safety and Security 1997 (3) sufficient to meet the test of reasonableness to admitting the children concerned to special or since approximately 1997 the applicant has other schools. As I have attempted to show, SA 786 (CC)... Ackermann J said that: show that the measures are capable of achieving been engaged in negotiations with the Western there is in my view no valid justification for the a statistical advance in the realisation of the Cape Department of Education, and to a lesser ‘Appropriate relief will in essence be relief that infringement of the rights of the affected children right. Furthermore, the Constitution requires that extent the Western Cape Departments of Health is required to protect and enforce the Constitu- to a basic education and to equality. everyone must be treated with care and concern. and Social Services in an attempt to achieve tion. Depending on the circumstances of each If the measures, though statistically successful, 46. From what has been set out in this judgment an improvement of the plight of profoundly particular case the relief may be a declaration of fail to respond to the needs of those most it must in my view also follow that the children’s or severely intellectually disabled children and rights, an interdict, a mandamus or such other desperate, they may not pass the test.” 18 rights to dignity have been infringed since they details are furnished as to the many meetings relief as may be required to ensure that the rights held by the members of the applicant with the enshrined in the Constitution are protected and In Khosa’s19 case the following important have been marginalised and ignored and in Department of Education over the period October enforced.’ … principle was enunciated:- effect stigmatised. The failure to provide the children with education places them at the risk 1997 to October 2005. In October of that year ‘I have no doubt that this Court has a particular “It is also important to realise that even when of neglect for it means that they often have to the forum held a general meeting of its Special duty to ensure that, within the bounds of the where the State may be able to justify not paying be educated by parents who do not have the Care Centre members and so-called Education Constitution, effective relief be granted for the benefits to everyone who is entitled to those skills to do so and are already under strain. The Management and Development Centres and infringement of any of the rights entrenched in benefits under s 27 on the grounds that to do so inability of the children to develop to their own principals of special schools to evaluate the it. In our context an appropriate remedy must would be unaffordable, the criteria upon which potential, however limited that may be, is a form clustering progress which had been set up by the mean an effective remedy, for without effective they choose to limit the payment of those benefits of degradation. department. The applicant has a negative view as remedies for breach, the values underlying and (in this case citizenship) must be consistent with to the impetus and support given to the training 20 the right entrenched in the Constitution cannot the Bill of Rights as a whole.” 47. From the aforegoing it must follow that the of the staff and principals of the Education children’s rights to dignity and to be protected properly be upheld or enhanced. Particularly in a Management and Development Centres and says This means of course that the respondents from neglect and degradation have also been country where so few have the means to enforce that despite co-operation from certain special must establish that the rights of the affected infringed and there is no valid justification for their rights through the courts, it is essential that needs schools with regard to clustering, no children to equality have not been infringed by such infringement. on those occasions when the legal process does further progress was made, with the exception of discriminating against them on the grounds of establish that an infringement of an entrenched one pilot project. The applicant accordingly now intellectual disability. 48. Insofar as the applicant’s case is concerned, right has occurred, it be effectively vindicated.’ the cost of providing basic education to the seeks the grant of a structural interdict in terms 44. In the Khosa case, the Constitutional Court small number of affected children will be small whereof the respondents should be ordered to The circumstances and, in particular, the attitude rejected the government’s submission that submit a program to the court as to how the of denial expressed by applicant in failing to the provision of social security to permanent 18. Government of the Republic of South Africa and others v respondents intend to remedy the breach of the recognise the plight of respondents... makes residents would impose too heavy a financial Grootboom and others (supra). rights of the affected children and to report on a this an appropriate situation in which an order, burden on the State. One of the reasons for 19. Khosa and Others v Minister of Social Development periodic basis as to the progress made and what which is sometimes referred to as a structural coming to this conclusion was that there had and Others; Mahlaule and Others v Minister of Social further progress is intended. As to the reason interdict, is ‘necessary’, ‘appropriate’ and ‘just Development and Others 2004 (6) SA 505 (CC) been no clear evidence as to what the cost of why such an interdict may be granted, reference and equitable’.” 20. Khosa and Others v Minister of Social Development providing the social grants amounted to and that and Others; Mahlaule and Others v Minister of Social may be had to the judgment in City of Cape Town 21 what was available to the court, it appeared that Development and Others (supra) at paragraph 45. v Rudolph in which Selikowitz J held as follows:- 21. 2004 (5) SA 39 (C).

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50. In my view this is an appropriate matter in 52. In the circumstances I conclude that the 3. The respondents are directed, within twelve the applicant’s commentary, deliver their reply which a structural interdict may be granted. Such applicant is entitled to the relief sought and months of the date of this order, to deliver under oath to the said commentary. relief has been granted on numerous occasions accordingly make the following orders: to the applicant and to file at this court a and is appropriate when the court does not wish report, under oath, as to their implementation 6. The applicant shall be entitled, if so advised, to prescribe to the respondent the detail of what 1. It is declared that the respondents have of paragraph 2 of this order. The said report to enrol the matter for hearing thereafter steps must be taken. Relief of this nature see failed to take reasonable measures to make may deal with any relevant matter that for determination of whether there has been also Rail Commuters Action Group and Others v provision for the educational needs of severely the respondents wish to raise or report. In compliance with paragraph 2 above and for Transnet Limited t/a Metro Rail and Others.22 In and profoundly intellectually disabled children addition, the respondents are required to set such other relief as the applicant may seek in the Western Cape, in breach of the rights of Kiliko and Others v Minister of Home Affairs and out the detail of: in the light of the exchange of information those children to: Others this court held as follows:- referred to in paragraphs 3, 4 and 5 above. 3.1 what steps they have taken to give effect 1.1 a basic education “... as the manner in which the Department to paragraph 2 of this order; 7. The first and second respondents are to discharges its duties and obligations to refugees pay the applicant’s costs of this application, 1.2 protection from neglect or degradation 3.2 what further steps they will take to give not only deleteriously affects the freedom and which costs include the costs of employing effect to paragraph 2 of this order: dignity of a substantial number of disadvantaged 1.3 equality two counsel, the one paying the other to be human beings, but also fails to adhere to the 3.3 when they will take each further step to absolved. 1.4 human dignity values embodied in the Constitution, I incline to give effect to paragraph 2 of this order. the view that the instant case is an appropriate R B CLEAVER 2. The respondents are directed forthwith to one for the granting of a structural interdict...”23 4. The applicant may, within one month after take reasonable measures (including interim service upon it of the said report, to deliver its ALLIE J steps) in order to give effect to the said rights 51. In N and Others v Government of Republic commentary under oath on the said report. of South Africa and Others (No 1)24, while of severely and profoundly intellectually disable I agree recognising that the grant of a structural children in the Western Cape, including (but 5. The respondents may, within a further interdict might amount to an unwarranted not limited to): period of two weeks after service upon them of R ALLIE interference with the authority and discretion 2.1 ensuring that every child in the Western of the executive arm of the government, the Cape who is severely and profoundly court held:- intellectually disabled has affordable access to a basic education of an adequate quality; “However, nothing rational or workable has been forthcoming from the respondents with regard to 2.2 providing adequate funds to the applicants... I am of the view therefore that organizations which provide education structured relief is justified based on the facts for severely and profoundly intellectually before me and the circumstances of the case. disabled children in the Western Cape at The respondents submit that this application was special care centres, such as to enable them unnecessary because they are implementing the to: operational plan and guidelines. Having carefully considered the evidence before me, I come to 2.2.1 have the use of adequate facilities for the conclusion that such steps as have been this purpose; shown to have been taken by the respondents are unworkable and characterised by delays, 2.2.2 hire adequate staff for this purpose; obstacles and restrictions.... To my mind, such 2.3 providing appropriate transport for an order is justified in the special circumstances the children to and from such special care of this case, more especially, as I see it, there centres; has been and continues to be a violation of the applicants’ constitutional rights. There is nothing 2.4 enabling the staff of such special care forthcoming from the respondents... A structured centres to receive proper accreditation, order with a supervisory component is therefore training and remuneration; and just, equitable and appropriate”. 2.5 making provision for the training 22. 2003 (5) SA 518 (C). of persons to provide education for 23. 2006 (4) SA 114 (C) at paragraph [32]. children who are severely and profoundly 24. 2006 (6) SA 543 (D) at paragraph [32]. intellectually disabled.

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3. The Respondents are directed, within four Notice of Motion months of the date of this order, to deliver to the In the High Court of South Africa Applicant and to file at this Court a report, under oath, as to their implementation of paragraph 2 (Cape of Good Hope Provincial Division) KINDLY TAKE NOTICE that the Applicant intends of this order. The said report may deal with any to make application to this Honourable Court for relevant matter that the Respondents wish to an order in the following terms:- raise or report. In addition, the Respondents are CASE NO. 18678/07 required to set out the detail of: 1. It is declared that the Respondents have failed to take reasonable measures to make provision 3.1 what steps they have taken to give effect to for the educational needs of severely and paragraph 2 of this order; In the matter between: profoundly intellectually disabled children in the 3.2 what further steps they will take to give WESTERN CAPE FORUM FOR INTELLECTUAL DISABILITY | Applicant Western Cape, in breach of the rights of those children to effect to paragraph 2 of this order; and 1.1 a basic education 3.3 when they will take each such further step GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA | First Respondent to give effect to paragraph 2 of this order 1.2 protection from neglect or degradation GOVERNMENT OF THE PROVINCE OF THE WESTERN CAPE | Second Respondent 4. The Applicant may, within one month after 1.3 equality service upon it of the said report, to deliver its commentary under oath on the said report. 1.4 human dignity

2. The Respondents are directed forthwith to take 5. The Respondents may, within a further period reasonable measures (including interim steps) in of two weeks after service upon them of the order to give effect to the said rights of severely Applicant’s commentary, deliver their reply under and profoundly intellectually disabled children in oath to the said commentary. the Western Cape, including (but not limited to): 6. The Applicant shall be entitled, if so advised, 2.1 ensuring that every child in the Western to enrol the matter for hearing thereafter for Cape who is severely and profoundly a determination of whether there has been intellectually disabled has affordable access to compliance with paragraph 2 above and for such a basic education of an adequate quality; other relief as the Applicant may seek in the light of the exchange of information referred to in 2.2 providing adequate funds to organizations paragraphs 3,4 and 5 above. which provide education for severely and profoundly intellectually disabled children in 7. The First and Second Respondents will pay the Western Cape at special care centres, such the Applicant’s costs of this application, the one as to enable them to paying the other to be absolved.

2.2.1 have the use of adequate facilities for 8. Further, other or alternative relief this purpose; KINDLY TAKE NOTICE FURTHER that the affidavits 2.2.2 hire adequate staff for this purpose; of Fatima Shaboodien, Christopher Molteno and 2.3 providing appropriate transport for the Russel Wildeman annexed hereto will be used in children to and from such special care centres; support of this application.

2.4 enabling the staff of such special care The Applicant has appointed the Legal Resources centres to receive proper accreditation, Centre, 3rd Floor, Greenmarket Place, 54 training and remuneration; Shortmarket Street, Cape Town, as the address at which it will accept notice and service of all 2.5 making provision for the training of persons process in these proceedings. to provide education for children who are severely and profoundly intellectually disabled. If you intend opposing this application, you must: 122 123 Securing Access to Education for Learners with Disabilities | RELATED COURT PLEADINGS

a) by not later than 15 February 2008 notify the Applicant’s attorneys in writing and in that

notice appoint an address referred to in Rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings, and

b) within 15 days of notifying the Applicant of your intention to oppose this application, deliver your answering affidavit, if any, together with any relevant documents.

If no such notification is given, the application will be set down for hearing.

DATED AT CAPE TOWN THIS I4th DAY OF DECEMBER 2007

W R KERFOOT Applicant’s Attorney Legal Resources Centre

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Though the right to a basic education is is afforded to everyone who is physically within enshrined in the South African Bill of Rights, the borders of South Africa, regardless of his or many children still experience numerous her immigration status. Furthermore, the South barriers to even accessing admission to a African Schools Act 84 of 1996 prohibits schools public school. The Legal Resources Centre from using immigration status as a basis for (LRC) is involved in both frontline advocacy exclusion. Nevertheless, refugee children are still and strategic litigation to challenge the frequently denied or delayed entry to a public school by Department of Education officials, who discriminatory entry criteria posed by demand that the children provide proof of their government officials and school governing refugee status. The Cape Town LRC office is active bodies. in advocating on behalf of these children. To date, The LRC is currently involved in several cases the LRC’s demand letters against the Western which seek to clarify the roles and powers of a Cape Provincial Department of Education have school governing body (SGB). In South Africa, been sufficient to reverse the governmental the governance of every public school is vested intransigence and successfully secure the in its SGB. This body stands in a position of children’s access to schooling. trust towards the school and is composed of the principal plus parents and other community members, as elected by the school’s parent membership. With wide-ranging powers Power to Determine granted under the South African Schools Act 84 of 1996, which include such responsibilities Language Policy as administering and controlling the school’s property, formulating a student code of conduct, and determining a school’s admissions policy, Another barrier faced by schoolchildren an SGB holds substantial sway over a student’s highlights the legal and practical complexities of educational experience. The LRC is committed balancing competing constitutional rights in the to ensuring that SGB powers are necessarily new democratic South Africa: namely the issue of circumscribed and informed by the South African school language policy. Under the Constitution, Schools Act, as well as by the rights and values eleven official languages are recognised, and enshrined in the South African Constitution. everyone also “has the right to receive education in the official language or languages of their choice in public educational institutions where Exclusion of that education is reasonably practicable.” In Owing to the broad and inclusive language in the Bill most South African public schools today, English Refugee Children is one of, if not the sole, language of instruction. of Rights, the right to a basic education is afforded to Schools which choose to use another official everyone who is physically within the borders of South language have the reasonable expectation that Owing to the broad and inclusive language in students admitted to the school be capable of Africa, regardless of his or her immigration status. the Bill of Rights, the right to a basic education understanding and receiving instruction in that

126 127 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education language. Unfortunately, as a legacy of apartheid, to a similar case still before the Constitutional The LRC represents the two amici curiae in The LRC therefore argued that while a SGB may many of the best quality public schools use Court, which will likely affect the relevant this matter. In its submissions before the make the initial determination of capacity in its only English or Afrikaans as their language of arguments forwarded by each party, the Fochville Constitutional Court, the LRC urged the judges admissions policy, the SGB admissions policy and instruction. Due to the poor quality and poor matter has yet to be litigated on its merits. In to consider the effect on children and their determination of capacity is not binding on the facilities of many of the public schools, there is the meantime, the LRC is closely monitoring access to education if an SGB has final say over relevant provincial department. It was contended a high demand for these schools and the situation at Hoërskool Fochville to ensure the enrolment capacity of its school. A situation that the department may only depart from the could be envisioned in which an SGB declares its subsequently insufficient places at them for all that the English-speaking students are receiving SGB’s admission policy and determination of school to be full even if that school had some of children who apply. As taxpayer funded public competent instruction and fair treatment from capacity where there is good cause to do so, the lowest enrolment figures and student-teacher entities, public schools must also be responsive the school. Considering the various ongoing legal having regards to such factors as the number of to the language needs of their surrounding ratios in the area. A child denied admission would uncertainties over a school governing body’s students having to be placed at the school, the communities and catchment areas. This tension then have to travel further away from his or her powers vis-à-vis those of the government, as alternatives for placement of the students, and between language rights and access to education home to attend another school with places still well as the sensitive nature of school language the cost implications for the school concerned of is illustrated in the ongoing case involving available. The head of the provincial Department policies in the new democratic South Africa, the the placement of the students. The LRC strongly Hoërskool Fochville, in Gauteng. for Education, who is statutorily obligated to LRC envisions a crucial and ongoing strategic provide a school place for every South African believes that its submissions forwarded a Hoërskool Fochville is an Afrikaans-medium litigation role in the Fochville case. In addition, child, would also be constrained from fulfilling constitutionally balanced approach which, while institution and the only high school in town. the school has rejected the intervention sought his or her duty. respecting both a SGB’s policy-making powers Youth who desire an English education must by the LRC on behalf of the Centre for Child law, and the government’s obligation to provide a either attend the poorer resourced former black- arguing that the students can only be represented The LRC further argued that the Court must take school placement for every South African student, only high school in the adjacent township, or by their parents or their guardian’s and that the into account the broader socio-economic context, places foremost for consideration the right of and in particular, the legacy of inequality in travel 40 kilometres each way to schools in the LRC and the CCL have no standing to act for all learners to a basic education. Judgment was education in South Africa. Because SGBs of public neighbouring city. A growing population, and these students. handed down in the Rivonia Primary School schools are allowed to charge school fees and changing demographics, have heightened the matter by the Constitutional Court on 3 October allocate the monies towards additional facilities demand for an English language high school in 2013. The judgment has confirmed that the Head and teachers beyond what government funding Fochville proper. In the summer of 2011, 30-plus would otherwise provide, fee-paying versus non- of the Department of Education has the power English-speaking students sought entry to the Power to Determine fee paying public schools often evince substantial to override a SGB’s admission policy but that its school’s grade 8 class. Hoërskool Fochville denied disparities in infrastructure resources and power must be exercised lawfully. them admission as they did not have a strong Classroom Size student-teacher ratios. An education department command of Afrikaans. In response, and in without powers to override an SGB’s admissions The judgment can be downloaded from consideration of the overcrowded conditions at policies would be seriously undermined in the websites of the Constitutional Court neighbouring schools, the Gauteng Department its efforts to equitably distribute educational (www.constitutionalcourt.org.za) and the of Education intervened to have the students The case of Rivonia Primary School highlights resources in public schools. LRC (www.lrc.org.za). admitted as an English-medium cohort within the impact that SGB policies can have on the Hoërskool Fochville. constitutional right to a basic education. The dispute arose in 2011 when the school, having In late 2011, Hoërskool Fochville launched a determined through its admissions policy that it court application to declare that the Department was already full, refused to admit an additional of Education had overstepped its powers in student into its grade 1 class. The Gauteng contravention of the school’s language and Department of Education (GDE) intervened and admissions policy. As an urgent interim remedy, ordered Rivonia Primary to admit the child. In the school sought to have the English-speaking response, the school launched court proceedings students removed from the school. In January against the GDE. In 2012, the South Gauteng High 2012, the court rejected the school’s requested Court ruled in the GDE’s favour and held that interim remedy. a public school’s enrolment limit is ultimately The LRC acts for the Center for Child Law (CCL) determined not by an SGB, but rather by the in this matter, which in turn is representing the applicable provincial department of education. students in question. In 2012, the LRC reached This decision was then appealed to the Supreme an agreement with the school that the English- Court of Appeal, which heard the case in speaking students would remain at Hoërskool November 2012, and later argued once more Fochville pending the ongoing litigation. Due before the Constitutional Court in May 2013.

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a direct and substantial interest in the main In the South Gauteng High Court of South Africa Notice of Motion application; and are represented in terms of (Johannesburg) section 38(c) of the Constitution; 1.5 It is in the public interest that the interests FOCHVILLE: FOUNDING AFFIDAVIT of the children be represented in this matter in Here follow excerpts from the founding affidavit terms of section 38(d) of the Constitution. CASE NO. 2011/46091 of Carina Du Toit an attorney at the Centre for 2. The relief sought by the applicants relating to Child Law, University of Pretoria. This is an the decision of the Department to admit the 37 application for leave to intervene In the application of: children is of vital importance to the children The intervening party is THE CENTRE FOR CHILD and should the order be granted, it will have a CENTRE FOR CHILD LAW | Intervening Party LAW (“the CCL”). The CCL was established by the significant impact on their lives. University of Pretoria in terms of a constitution. and 3. The application thus concerns them directly The main objective of the CCL is to establish and I submit that substantial injustice would THE MINISTER OF BASIC EDUCATION | Respondent in joinder application and promote child law and uphold the rights of children in South Africa, within an international result if the CCL is not separately joined as an and regional context, and in particular to use the intervening party to represent the children. law and litigation as an instrument to advance Furthermore, the children are concerned about In the matter between: such interests. the effect it would have on their younger siblings and other neighbouring children should the THE GOVERNING BODY OF HOËRSKOOL FOCHVILLE | First Appellant II. PURPOSE OF THE APPLICATION Department be prevented from admitting other English speaking learners to Hoërskool Fochville. HOËRSKOOL FOCHVILLE | Second Appellant 1. The purpose of this application is: Although the interests of the children and their parents (the Fifth and further Respondents) and 1.1 To apply to intervene in the application under the above mentioned case number, on may appear to coincide, there remains a THE MEMBER OF THE EXECUTIVE COUNCIL: EDUCATION, GAUTENG PROVINCE | First Respondent behalf of the 37 children listed on “NOM 1” as potential conflict of interests. Furthermore, the facts relating specifically to the children, their HEAD OF DEPARTMENT: EDUCATION, GAUTENG | Second Respondent well as all other children who might have an interest; circumstances and their views are not fully PETER SKOSANA | Third Respondent canvassed on the papers before this court nor has 1.2 To set out the circumstances surrounding legal argument been advanced on their behalf. JUDITH N DUBE | Fourth Respondent the children directly affected by the main application as well as their views and wishes 4. The intervention of the children as parties MRS M BILLITANE NO AND | Fifth Respondent in respect of the matter and to propose will allow them all rights of participation in the appropriate relief for the children; legal process, including service of documents, 35 OTHER PERSONS LISTED participation in mediation and settlement 1.3 The 37 children currently attending negotiations and the right to appeal the outcome ON NOM1 Hoërskool Fochville who are the children of of the main application. the Fifth and further Respondents listed on NOM1 and who cannot litigate on their own 5. The best interests of the children are the behalf due to their status as minors, have a paramount consideration in all matters affecting direct and substantial interest in the subject the child. The children will be directly affected matter of this application having regard to by the application. The views of the children are the relief sought by the applicants in the main an important factor in ascertaining their best application. Section 38(b) is thus relied upon; interests and they have a right to participate in proceedings which will affect their lives. 1.4 The children similarly placed to the 37 children directly affected who may wish to be 6. I point out further that the children have admitted to Hoërskool Fochville in the future a right to participate in matters which concern and may be barred from doing so due to the them in terms of both national and international school’s admissions and language policy have law:

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6.1.1 Section 10 of the Children’s Act states individual children and groups of children and 18 Each child has some subject that he/she is children were told by several teachers that the that: as such is ideally suited to act on behalf of the passionate about. Many of the children listed court case is to get them out of the school. group of children concerned in this matter and Afrikaans as their favourite subject. The other “Every child that is of such an age, maturity in the public interests. subjects that they favour are arts and culture, Uncertainties in relation and stage of development as to be able to English and social science. They prefer these to future enrolment participate in any matter concerning that 11. Should this honourable court refuse to grant subjects because they offer insight into different 23. I point out that the children are not only child has the right to participate in an the CCL leave to intervene it will prejudice the kinds of people and the wider social context. concerned over their own future in Hoërskool appropriate way and views expressed by the children. Given their qualitatively positive experiences, it Fochville. They are also worried about whether child must be given due consideration.” is not surprising that the children greatly value IV. FACTUAL BACKGROUND their siblings and friends will be admitted to their education at Hoërskool Fochville. 6.1.2 Article 12 of the United Nations Hoërskool Fochville. Brief facts relating to the main application Convention on the Rights of the Child states What the children do not like this principle in similar terms. about Hoërskool Fochville: 24. They are also aware that this will cause 12. The children directly affected are the children problems in respect of space and teachers to of the Fifth and further Respondents listed in the 6.1.3 Article IV(2) of the African Charter of 19. In general, the children responded that teach in English and they were quite protective notice of motion. They are 13 or 14 years old and the Rights and Welfare of the Child (which they do not like the following about Hoërskool of Hoërskool Fochville in this respect. They asked live in Fochville and the surrounding townships has been ratified by South Africa) provides Fochville: us who will give the school more classrooms, that: Kokosi and Greenspark (“the children”). desks, chairs and teachers. 19.1 being subjected to racism; “In all judicial or administrative proceedings 13. They were enrolled at Hoërskool Fochville Single medium of instruction affecting a child who is capable of (“the school”) in January 2012 as the first Grade 8 19.2 feeling anxious about whether they will communicating his or her views, an English medium class at the school. There are 37 be allowed to remain in the school; 25. Every child complained about feeling left out opportunity to be heard either directly or learners in the Grade 8G class and they currently or things being difficult because the teachers only through an impartial representative as a remain enrolled at the school. 19.3 feeling uncertain about the future speak Afrikaans. All the announcements are made party to the proceedings, and those views enrolment of other children at the school; in Afrikaans and assembly is only in Afrikaans. 14. The children were enrolled at the school shall be taken into consideration by the When they are not in class, the teachers will not on the direction of the Department of Basic 19.4 challenges that they face and feeling left relevant authority in accordance with engage with them in English but will only answer Education, Gauteng who were of the view that out as a result of the single medium the provisions of appropriate laws.” (Own in Afrikaans. the school has the capacity to accommodate the of instruction. emphasis) 37 children. 26. During the June examinations all the grade 20. The children feel targeted and isolated by 6.2 I submit that the minor children plainly 8 learners from all the classes wrote exams 15. The enrolment of the 37 children was opposed the teachers. They are frequently blamed for have a direct and substantial interest in the together but the 37 English learners were by the school and its school governing body who disciplinary problems. One child stated that main application and the CCL should be joined moved to a separate classroom to write exams argue that the school lacks capacity to admit the ‘when some children do things that they are not as a party to the proceedings to allow the during November. This was to ensure that children and furthermore that its language policy supposed to be doing, then the teacher says that children to effectively exercise their rights. announcements for the class were made in does not allow for enrolment of children who are it is the black children.’ English. The children understood that this was for 7. The children have a right to a basic education, to be taught in English, as the school is a single Anxiety about being able to remain practical purposes so that exam announcements to receive education in a language which they medium school which teaches in Afrikaans. in the school and explanations did not have to be repeated in understand and not to be discriminated against. English and Afrikaans. 16. The applicants thus seek an order in the main 21. The children have been made to feel that they 8. The CCL has knowledge of and experience in application to interdict the enrolment of the 27. However, it still made them feel isolated as if are imposing on the school and the teachers and litigating on the protection of children’s right to children to the school they are again singled out. that they are making life difficult for the school. basic education. In particular, CCL successfully V. THE CHILDREN’S VIEWS ON They feel that the school is just tolerating them litigated as applicant in the Eastern Cape to VI. THE CHILDREN’S VIEWS ON HOËRSKOOL FOCHVILLE or doing them a favour by allowing them to be eliminate mud structure schools and to provide ATTENDING ANOTHER SCHOOL there. proper infrastructure to these schools. 17. During discussion it was clear that the 28. Of the 37 children, 12 indicated that they children enjoyed the standard of education 22. A large number of children mentioned that 9. The CCL was also involved as amicus curiae would like to move to a different school if given immensely. The girls enjoyed sport and extra- they do not receive computer classes whilst all in education cases concerning admissions and the choice. curricular activities more than the boys but the Afrikaans grade 8 learners get computer learner pregnancy policies. mostly the children were adamant about enjoying classes. Some teachers have also discussed the 29. One child indicated that he/she was not sure 10. More importantly, the CCL has in-depth their education and especially their assigned class court case with the children and told them that whether he/she wanted to move to a different knowledge and expertise in representing both teacher. they will not be in the school for grade 10. The school. This is the same child who earlier

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indicated that he/she was not sure whether to pay for transport to get back home from 42. The fact that only Afrikaans is spoken is 48. The CCL proposes the following specific relief he/she liked Hoërskool Fochville. The other 24 school. It puts children and parents in a troubling extremely isolating. The children have been in relation to the children, which it is submitted children all indicated that they would not want situation when children have to figure out a made painfully aware of the fact that they will be in the best interests of all the children at to move to a different school. way to travel more than 20 kilometres without are imposing. The teachers and especially the Hoërskool Fochville, including the new English- money. Attending school in Fochville means that Principal discussed the court case with the speaking learners: 30. The main reasons why the majority of the the child can walk home if necessary. This would children and questioned the children on what children say that they do not want to move to a be impossible if attending school in Carletonville. they think will happen in Grade 10. They feel that 48.1 declaring that the children of the Fifth different school if given the choice are that they they are blamed for any disciplinary problems. to further Respondents listed in NOM1 have have friends at Hoërskool Fochville and there are 35. A number of children live in Fochville close to Teachers will blame a disturbance on ‘the black a right to receive education at Hoërskool very good teachers even if not all of them are Hoërskool Fochville and feel that it would affect children’. The children feel that they are targeted Fochville with English being their medium of friendly. The school has excellent facilities and them negatively to have to travel to Carletonville. because they are creating extra work for the instruction; extra sports and culture activities. The children When asked how it would make the children feel principal and the teachers. are deeply concerned that they will lose the to have to move to another school they provided 48.2 directing the provincial government authorities to engage meaningfully with the friends that they have made and that they will the following answers: 43. Despite this, the children show remarkable have to make new friends and start over again in resilience. They respect the school, the teachers SGB and the children about: a new school. 36. Not only is there the increased transport cost and especially the standard of education they are 48.2.1 Whether the children of the Fifth to but it also means that they will not be able to receiving. The majority of them quite simply love further Respondents listed in NOM1 will 31. Of concern to the children is the financial attend sports and cultural events because they the school and are determined to remain there. remain in Hoërskool Fochville beyond 2013; effect that it would have on their parents if they will be dependent on public transport. All of the children noted the excellence of the have to go to a different school. The children teachers even if they felt that a teacher may be 48.2.2 Whether any further English speaking want to attend an English medium high school 37. The children already experience the transport racist towards them. children will be admitted to Hoërskool and are under the impression that the high from Kokosi to Fochville as unreliable. On the Fochville; and school in Kokosi teaches in seTswana. They days that the transport is late or does not show 44. Several children remarked that they know will therefore have to travel to Carletonville or they are the ‘first’ to attend the school and that up, Fochville is close enough to walk to school 48.3 If the children of the Fifth to further Wonderfontein to attend an English school which they consider themselves to be pioneers for other or take a taxi. This would not be possible if they Respondents are going to remain in Hoërskool is approximately 26 km away from Kokosi. English speaking African children to come after attend school in Carletonville. Fochville and/or if more English speaking them. children are admitted to Hoërskool Fochville 32. The children are deeply concerned about 38. Their parents have also spent a significant then the parties are directed to engage to the negative impact travelling to Carletonville amount of money on buying the full uniform 45. They want to fight to stay in Hoërskool determine the resources and support required, will have on their education, health and safety, for Hoërskool Fochville which they will have to Fochville to ensure that their friends and siblings including whether and to what extend the family finances, and emotional and social well- replace if they move to a different school. can also attend the school. A large number of being if they have to devote over an hour each the children live in Fochville and live next door to following may be required: day to travel a minimum of 44 kilometres to 39. The children are also concerned about the white children who attend Hoërskool Fochville. 48.3.1.1. additional teachers; attend school. Many of the children think that time it would take to travel from Kokosi/Fochville 46. The children think that the teachers and their education will be negatively affected if to Carletonville and the effect that would have 48.3.1.2. additional infrastructure white children feel as if they want to take over they have to spend hours each day on crowded, on their education. They think they will be tired Hoërskool Fochville but what they really want is unpredictable public transportation. from all the travelling every day. 48.3.1.3. additional financial support; to be a part of it and to be allowed to attend the 33. It costs several hundred rand each month for VII. APPROPRIATE RELIEF school closest to them. 48.3.1.4. counselling and/or mediation and/or one person to travel every weekday between the IN RESPECT OF THE 37 CHILDREN education on diversity for the children; Carletonville and the Fochville areas. The children 47. The CCL does not seek specific relief on are aware of the impact this cost would have on 40. It is clear from the answers provided by the behalf of the children in respect of the challenges 48.3.1.5. additional Afrikaans tuition for the their families. children and it came out clearly in conversation relating to racism and the use of language, English-speaking children. that the children are experiencing racism on a but places the information before the Court to 34. None of the children come from families with daily basis. assist it to appreciate the circumstances of the 49. It is respectfully submitted that this relief considerable financial resources. The children feel children. The CCL also provides the information will be in the best interests of all the children at sad and uncomfortable that their parents would 41. Some are bullied and the boys especially to the SGB and the government respondents Hoërskool Fochville, will enable the parties to have to divert funds away from other necessary feel unwelcome. It appears as if the African and to enable them to take it into account in move towards finding a constructive solution expenses so to pay for their transport. Some white girls have become friends and the African considering the relief that they seek and to to the challenges facing the school and the of the children have parents with fluctuating girls feel welcome to participate in sports and inform the spirit and manner in which all the provincial authorities and, most importantly, incomes. At least one child expressed the concern cultural events. The African boys experience more parties conduct the litigation and engage with safeguard the right to a basic education of the that sometimes, there just is not enough money discrimination. one another and with the children. 37 children. It is submitted that an engagement

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order provides the best legal mechanism to Fochville and/or if more English speaking enable the parties to work together to find children are admitted to Hoërskool Fochville creative and appropriate solutions. then the parties are directed to engage to determine the resources and support required, XII. RELIEF including whether and to what extend the 50. Accordingly an order is sought in the following may be required: following terms: 50.4.1.1. additional teachers; 50.1 granting the CCL leave to intervene in 50.4.1.2. additional infrastructure order to represent the children of the Fifth to further Respondents listed in NOM1; 50.4.1.3. additional financial support; 50.2 declaring that the children of the Fifth 50.4.1.4. counselling and/or mediation and/or to further Respondents listed in NOM1 have education on diversity for the children; a right to receive education at Hoërskool Fochville with English being their medium 50.4.1.5. additional Afrikaans tuition for the of instruction; English-speaking children. 50.3 directing the provincial government authorities to engage meaningfully with the SGB and the children about: CARINA DU TOIT

50.3.1 Whether the children of the Fifth to AFFIRMED AND SIGNED before me at PRETORIA further Respondents listed in NOM 1 will on this the 18TH day of DECEMBER 2012, the remain in Hoërskool Fochville beyond 2013; Deponent having acknowledged that she knows 50.3.2 Whether any further English speaking and understands the contents of this Affidavit, children will be admitted to Hoërskool and that the contents are true, that she has no Fochville; and objection to this affidavit, and that the oath to be binding on his conscience. 50.4 If the children of the Fifth to further Respondents are going to remain in Hoërskool COMMISSIONER OF OATHS

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WRITTEN SUBMISSIONS ON BEHALF child in this matter not be made public. Both OF EQUAL EDUCATION AND THE CENTRE the CCL and EE made submissions regarding the In the Constitutional Court of South Africa FOR CHILD LAW (AMICI CURIAE) powers of the parties in respect of admissions. In view of their concordance of views on the central questions in this matter and in order to avoid a proliferation of amici curiae, the two CASE NO. CCT 135/2012 Contents organisations have participated jointly as amici curiae on appeal in the Supreme Court of Appeal (SCA) and in this Court. In the matter between: INTRODUCTION 2. Both EE and the CCL are committed to securing INTERPRETIVE CONTEXT – INEQUALITY IN EDUCATION MEMBER OF THE EXECUTIVE COUNCIL FOR EDUCATION IN GAUTENG PROVINCE | First Applicant an equal and quality education for every child in Interpretation in terms of section 39(2) – purpose and South Africa. EE and the CCL fight – not against HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION | Second Applicant context government, school governing bodies (“SGBs”) or any particular role-player – but against the DISTRICT DIRECTOR JOHANNESBURG EAST D9: GAUTENG DEPARTMENT OF EDUCATION | Third Applicant The SCA’s failure to consider the socio-economic context inequalities pervading our current educational and system, in which a handful of schools previously The contextual factors relevant to interpreting the SA reserved for white learners educate a small THE GOVERNING BODY OF THE RIVONIA PRIMARY SCHOOL | First Respondent Schools Act minority of learners with a disproportionate The difficulties caused by the SCA’s interpretation share of available resources while schools RIVONIA PRIMARY SCHOOL | Second Respondent formerly reserved for black (mostly poor) learners The constitutional approach to admissions in light of struggle to use minimal resources to provide even MS CELE | Third Respondent the broader context a basic education for huge numbers of learners. MR MACKENZIE | Fourth Respondent NATIONAL AND PROVINCIAL GOVERNMENT AND SGBS 3. The decision of the SCA in this matter has the MS DRYSDALE | Fifth Respondent ALL HAVE ROLES TO PLAY IN DETERMINING SCHOOL potential to undermine the government’s duty CAPACITY to ensure that all learners are accommodated in schools and to distribute educational The common interests to be served by SGBs and resources equitably. This outcome would make government EQUAL EDUCATION | First Amici curiae it impossible for EE and CCL to achieve their missions. CENTRE FOR CHILD LAW | Second Amici curiae The powers of national government, SGBs and provincial government 4. The amici curiae do not seek to take any STRIKING AN APPROPRIATE BALANCE particular position in respect of the lawfulness of the conduct of the parties in this matter in The admissions policy of the SGB must be the starting respect of the admission of the learner. In any point event, the respondents abandoned the relief originally sought in respect of the learner. Constraints on the ‘override’ power of provincial government 5. The amici curiae also do not address submissions on the provincial legislation and CONCLUSION regulations, or the provincial circulars and policy documents. These instruments vary from province to province and time to time. EE and Introduction CCL are concerned rather with determining more durable principles regarding the allocation of roles and responsibilities under the South African Schools Act 84 of 1996 (“the SA Schools Act”). 1. The Centre for Child Law (CCL) and Equal Education (EE) were admitted as amici curiae 6. The amici curiae confine themselves to the (separately) in the High Court. The CCL obtained central legal question underlying the appeal: an order in that court that the identity of the To what extent does the SA Schools Act vest in

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government and SGBs the power to act in respect an SGB, which appears to be the implication of so as to heal the divisions of the past, lay the 14.4 Finally, the SCA characterised the of admission of learners to public schools and to the SCA judgment and the argument advanced foundations for a democratic and open society, arguments of the applicants regarding the determine the capacity of public schools? by Rivonia Primary before this Court. improve the quality of life for all and build a legacy of inequality in education as “the ugly united and democratic South Africa.” This Court spectre of race”, holding that there was no 7. In approaching this question, however, EE and 9.2 This appropriate balance is also not has emphasised that courts must pay “close evidence of direct racial discrimination against the CCL adopt a different perspective to those of achieved by allowing such Departments to attention to the socio-economic and institutional the specific child. The SCA accordingly took the parties. Whereas both sets of principal parties freely and with little constraint override the context in which a provision under examination a narrow view of equality and considered focus primarily on the respective powers of SGBs admission decisions of an SGB, which might functions.” only the portion of the right to equality that and government, EE and CCL seek to approach appear to be the implications of the argument prohibits (direct) unfair discrimination on the question from the perspective of the effect advanced by the MEC before this Court. The SCA’s failure to consider the grounds of race. The SCA erred in this respect. on children seeking admission at public schools. socio-economic context As this Court held in Van Heerden, In this regard, there are two important points of 9.3 A zero-sum result in favour of either of the departure for the amici curiae. sets of principal parties does not fit with the 14. The SCA rejected the submissions of the “our Constitution heralds not only equal constitutional or statutory scheme and would amici curiae regarding context and adopted a protection of the law and non-discrimination 8. First, from the point of view of EE and the CCL, impact detrimentally on children seeking de-contextualised approach that is inconsistent but also the start of a credible and abiding the present matter goes far beyond the interests access to public schooling. with the requirements of the Constitution when process of reparation for past exclusion, of the specific child whose admission gave rise to interpreting legislation, especially legislation INTERPRETIVE CONTEXT – INEQUALITY dispossession, and indignity within the this litigation. that engages constitutional rights. The SCA’s discipline of our constitutional framework.” IN EDUCATION de-contextualised approach is apparent from the 8.1 The parties to the litigation have in any following: 15. As this Court held in Van Heerden, our Interpretation in terms of section 39(2) event agreed that the child will remain at the Constitution embraces a “conception of equality – purpose and context school, whatever the outcome of the litigation. 14.1 The SCA began by noting that Rivonia that goes beyond mere formal equality and mere Primary “happens” to be “a school located in non-discrimination which requires identical 8.2 Rather, EE and CCL contend that what 10. Section 39(2) of the Constitution provides that an affluent, historically white suburb, where treatment”. is critically at stake in this matter is the “[w]hen interpreting any legislation … every court a little more than half of the learners were ... must promote the spirit, purport and objects relationship between the powers of SGBs, on white” but held that these facts were not 16. It is not necessary to establish that Rivonia of the Bill of Rights.” (emphasis added) the one hand, and provincial Departments of “relevant” to the appeal. Primary has unfairly discriminated against Education, on the other, with regard to the 11. The basic application of section 39(2) was learners in order to contend that laws applicable admission of learners. 14.2 In considering the arguments advanced by authoritatively laid down in Investigating to the school should be interpreted so as best the amici curiae regarding the interpretation of to address the systemic inequality in education. 8.3 In determining these powers, it is necessary Directorate: Serious Economic Offences and sections 3(3) and 3(4) of the SA Schools Act, the To the extent that schools that are in a relatively to consider the broader socio-economic Others v Hyundai Motor Distributors (Pty) Ltd SCA purported to adopt both a “plain reading” better position may perceive this approach to context, in particular the legacy of inequality in and Others. Langa DCJ expressed the basic of the provisions and a “contextual reading”. impose an unfair burden, it is a burden that the education, which threatens the constitutional principle that “judicial officers must prefer However, the “contextual” reading is limited to Constitution requires, as Sachs J explained in his rights to equality and to a basic education. The interpretations of legislation that fall within the other provisions of the SA Schools Act. separate concurring judgment in Van Heerden: SCA erred in consciously excluding this context constitutional bounds over those that do not, provided that such an interpretation can be from consideration. 14.3 The SCA then employed certain of the “For as long as the huge disparities created by reasonably ascribed to the section.” facts of the specific case – having earlier held past discrimination exist, the constitutional 8.4 The amici curiae accordingly make that the factual position of Rivonia Primary vision of a non-racial and a non-sexist society submissions on the context that must inform 12. In a line of decisions since Hyundai, this Court was not relevant – to hold that the reliance on which reflects and celebrates our diversity in all the interpretation of the legal provisions in has adopted a contextual and purposive approach sections 3(3) and 3(4) was “misplaced” because ways, can never be achieved. Thus, though some issue in this matter. to statutory interpretation, which expressly the child was not faced with the problem that members of the advantaged group may be called requires courts to “have regard to the context in she would not be able to attend a school as she 9. Second, what is necessary in this regard is upon to bear a larger portion of the burden of which the words occur, even where the words to had already been admitted to another school. an interpretation of the relevant legislation and transformation than others, they, like all other be construed are clear and unambiguous.” The SCA held that, on the specific facts of the the Constitution which produces an appropriate members of society, benefit from the stability, case, the child’s rights to a basic education balance between the powers of SGBs and 13. The context is not limited – as the SCA social harmony and restoration of national and to equality were not threatened. In other provincial Departments of Education. approached it – merely to textual context. dignity that the achievement of equality brings.” words, the SCA adopted the facts of this case The Constitution – and, by extension, statutes as the context against which to interpret 9.1 This appropriate balance is not achieved interpreted in terms of section 39(2) – “must be 17. Moreover, this context of inequality is the legislation, excluding the broader socio- by permitting such Departments little or no understood as responding to our painful history particularly acute in the education environment. economic context. power to override the admission decisions of and facilitating the transformation of our society O’Regan J recognised this in her partially

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dissenting judgment in MEC for Education: section 7(2) of the Constitution to “respect, in the name of upholding their own learners’ focusing on section 5(5) in isolation. In addition, KwaZulu-Natal v Pillay. She stressed that, protect, promote and fulfil” the rights to rights to education? On the approach of the it is necessary to ask which interpretation best although the position of black children in the equality and a basic education; SCA, it appears that the MEC would be largely promotes the rights to a basic education and post-apartheid period has “improved somewhat”, powerless to intervene save by building further equality in a context of systemic inequality in the “pattern of disadvantage engraved on our 19.4 South Africa has yet to undo the painful schools. Whilst building further schools is a access to public schooling. education system by apartheid has not been legacy of our apartheid history in which white crucial power and duty of an MEC, it should 25. SGBs play a key role as part of the State erased”. O’Regan J observed that “although public schools enjoyed the resources lavished not be the only recourse, particularly not in the apparatus designed to secure the provision of the law no longer compels racially separate by government and relatively affluent white short-term. the right to education under the Bill of Rights. institutions, social realities by and large still do.” communities, while black public schools were doubly deprived by deliberately inadequate 22.3 Similarly, even assuming there was no However, while an SGB is primarily tasked with 18. Nowhere in its judgment does the SCA government funding and the relatively change of stance by the schools, what is looking after the interests of the school and its acknowledge the socio-economic context beyond impoverished conditions of black communities; the position if the MEC were to find at the own learners, it must also manage the public the facts of the immediate case. To the contrary, commencement of a school year that there resources entrusted to it in the interests of the the SCA expressly excludes the broader context 19.5 The constitutional imperative to transform are given children in a specific area that broader community and in light of the values of the current unequal basic education system from consideration. On the SCA’s approach, simply cannot be accommodated by any of the Constitution. is therefore aimed both at redressing past the rights to a basic education and equality are the schools in the area according to their injustices and breaking the cycle of poverty 26. It is thus submitted that school capacity is irrelevant to the matter unless the specific facts admissions policies? This scenario would be that reproduces the patterns of class and racial a matter in respect of which government in the reveal that a child was denied access to a public more acute in a rural context where schools inequality generation after generation. are spaced significantly apart. Such a situation national and provincial spheres and SGBs all school because of her race. could arise due to an unexpected increase in have roles to play. Initially, both sets of principal The difficulties caused by the SCA’s The contextual factors relevant to the number of children presenting themselves parties asserted exclusive powers in relation to interpretation interpreting the SA Schools Act for registration in Grade 1 or for some other school capacity. However, the principal parties reason. Whatever the reason, it cannot be that have both partially softened their initial positions 20. It may be that the SCA was correct to 19. EE and the CCL therefore contend that a the MEC is prevented from assisting those during the course of the litigation: express unhappiness about the conduct of the proper interpretation of the relevant provisions children. government officials in this case. However, 26.1 The applicants now accept that admissions of the Constitution and the relevant provisions of even if that is so, the legal principles and policies adopted by SGBs can deal with SA Schools Act must accordingly take account of, 22.4 These are not merely theoretical concerns. interpretations adopted by the SCA in its capacity, though that policy cannot inflexibly among others, the following considerations and The problems and intense debates about judgment have the potential to undermine the bind a provincial department. legal principles: how to accommodate learners occur at the government’s power to equitably distribute beginning of every school year in various parts 26.2 Rivonia Primary now expressly accepts 19.1 The duty of all courts to interpret all educational resources and to ensure a public of the country. school place for every South African learner. that its admissions policy must be applied legislation in a manner that “best” promotes in a flexible manner, and appears to accept a the spirit, purport and objects of the Bill of 23. At the same time, the amici curiae are 21. This is especially the case given that if acutely mindful of the fact that providing proper narrow form of appeal (in terms of Regulation Rights, provided that this does not produce an the judgment of the SCA turns primarily on education for all learners cannot be achieved only 13 of the previous Gauteng Regulations), interpretation that is unduly strained; the interpretation of the SA Schools Act, by accommodating learners in existing schools. provided that such decision is “in accordance with the admissions policy”. 19.2 The right of access to a basic education which applies to all nine provincial education There is a statutory and constitutional duty departments. on the State to provide additional educational enshrined by section 29(1)(a) of the 27. However, both sets of parties still contest facilities where this is necessary, albeit that doing Constitution, which right is “immediately” 22. In light of the broader context we have the primary or decisive power to decide when a so may take some time. realisable and not subject to the “availability already outlined, the SCA judgment gives rise to school is full and whether it should admit a child. of resources” or to “reasonable legislative a variety of practical difficulties: NATIONAL AND PROVINCIAL 28. The amici curiae stress that the SGB does measures” and which right is critical to the GOVERNMENT AND SGBS ALL HAVE not have interests separate or at odds with the achievement of human dignity and equality; 22.1 If individual schools were able to almost ROLES TO PLAY IN DETERMINING government. Both must be committed to offering entirely determine their own capacities, better SCHOOL CAPACITY 19.3 The need for government to have resourced schools could use that power to a basic education to all children in the area, not the ability to intervene, in appropriate fortify existing inequalities. The common interests to be served only those children who happen to be enrolled circumstances and subject to the various by SGBs and government at the school. In the words of this Court in constraints that we outline below, in order to 22.2 What would happen if a large number of Laerskool Generaal Hendrik Schoeman: SGBs are ensure an equitable distribution of learners such schools grouped together and decided to 24. The contextual approach outlined above “part of the State apparatus designed to secure across all schools. This is necessary for alter their admissions policies to reduce the requires that the provisions of the SA Schools the provision of the right to education under the government to fulfil its obligation under number of children they would accommodate, Act must be interpreted as a whole, rather than Bill of Rights.”

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29 In order to serve this common set of interests, 32.2 In addition, it is appropriate that an SGB 33.4.2 The second is to take individualised on how these powers are reconciled and an the SA Schools Act confers powers in respect should make the initial determination of capacity action to ensure that “every child” is able appropriate balance is struck. of capacity of public schools on national because it is in the best position to do so, given to attend school and to take steps “as soon STRIKING AN APPROPRIATE BALANCE government, provincial government and SGBs. its knowledge of its own resources. However, as possible” to remedy any lack of capacity although legally obliged to take into account preventing any child from attending school. The powers of national government, The admissions policy of the SGB must systemic capacity needs beyond its own school Importantly, this obligation is only triggered SGBs and provincial government be the starting point and learners, an SGB is not well-placed to know when, on the facts, there is a threat that 30. It is important to bear in minds that there what the capacity needs are in its district or a child will be prevented from accessing a 35. While the SGB may make the initial are three role-players with powers and duties province. public school due to lack of capacity. determination of capacity in its admissions in respect of admissions and capacity issues. policy, the SGB admissions policy and 33. Third, government at the provincial level also 33.4.3 It is submitted that the obligation determination of capacity is not binding on the 31. First, government at the national level has has significant powers in relation to admissions in section 3(3) has two related but distinct relevant HoD or MEC. It also cannot be applied the ultimate power and duty to establish the to and the capacity of public schools. components. The first obligation is to ensure rigidly and inflexibly by any party concerned, enrolment capacity of public schools in terms that there are enough school places. The including both public schools and government 33.1 The powers include powers of a general, of section 5A(1)(b) of the SA Schools Act. second obligation is to ensure that every actors. Rather, the policy and determination standard-setting nature, such as section 58C(6) child in the province can attend school. of school capacity is the starting point for the 31.1 The fact that the Minister for Basic of the SA Schools Act, as well as the power to The second obligation cannot be totally consideration of whether to admit given learners. Education has not exercised the power to act directly in response to a particular learner’s subsumed under the first. In other words, make such norms and standards is a matter application to a specific school. the obligation should not be reduced simply 36. In Ermelo, Moseneke DCJ held that SGBs must for great regret. Recognising this, when this to the act of building classrooms numerically determine their language policy – and by logical matter was before the High Court Mbha J 33.2 These provisions must be read with the sufficient, in theory, to accommodate the extension, also their admissions policy – with directed that his findings regarding the need obligation on the MEC, contained in sections aggregate of all learners in the province. The regard to the broader social context in which for norms and standards on capacity be 3(3) and (4) of the Act, to ensure that there are MEC is also duty-bound to utilise the full they operate: drawn to the attention of the Minister as a enough school places so that every child who range of his or her powers to ensure that “recommendation”. The concerns motivating lives in the province can attend school. every child can attend school. “The governing body of a public school must Mbha J were entirely well-founded. … recognise that it is entrusted with a public 33.3 Section 3(3) imposes an obligation on 33.5 It is submitted that the powers of MECs resource which must be managed not only in the 31.2 The Minister’s failure to make such norms the MEC to ensure that there is sufficient under sections 3(3) and 3(4) should ideally interests of those who happen to be learners and and standards, however, certainly does not, capacity so that each individual child in the be exercised in terms of regulations made or parents at the time but also in the interests of the however, disable the Provincial Education province can attend a public school. Section policies adopted by provincial government in Departments from themselves dealing with broader community in which the school is located 3(4) imposes an additional, remedial obligation respect of the capacity of public schools. This questions of admission and capacity. To and in the light of the values of our Constitution.” on the MEC, if she is unable to comply with the extent that Rivonia Primary contends will ensure that the first power to take steps the obligation under section 3(3), to take steps 37. While the power to determine an admissions otherwise, it is incorrect. at a systemic level is embodied in a carefully to remedy such lack of capacity as soon as developed policy that sets out the objectives policy vests “in the first instance” in SGBs, that 32. Second, an SGB has its own autonomous possible. of the relevant provincial government in power must be understood within the broader power to adopt an admissions policy, in terms respect of capacity. The making of regulations constitutional scheme, including the right to 33.4 Sections 3(3) and (4) impose two types of section 5(5) of the SA Schools Act. The power or adoption of a policy will also guard against education, that we have described above. of obligation (and power) on the MEC: to do so includes the power of the SGB to make the arbitrary exercise of the second, remedial 38. The Court in Ermelo also emphasised the vital a determination of the capacity of that school. power to act in respect of individual learners 33.4.1 The first is to take steps, at a provincial role of government in regulating the language who are threatened with exclusion from a 32.1 It is clear that an admissions policy may and systemic level, to increase capacity (and admissions) policies of schools. Permitting public school due to capacity constraints. address capacity from section 5A(1)(b), which within different parts of the province. This the power to rest exclusively with school may entail building new schools, increasing provides for the Minister to prescribe norms and 33.6 However, the absence of such regulations governing bodies would be “inconsistent” with standards for “capacity of a school in respect of the capacity of existing schools by building or policies cannot mean that the provincial the State’s duty to ensure that there are enough the number of learners it can admit” and section new classrooms, and taking similar steps. government is disabled from acting regarding school places for every child who lives in a 5A(4), which requires an SGB to review any policy (The respondents appear to accept that admissions and capacity where this is what the province (s 3(3) of the Schools Act) and its duty to adopted in terms of section 5(5) to ensure that it the provisions impose this obligation, but circumstances demand. ensure that a public school must admit learners complies with the norms and standards made by contend that sections 3(3) and 3(4) go no without unfairly discriminating in any way (s 5(1) the Minister. further.) 34. In the next section we make submissions of the Schools Act).

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39. To translate this Court’s comments on lan- has done) and adopt policies to guide the exercise 45.5.4 The relative capacity constraints of CONCLUSION guage policy in Ermelo to the context of admis- of this power and ensure that it is exercised in a other schools in the areas in which the sion policies, the respondents’ “insular construc- fair and non-arbitrary manner. learners live or in which their parents work; 48. In summary, the amici curiae make the tion of s 5(5) would in certain instances frustrate following submissions: the right to [a basic education] and therefore Constraints on the ‘override’ power of 45.5.5 The cost implications for the school thwart the obvious transformative designs of sec- provincial government concerned of the placement of the learners; 48.1 The SCA erred in interpreting the tion [29(1)] of the Constitution.” and provisions of the SA Schools Act without having 44. However, in order for the ‘override’ power to regard to the socio-economic context, in strike an appropriate balance between provincial 40. The amici curiae accordingly contend that 45.5.6 The extra facilities that may be particular the systemic inequality that persists education departments and SGBs, it is critical section 5(5) does not and should not be interpret- required at the school concerned due to the in public education in South Africa. ed to include the unqualified power to determine that it be subject to various constraints. placement of learners, including additional a school’s maximum capacity. teachers, classrooms, toilets and so on. 48.2 Interpreted so as best to promote the 45. The amici curiae submit that, in interpreting rights to equality and to a basic education, the 41. In circumstances in which capacity limits the relevant statutory provisions in light of the 46. In the event that the placement of children SA Schools Act confers powers in respect of threaten to prevent one or more children from context and relevant constitutional provisions, by the MEC/HOD at the school is over and above admission to, and capacity of, public schools attending a public school within a province, the this Court should clarify that the following the SGB’s determined capacity and will produce on SGBs and on government in the national MEC – quite apart from his obligation to take constraints exist in this regard: additional costs or require additional resources and provincial spheres. positive steps to increase overall capacity (by 45.1 The SGB’s admission policy and which the school cannot reasonably be expected building schools and increasing infrastructure) determination of capacity must form the to accommodate within its existing budget, the 48.3 Government and SGBs serve common – has the power under section 3(4) to intervene starting point for the enquiry of the MEC/HOD. MEC/HOD must make available those resources. interests in this regard – the interests of all in relation to one or more schools to ensure that children seeking access to public schooling. children threatened with being deprived of access 45.2 The MEC/HOD may only depart from the 46.1 This is necessary so as not to undermine They should strive to exercise their powers in a are accommodated. In those circumstances, this SGB’s admission policy and determination the obligation of an SGB in terms of section co-operative and constructive spirit. power is not ultimately subject to the contents of of capacity in a procedurally fair manner, 36(1) of the SA Schools Act to “take all any admission policy adopted by a school govern- meaning that the SGB must be afforded an reasonable measures within its means 48.4 The Minister has the power to make ing body, as this would render it impossible for adequate opportunity to make representations to supplement the resources supplied by norms and standards on capacity and, in the MEC to discharge this obligation. and reasons must be provided for any such the State in order to improve the quality order to facilitate the implementation of departure. 42. This power exists in addition to the HoD’s of education provided by the school to all the SA Schools Act and to fulfil the right to a learners at the school”. Where SGBs have basic education, she should make such norms power under section 22 of the SA Schools Act to 45.3 The MEC/HOD must act lawfully and taken steps to supplement resources and and standards. In the absence of norms and remove the function of an SGB to determine its comply with whatever regulations are improve their facilities, such efforts should standards, however, SGBs and provincial admissions policy. The section 22 power permits applicable in a province to govern the exercise be complemented, not undermined, when government nevertheless have powers in the HoD to take over the function of determining of the power. the school’s admissions policy. The MEC’s power provincial departments act to increase the relation to the determination of school under sections 3(3) and 3(4) does not permit her 45.4 The MEC/HOD may only depart from the demand on the schools’ resources. capacity. to take over the determination of the admissions SGB’s admission policy and determination of policy. It does permit her to establish the policy capacity where there is good cause to do so. 46.2 Where a provincial government places 48.5 The starting point is the power of an SGB basis upon which questions of school capacity additional children at a school, it may be to adopt an admissions policy that includes an should be determined by SGBs, and to take 45.5 In determining what constitutes good necessary to couple the exercise of that power initial determination of capacity in terms of remedial steps to ensure that every learner is cause, MEC/HOD must have regard to all with the provision of additional educators section 5(5). accommodated in a manner that maintains a relevant considerations, including: on the post establishment of the school and 48.6 However, when an SGB has determined fair allocation of educational resources in the providing additional infrastructure. 45.5.1 The number of learners having to be the capacity of a school at a certain figure in province. placed at the school; 47. At the same time, this Court should an admissions policy, that determination is 43. Accordingly, the relevant MEC/HOD may make clear that providing proper education not binding on either the SGB or government. 45.5.2 Whether the learners seeking override an SGB’s admissions policy and for all learners cannot be achieved only by Provincial government has the power – in placement are on the A waiting list or the determination of capacity and direct that further accommodating learners in existing schools. terms of sections 3(3) and 3(4) of the SA B waiting list of the school and, if not, the learners be admitted into the school. While this There is a statutory and constitutional duty Schools Act and any applicable provincial reasons for this; power derives in the first place from sections 3(3) on the State to provide additional educational regulations – to intervene to admit children in and 3(4) of the SA Schools Act, individual 45.5.3 The alternatives for placement of the facilities where this is necessary, albeit that doing excess of the initial capacity determination of provinces may also make regulations (as Gauteng learners; so may take some time. the SGB.

146 147 Access to Education in the Face of Discrimination | RELATED COURT PLEADINGS

48.7 However, the provincial government must 1. Bato Star Fishing (Pty) Ltd v Minister of act lawfully, reasonably and procedurally fairly Environmental Affairs and Tourism and Others in intervening in this manner, and do so only 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) where there is good cause to depart from the SGB’s policy. We have outlined above the 2. Centre for Child Law and Others v Minister considerations that must be taken into account of Basic Education and Others [2012] 4 All SA 35 in this regard. (ECG)

48.8 In the event that the placement of 3. City Council of Pretoria v Walker 1998 (2) SA children by the MEC/HOD at the school is 363; 1998 (3) BCLR 257 (CC) over and above the SGB’s determined capacity 4. Du Toit v Minister for Safety and Security and and will produce additional costs or require Another 2010 (1) SACR 1 (CC); 2009 (12) BCLR 1171 additional resources which the school cannot (CC) reasonably be expected to accommodate within its existing budget,, the MEC/HOD must 5. Governing Body of the Juma Musjid Primary make available those resources. School & Others v. Essay N.O. 2011 (8) BCLR 761 (CC) 49. It is therefore respectfully submitted this Court should uphold the appeal against the 6. Head of Department: Mpumalanga Department decision of the SCA and, in doing so, provide of Education and Another v Hoërskool Ermelo guidance to provincial governments and SGBs and Another; 2010 (2) SA 415 (CC) regarding an appropriate balance between their respective powers. 7. Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor 50. The amici curiae do not seek an order as to Distributors (Pty) Ltd and Others 2000 (10) BCLR costs. 1079 (CC); 2001 (1) SA 545 (CC)

8. Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd 2012 (2) SA 637 STEVEN BUDLENDER (CC) JASON BRICKHILL 9. MEC for Education: KwaZulu-Natal v Pillay 2008 Counsel for Equal Education and the Centre for (1) SA 474 (CC) Child Law (amici curiae) 10. Minister of Finance and Others v Van Heerden Chambers and the Legal Resources Centre 2004 (6) SA 121 (CC)

Johannesburg 11. South African Police Service v Public Servants Association 2007 (3) SA 521 (CC); [2007] 5 BLLR 383 18 April 2013 (CC)

12. Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) LIST OF AUTHORITIES Academic authorities Legislation South African Schools Act 84 of 1996 C Hoexter Administrative Law in South Africa (2 Case law ed, 2012)

148 A Legal Resource for Realising Ready to Learn? the Right to Education Ensuring Adequate Support for Children in Need

Nearly twenty years since the first Although the State is obliged under this model democratic elections in South Africa, to allocate school funds on a pro-poor basis, vast inequalities remain in the classrooms the ranking procedure used does not appear to of the rainbow nation. In an ongoing genuinely consider the poverty of the students and concerted effort to help advance who are attending the particular school. Instead, the ranking exercise focuses only on the poverty socio-economic rights under the new levels in the communities surrounding the Constitution, the Legal Resources Centre given school, which in turn can lead to serious (LRC) has sought to focus its energies on discrepancies in government data. The accurate improving access to, and the quality of, classification of a school is of great significance, education across the country. It is in this naturally, as the provision and size of government vein that the LRC has conducted work subsidies flow necessarily from a school’s quintile surrounding school feeding schemes and the ranking. For example, Quintile 1 to 3 schools, Quintile system, which serves to categorise which are considered no-fee institutions in schools for the purposes of government poorer areas, are eligible for the Primary School subsidies. In particular, over the past several Nutrition Program which provides much-needed years LRC lawyers have been steadfast in food for learners on a daily basis. This national program is an important tool in ensuring a basic challenging the government’s erroneous education for poor learners, as many of these classification of schools under this system, children would otherwise go without sufficient a bureaucratic miscalculation that can have nourishment during the day, and in some grave consequences for the learners and the instances without any food at all. administration of the schools at issue. Despite the government’s legislative mandate In South Africa today, all public schools are to identify and support schools in impoverished funded by the State in accordance with the South communities, many believe that the system African Schools Act. The amount of state funds has misidentified some of the schools most in distributed to these schools by the provinces need. The result of this distortion of the reality is determined in accordance with the National on the ground is that many schools simply lack Norms and Standards for School Funding. In early the resources necessary to provide the very 2007, national funding policy was established basics of a quality education for their learners. to identify and support, as a priority, the In addition to the retraction of the vital feeding poorest schools in the country. In line with this scheme as a result of higher quintile rankings, overarching policy, the provincial Departments of lower funding for needy schools means that Education conduct a review and assign a poverty vital repairs cannot be performed on dilapidated score to each school. As part of this exercise, school infrastructure, that desperate school schools are classified into one of five “quintiles”, administrators cannot afford to pay utility bills in Nearly twenty years since the first democratic elections with Quintile 1 being the poorest classification a timely manner, and that institutions located in in South Africa, vast inequalities remain in the and Quintile 5 schools being the wealthiest areas where the personal security of students and institutions that benefited historically from state teachers is of real concern cannot afford to pay classrooms of the rainbow nation. support during the pre-democratic era. for full-time security guards.

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It is within this context that the LRC represented parents in the surrounding community are not in six schools in KwaZulu-Natal in an effort to a position to pay school fees, the schools struggle challenge the allocation of funding, set aside to cover their day-to-day expenses. the unreasonable and inaccurate decision to rank the schools as Quintile 5, and compel the In the KwaZulu-Natal Quintile Ranking litigation, government to reimburse the institutions for the LRC called on the government to conduct a years of underfunding on the basis of their proper and fair assessment of the poverty levels revised quintile ranking. The LRC’s clients, of these schools, for the purpose of resource including Phoenix Heights and Highstone Primary targeting on a pro-poor basis, as contemplated School, were incorrectly ranked as Quintile in the national norms. Following an inability on 5 schools despite a high level of poverty and the part of the parties to reach an agreement unemployment in the surrounding communities. as to the proper ranking of the various schools, Many of the learners attending these schools the LRC now seeks to initiate a fresh round of come from one-parent households, while others litigation on behalf of these, and other, schools in are cared for by grandparents. Some of the the province. It is the LRC’s position that strategic households have no source of income at all, and litigation of this nature not only has an impact rely heavily on social grants and government on the schools at issue, but also has the potential support. Because the schools continue to be to compel the government to re-evaluate the classified as Quintile 5 and receive only limited effectiveness of the entire quintile ranking system state funding as a result, and because many nation-wide.

152 A Legal Resource for Realising Ready to Learn? the Right to Education Conclusion

This document is written by Sandra It is now recognised that realising rights through Fredman and Chris McConnachie based on litigation must play a central role in addressing a discussion led by Michael Bishop, Steven the widespread deficit in education throughout Budlender, Sandra Fredman and Tembeka the world. In South Africa, the right of children to a basic education has been justiciable from Ngcukaitobi during the closing session of the inception of the new Constitutional order. “The Legal Resources Centre and the Courts However, realising the right through litigation in South Africa: Realising Social, Economic requires careful thought and strategising. and Cultural Rights through Litigation,” a The LRC has now had extensive experience in conference hosted by the Southern Africa litigating the right to education in South Africa in Legal Services Foundation in February 2013 the context of severe and widespread deprivation at the Pocantico Center of the Rockefeller of the most fundamental components of Brothers Fund. It reflects the views of education, including school buildings, school the authors and not necessarily those of furniture, trained teachers, non-teaching other conference participants, or of the staff and the absence of national norms and standards for school infrastructure. In February Rockefeller Brothers Fund or the Wallace 2013, members of the LRC litigation team came Global Fund, their trustees or their staff. together with colleagues, law professors and litigators from other parts of the world to evaluate this strategy. This article sums up the A Justiciable discussions and conclusions of the workshop. Right to Education: Designing and Perfecting Context a Litigation Strategy On one level, the potential for realising socio- economic rights through litigation in South Africa is very positive. Unlike many other nations, South The relationship between law and constitutional Africa has a progressive Constitution, which rights is a critical one in this new century. embraces socio-economic rights. It also has a Although many have been sceptical whether Constitutional Court, which is committed to social, economic and cultural rights can be respecting and realising the transformative values realised through litigation, the Legal Resources embodied in the Constitution. At the same time, Centre (LRC) and the courts in South Africa are the Cour – particularly in the first generation providing tangible evidence of such success. The – regarded the political process as the most strategy behind the LRC’s litigation concerning appropriate vehicle for transformation and was these rights – as well as the court orders that unwilling to issue orders that might be viewed It is now recognised that realising rights through have followed, requiring the South African as usurping the newly acquired democratic litigation must play a central role in addressing the government to undertake appropriate remedies process or reflecting impatience as that process – together form an important model for both the developed and matured. Subsequently however, widespread deficit in education throughout the world. developing and developed world. it has become clear that the political process

154 155 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education and relevant executive institutions have largely understanding the nature of the State: its and those which require a combination of the to the litigation in advance, resulting in stronger failed to deliver on socio-economic rights. structure, powers and composition, as well as above strategies. One of the most useful ways to cases, better mobilisation and more effective Indeed, failure of governance – whether through the challenges and constraints it faces. For this, achieve this is to create strong relationships with follow-up. intransigence, inattention, incompetence or the litigator should adopt a nuanced approach. In community-based organisations. Community- corruption – has loomed large as an obstacle certain cases the State must be supported, such based organisations can also be helpful to In particular, clients need to be in a position to to the realisation of socio-economic rights, as where it adopts progressive policies to achieve supplement or substitute for local advice offices. monitor compliance and take appropriate follow- particularly health and education. Despite the the realisation of constitutional rights. In other Compiling a list of such organisations would be up action where necessary. The best litigation strategy would therefore be co-ordinated with constitutional changes, the face of poverty cases, where it adopts retrogressive measures, an important first step. remains black and female; there is a culture the State must be resisted. A nuanced approach other mobilisation strategies. It is also crucially important to ensure that major players are on of an unaccountable bureaucracy; there is a also necessitates a deep understanding of the Some difficult questions arise around potential side. In the context of education, cases need to pervasive culture of corruption; and there is a differences between the different branches of tensions with other organisations, such as be framed in ways that can garner the support chronic failure to implement the promises in the the State and the organs of state. For example, teachers’ unions. This issue should be approached of teachers unions, for example, in relation to Constitution. In this context, judicial intervention in the Section 100 Intervention case, the LRC on a case by case basis. Unions should be pay and training. Thought ought also be given has become urgent and its legitimacy has secured aimed to leverage the differences between brought on side where possible, whilst retaining to the appropriate use of class actions and the greater recognition. the national and provincial governments to the ability to criticise them. For example, in the improve the delivery of education in the Eastern Eastern Cape unions have opposed the Eastern advantages and disadvantages inherent in them. This does not mean that litigation can provide Cape Province. In March 2011, the national Cape Department of Education’s delayed efforts It is of crucial significance to structure test all of the solutions. The challenge is to find the government invoked its powers under section to rationalise the allocation of teachers to cases in a way that will attract judicial empathy right combination of litigation, civil society 100 of the Constitution to take control of the state schools, a process referred to as teacher and possibly that of the media too. Rightly or activism, political campaigning and patience. Eastern Cape Department of Education due to post-provisioning. For almost two decades, the wrongly, the Constitutional Court is moved by As far as courts go, the challenge for litigators maladministration, non-delivery and serious Department has failed to address imbalances “poorest of the poor” and “most vulnerable” is to find a way of enticing courts to intervene allegations of corruption. However, the problems in post-provisioning, resulting in a surplus of complainants. As an example of the importance appropriately: to use judicial means to insist on in the Department persisted, in large part due to teachers in some schools and severe teacher of this issue for the case as a whole, consider the accountability and the appropriate exercise of confusion over who was in charge. Civil society shortages in others. Thousands of temporary difference between the applicants in Mazibuko,3 power, rather than supplanting and substituting groups, assisted by the LRC, intervened to clarify teachers have been hired at great expense to a case in which the Court rejected the applicants’ political and executive decision-making, At the what powers and responsibilities had been taken fill the vacancies, resulting in the Department claims in relation to the right to water, and same time, the insights of reflexive law suggest over by the national government. This resulted cutting its school nutrition and transportation the Centre for Child Law case, which took the the need to understand the inner workings of in a settlement agreement in which the national schemes to cover the budgetary shortfall. In government to task for its failure to eradicate the public bodies responsible for delivering the government reaffirmed its commitment to the 4 late 2012, teachers’ unions launched a court “mud schools.” In Mazibuko, the claimants intervention and promised greater transparency.1 right to education. We need to identify both challenge seeking to overturn the Department’s litigating for the right to a larger basic provision However, the LRC’s experience is that the Section the barriers to change and the levers which can post-provisioning plan for 2013. The Centre for of free water already had access to water and 100 Intervention has achieved limited success, induce the appropriate sort of change. This might Child Law, represented by the LRC, intervened in a provision of free water. The case would have making it necessary to re-examine such an include finding an internal champion, exerting support of the Department and was instrumental looked and felt very different if the clients intervention as a tool for improving governance. 2 external political or media pressure, or incentives in having the case dismissed. However, the LRC had been among the 750,000 people living in in the right combination with litigation. In some has not been able to force the Department to The second key component concerns connections Johannesburg (probably South Africa’s richest instances, there is little choice but to request the move surplus teachers and confront the unions with communities. Public interest litigators, such city) who had no access to water at all. In the courts to supplant executive decision making. head on. Victory in court has not led to change. as the LRC, should be situated in such a way Centre for Child Law case, on the other hand, the LRC ensured that all seven applicant schools Below we elaborate on seven central issues which enables an understanding of the issues which need to be addressed if litigation is to affecting poor people, particularly how they are become a valuable means of achieving socio- affected by government action. This involves 2. Client Identification 2. South African Democratic Teachers’ Union & others v economic rights, particularly the right to being conscious of the difference between and Maintenance MEC, Department of Basic Education, Eastern Cape Province education. concerns which can be resolved by litigation, & others (ECB) unreported case no 573/12 of 18 February those which can be resolved by political action, Identifying the client is the next key challenge. 2013 < http://www.saflii.org.za/za/cases/ZAECBHC/2013/2.pdf> accessed 10 August 2013. The fact situation experienced by the client 3. Mazibuko & others v City of Johannesburg & others 2010 1. Situating the Public 1. Settlement agreement in Save our Schools and needs to fit well with the legal requirements and (4) SA1 (CC). Community and Another v President of the Republic of 4. Centre for Child Law & others v Government of the cause of action, while the context of the client Interest Litigator South Africa and Others (ECB) case no 50/12, accessed 10 August 2013. communities and their organisations connected Education’ (2012) 129 South African Law Journal 554.

156 157 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education were from the Eastern Cape (South Africa’s worst thus take into account not only whether the a claim that the right to sufficient water required Glenister10, and Simelane11 – where the Court was off province), were from the Libode district (the claim is legally tenable, but also what the likely the greater provision of free water, with the willing to intervene in sensitive political decisions worst off district in the province) and were practical outcome will be, having regard to the German Constitutional Court decision in Hartz – with Mazibuko12 and the E-tolling13 decisions, among the worst off schools within that district. likely response of the State and other role-players IV, where it found that an unemployment benefit where the Court adopted a far more deferential The case settled successfully before the hearing to this outcome. It is important to recognise, scheme was in violation of the right to dignity approach. in the High Court, but had it gone ahead, there however, that the pace of improvement is because it failed to ensure a minimum level of is little doubt that the Court would have been likely to be slow and incremental. Again, in this subsistence.6 Lucy Williams7 argues that, at a moved to action by the conditions at these context, the response of teachers’ unions in doctrinal level, both courts endorsed similar 5. How to Make Organisations schools. It should be borne in mind, however, particular is an important factor. standards of scrutiny for reviewing government that although some cases might not ex facie decisions. However, in applying these similar Act to Fulfil the Right evoke judicial empathy, the manner in which Secondly, the support of the public and the standards of scrutiny, the courts showed One of the biggest challenges relating to the they are presented might do so. The key is the media generally should not be ignored. For substantially different degrees of deference to 5 right to education is that courts must require careful presentation of cases in a manner which example, in the Textbooks case, a challenge their respective governments. The German Court government to take positive action to promote enables judges to understand that the dispute is to the government’s failure to deliver textbooks engaged in a searching analysis of the German and fulfil the right. This differs from the capable of resolution by the application of legal to schools in the Limpopo Province was effective legislature’s methodology and evidence for traditional role of human rights, which is to principles. in part because it was easy to explain and determining the amount of the unemployment publicise. The case benefitted from extensive restrain the State from breaching individual benefit. It found this decision-making process rights. In the South African Constitution, it arises At the same time, the difficult ethical issues media coverage and was the focus of public wanting and sent it back to the legislature to be surrounding strategic litigation cannot be attention for many months in 2012. This public expressly from the duty in section 7(2) of the reconsidered in a constitutionally appropriate Constitution to “respect, protect, promote and avoided. If non-ideal clients present themselves, support helped give the case momentum and way. In Mazibuko, by contrast, the South African can they be turned away, and why? On the other also increased the pressure on the provincial fulfil” all rights, which mirrors international Court engaged in a light-touch review that did legal obligations. This challenge arises both at hand, given the LRC’s limited resources, is it and national governments to comply with the not engage with the decision-making methods ethical to take on representations that divert court order. or evidence in great depth. Doctrinal similarity critical time and attention from clients whose at the level of the standard of scrutiny did not Thirdly, it is important to give careful claims are most pressing and whose suits, if guarantee similar reasoning and outcomes. 6. BVerfG, 1 BvL 1/09, Judgment of 9 February 2010 (Hartz IV). successful, promise greater benefits for larger consideration to possible unintended English translation available at: consequences: for example, would achievement numbers of similarly situated individuals? Apart Concurrently, the formulation of the doctrine accessed 10 August 2013. See further I Winkler and from the ethicality, this is also a strategic issue, can be of consequence, particularly for future exclude failing learners rather than to take more C Mahler, ‘Interpreting the Right to a Dignified Minimum given the risk that some other less skilled and cases. The Constitutional Court needs to be care over bringing them up to standard? Existence: A New Era in German Socio-Economic Rights less public interest-oriented litigator may do so. persuaded that the South African Constitution Jurisprudence?’ (2013) Human Rights Law Review 1–14. does not require an overly deferential position 7. Lucy Williams, ‘The Role of Courts in the Quantitative- by courts, but rather gives room to courts to be Implementation of Social and Economic Rights: A 3. Entry Points on Right to Education 4. Deference and Scrutiny of Evidence assertive in appropriate contexts. How to get Comparative Study’ (2010) 3 Constitutional Court Review judges to appreciate this remains an ongoing 141. Cases should be framed in a way which 8. See Mazibuko (n 3) [61]: “[O]rdinarily it is institutionally Litigation question. Some suggestions include co-ordinated “moves the court.” This is partly to do with inappropriate for a court to determine precisely what the advocacy over a series of strategic cases, amicus Strategic decisions need to be made as to empathy for the complainant, but also to do achievement of any particular social and economic right. interventions, judicial education, academic . . . This is a matter, in the first place, for the legislature the appropriate focus for right to education with judicial perception of the limits of their articles, or a combination of these. What is and executive, the institutions of government best placed litigation. Should priority be given to quality legitimacy and competence, factors which clear is that the concerns of the court over the to investigate social conditions . . . and to determine what of education, funding, infrastructure, often operate together. Thus the language with appropriate boundaries of their institutional role targets are achievable in relation to social and economic textbooks, teachers’ pay, teacher training, which courts formulate legal doctrine is not rights. Indeed, it is desirable as a matter of democratic are affected by a variety of factors, including who maladministration, or a combination of these? always determinative of the extent to which accountability that they should do so for it is their the litigants are, what the substantive issue is, they are willing to engage with government programmes and promises that are subjected to democratic Several key points emerge in choosing which of and the extent of public or political mobilisation. claims or of the degree of deference that they popular choice.” (Emphasis added.) these entry points to pursue and when. Firstly, Of particular importance is the question of 9. Minister of Health & others v Treatment Action Campaign show. Often more crucial is the way in which it is necessary to keep an eye on the overall aim: whether the cause of action arises directly from & others (No 2) 2002 (5) SA721 (CC). the court applies the doctrine. This can be seen to improve quality of education for learners. If the Constitution or from legislation, as the courts 10. Glenister v President of the Republic of South Africa & by comparing the South African Constitutional the case is not likely to achieve this, then the appear to be more comfortable enforcing positive others 2011 (3) SA 347 (CC). Court’s decision in Mazibuko, where it dismissed 11. Democratic Alliance v President of the Republic of South question arises as to whether the case should constitutional duties that have been given greater Africa & others 2013 (1) SA 248 (CC). 8 be taken at all. This means that cases should content through statutes and regulations. The 12. Above n 3. only be chosen if they are likely to have positive 5. Section 27 & others v Minister of Basic Education & complex interaction between these factors 13. National Treasury & others v Opposition to Urban Tolling 9 results in reality. The decision to litigate should another 2013 (2) SA 40 (GNP). can be seen by comparing cases such as TAC, Alliance & others 2012 (6) SA 223 (CC).

158 159 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education the stage of determining whether to litigate and In our context an appropriate remedy must sanctions for failing to do so. The reflexive agreed to publish the norms and standards by deciding how to litigate. mean an effective remedy, for without effective mode is characterised by inducing, rather than May 2013. The matter was back in Court in July remedies for breach, the values underlying and commanding change: facilitating deliberative after the Minister failed to meet this deadline, In approaching this question, it is useful to the rights entrenched in the Constitution cannot and co-operative problem-solving by all parties resulting in another consent order requiring the draw on insights from regulatory theory. Simply properly be upheld or enhanced. Particularly in a involved, and finding a balance between Minister to publish norms and standards by 30 ordering an organisation to change (“command country where so few have the means to enforce incentives and sanctions. November 2013. As this case demonstrated, the and control” theories of law) might not have their rights through the courts, it is essential that government has strong incentives to settle a the intended consequences. The organisation on those occasions when the legal process does It is important to find the right remedy for the case: it might wish to avoid negative publicity might simply reorganise itself in order to resist establish that an infringement of an entrenched case at hand. Central questions include: What is and political pressure, or it might want to avoid change. For example, it might issue codes of right has occurred, it be effectively vindicated. the “cog” that we need to set in motion? Is the giving the court the opportunity to hand down conduct or plans of action, but not act on The courts have a particular responsibility in this organisation’s failure to fulfil the right caused by a judgement which sets a robust precedent for them. Alternatively, court orders might damage regard and are obliged to “forge new tools” and intransigence, inattentiveness or incompetence, the right to basic education. From the point of 17 the organisation by decreasing initiative and shape innovative remedies, if needs be, to achieve or a combination? What type of remedy is most view of the client, it may be difficult to refuse increasing bureaucracy. Or, the law might this goal.16 likely to prompt the body into action? an offer of settlement which appears to meet simply be ignored, decreasing respect for the client’s demands. However, for the public Of particular importance is to structure the the effectiveness of court. This is known as a It is always important to keep in mind the close interest litigator, settlement has some negative case from the beginning with the appropriate “regulatory trilemma.”14 link between rights and remedies: the content consequences: it deprives the LRC of precedents remedy in mind. The remedy cannot simply be of the right is defined in part by the remedies to use in future judgments, it can deflate an add-on that does not fit with the way the In order to know whether an issue is appropriate a litigant can obtain if the right is violated, associated public action, and it can reduce public case has been litigated. This applies to both the for litigation, the LRC needs to understand and conversely, the available remedies will attention and public pressure for compliance. legal doctrine used and the attitude chosen, for the organisation which it expects to take affect the way that courts define the right. The This can be seen by comparing the settlements example, whether to be aggressive, co-operative, action. Relevant questions include: Why is this public interest litigator has the responsibility reached in cases concerning school infrastructure confrontational or conciliatory. 19 institution not fulfilling a particular right? What of identifying the “new tools” and “innovative in the Eastern Cape, which received limited are the structure, rules, processes, culture, remedies” mentioned in Fose. It is important 20 Innovative remedies should be crafted beyond the public attention, with the Textbooks case, history and personnel of the organisation? Can to bear in mind, however, that new remedies traditional structural interdict. Some jurisdictions which received a strong judgement and garnered the LRC identify the right “cog” that could set the need to maintain some connection to the “rule strong public support. have used special masters or receivers who organisation in motion? At the same time, the of law” and must be neither too harsh nor too take control of the process. Clients can better LRC needs to understand the role that it wants weak. Courts should be offered different remedial The public interest litigator therefore needs monitor compliance and work toward future the court to play in relation to the organisation options, although one difficulty in litigation is to anticipate settlement and use it to its full improvements if agencies are encouraged to it is dealing with. One way of approaching the that offering too many options may mean that advantage. To do so, it is necessary to first of all be transparent and accountable. Remedies, issue is to ask what metaphor best describes the litigator won’t obtain its first prize. choose clients in ways that ensure settlement in appropriate contexts, can include public the court’s role: policeman, teacher, manager, cannot determine the whole case. Such clients 1. Remedial modes reporting devices that allow for feedback and partner, coach, catalyst or destabiliser? would include institutional clients and class adaptation as situations change and remedial actions, whose interest in the matter would As a broad classification, the LRC can distinguish It should be borne in mind that a decision not approaches are shown to need recalibration. remain even if the State takes steps to satisfy between the command-and-control mode and to litigate a matter can be as important and as The LRC might also think of co-opting or creating the needs of individual litigants. In addition, the reflexive mode. Note that this is not a strict effective as one to litigate. Not litigating does not new fora or institutions to address the problem. the notice of motion can be structured in ways distinction: many remedies will have elements mean doing nothing: it means finding alternative Indian courts have made extensive use of interim which make it difficult to settle. This could be of both modes, and remedies can be both static ways to change the organisation’s behaviour such determinations pending further government and dynamic, moving back and forth between the action. as lobbying, public or political pressure, using two modes. the Public Protector or the South African Human 17. See Kent Roach and Geoff Budlender, “Mandatory relief 2. Settlement v Judgment and supervisory jurisdiction: When is it appropriate, just Rights Commission, and so on. This decision In the command-and-control mode, courts and equitable?” (2005) 122 South African Law Journal 325 must be made in the context of the ongoing duty order the organisation to act and can impose A central dilemma facing litigators arises when at 345ff, citing Chris Hansen ‘Inattentive, intransigent and of the LRC to assist its clients. faced with an offer to settle a case. The LRC incompetent’ in S R Humm (ed) Child, Parent and State 14. See Gunther Teubner, “After Privatization: The Many has often felt the disappointment of victory (1994) 232. Autonomies of Private Law” (1998) 51 Current Legal when settling, particularly in the Norms & 18. Equal Education & others v Minister of Basic Education Problems 393, 406-14; Sandra Fredman, Human Rights Standards18 case, an application to compel the & others (ECB) case no 81/2012. 6. Remedies and Compliance Transformed (2008) ch 6; Sandra Fredman, “Breaking the 19. See Centre for Child Law (n 4); School Governing Body of Minister of Basic Education to publish national Mold: Equality as a Proactive Duty” (2012) American Journal Amasango Career School v MEC for Education, Eastern Cape In Fose v Minister of Safety and Security,15 the of Comparative Law 265. norms and standards for school infrastructure. (ECG) case no 3838/2009, both discussed in McConnachie & Constitutional Court succinctly captured the 15. 1997 (3) SA 786 (CC). In November 2012, days before the scheduled McConnachie (n 4). aims of constitutional remedies: 16. ibid [69]. hearing, the Minister settled the case and 20. Above n 5

160 161 A Legal Resource for Realising A Legal Resource for Realising Ready to Learn? the Right to Education Ready to Learn? the Right to Education achieved by including, for example, applications of Education, under the control of the national is traditionally regarded as a polycentric issue which the Court will scrutinise claims relating to for detailed relief, continued court supervision, Minister of Basic Education, to implement the which oversteps the limits of judicial legitimacy available resources. built-in consequences for non-compliance, and 2012 teacher post-provisioning plan and to and competence. It is often argued that courts declarations of unconstitutional conduct. The develop a post-provisioning plan for 2013. The are not in a position to make hard choices To take this forward and begin to create a substance of the case may also be crafted in ways order required the Department to report on its about distribution of scarce resources, and that framework for challenging budgets in courts, that cannot be settled: a case which is ambitious progress and allowed the parties to return to accountable politicians rather than courts should litigators should first attempt to establish a is difficult to settle. court on short notice. After the Department decide whether to use resources for one pressing strong factual basis: are there in fact available failed to fill vacant teaching posts in 2013, the need rather than another. For example, it is resources and is the budget the true reason 3. Personal Liability & Sanctions LRC brought an urgent application which settled argued that courts should not decide whether to for the failure to deliver? Also important is before the hearing. The agreement, which was consideration of the respondent’s perspective: Personal liability is unusual in constitutional divert resources from essential health services made an order of court, required the Department does it genuinely believe itself to be constrained litigation, however, it may be worth thinking to education. However, the experience with to fill the vacancies by the end of May 2013 and by the budget? Budgetary constraints might afresh about whether it would be helpful to litigating the right to education in South Africa stipulated that if it failed to do so, the temporary have important institutional sources: do they develop such a doctrine. Personal liability has demonstrated that the problem is often teachers in the posts would be permanently arise from the relationship between government has both advantages and disadvantages. The not of this extreme kind. Instead, the issue appointed. After this deadline passed, the LRC advantages are firstly that it avoids burdening often concerns misuse of resources, whether organisations, particularly the relationship obtained a further order forcing the Department 23 the fiscus for unlawful acts by officials, and through inefficiency, apathy or dishonesty. In between Treasury and national departments, or to pay these teachers’ salaries. On the LRC’s secondly that it might induce better behaviour this context, it is increasingly important that between the provincial and national levels? If so, insistence, the order included a further clause from officials in the future. However, the dangers courts insist on a sound evidential basis before potentially all relevant actors should be joined allowing the LRC to attach the Department’s are that it might deter good people from entering accepting governmental claims that failure to as respondents. Other key questions concern assets if it failed to comply. The Department government, or deter government from taking fulfil the right to education is due to budgetary the sources of the budget: Are there alternative failed to pay and the LRC duly obtained a writ risks. Thus it is important to structure the constraints. Courts therefore need to pay more sources? If so, who has the power to raise of execution directing the sheriff to attach the doctrine to maximise advantages and minimise attention to the development of principles to additional revenue? Knowledge of the process Department’s movable assets.22 risks. In order to develop a strategy to establish scrutinise justificatory defences which depend on for determining the budget could help identify potential points for intervention. Increasing use the doctrine, the first step would be to find the Court sanctions are not the only form of budgets, and in particular, to the kind of evidence of experts, particularly on budgeting, might take right test case. pressure. Informal sanctions, such as public which should be produced. the LRC forward into new territory. pressure and negative media coverage, can A further problem concerns widespread non- The first central issue is to establish clear also be very effective. In this respect, it is compliance by state bodies with court orders principles. In Blue Moonlight,24 the Constitutional The next step is to consider how to address the important to keep the media on side. In addition, and settlements. Thus far, sanctions have often Court stated as follows: budget in litigation. One question is whether to disciplinary sanctions against officials who flout proven ineffective at ensuring compliance. challenge the budget directly or wait for the state court orders may be a possibility. Several further possibilities therefor need to “This Court’s determination of the reasonableness to raise the budget as a defence. Challenging the be developed. Contempt could be a powerful of measures within available resources cannot budget directly requires a further decision as to remedy, but is difficult to prove. Further work be restricted by budgetary and other decisions how it fits into the doctrine. Rather than seeing on this doctrine is necessary to ease the burden 7. Budget that may well have resulted from a mistaken it as a defence, could it be argued that budgetary of proof, while alternative remedies following understanding of constitutional or statutory decisions come within the reasonableness One of the most difficult challenges relates a finding of contempt, apart from fines and obligations. In other words, it is not good enough to the budgeting process, which courts have conception,i.e., is there a duty to budget imprisonment, also need to be considered. for the City to state that it has not budgeted traditionally fought shy of, but which is inevitably reasonably? Finally, how is the budget related to Punitive personal costs orders against officials for something, if it should indeed have planned key. Socio-economic rights, and particularly the remedies sought? and their attorneys might be one possibility. and budgeted for it in the fulfilment of its the right to education, require governments obligations.”25 In any event, sanctions should be built into to allocate appropriate budgets, yet budgeting the order, and the order should provide for a This is a helpful articulation of the basic 23. See Nick Ferreira, “Feasibility Constraints and the South ratcheting up of the court’s supervision if the 21. Centre for Child Law & others v Minister of Basic principle and it is important to ensure that the African Bill of Rights: Fulfilling the Constitution’s Promise Education & others (ECG) unreported case no 1749/2012 organisation fails to comply. These lessons have Constitutional Court does not backtrack from it. in Conditions of Scarce Resources” (2012) 129 South African |of 3 July 2012. Law Journal 274. already been put into practice in the ongoing Further development of the doctrine is necessary, 22. See Victoria John, “EC Department Assets to be Attached 24. City of Johannesburg Metropolitan Municipality v Blue post-provisioning litigation in the Eastern Cape.21 for Salaries” Mail & Guardian (Johannesburg, 6 August 2013) too, to determine the limits of Blue Moonlight Moonlight Properties 39 (Pty) Ltd and Another (CC) 2012 (2) In August 2012, the LRC obtained a structural accessed 10 August 2013 doctrine of reasonableness, and the extent to 25. ibid [74].

162 163 A Legal Resource for Realising Ready to Learn? the Right to Education

important ways. By stepping outside the day- Conclusion: Getting Ahead to-day activity of litigation, the LRC can see the bigger picture, consider new possibilities, Acknowledgements and Staying Ahead and re-connect with the organisation’s basic goals. The LRC needs to innovate in specific ways, particularly in relation to remedies. The LRC should also educate the media to make the Strategic litigation requires reflection about the interests of its clients visible and to make clear role of litigation and what it can and cannot The writers would like to thank the following their importance to the future of a democratic achieve. The LRC should not adopt or promote individuals and organisations for their 26 South Africa for all. Most of all, the LRC needs a “jurisprudence of exasperation,” but instead contribution to this resource, both in terms to remain in touch with communities so as manage expectations. Litigation cannot fix the of information and support, and for their to understand the issues that are of concern education system or abolish poverty in the short continued work in advancing human rights: run, but litigation can assist the LRC’s clients, to them and how the law can best be used to articulate the concerns of the poor. increase accountability and awareness, improve American Civil Liberties Union governance, and identify and remove legal or Litigation has its limits, but small victories over Steven Budlender political barriers to implementation. Ford Foundation time can produce transformative effects. The Sandra Fredman In addition, the LRC and all similarly minded LRC needs patience and resources to play a David Grenville public-interest litigators can stay ahead in long game. Helen Hershkoff Fiona Lee LRC staff Chris McConnachie Open Society Foundations Rockefeller Brothers Fund Ann Satchwill Southern Africa Legal Services Foundation Wallace Global Fund Scott Whitelaw

26. Pratap Bhanu Mehta quoted in Kate O’Regan, “Helen Suzman Memorial Lecture - A Forum for Reason: Reflections on the Role and Work of the Constitutional Court” (2012) 28 South African Journal on Human Rights 116, 133.

164 165 A Legal Resource for Realising Ready to Learn? the Right to Education

Litigation has its limits, but small victories over time can produce transformative effects. The LRC needs patience and resources to play a long game.

167 A Legal Resource for Realising Ready to Learn? the Right to Education

Nearly twenty years since the first democratic elections in South Africa, vast inequalities remain in the classrooms of the rainbow nation.

The generous rights envisioned in our first democratic Constitution remain elusive to most South African students, whose daily struggle for knowledge is hampered by severe and widespread deprivation of the most fundamental components of education. Over 3,500 schools in South Africa do not have any access to electricity; half of South Africa’s schools do not have access to water and adequate sanitation; 93 percent of its schools do not maintain proper school libraries and 95 percent do not have science facilities; while 19,000 teacher posts across the country stand vacant.

For more information please visit the LRC’s website at www.lrc.org.za 168