The Section27 offices in downtown Johannesburg were pulsing with excited chatter on the morning of July 19.
“I haven’t had a chance to read the judgment, but I have scanned it quickly,” explained Faranaaz Veriava, the head of education at the South African non-profit. The consensus gut reaction from those in Section 27, a legal advocacy group that works primarily in health and education, was total elation.
Minutes earlier, a judge in the Bhisho High Court handed down a ruling on a multi-year court case against the Department of Basic Education (DBE). Equal Education, a coalition of South African learners and activists who fight for educational rights, first took the department to court in 2016.
The case revolved around a series of regulations known as the “Norms and Standards for School Infrastructure,” which were adopted in 2013. These Norms and Standards outlined a series of regulations all South African Schools had to meet.
The standards include information about what material comprises a safe and proper structure, certain standards for sanitation, and other general baseline goals for all South African schools to achieve by 2016. The purpose of the Norms and Standards was to combat long-standing inequality in education infrastructure that has its roots in apartheid education policies.
The norms were first adopted by DBE in response to years of protest by Equal Education members who demanded a legally binding regulation that would result in the immediate improvement of conditions.
When DBE missed the November 2016 deadline to implement the standards, Equal Education Law Centre took the department to court. The judge ruled that unconstitutional regulations within the norms exempted the department from actually abiding by its promises. The new ruling clarified the department’s responsibility to learners moving forward.
The Norms and Standards case was the second court loss for DBE in July alone. The first, nicknamed the Tree School Case, also pertained to education infrastructure.
Makangwane and the Precedent for Basic Education
Makangwane Secondary school was built by members of the Limpopo Non-Parella community in the 1970s. Consequently, the school has faced infrastructure issues for quite some time. Following a storm, the roof at Makangwane blew off the building, and due to the danger of snakes, crumbling walls, and the potential for further damage, teachers started teaching classes under trees.
Despite years of requests, Makangwane never received any support from DBE in its quest to improve the school’s conditions.
DBE then attempted to solve the Tree School problem by merging Makangwane with nearby Sephaoweng primary school.
“In terms of the South African Schools Act, mergers need to follow certain processes including consultation with affected parties, being the schools, the parents, the community. That never happened,” explained Taryn Cooperbell, the attorney on record for Sephaoweng primary school. “The department went to the primary school—said you need to make four classrooms available we’re moving the high school learners in today.”
In court, Makangwane emerged victorious, and a set of mobile classrooms were immediately delivered to temporarily house learners.
The secret weapon in both the Makangwane Case and the Norms and Standards case dates back to 1996, when the new Democratic South African government ratified its first constitution.
Section 29(1)(a) of the South Africa Constitution states that “Everyone has the right to a basic education.”
While the wording is simple, its implications have been far reaching.In 2008, a case around property rights at the Juma Musjid school turned into a precedent setting ruling in terms of Section 29(1)(a). The court ruled that basic education is an immediately realizable right.
“So whereas other socio-economic rights are progressively realizable, the state has to take legislative and other means within its available resources to realize these rights, that’s not the case with the right to basic education,” pointed out Daniel Linde, the Deputy Director of the Equal Education Law Centre. “The state must do everything possible to realize [the right to basic education].”
Linde continued, “And through the jurisprudence that has developed we now understand correctly that [29(1)(a)] means everyone must be in a safe school and a school that has a proper teaching and learning environment.”
Despite the strong constitutional support for education, South Africa continues to face serious infrastructure challenges.
The issue of pit toilets, a sanitation practice that was deemed dangerous and illegal by the 2013 Norms and Standards, continues to impact schools in South Africa.
In January, 2014 a five-year old boy named Michael Komape died by drowning in a dilapidated pit toilet. In March 2018, a five-year old girl named Lumka Mkhethwa died under the same tragic circumstances.
The danger of pit toilets has impacted both the learners and the teachers.
“Yes [pit toilets are] disturbing effective teaching and learning because during the day you cannot just send the learners to the toilets alone,” said Lydia Ramoroka, Principal of the Sebushi Primary School in Manyape Village, Limpopo. “You have to stop the lesson and then accompany them to the toilet and then come back just to make sure they are safe.”
Ramoroka revealed that pit toilets are only one of a series of infrastructure problems for Sebushi.
“Looking at the kitchen we have where our kids are fed we cannot say that is up to standards. So that is a challenge. We cannot build a proper kitchen,” Ramoroka said.
She continued, “I just wish that the department can just come down to our levels at the school and see the condition we are dealing with every day. Day in and day out. It’s not for us it’s for the kids. So they can ensure the safety of the learners.”
Litigation that holds the government accountable could bring the change to Sebushi that Ramoroka wants. However, while taking the department to court is effective in securing orders on specific cases, litigation requires money and resources that activists would prefer the department put into actually fixing schools.
“So what litigation does really is it catalyzes or pushes some kind of response, some kind of commitment from government,” reflected Veriava.
Linde realizes the effectiveness of litigation, but hesitates from encouraging activists to rely on it. “Ideally you could avoid litigating. And we certainly don’t ever look to litigation as a sort of first port of call. But unfortunately, where there is that disjuncture [between the state and the learners] and we struggle to resolve it by engagement, then sometimes that litigation is necessary.”
In her ruling on the Norms and Standards case, Judge N Msizi did not mince words in criticizing the Department of Basic Education.
“I cannot fathom a reason why, given the nature of the right in question, and the abundant crisis, the [minister of the DBE] cannot develop a plan and allocate resources in accordance with her obligations,” wrote the judge.
Msizi continued, “The obligation upon the respondent to provide basic education has been in existence since 1996 when the Constitution was born, 22 years ago. The [disputed provision in the Norms and Standards] provides the respondent with a lifetime indemnity against discharging the duty she owes in terms of section 29(1)(a).”
On August 10, the Department of Basic Education appealed the ruling.
That month President Ramaphosa introduced the Sanitation Appropriate for Education Initiative to improve sanitation conditions in schools nationwide. However, questions remain about the government’s ability to implement the plan.
In early November 2018, the appeal against Msizi’s ruling, seeking to hold the department accountable for the delivery of education, was rejected.
The right to basic education is enshrined in the constitution and has been upheld by various courts. The capacity, will, and desire of government agents to abide by this right will determine the degree to which learners will continue to suffer.