Litigation is increasingly being used to force the government to provide the basics needed in schools, writes Victoria John
The failure of the government to provide millions of pupils with basic resources is a story told by desperate principals, tired teachers and angry pupils who are frustrated with inadequate responses to their demands.
Now civil society organisations are increasingly taking the basic education department and its provincial counterparts to court to see that pupils get a better standard of education.
Martin Prew, director of the Centre for Education Policy Development, said the nature of court action taken against the education department had shifted in recent years.
After the birth of democracy, the legal action consisted mainly of white, Afrikaner, right-wing parents, school managers and school governing bodies taking the department to court over the rights of their schools, which tried to avoid admitting more pupils than they felt their resources could accommodate or changed their language policy to avoid admitting black pupils, for example.
“It was very much the right wing taking pot shots at the department and winning,” he said.
Abuse of the Constitution
In 2005, the predominantly white Afrikaans-medium Mikro Primary School in the Western Cape went to court over an order from the government to accept a class of black children who needed to be taught in English. The school’s governing body was successful in asserting that it was the school’s right to determine the language of instruction, although some people believed that the action was an abuse of the Constitution to protect a minority and enforce racial segregation.
Prew said there were still cases like these, but there had been an increase in the number of cases over the rights of pupils to basic education resources. “This latest spate of litigation is aimed at making the department commit to its constitutional commitments to providing the right to education for all children.”
Prew said an important point to remember was that education is a basic right and not a progressive right. Unfortunately, the department has been treating it as a progressive right and adopted the attitude “we’ll do away with all mud schools by this date”, for example. “But they can’t actually say that,” Prew said. “This is exactly what Equal Education has picked up on.”
In March this year the Cape Town-based organisation filed papers in the Bhisho High Court to force Basic Education Minister Angie Motshekga to establish minimum norms and standards for school infrastructure. The action includes Finance Minister Pravin Gordhan and all the provincial education ministers.
The organisation maintains that 92% of the country’s 25000 schools do not have proper libraries, 395 schools in the Eastern Cape have mud classrooms and 600 schools in KwaZulu-Natal have no toilets. Furthermore, about 3600 schools do not have electricity.
In another landmark lawsuit, rights organisation Section 27 launched an urgent application in the North Gauteng High Court last month against Motshekga and the Limpopo department of education “in relation to their complete failure to procure and deliver textbooks for learners throughout Limpopo”.
Two weeks ago, the court ordered the department to supply the affected schools with textbooks by June 15.
Basic education department spokesperson Panyaza Lesufi said the department was deeply humbled that society had taken an interest in education.
“The court cases demonstrate how dearly our communities respect education. Even though we are assessing the court cases, we still believe it is not different from previous years. To us, our communities are our ears and eyes and we welcome reasonable court cases that strengthen partnership between communities and education authorities.”
Sarah Sephton, regional director of the Legal Resources Centre in Grahamstown, said litigation was a desperate measure to resolve education problems in the Eastern Cape.
“There has been a shift in the type of litigation that is taking place because of the appalling carelessness with which the education department is responding to problems raised with them, especially in this province,” she said.
The centre launched its first application against the provincial education department in 2009 to review its decision not to build a new, desperately needed school for the Grahamstown community. A year later it filed another application to compel the department to eradicate mud schools.
The centre was successful in these cases and two other “substantial” lawsuits, but it continues to struggle to get the orders implemented. Since 2009 it has also issued at least 15 letters of demand on separate education matters, which were mostly resolved without going to court.
“Litigation in education over rights to a safe classroom with desks, stationery, textbooks and good teachers, for example, is slowly but surely increasing because it is the only way you actually get a response. You get sucked into it. It’s a snowball effect. One case leads to another and another,” she said.
On the whole, the district education offices were unable or unwilling to assist schools that turned to litigation to resolve their situations, she said. “You would think that the minister would call all the non-governmental organisations together and say ‘right, let’s talk’, but she doesn’t.”
Provision of posts
This week the centre was planning to file an application in the Grahamstown High Court to compel the department to implement fully this year’s provision of posts for the province. The case, which will affect almost every school in the province, relates to 64752 teaching posts the provincial department has budgeted for this year.
Sephton said thousands of the posts had not been filled and the repercussions for schools were dire. In addition, there were many teachers who were deemed to be in excess of schools’ requirements but had not been moved, which had a severe impact on the department’s personnel budget.
Doron Isaacs, co-ordinator for Equal Education, said: “There is a growing public sentiment that it’s untenable that, after 18 years of democracy, we have the kind of education we do and the inequality in education we have.”
Speaking about repeated attempts to discuss the infrastructure problems that prompted its court action with the basic education department, he said the department “displayed a reluctance about infrastructure standards which I can’t explain … There was a breakdown in communication. What we are proposing is so reasonable that this court action could have been avoided.”
A genuine movement of people
Ten years ago would not have been the right time to bring this kind of case, Isaacs said, but there was an understanding now that the government had failed miserably to provide basic resources to schools.
But Isaacs said litigation had to be used “very cautiously, not as a first choice and wherever possible must build on a genuine movement of people on the ground”.
He said there was a real chance that, if litigation was used as a first resort, the result would be hollow court orders that would not be implemented. Cases could also be lost because organisations had not done the hard work of convincing the public, including judges, of a particular moral view.
In January the organisation established its own law centre because “every day, we are contacted by schools that have all manner of problems … there is so much to do, the work could go on for decades”.
“The opportunities in life are more and more determined by education,” he said.
“Our education system should be breaking down inequality, but it is not. It is only reinforcing inequality and there is a growing anger among young people about losing these opportunities”.