Basic Education Minister Angie Motshekga is set to argue in court that children do not have an unqualified constitutional right to basic education.
As Basic Education Minister Angie Motshekga fights to keep her job, it emerged this week that she would contest the widespread view that the Constitution guaranteed immediate basic education rights.
In the same step she has also backtracked on her previous promises to publish minimum norms and standards for school infrastructure.
Both these moves are part of her long-awaited response to non-governmental organisation Equal Education's application to the Bhisho High Court in March seeking to force her to publish these standards. Her first two requests for an extension to file her answering affidavit were granted, but the third was denied.
Equal Education's application to the court argued that "the right to a basic education is immediately realisable and is not subject to progressive realisation in the light of available resources".
By contrast, Motshekga's affidavit refers to "budgetary constraints" and "the limitation of available resources" in arguing why she will not promulgate the much-anticipated minimum norms and standards.
"[T]he right guaranteed by section 29(1)(a) of the Constitution is the right to a basic education [and] account has to be taken of socioeconomic realities," her response states.
The minister's stance was "perplexing", said constitutional law expert Pierre de Vos. The Constitutional Court, he said, had previously distinguished between education and other socioeconomic rights, such as housing and healthcare, by saying that "the right to education is not qualified by available resources and is not subject to progressive realisation".
"Children need to be provided with basic education now. It is not about waiting for money to do this," De Vos said.
Norms and standards
Education gets the largest single slice of South Africa's budget. In the 2012-2013 financial year, basic education's allocation is R152.1-billion – 15% of the national budget.
Two years ago Motshekga promised that "norms and standards for the physical teaching and learning environment will be set at the national level by the department of basic education".
These would be "effective from 2010-2011 financial year", her June 2010 policy document declared. But she subsequently decided to adopt only "guidelines" after being "persuaded" by provincial education MECs to do so, her answering affidavit says.
"Rigid" regulations for norms and standards would "cause serious practical difficulties", the affidavit states. They would "fetter the discretion and flexibility needed by each province" because of the "markedly different conditions" relating to availability of money, budgets and land.
But according to Equal Education, which is represented by the Legal Resources Centre, publishing the minimum standards for infrastructure at schools would enable the public to hold the government accountable because everyone would "know what they are entitled to require of the government", its founding affidavit says.
The public would then be able to "hold the government accountable for meeting its obligations and ensure that the government meets those obligations".
Motshekga's papers refer to the South African Schools Act to argue that she is not required to publish minimum norms and standards, saying the act "provides for a discretion, not an obligation".
Equal Education has previously said that, without these standards being published, "schools today are not required by law to have access to water, electricity, sanitation, proper classrooms, laboratories and computer centres".
The organisation's research suggests more than 3500 of South Africa's 25000 schools do not have electricity supply, 11450 use pit latrine toilets and 2402 lack a water supply. More than 22000 schools do not have adequate computer facilities, an even greater number (23552) lack stocked science laboratories and more than 90% do not have functional libraries, Equal Education says.
'Right to basic education'
The result of inadequate infrastructure "is to prevent learners achieving the right to a basic education", the organisation's court papers say. By failing to make regulations the minister has "failed to respect, protect, promote and fulfil the right to a basic education in section 29(1) of the Constitution".
Equal Education's chairperson, Yoliswa Dwane, told the Mail & Guardian that the case would "determine the meaning of the right to basic education".
Set to be heard on November 20, the case "will establish the duty of the national government to direct the implementation of the Constitution throughout the country and it will help ordinary people understand what a school is supposed to be", Dwane said.
"We cannot accept the minister's view that it should be legal to have mud schools or schools without water and toilets," she said.
Motshekga is the first respondent in the action. The nine provincial education ministers and Finance Minister Pravin Gordhan, whose responding notices do not oppose Equal Education's application, are also respondents.
Department spokesperson Terence Khala told the M&G Motshekga met the provincial ministers on Thursday to discuss the case and "any outcomes and resolutions taken will be communicated" once the consultations were completed.
Rooms unfit for learning
"It is too dark to see the papers on our desks [unless] you sit near the door," said Nkululeko Nhlapho, a grade 11 pupil at Thutho-ke-Maatla High School on the East Rand. Some pupils are taught in dilapidated prefabricated classrooms with broken windows, holes in the chipwood floors, no doors, holes in the walls and ceiling and no electricity, the Mail & Guardian saw on a visit to the Tembisa school this week.
The steel structures were "extra hot in summer and very cold in winter", Nhlapho said. "The chalkboards sometimes fall off the walls. Government spends the most on education, but this is the result. It's embarrassing."
Asked whether he had ever visited a private school, he said he had seen pictures of one. "Imagine going to school where you don't worry about holes in the floor."
Adequate basic education requires that a child is provided with "an environment that is safe and conducive to learning", according to non-governmental organisation Equal Education's court application for a prescription of basic norms and standards for school infrastructure.
It said there was a "widespread, systemic and continuing failure to provide adequate infrastructure for public schools, which affects the poorest schools in the country".
Nhlapho's dilapidated school is a 45-minute drive away from Basic Education Minister Angie Motshekga's Pretoria office. Yet even this school is comfortably better resourced than the poorer schools elsewhere in South Africa referred to in the Equal Education application. – Victoria John
Departments' blame game continues unabatedly
Collective passing of the buck in the Limpopo textbook debacle amounted to a blame game that continued to cushion government officials from accepting any responsibility for it, experts agreed this week.
Motshekga refused to accept responsibility in the fiasco, said human rights lawyer Faranaaz Veriava.
Motshekga and her department "had the responsibility to ensure things go right" from the outset of the section 100 intervention in December, she said.
For Tim Dunne, professor of statistical sciences at the University of Cape Town, "too many officials are suddenly retreating from responsibility and pointing fingers at one another over this terrible tragedy.
"Through the layers of departmental hierarchy and decision-making, no one was keeping an eye on the actual state of textbook provision and no one cared enough to say these children with no books deserve justice. Everyone was waiting for someone else."
The blame game started as early as December when the M&G reported that Limpopo pupils starting the new curriculum this year would do so without textbooks.
The Limpopo education department blamed its failure to order any books on the national government for placing the department under administration and on the national treasury, which had to issue "payments, orders and requisitions".
The blame game escalated in January when the M&G's second report on the growing crisis confirmed that pupils had started the school year without textbooks and the Limpopo department again blamed the treasury.
But Limpopo was using the intervention as "a scapegoat", treasury spokesperson Bulelwa Boqwana said at the time.
"The provincial department of education should have ordered the books at least by August 2011."
In the same week, the basic education department weighed in against the Limpopo department when spokesperson Panyaza Lesufi said the treasury had "given the department the go-ahead to procure" textbooks.
Motshekga's responsibilities in the crisis was highlighted when the non-governmental organisation Section27 went to court in May over the missing books. The minister "bears an obligation to ensure compliance with the obligations of [her department] and the [provincial] department", its court application said.
When Judge Jody Kollapen ordered that textbooks had to reach all Limpopo pupils by June 15, Motshekga said that her department would comfortably meet this deadline.
It did not – and the department shifted the blame game's target to unspecified "service providers", saying it was "taken aback" that, despite "vowing" otherwise, these providers had failed to meet this deadline.
Motshekga said this was "unacceptable" and she "had demanded a full report about reason for the delay".
The M&G revealed a week later that the textbooks only started being trucked from a Polokwane warehouse on June 14.
By July, with many schools still lacking books, Motshekga was still disclaiming any personal accountability.
"The 12-million kids in school ... I can't take responsibility," she told SABC News. "I really think it's not fair [to blame me]. You have to judge me on the things I am supposed to do as a minister, not on the things that are not part of my work."
She was soon supported by her boss, President Jacob Zuma.
"You can't say the minister, who is sitting in her office in Pretoria, is responsible," he told Radio 702 presenter Redi Tlhabi.
Zukiswa Kota of Rhodes University's Public Service Accountability Monitor said: "The minister's primary mandate over provinces is oversight. The [MECs] reports to her. Whether she knew or not, it still reflects badly on her."
For Dunne, the books crisis "is the natural outcome of a lack of insight, no cohesion, no planning and an absence of commitment to the education process and pupils' rights at the very heart of the [national and provincial education] departments". – Bongani Nkosi