Motshekga's statements on basic education rights 'incorrect'
In replying papers, the non-governmental organisation said Motshekga's recent statements in court papers – in which she said she would contend that basic education rights were not immediately realisable and unqualified – were incorrect and misconceived.
"I submit that the [minister's] suggestion that the right is subject to progressive realisation and the availability of resources is ... incorrect," the organisation's Yoliswa Dwane said in her replying affidavit, which was submitted last week.
Equal Education, represented by the Legal Resources Centre, applied to the Bhisho High Court in March for an order forcing Motshekga to publish minimum norms and standards for school infrastructure.
A set of binding standards will establish "what constitutes a school and will enable the Minister of Basic Education to hold provinces accountable, and enable communities to do the same", the organisation said in a statement.
The M&G reported on August 3 that Motshekga, as first respondent in the case stated in her long-awaited answering affidavit, that "[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".
She referred to "budgetary constraints" and "the limitation of available resources" in arguing why she will not promulgate the much-anticipated regulations.
'No internal limitation'
But Dwane said the Constitutional Court had, in a 2011 judgment, distinguished between education and other socioeconomic rights, such as housing and healthcare saying "unlike other socioeconomic rights, this right is immediately realisable". The court stated that there is "no internal limitation requiring that the right be 'progressively realised'," she said.
Dwane said the minister "directly contradicts" this Constitutional Court decision.
" ... there can be no suggestion that the right to a 'basic education' in section 29(1)(a) does not entitle learners to a safe and functional learning environment with adequate school infrastructure," she said.
"To the extent that the minister might contend that this is not part of the right, I submit that this is premised on a misconception of the content of the right."
Dwane's replying affidavit also shows that, contrary to what Motshekga claims is one of her reasons for not publishing these regulations, provincial education ministers were not opposed in principal to the prescription of these.
Motshekga's answering affidavit stated that subsequent to a 2010 promise that she would promulgate these regulations she decided instead to adopt only "guidelines" after being "persuaded" by provincial education ministers to do so.
But the organisation's replying affidavit contradicted this, saying "the minister may also have misconceived the extent to which members of the Council of Education Ministers actually oppose the making of regulations".
'Finalising' minimum norms and standards
Dwane referred to minutes of an April and June council meeting where "all [the council] said was that consideration should be given to finalising [minimum norms and standards] in the long term".
As respondents in the case the nine provincial education ministers stated in their responding notices that they did not oppose Equal Education's application.
Meanwhile, former Eastern Cape education department head Modidima Mannya has submitted an affidavit backing Equal Education's application.
His affidavit supported the organisation's assertion that provincial departments were not opposed to the prescription of these regulations.
Mannya left the department in April.
In his affidavit he said: "In my experience there is consensus amongst provincial departments that this matter ought to be addressed through a binding document setting out the minimum uniform norms and standards for public school infrastructure".
The matter was discussed at a meeting of the heads of the education committee in October 2011, he said.
On his visits to schools as education head Mannya said: "I personally felt the humiliation of the poor state of the infrastructure in most schools… ".
"I have personally had to use bushes to relieve myself, a daily experience of learners and teachers at these schools."
'Sad for the democratic government'
Speaking through the Legal Resources Centre Mannya told the Mail & Guardian it is "sad for the democratic government which declared education the number one priority to fail to develop and implement appropriate policies to ... improve the quality of education of the children of this country".
He said the department "must stop looking at the litigation as a personal attack on them or their competence, but rather as an attack on the apartheid system which created a legacy of deprivation".
In response to Equal Education's Monday statement highlighting Dwane's replying affidavit, departmental spokesperson Panyaza Lesufi told the South African Press Association on Monday the department was "amazed at [Equal Education's] statement as they choose the court to resolve the matter rather than constructively engage the minister".
The basic education department had not responded to the M&G's questions regarding the matter at the time of publication.
The case is set to be heard on November 20.