Increasing legal cases highlight the department of education's failure to provide basic school infrastructure, Victoria John reports.
Without desks or chairs in their classrooms, many Eastern Cape pupils sit on empty mealiemeal sacks, beer crates or bricks, bending over double as they attempt to write in their exercise books. Yet they are the lucky ones – some pupils have to sit on bare floors.
Now Basic Education Minister Angie Motshekga faces yet further litigation in which she will have to answer for what the Centre for Child Law says has been a violation of her constitutional obligation to provide desks and chairs for pupils.
"If you visit these schools, you will see children trying to learn around desks that are falling apart. You will see five children crowding around one broken desk. You will see children sitting on the floor. You will see that proper learning cannot take place under these circumstances," the centre's director, Ann Skelton, told the Mail & Guardian.
"We are not talking about any luxuries here; we are talking about the basics."
The Legal Resources Centre, on behalf of the Centre for Child Law and three Eastern Cape schools, filed an urgent application at the Mthatha High Court last week in its mission to force Motshekga to give these schools – and hundreds more in desperate need – desks and chairs.
Official documents show that education-related litigation has increased fourfold this year. Briefing Parliament's basic education portfolio committee last week on the department's 2011-2012 annual report, director general Bobby Soobrayan said the national and provincial departments had collectively been involved in 37 court cases, 15 of which were still to be concluded.
But according to the department's 2010-2011 annual report, it had been involved in only nine court cases in that period.
This was a "shocking" picture, said the director of the Legal Resources Centre, Sarah Sephton. The "majority of the litigation involves getting the government to do what it is supposed to do – to give the children an education. We are basically asking them to do their job."
Spokesperson for the department Panyaza Lesufi declined to comment on both the increase in litigation against the department and this particular court case.
Since last year, Motshekga has also taken over the running of two provincial education departments – the Eastern Cape and Limpopo – in a section 100 (1)(b) intervention because of severe maladministration.
Regarding the Legal Resources Centre's urgent application last week, Skelton said that in many Eastern Cape classrooms "learners are forced to squash together to such an extent that the desk space cannot be used for its intended purpose".
The application names not only Motshekga, but also South Africa's government, the Eastern Cape education minister, the province's government and the acting superintendent general of the Eastern Cape education department as respondents.
Deplorable teaching and learning conditions
They have not yet indicated whether they will oppose the application and the Legal Resources Centre has asked that the case be set down for November 29.
The application describes in detail the inevitably "deplorable" teaching and learning conditions caused by the pitiful provision of furniture at the three applicants' deeply rural no-fee schools.
Schools such as Mbananga Junior Secondary School in the Libode district of the former Transkei try to obtain empty mealiemeal sacks for the children to sit on, but they still become dirty and cold from spending so much time on the floor, Skelton's founding affidavit states. There are 45 pupils in grade one at Mbananga, but there are no desks or chairs at all for them.
At Mpimbo Junior Secondary School in the same district, there is only enough furniture to cater for 348 of its 785 pupils.
Sirhudlwini Junior Secondary School in the Mount Frere district is still using the same furniture it got from the former Transkei education department in the 1970s.
Teachers are convinced that these glaring inadequacies are the cause of a "much higher rate of absenteeism" in affected grades, the affidavit states. They see the conflict it causes between pupils competing for the few usable desks because of the "first come, first served" system and struggle daily to maintain discipline and focus. The simple act of walking around a classroom assessing pupils work is "extremely difficult".
The second applicant, Sipho Mgcanyana, who is a school governing body member at Mbananga and has five children there, said the school's principal had been told in the past that the school had to use its budget for paper to buy desks and chairs, because the provincial department did not have the funds to buy furniture.
Through an interpreter at the Legal Resources Centre he told the M&G "it is painful to us" not to get an adequate response to the many letters and phone calls made to the provincial department. "We pray to God to give the applicants' legal team strength to be successful," he said.
A teacher at Sirhudlwini, who asked not to be named, said in such classroom conditions it was impossible "to complete the work allocated with the specified time schedules in the school curriculum".
"The government has neglected the rural schools and focuses more on town schools," the teacher said.
An audit conducted by the department in May last year found that more than R274-million was needed to provide 550 000 desks and chairs to schools, Skelton's affidavit states.
Nomvuselelo Vukaphi has three children at Sirhudlwini and is a school governing body member. As the third applicant, she describes in her affidavit that much of the school's furniture has been reduced to bare frames and that pupils collect wooden planks to put on them so that they can be used.
The unprecedented flood of legal action against the department from civil society includes another three court cases that the applicants hope will change the face of education for millions of pupils across South Africa.
Rights group Section27's case was responsible for putting the highly publicised Limpopo textbooks crisis on the national agenda when it went to court in May and returned twice to ensure that pupils had the books they needed. It obtained judgments in its favour each time.
Non-governmental organisation Equal Education's school infrastructure case will be heard in the Bhisho High Court on November 20. The court's judgment on whether or not the minister should publish minimum and binding norms and standards for school infrastructure, as Equal Education is asking, will affect every public school in the country.
The Legal Resources Centre was victorious when an urgent court application it filed in June culminated in an out-of-court settlement in which the department agreed to fill more than 3 000 vacant teacher posts in the Eastern Cape.