Her new infrastructure norms limit the state's legal obligations to poor schools.
The basic education ministry published earlier this month its draft regulations on minimum norms and standards for school infrastructure in the Government Gazette and invited public comment until March 15.
The publication of these draft regulations is in apparent compliance with a settlement agreement reached between the non-governmental organisation Equal Education and Minister of Education Angie Motshekga. The agreement was made an order of court in November last year.
The background is that Equal Education instituted a court application in March last year to compel the minister's promulgation of these regulations. Motshekga opposed the application. But in November, in a surprising turnabout, she averted a court battle by entering into an 11th-hour settlement agreement undertaking to publish for public comment the regulations on or before January 15; and after considering these public comments to promulgate these regulations into law by May 15 this year.
When the settlement agreement was reached, many hailed it as a victory for pupils in underresourced schools. However, an analysis of the published draft norms calls into question its potential to facilitate the upgrade and improvement of such schools.
Section 5A of the Schools Act provides for the minister of basic education to develop regulations prescribing minimum norms and standards for school infrastructure.
Accordingly, in December 2008 the then minister, Naledi Pandor, published draft norms and made them available for public comment.
The main objectives for developing these legally binding norms were to set priorities for infrastructural development and to define minimum standards with which provinces have to comply.
The norms would therefore guide provinces in their planning and budgetary allocations for infrastructural upgrades.
But the 2008 draft norms were never promulgated into law, despite undertakings Motshekga made after she became minister following the general elections of May 2009. Instead, the minister opted for the publication of only non-binding guidelines last year.
The effect of publishing the guidelines instead of the norms was that provinces could not be compelled to comply. These actions eventually culminated in the legal action that Equal Education instituted.
A full analysis of the draft norms is beyond the scope of this article, but a comparison between them, the 2008 draft norms and the 2012 guidelines suggests that Motshekga's gazetted draft is devoid of the content and substance of its predecessor documents.
What the norms should have
The draft identifies in broad and general terms what the core spaces of a school ought to contain. A school must have "educational spaces", such as classrooms; "educational support spaces", referring to resources in some form of library, laboratory or media centre; "administration spaces" designated for school management; adequate sanitation; a basic water supply; some form of energy supply; and, "where practicable", some form of "communication connectivity".
But the draft norms do not specify the detail of what these core elements ought to be.
For example, the 2008 norms and the 2012 guidelines prescribed the minimum and maximum benchmarks for the size of a school, the size of classrooms and the numbers of classrooms a school ought to have based on enrolment numbers.
Such specificity is necessary to rectify conditions of severe overcrowding and dysfunction in many schools. The predecessor documents also provide guidance in other areas such as sanitation. Pit and bucket toilets were to be prohibited, for instance, and the number of toilets a school ought to have, based on the size of a school, was also to be prescribed.
Again, this is necessary, considering that 913 schools do not have any toilets and 11 450 still use pit latrines. Instead, the recent draft norms purport to defer the details relating to core spaces to a "framework document" to be published within 18 months of the regulations being passed.
The devil is in the detail
These draft norms also avoid expansion on the meaning of terms such as "adequate sanitation". In such matters the devil is in the detail and, by deferring detail to a later document that is not legally binding or by keeping terms such as "adequate sanitation" vague, there is the risk that some provinces may not undertake the necessary infrastructural upgrades.
This would render the regulations ineffective. The predecessor documents provided a gradation for safety and functionality, thereby defining what is an unacceptable schooling environment and establishing prototypes for minimum functionality and maximum functionality.
For example, a school environment would be rendered unacceptable if it lacked access to potable drinking water or if it had unsafe structures that could collapse on pupils, was overcrowded or had inadequate fencing.
This gradation is absent in the current draft norms. Yet the case Equal Education brought provided ample evidence of schools functioning under unacceptable conditions such as these.
The recently published draft norms also reflect a progressive watering down of commitments made in previous documents. For example, they are silent on measures to ensure the safety and security of schools, unlike the predecessor documents.
These measures include specifying that a school must have a fence as a basic minimum requirement for safety. Currently there are 2 703 public schools without any fencing. In the 2008 draft norms, a catchment or feeder area of schools is defined as being within a 3km radius of a school, so the maximum walking distance for a pupil to walk to and from school would be 6km a day.
Beyond this distance, a province would be required to develop a "scholar transport" policy to assist pupils. But the 2012 guidelines reduced the state's obligations in this regard by extending the radius of the school to 5km.
This increased the distance pupils are expected to walk to and from school to 10km before they are potentially eligible for some form state support. The 2008 draft norms also sought to address the problem of "multi-grade" schools — that is, those where more than one grade is simultaneously taught in a classroom, making conditions for teaching and learning difficult.
The 2008 document specified that all schools should be mono-grade. Multi-grade schools would be allowed only in exceptional cases and after the provincial education minister concerned had motivated their retention to the national minister.
However, the phasing out of multi-grade schooling appears to have been quietly dropped in the guidelines: they refer to setting minimum and maximum pupil numbers "in a mono-grade or multi-grade teaching context".
And the recently gazetted norms do not address this issue at all. The 2008 draft norms sought to establish a unit within the national department to oversee and monitor infrastructural developments in the provinces.
But the recently published draft norms are silent on this, even though such a unit would be important for ensuring the implementation of the norms. The 2008 draft norms appear to have been a real attempt at addressing poor schooling conditions and infrastructural backlogs.
By contrast, the recently published norms appear to be an attempt to limit the state's legal obligations. The document contests the meaning of the right to basic education by repeatedly qualifying the extent of its provisioning as being subject to "progressive realisation" and "within available resources".
Such an interpretation is in conflict with earlier Constitutional Court pronouncements that define the right to basic education as an unqualified one requiring "immediate realisation".
When reflecting on the history of the process to develop norms and after analysing the devolution of the norms to the recently published draft, one can only speculate that the state tactically capitulated in the case last year in order to avoid a bruising legal battle and that it is not driven by a strong commitment to putting in place effective systems aimed at improving the quality of schooling in South Africa.
Faranaaz Veriava is a human rights lawyer. She writes a monthly column in these pages on the meaning and implications of the right to basic education