Priority rescues must be planned for schools where pupils' safety and health are now at risk.
In recent years, the government has made significant strides in putting laws and programmes in place that are aimed at improving infrastructure in schools.
These are the minimum norms and standards for school infrastructure finalised in November last year, the Accelerated Schools Infrastructure Delivery Initiative (Asidi) and the plan for upgrading sanitation facilities at 414 "priority schools" in Limpopo.
These have resulted in no small measure because of civil society activism compelling the government to develop these laws and programmes to address the infrastructural backlog at schools.
Recent tragic events, however, have served as a reminder of the urgency of the situation. In some schools, conditions are so bad they pose a risk to the lives and physical wellbeing of pupils.
In January there was the senseless and horrific death of a young boy who fell into a dilapidated pit toilet at Mahlodumela Primary School in Limpopo and died. Mahlodumela School appears not to be on the list of priority schools scheduled for sanitation upgrades, though it clearly ought to be.
Since 2012, civil society organisation Section27 has engaged with the government to address poor sanitation conditions at schools across Limpopo. These efforts resulted in the development of the plan to construct new sanitation facilities and to eradicate pit toilets at the listed "priority schools".
Section27 has repeatedly attempted to ascertain from the government what its criteria are for assessing which schools ought to qualify as "priority schools", and therefore eligible for sanitation upgrades. According to Section27, government officials recently told the organisation that there are no objective criteria for determining which schools are on the "priority list".
In another case, the Legal Resources Centre (LRC), acting on behalf of the Centre for Child Law (CCL) and five schools in the Eastern Cape, brought an application in December last year to compel the government to publish the list of schools scheduled to be replaced under Asidi, and a comprehensive plan setting out what improvements are going to be made, and when.
In 2009 the LRC brought an application on behalf of the CCL and seven mud schools seeking to compel the government to upgrade mud schools in the Eastern Cape. The case was settled out of court. In terms of the settlement, the government set aside approximately R8-billion for infrastructure upgrades at schools in the Eastern Cape.
The government subsequently instituted Asidi and increased the original grant for the upgrading of school infrastructure to R13-billion. Through Asidi, the government was meant to eradicate 496 mud schools and other inappropriate structures, mainly in the Eastern Cape.
Although some progress has been made and schools have been built, the government has repeatedly been criticised for its failure to meet the Asidi targets, particularly regarding the eradication of mud schools.
According to a 2013 report the CCL commissioned, the causes of non-delivery include a lack of reliable information on existing infrastructure and the absence of a proper plan to guide spending. This has resulted in significant underspending of amounts specifically earmarked for much-needed infrastructural upgrades.
The new LRC/CCL application describes the conditions at some of the applicant schools. It lists schools with corrugated iron roofs that are held down by stones and that leak in the rain and blow off during storms. Some schools have crumbling walls made of mud and other "unsuitable materials".
The applications also lists schools with no toilets, or collapsed toilets, so that pupils and teachers are forced to relieve themselves in fields and then later traipse through these same fields, all the while watching their steps.
The affidavits of female pupils describing the effects of using open fields as toilets are particularly distressing. According to one pupil, she does not attend school when she is menstruating because of the impossible task of changing and disposing of sanitary pads under these conditions. The girls also confess their fear of rape and their humiliation at being observed when using open fields as toilets.
The applicant schools allege that they find themselves stuck in a limbo of uncertainty. That is, some schools are not on the upgrade list but ought to be, and others are on the list but are not sure when improvements will occur. More disconcertingly, there are schools that remain on the list despite having already been upgraded.
The applicants allege that "development and implementation" under Asidi are "seriously flawed". The application therefore seeks to hold the government to the Asidi targets and to provide transparency in its plans and decision-making processes so that all eligible schools may be included on Asidi lists and be timeously upgraded.
The absence of schools such as Mahlodumela Primary from the "priority list" in Limpopo and the confusion surrounding which schools ought to be on the Asidi list in the Eastern Cape highlight the arbitrary manner in which well-intentioned programmes are being implemented. There also appears to be a total absence of communication between the government and schools about the needs of individual schools.
The recently finalised norms make it a priority that schools made from mud must be eradicated within the next three years. Schools without any water, power or sanitation must receive these services within three years.
The norms prohibit pit and bucket toilets — but one interpretation of the gazetted document detailing the norms suggests that there is a seven-year time frame to eradicate these toilets. Technically, therefore, it is possible that schools in similar circumstances to Mahlodumela may have to wait seven years before their toilets are replaced.
Whether or not the time frame of three years that the government has set for meeting priority needs meets the constitutional obligation of "immediate realisation" will have to be assessed against the realities of planning, budgeting and spending.
Although, rationally, there is an appreciation that infrastructure cannot be provided overnight, it must nevertheless be provided as soon as possible.
It must also be asked whether the government can be said to be meeting its constitutional obligations if it fails to provide for the immediate needs of pupils who are currently attending schools. Our socioeconomic rights jurisprudence has recognised that for a law or programme to meet the requirement of constitutionality it must make short-term provision for those whose needs are urgent and who are living in intolerable conditions.
If we are to prevent the death of another pupil falling down a toilet, or the rape or injury of a pupil using a field as a toilet, or to ensure that a female pupil attends school even when menstruating, the laws and programmes in place should be responsive to these situations.
There should be an immediate audit of conditions at schools. Where the conditions at some schools are deemed urgent, the needs of those schools must be prioritised. The criteria for determining urgency must also be clear and transparent.
In addition, there should be interim provisioning for schools that pose a serious risk to the lives of pupils and teachers. For example, mobile toilets could be provided to schools where there are no toilets, where toilets have collapsed or where pit toilets are full and unusable. Similarly, mobile classrooms should be provided where there are no classrooms or where classrooms pose a risk to pupil safety.
Faranaaz Veriava is a human rights lawyer. She writes a monthly column in these pages on the right to basic education