The province is running out of ways to defer its obligation to provide basic educational resources to hundreds of thousands of pupils.
The Eastern Cape education department faces three legal storms resulting from cases concerning classroom desks and chairs, unpaid teachers and a rural school that could be the poster child for the systemic infrastructural failures and vacant teacher posts hamstringing hundreds of schools in the province.
First, a blistering recent judgment — finding that the department had failed to provide desks and chairs to more than 600 000 pupils — explicitly reaffirmed that the constitutional right to basic education is immediately realisable.
This leaves no room for the department to sidestep an order forcing it to provide furniture to about 1 300 schools by May 31, which the court papers say will cost about R360-million.
Second, devastating learning conditions continue at the Moshesh Senior Secondary School outside Matatiele, despite a settlement between the nongovernmental organisation Equal Education and the department in June last year.
Precillar Moyo, an attorney at the Equal Education Law Centre, which is representing the applicants, said that the pupils “feel hopeless”.
And third, the high court in the Eastern Cape will hear arguments later this month in a case launched in November last year about the decade-long, litigation-plagued problem of unpaid teachers and vacant teacher posts.
Just not good enough
In the furniture case, Judge Glenn Goosen said the department’s excuse of being unable to “meet impossibly short time frames and that [it] remains hamstrung by budgetary constraints in dealing with the furniture shortage” was just not good enough.
“[The] nature of the right requires that the state take all reasonable measures to realise the right to basic education with immediate effect [original emphasis],” he said in his judgment last month.
“The respondents have been aware since at least May 2011 that there is a very serious shortage of furniture in public schools and that this lack of furniture constitutes a serious impediment to the enjoyment of the right to basic education.”
But the department’s approach offers “little or no prospect that the furniture crisis will be addressed in the foreseeable future”.
The judgment follows a series of court actions initiated in November 2012. The Legal Resources Centre’s (LRC) application was on behalf of the Centre for Child Law and three schools whose pupils sat on mealie sacks, beer crates or bricks because they did not have desks or chairs.
Fifteen months, two court orders and many missed deadlines later, the LRC approached the court again last month. It took issue with the department’s latest request for an open-ended court order that would not confine it to any concrete timelines.
Making noncompliance even worse
Goosen agreed with the LRC that there had already been a significant degree of noncompliance with court orders and an open-ended one would exacerbate this.
He reminded the department that the right to basic education “is not confined to making places available at schools” but is also about providing resources such as “teachers, teaching material and appropriate facilities for learners”.
LRC attorney Cameron McConnachie said this went further than previous judgments in “trying to list the elements of a basic education”.
Judge Jody Kollapen in the 2012 Limpopo textbooks case ruled that textbooks are necessary for basic education, but Goosen specified further elements.
McConnachie said most education infrastructure cases result in out-of-court settlement agreements or orders granted by agreement between the parties, but “judgments are few and far between”.
“The judge saying that the right to basic education demands that the department take reasonable action with immediate effect is the first time a court has explained what ‘immediately realisable’ means in terms of the state’s obligations.”
The principal of a school in the Libode district outside Mthatha, Vuyani Langa, said he is still waiting for 400 desks and chairs.
“There is no hope from the department,” Langa, of St Patrick’s Senior Secondary School, said. “I did ask them many times about the desks and they tell me they will deliver but up until now we are still waiting.”
The department of environmental affairs recently donated 500 desks and chairs and the pupils still use what is left of old and sometimes broken furniture, he said. There are 1 304 pupils at the school.
“They sit three at a desk meant for one. They struggle to write and they distract each other. The classes are so congested. In some classes they have to write on their laps,” he said.
“No one came to our school, no one asked [us] how much furniture was needed.”
A hollow victory
Meanwhile, Moyo said, the pupils at Moshesh told her that they feel that the court victory is hollow because conditions at the school have remained poor.
“Despite the department committing to ensuring that the school is adequately staffed and resourced, the last time I spoke to the learners, they informed me that the only qualified maths teacher at the school had left and other vacancies remained.
“Books that the department had undertaken to deliver by the end of last year remained undelivered by the end of February, including language books, life and physical science and agriculture.
“The only positive things the learners spoke about include the partial renovation of the school hostel and the efforts of the new acting principal, who is doing her best but without adequate resources in terms of teachers and materials, [but] even her hands are tied,” she said.
Quite a mission
The law centre is “still monitoring the implementation of the settlement agreement but getting information from the department is quite a mission”.
The case involving unpaid teachers and vacant teacher posts is set to be heard in the high court in the province on March 20.
The LRC is asking the court in this instance to force the province’s education department to reimburse R25-million to 32 schools and make permanent the temporary teachers they employed themselves to fill vacant teacher posts, despite this being the department’s responsibility.
The centre is also asking the court to allow the case to become a class action lawsuit so that any school in a similar position can opt in and get the same reimbursement as well as having their vacant posts filled.
The issue was reported in the Mail & Guardian, “Human rights group sues state over teacher salaries”, on January 17 this year.
At the time of going to print the provincial department and the basic education department had not responded to the M&G‘s questions.