/ 16 April 2012

E Cape steps in to rescue schools despite legal battle

The Eastern Cape education department will not oppose litigation brought against it and a number of other government respondents by Equal Education, but it has opted to improve infrastructure in the two schools that have joined the NGO as co-applicants.

Equal Education is the first applicant in the highly publicised action in the bid to force government to improve “appallingly unsafe” school infrastructure, and infrastructure committees in Mwezeni Senior Primary School and Mkanzini Junior Secondary School joined the NGO as second and third applicants respectively.

The schools are currently grappling with “appallingly unsafe” infrastructure and are seeking emergency relief from the Eastern Cape government, according to affidavits submitted in court. Equal Education wants the national education department to promulgate regulations prescribing minimum norms and standards for school infrastructure. The court action also names the treasury and heads of other provincial education departments as respondents.

Mkanzini was gutted by fire in July 2009, and Mwezeni’s mud classrooms were severely damaged by heavy rain early last year. “As a result of this damage [at Mwezeni], portions of the five mud structure classrooms that housed grades R, one, two, three and four have collapsed,” Nokhululekile Mshumayeli, chairperson of the infrastructure crisis committee at Mwezeni, stated in her affidavit. “The remaining classrooms are in imminent danger of collapsing on the learners.”

Mshumayeli maintains that the school has submitted “numerous letters and oral requests” to the department, but “to date Mwezeni has received no response to any of these requests”.

Stepping in regardless
But now, seemingly because of the court action, their much-sought help is about to come. “The department is actually not opposing the court [action] but attending to the infrastructural needs of these schools,” spokesperson Malibongwe Mtima told the Mail & Guardian on Monday.

It appears the province will not bother itself over the broader aspect of Equal Education’s application, that of having the Bhisho High Court order Basic Education Minister Angie Motshekga to promulgate regulations prescribing minimum norms and standards for school infrastructure.

“Unfortunately, Equal Education cannot get relief from the provincial department regarding norms and standards for school infrastructure since this is not a provincial but a national competence,” Mtima said.

Doron Isaacs, a coordinator at Equal Education, explained that the court application is twofold: Securing emergency relief for Mwezeni and Mkanzini schools was a part of this, but seeking an order against minister Motshekga is the “main part” of the application.

The Eastern Cape’s decision not to oppose has not been “officially put” to applicants, but “we welcome that attitude from the provincial education department”, said Isaacs.

Legal wrangling
The provincial department, as second respondent in the matter, had initially filed a notice of its intention to oppose the application in court two weeks ago.

Provincial education minister Mandla Makupula and the provincial government, respectively second and third respondents in the matter, became the first two of 13 respondents to file notice to oppose.

Cameron McConnachie, the Legal Resources Centre attorney representing all applicants, said the clashing actions are not surprising, because the provincial department can still propose an out-of-court settlement before the matter is finally heard in court. “It’s likely they will give us a settlement proposal. We will take it from there,” McConnachie said.

The 11 other respondents, including provincial education ministers and Finance Minister Pravin Gordhan, missed the deadline to file notices set for Friday. McConnachie said he now “just need to push them” to file “as soon they can”.

Responding to the M&G‘s questions, the national education department would not indicate when they would file.

Terence Khala, one of the department’s spokespeople, said their lawyers were still perusing the applicants’ court papers. “The court papers, which consist of 581 pages, are currently being studied by our lawyers. The department cannot at this stage comment on the merits of the case.”

Holding the government accountable
Equal Education believes promulgating regulations prescribing minimum norms and standards for school infrastructure would set clear guidelines for school infrastructure and holding the government accountable over failure to provide appropriate structures, said Isaacs.

In her affidavit, the NGO’s head of policy, Yoliswa Dwane, refuted a statement by Motshekga that consent was still required from the Council of Education Ministers, which consists of the nine provincial education ministers, and this was a barrier to the finalisation and promulgation school infrastructure norms and standards regulations.

Her statement, which Dwane said Motshekga made at the People’s Summit for Quality Education held in Khayelitsha in June 2011, “shows that the minister has failed to understand, and has misconstrued, her powers”, said Dwane.