Judge Jody Kollapen’s ruling in the Limpopo textbook case reflected “judicial activism”.
The role that public-interest litigation can play in education reform is in sharp focus now because of the mounting number of such cases.
This year there have been two civil society court challenges against the department of basic education for its failure to provide pupils with their right to a basic education in terms of section 29(1)(a) of the Constitution. And there are more to come.
The first case was the well-known one brought by Section27, which was based on the state's failure to deliver textbooks to schools in Limpopo. The second case was brought by the Legal Resources Centre and the Centre for Child Law and was based on the state's failure to fill vacant teaching posts at schools in the Eastern Cape.
In both cases, the department of basic education was found to have violated the rights of pupils.
A third challenge, initiated by the social movement Equal Education, is set to be heard in November in the Bhisho High Court.
This strategic case, if successful, promises to have the widest effect on education reform yet, because it aims to compel the state to implement national standards for school infrastructure.
In the Limpopo textbook case, the court ordered the state in May to provide textbooks to pupils in the province by June 15 and to "immediately" devise a "catch-up" or "remedial" plan to redress the effects of the books not being delivered on time.
Reports suggest that the state has failed to comply fully with the order and many pupils in Limpopo are still without textbooks. The department has also been criticised for its failure to devise and implement, with the necessary urgency, an appropriate remedial plan.
What is litigation's role?
What role, therefore, can public-interest litigation play in reforming education? The seminal case study on impact litigation is the 1954 United States case of Brown vs Board of Education. In this case the US Supreme Court declared segregated schooling to be unconstitutional.
A criticism of Brown is that it was a "hollow victory" because it did not end segregation in schools and instead spurred a backlash of covert state action in various US states to avoid enforcing the court order.
The argument goes that formal segregation ended only with the passing of the Civil Rights Act a decade later as the result of the direct action of the civil rights movement, rather than because of the court's ruling in Brown. Proponents of public-interest litigation argue, however, that the value of the Brown case was not that it ended segregation, but that it provided the moral or symbolic victory that became a vehicle for the political mobilisation of the civil rights movement.
By analogy, the victory in the Limpopo textbook case has provided a platform for increased mobilisation around education in South Africa. The case has produced a domino effect, inspiring new cases and highlighting ongoing campaigns.
It has generated a debate on the accountability of the government in terms of delivery and provided insight into the scale of the education crisis. Increasingly, media and research reports reveal just how chronic textbook shortages are — not just in Limpopo, but also nationally.
At the same time, the awareness of the case has also located the problems related to textbooks in a broader discussion on the inadequacies in public schooling. In short, it has contributed to a national mobilisation against an inferior education.
In South Africa, strategic litigation in the post-1994 era has rendered policy and structural reform in very organised sectors. Notable examples include the recognition of the rights of same-sex couples and policy reform in respect of people living with HIV/Aids.
Repeat players
What has been common to the successes of both these struggles is the existence of "repeat players" — such as the Treatment Action Campaign and the erstwhile National Coalition for Gay and Lesbian Equality — that are issue-specific, developed strategic campaigns and identified "good fact" cases that over time developed an incremental and progressive jurisprudence.
Early cases in these campaigns tended to challenge discriminatory laws and practices, whereas later cases involved claims for the extension of benefits, or the provision of resources such as antiretrovirals in the mother-to-child transmission case.
Until the establishment of community organisation Equal Education a few years ago, this essential ingredient — that is, a single-issue social movement focusing on education, located in communities and able to mobilise around the key education concerns facing them — was lacking in South Africa's sociopolitical landscape. Such an initiative is therefore to be welcomed and supported.
For adjudication to effect education reform, this must also be reflected in our legal culture through a progressive interpretation of the right to basic education.
Such judicial activism is reflected in the judgment in the Limpopo textbook case delivered by Judge Jody Kollapen, a man with a long track record as a human rights practitioner.
The judgment is significant in several respects:
• It describes the function of education on a "macro level" as "an indispensable tool in the transformational imperative, and on a "micro level" as enabling each person to "live a life of dignity and participate fully in the affairs of society";
• It affirms the unqualified nature of the right to basic education and the obligation on the state for the immediate realisation of the right; and
• Most significantly, it adopts a content-based approach to interpreting the right, in terms of which it identifies as essential "components" of the right — the provision of textbooks.
Regarding this third point, the judgment says: "In the context of this application, one of these components is the provision of textbooks and … it may be said that no consensus exists broadly in the South African context on the content of the right to basic education, even though there have been compelling arguments that it must and should, in order to be meaningful, include such issues as infrastructure, learner transport, security at schools, nutrition and such related matters.
"However, for the purposes of this application it is not necessary to determine those broader issues, or indeed to express a view on that matter, except to say that the arguments that the right must be broad and encompassing appear to be compelling."
Postulating a content-based approach to interpreting the right to basic education is as bold as it is correct.
And reasonableness?
The approach adopted by the Constitutional Court to interpreting the qualified rights, such as healthcare, welfare and housing that are subject to progressive realisation within the state's available resources, was to determine whether or not state measures were reasonable in progressively facilitating access to the right in question.
A criticism among scholars of this reasonableness approach is that the failure to develop a substantive interpretation of the qualified socioeconomic rights has inhibited the ability of adjudication to facilitate real transformation.
The unqualified nature of the right to basic education signals the degree of prioritisation it requires and the necessity of an alternative approach to that adopted in respect of the qualified rights.
One can only hope, therefore, that when the Constitutional Court, as the highest court in land, is finally called upon to adjudicate a case of violation of the right to basic education, it adopts a similar approach to that in the Limpopo textbook case.
The direct effect of litigation will always be constrained by, and be dependent on the existence, or not, of an activist judiciary and the commitment of the state to implement court orders. The value of litigation, however, lies in the ability of social movements to use it strategically as a key tool in a broader campaign of direct action.
Faranaaz Veriava is a human rights lawyer. This is the second in her monthly series of Mail & Guardian columns on the meaning and implications of the right to basic education