Pupils win as court case is settled
With the last-minute capitulation of Basic Education Minister Angie Motshekga, who decided to settle rather than fight the non-governmental organisation's historic court application on school infrastructure, it has become clear this milestone in the struggle for basic education rights signals more to come.
For a start, Equal Education will have to scrutinise the draft minimum norms and standards for school infrastructure that Motshekga has finally agreed to publish and release for public comment by January 15. Cameron McConnachie from the Legal Resources Centre and the lead attorney for Equal Education's application said the organisation would have to check to see "whether the draft addresses all the infrastructure needs of schools".
He was speaking shortly after Motshekga met Equal Education on November 16. The case was due to be heard in the Bhisho High Court on Tuesday. The organisation had asked the court to order the minister to promulgate minimum norms and standards.
Motshekga's out-of-court agreement means that, for the first time, South Africa will have published standards that define minimally adequate infrastructure - basic things such as classrooms, water and sanitation. This will mean anyone can hold the government to account for any school that fails to meet these standards. The settlement also provides that, after public input, the final standards must be published by May 15 next year.
Doron Isaacs, Equal Education's deputy general secretary, said when the draft is published "there's going to have to be huge mobilisation to make sure that the final document is decent, followed by massive work in actually implementing the standards to make sure schools get what they need".
The settlement is a huge victory for the organisation, whose members embarked on a major campaign two years ago to address the dire conditions in which thousands of pupils have to learn. The organisation's court papers stated that 93% of South Africa's 24793 public schools had no libraries, almost 2500 had no water supply, 46% still used pit latrines and 913 had no toilets at all.
Not about Mangaung
So why did Motshekga finally capitulate? Predictably, Equal Education and the government differ.
Isaacs showed the Mail & Guardian framed newspaper clippings in his office of the 20 000-strong march to Parliament staged by Equal Education in March last year. "Those are our members. They are future voters. It is a month until the ANC's elective conference in Mangaung and nobody can afford to be too unpopular. The minister and the ANC have seen those pictures and I don't think they can get them out of their minds."
But Bobby Soobrayan, director general of basic education, disagreed.
"These days everyone always jumps to say it's about Mangaung." The minister's decision to settle was not about that, he said.
"As we were preparing the papers for [Tuesday's] court date, we realised that we had a lot of common ground with Equal Education."
All the department needed was "some clarification that these norms and standards were not expected to apply too much rigidity in the time frames and the way in which provinces addressed their schools infrastructure, always remembering capacity and budgets", he said.
There were already "infrastructure plans" in place that, with published norms and standards, "will allow us to reach those targets by a certain reasonable time".
Faranaaz Veriava, a human rights lawyer, said whatever the real reasons for settling out of court, it was the best outcome for pupils.
"A court process would have taken much longer and the outcome might have been different. The minister chose the path that is in the best interests of the learners by avoiding litigation and agreeing to promulgate the regulations."
She said the opportunity to thrash out in a courtroom the disputes over the Constitution's guarantee of the right to basic education would still come. "There are many pressing education issues, so there will probably be more litigation and therefore other opportunities to go to court and define the scope and content of the Constitution's guarantee to the right to basic education and hence develop precedent."
McConnachie said Equal Education's two-year struggle to get to this point involved "logistical nightmares" as its legal team went about collecting evidence. Its legal documents for the case ran to 2 000 pages.
He and his team visited about 20 schools, mostly in remote areas, to ask them to be part of the case.
Government above the law
"I remember the day my bakkie got stuck in the mud on the side of a mountain after visiting a deeply rural school in the former Transkei. It took about 30 community members in the pouring rain to help me push it out."
Nthuthuzo Ndzomo, deputy chairperson of Equal Education, said some principals' belief that the "government was above the law" brought their work to a standstill at some schools.
"On one affidavit-collecting trip to KwaZulu-Natal we found a school with very poor sanitation. We spoke to everyone there, we took photos with our phones, we wrote an affidavit, everything."
But the next day, when he and the team went back to the school, the principal "wanted nothing to do with us" because she was scared of speaking out against the department and possibly of losing her job.
Campaigning was not easy
At the beginning of the journey to get norms and standards published, it "felt like you were saying the same thing over and over and over again, continuously trying to convince people that they need to even start debating this thing", said Dmitri Holtzman, director of the Equal Education law centre.
"But I've watched how the public discourse changed because of what Equal Education has done. For example, members of Parliament standing up and quoting lines from research we've done. It's slow, but it happens."
Campaigning was not easy, said Pathiswa Shushwana, a 17-year-old pupil. Pupils participating in a march about the norms and standards in Khayelitsha were once attacked by teenage gangsters and a pupil was stabbed while the police battled to control the situation.
She said some of the classrooms at her school in Khayelitsha "don't have doors and the roof looks like it might fall down on us. I don't want my child to go to a school like that."
Ndzomo said the persistence required to stage the march last year had paid off. "I remember the stress around organising that day, how some of the fencing we bought for the march fell down, how some kids fainted in the heat.
"But then I remember standing on a truck at the front and looking back. You could see people marching all the way in the distance. These are the things you read about in history books," he said.