The draft norms for school infrastructure that Basic Education Minister Angie Motshekga gazetted this week have been widely lambasted as a cynical bid to buy more time and dodge the government's responsibility to provide adequate learning environments.
The published norms and standards are a failure and a slap in the face, disappointed education activists and legal experts said. The document, now open for public comment until March 15, looks certain to prolong the struggle for toilets, safe classrooms and running water for thousands of desperate pupils for another two years.
Two months ago, non-governmental organisation Equal Education celebrated an out-of-court settlement with the department that forced Motshekga to publish the long-awaited norms by January 15.
She met that deadline a week early — but experts say the standards she has now eventually published, after years of promises, amount to a major setback for basic education rights in the country's 25 000 public schools.
"The draft lacks substance [and] is an attempt to buy more time," said Legal Resources Centre attorney Cameron McConnachie, who represented Equal Education in its court application last year.
Punch in the stomach
Mark Heywood, executive director of rights organisation Section27, said he was "completely taken aback" by the gazetted norms. "We were expecting something detailed and serious, but what we got was shockingly without any serious content. It was like a punch in the stomach."
Equal Education's court papers stated that 93% of public schools have no libraries, almost 2 500 have no water supply, 46% still use pit latrines and 913 have no toilets at all.
Yet the eight-page draft norms merely generalise about schools needing an "enabling teaching and learning environment", including "adequate sanitation facilities [and a] basic water supply".
The gazetted document does not stipulate any figures or quantities, such as the number of toilets required or the amount and type of power and water supplies relative to school size, nor does it give any implementation dates.
Heywood said it was hard not to adopt "a cynical view that the department settled the case out of court with Equal Education before Mangaung to take the bad publicity away at a critical moment, but has now thrown this back in Equal Education's face".
"Amid all the ANC's speeches about the importance of education, why do they then want to go and undermine their claims to this commitment? It just doesn't make sense. By publishing a draft like this, the department has taken 10 steps back in the battle for adequate infrastructure," he said.
Not later, now
McConnachie said the draft furthermore "failed to appreciate that, at the very least, certain aspects of the right to education such as sanitation, water and safe buildings are immediately realisable and are not subject to 'progressive realisation' and 'available resources' qualifiers".
The draft states: "[W]ithin the context of [these] needs, the department … must develop plans … to progressively implement these regulations, and within available resources".
Equal Education's general secretary, Brad Brockman, said the organisation had expected the draft to be "detailed and specific … and for them to have clear time frames for provinces to ensure compliance. The draft norms and standards don't do so".
"Instead, they say that in 18 months' time the minister will release another document to give content to the norms and standards but that this document will be 'guidelines', not legally binding regulations."
For two years the organisation campaigned for the publishing of the legally binding norms the government has been promising since at least 2008, when Naledi Pandor was education minister. This would allow parents, teachers and pupils to hold education authorities to account for each and every shortfall in their schools — such as those apparent in mud schools.
But the "lack of substance in the regulations means that provinces are not given proper guidance as to what their obligations are to provide adequate infrastructure", Brockman said.
"This is particularly concerning because the national department has consistently attributed school infrastructure backlogs to provinces' failure to prioritise, plan and budget for the improvement of school infrastructure," he said.
Compounding the gazetted draft's vagueness is the fact that there is nothing in Motshekga's settlement agreement with Equal Education that allows for an 18-month delay before the publication of a document with more technical detail, McConnachie said.
'Non-binding' isn't good enough
The draft norms are at most "a bare-bones document", human rights lawyer Faranaaz Veriava said. "They defer all the specifics of school facilities to a later, nonbinding 'framework document'."
It appears the department has again "dodged" its obligations on the right to basic education for pupils, "which according to the Constitution is not subject to progressive realisation within available resources", she said.
The Social Justice Coalition, which joined Equal Education's original court application, said the draft left crucial questions unanswered. Because "no national legislation detailing norms and standards for sanitation in schools exists", it is impossible to know "how many students must share one toilet or tap to comply with 'adequate' standards — 50, 100, 1 000?" the coalition's co-ordinator, Gavin Silber, said. "Do these toilets need to be maintained and if so, how frequently?"
The draft "fails to provide provinces with any guidance on what technical specifications must be met" and, as a result, pupils will likely carry on facing "very serious associated risks in health and safety", said Silber.
The department declined to answer the Mail & Guardian's queries, but Equal Education said it "would be prepared to go back to court to secure decent norms and standards".