Antagonism demeans state’s case

The department of basic education's recent responses to civil society campaigns for improved learning conditions reveal some disturbing trends.

Most notably was the statement issued on June 18 – the day after rights organisation Equal Education's Youth Day march for norms and standards for school infrastructure. Issued by the department itself, the statement accused Equal Education of being "disingenuous" in its tactics.

Presumably this was a criticism both of the march and of the reinstitution of the organisation's renewed litigation for norms and standards. The statement also implied that Equal Education does not understand the government's processes for the finalisation of norms.

Most insidious of all, though, was its implication that Equal Education members are predominantly white and privileged, so therefore cannot speak to issues of inequality in education and, in fact, are exploiting African pupils for their own interests.

This discrediting of civil society action is not new. Official attempts to undermine the Limpopo textbook litigation last year were evident throughout that case. One example was the department's accusation in court papers that civil society organisation Section27 was instigating the litigation as a fundraising stunt.

The basic education department also adopted a narrative characterising the litigation as a "waste of time". This was an underlying thread in its court papers opposing the litigation. The department also placed full-page advertisements in Sunday newspapers after the court handed down a second judgment in the case.

Misleading the public
The advertisement stated: "The department of basic education wishes to state that the decision by Section27 to litigate on the perceived nondelivery of grade 10 textbooks, which were reported as shortages by school[s] in Limpopo, was unnecessary and a waste of valuable time and resources."

The advertisement also accused Section27 of "misleading the public" in claiming the judgment as a victory and asserted that the court did not attribute fault to the department.

At best, this was an incorrect reading of the judgment, at worst it was a deliberate distortion. The court did not state that there was no fault on the part of the department. Rather, it expressly made no finding as to fault, because the matter had been settled at the 11th hour between the parties, with the department undertaking to meet all the new deadlines for delivering textbooks.

The advertisement also stated: "We call on all members of society, including Section27 and its allies, to work with the department, rather than against it." Again, this statement failed to acknowledge that, before instituting litigation, Section27 had made several attempts to co-operate with the department and to encourage it to comply with two previous court orders before returning to court.

The department's June 18 statement on Equal Education similarly failed to acknowledge the long history of repeated official delays and broken promises. It also overlooked the department's apparent failure to implement the terms of its settlement agreement with Equal Education, which had been made an order of court on November 16 last year, to publish a policy on the norms and standards for improved school infrastructure by May 15.

Equal Education now plans to return to court to seek a ruling that Basic Education Minister Angie Motshekga is in breach of this agreement and an order that the norms be published within 45 days of such a court ruling.

Enormous disappointment
This recent history of failed education reform is recorded in Equal Education's current court application, which says that:

• As far back as November 2008, the then minister, Naledi Pandor, published draft regulations on school infrastructure for public comment. These norms were to be adopted in 2009 and implemented from 2010. Both the Council of Education Ministers and the heads of education committee approved them; and
• In 2009, a new set of draft norms emerged. These were to be adopted by the end of the 2009/2010 financial year; and again the council and the committee approved them.
• The affidavit then lists a series of public statements and Motshekga's undertakings to Equal Education to promulgate the norms. It then notes:
• The sudden backtrack on these undertakings, with the minister stating that she was not required to promulgate regulations and then publishing nonbinding guidelines;
• Equal Education's decision to launch the initial action in March 2012 when it became apparent that the minister did not intend to promulgate regulations; and
• That the matter was set down for hearing on November 20 2012, but that a few days before the case was settled and made an order of court.

In January this year, in terms of the settlement agreement, the minister published draft regulations for public comment. Equal Education described the content as an "enormous disappointment" – a sentiment generally ­echoed in public responses.

In breach of the November settlement agreement, the minister has not published a final draft but has suggested that the process of finalising the regulations would require an additional six months.

According to the Equal Education affidavit, the main reasons given for this new delay is that various consultation processes are incomplete.

One reason given is that renewed consultations with both the Council of Education Ministers and the heads of education committee are necessary. Equal Education dismisses this on the basis that there have already been exhaustive and complete consultations with these bodies.

A second reason from the minister is that theNational Economic Development and Labour Council consultation process is incomplete. Equal Education dismisses this too, arguing that the council has stated that it did not want to delay the promulgation of the regulations.  

Finally, the minister has also suggested that yet another round of public consultations is necessary. Equal Education has rejected this on the basis that there have already been two rounds of consultations, one on the existing draft regulations and one on the January draft.

Counterproductive
If the example of the Limpopo textbook case is anything to go by, the minister and the department ought to rethink their current strategy. Perhaps there are concerns within the government as to how the norms will be funded, but rather than being defensive they should play open cards and take the public and the courts into their confidence.

One thing is certain: official attempts to discredit civil society organisations are counterproductive, and they tend to have a mobilising rather than a weakening effect on these organisations.

As in 1976, those best placed to speak out against an inferior education system are those experiencing that inferior education system.

At the same time, those of us who believe in the values of the Constitution and who are committed to social justice must support campaigns such as Equal Education's one for norms and standards. It is for this reason that I marched in support of the organisation's campaign on Youth Day.

Of the many utterances of Nelson Mandela doing the rounds in recent weeks, the following has resonated most for me: "For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedoms of others."

Faranaaz Veriava is a human rights lawyer. She writes a monthly ­column in these pages on the right to basic education