Motshekga agrees to abide by court order on school infrastructure

Basic Education Minister Angie Motshekga. (Gallo)

Basic Education Minister Angie Motshekga. (Gallo)

The civil rights organisation, Equal Education, claimed a major victory for "decent" school infrastructure on Thursday morning when it announced it reached a settlement with Basic Education Minister Angie Motshekga out of court earlier this week.

The settlement, which was made an order of court on Thursday, compels Motshekga to:

  • Publish amended draft regulations for minimum uniform norms and standards for school infrastructure for comments by September 12.
  • Publish regulations for minimum uniform norms and standards for school infrastructure by November 30. "The regulations shall prescribe Minimum Uniform Norms and Standards for school infrastructure, and the time-frames within which they must be complied with," said the court order.

But Panyaza Lesufi, Motshekga's spokesperson, told the Mail & Guardian the settlement "in fact, vindicated the department". This was because it effectively gives Motshekga the six months extension she originally requested.

"We're vindicated as the department, that's why we're ready to sign," Lesufi said.
"We said we can [publish] in six months, they [initially] refused."

The basic education ministry also said in a statement on Thursday: "The agreement is a victory for the department since it is what the department had requested from the NGO in the first place. The agreements comes into effect immediately, and allows the minister to publish the norms and standards for public comments by September 12 2013 and promulgate them by the end of November 2013."

In its media statement, Equal Education said "this is a victory for [the organisation]|" because it has "secured a court order which compels the Minister to promulgate norms and standards".

"The minister has continued to maintain, as claimed in the recent affidavit of the director general, that she has a 'discretion' on whether to promulgate norms and standards, or not. But now, with a court order compelling her to prescribe the norms and standards, there can be no further discussion of any remaining 'discretion'," Equal Education said.

Equal Education pointed out that "failure to comply with a court order is a serious offence and may be punishable by a fine or imprisonment".

'Norms and standards simply do not exist'
The organisation said it settled to give Motshekga enough time to publish comprehensive regulations. "The minister stated that adequate norms and standards simply do not yet exist. We have therefore made the difficult choice to allow additional time, rather than have the absurdly inadequate draft from January 2013 promulgated into law. The minister has therefore succeeded in wasting six months, but we will get decent norms and standards in the end.

"The granting of additional time is in no way an acceptance by Equal Education of the validity of the delay. The volume of criticism received in response to the January 2013 draft, which is cited as the reason for the delay, was generated simply because the January draft was so absurdly inadequate," said the organisation.

Doron Isaacs, the organisation's deputy secretary, told the M&G they accepted that if they were to push Motshekga to publish the regulations very soon, "they'd be as bad as those published in January". "As angry as we are, we don't have much choice. She has to take a bit more time," he added.

In Motshekga's May 9 request to Equal Education for a six-month extension, she wrote that, following the comments she received during the three-month comment period on the draft norms she published in January 8, "I have discerned that it is undesirable for me to finalise and promulgate the norms and standards in their current form."

Lesufi said the department has "never opposed the idea of publishing minimum norms and standards ... It's just that some of the things had to be sorted out, we had to consult some departments. Even on the eve of the march by Equal Education [last month], we said there was no need for it."

Come November 30, the department will be more than ready to publish the school infrastructure norms and standards, Lesufi said. "We've been working very hard behind the scenes."

And when it comes to implementation, "we'll go beyond those minimum norms and standards because no government wants to see learners in schools without electricity", he said.

"No one is a loser here because we're all stakeholders for better education," Lesufi said.

Equal Education objected to the M&G's original headline on a previous version of this story. The M&G has subsequently changed the headline to more fairly reflect the story. Below we publish the letter:

The headline on yesterday's (Thursday's) story is factually incorrect. EE did not reach an out-of-court settlement yesterday.

In November 2012 we reached an out-of-court settlement

It is true that it was what is called an order-by-consent, in that the Minister elected not to oppose it, and it was agreed between the parties. But it was a court order, given in court, by Judge Dukada. There is a dramatic difference between an out-of-court settlement and a court order. This relates to the consequences for not abiding by it. Failure to comply with a settlement is similar to breach of contract, a civil wrong occurring between two private parties. Failure to comply with a court order, including a court order by consent, gives rise to contempt of court, which is a criminal offence with extremely serious consequences if convicted, including a fire or imprisonment. 

In her court papers, see the DG's affidavit in the supplementary application, the Minister opposed the idea of a court order. And yet in the end this is what happened. 

EE's statement on what happened yesterday can be read here.

We would appreciate if you would correct the headline as soon as possible. 

Doron Isaacs
Equal Education: Deputy General Secretary

Bongani Nkosi

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