Progress betrayed by loopholes and double-digit deadlines
Minister of Basic Education Angie Motshekga published her latest version of the draft Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure on September 12. This was in compliance with a court order obtained by the public- interest organisation Equal Education in July this year.
The publication of this draft is the latest development in a long, drawn-out process that began in 2008.
In 2008, the previous minister of education, Naledi Pandor, published the first set of draft norms for public comment and another document, the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment.
These were meant to serve as the blueprint for addressing the infrastructural backlog in schools. In particular, the norms, if they had been adopted, would have prescribed the benchmarks for the provision of infrastructure at schools, which provinces would have been required to abide by in prioritising, planning and budgeting for school infrastructure.
Following the 2009 general elections, Motshekga became minister. Despite several undertakings by her between 2009 and 2012, the 2008 draft norms were never promulgated into law.
Instead, last year infrastructure "guidelines" were published. These were nonbinding, meaning that provinces could not be held accountable for any failure to comply with the standards they specified.
Early last year, Equal Education instituted an application to compel the promulgation of binding norms on the basis that the minister was constitutionally and legally obliged to do so.
The minister opposed the application but, in November last year, a few days before the matter was to be heard, she reached an out-of-court settlement with Equal Education. In terms of it, the minister agreed to publish draft regulations for public comment by January 15 2013 and to finalise the norms by May 15.
In January this year, as per the agreement, Motshekga gazetted new draft regulations. But they drew widespread criticism: they were viewed as utterly lacking in specific details to establish minimum benchmarks for school infrastructure, mechanisms of accountability in the provinces and time frames for implementation.
In the face of widespread rejection, the norms were not finalised by the May 15 deadline. In July, in order to avoid a new round of litigation, Equal Education and the minister agreed to new court-ordered time frames. In terms of these, new draft regulations were to be published by September 12 for public comment and finalised by November 30.
The latest draft is an improvement on its January 2013 predecessor but whether it will lay an effective basis for the much-needed improvement of conditions in the bulk of South Africa's public schools is open to question.
Section 29(1)(a) of the Constitution guarantees everyone the right to a basic education. This is referred to as an unqualified socioeconomic right because it is not subject to qualifiers such as "progressive realisation" and "within the state's available resources" that characterise other socioeconomic rights such as health, welfare and housing.
Based on this wording, the Constitutional Court has said that, unlike the other socioeconomic rights, the right to basic education is "immediately realisable" and may be limited only in terms of the general limitations clause in section 36 of the Constitution.
A 2007 amendment to the South African Schools Act provides the legal basis for the establishment of norms and standards for school infrastructure. Section 5A requires that the minister must develop minimum norms and standards for basic infrastructure in, but not limited to, the following areas: classrooms, electricity, water, sanitation, libraries, laboratories, sport and recreational facilities, electronic connectivity and perimeter security.
Section 58C further creates a mechanism to ensure accountability: it requires provincial heads of department to report annually on their compliance with the norms.
The draft norms
Unlike the January document, the latest draft norms do prescribe benchmarks for various aspects of school infrastructure.
For example, they establish benchmarks for classroom sizes and the average space to be allocated for each pupil. For instance, in grade R, a maximum class size is deemed as being 30 pupils, with each pupil having an average space of between 2m2 to 2.6m2 in a classroom of between 60m2 and 80m2.
This is necessary because of severe overcrowding. Many schools have more than 40 pupils per class and, according to the South African Human Rights Commission's Charter of Basic Education, at least 6% of schools have classes with more than 60 pupils.
The latest draft also establishes minimum standards for school sanitation based on enrolment figures. For example, a coeducational school of 500 pupils should have at least 25 toilets, providing for both sexes, and for teachers and pupils.
Again, the necessity of this is evident from the alarming reports received about unhygienic toilet conditions and pupil safety during Equal Education's public hearings on school infrastructure.
The new draft norms also establish a clear mechanism of accountability: they require provinces to report within six month of the passing of the norms and then annually on the steps they have taken to comply with them.
Although the new draft appears to meet the minimum legal requirements set by the Act, it still flirts with the boundaries of constitutionality. Particularly problematic are the time frames it sets for the implementation of the norms.
The document is also couched in legalese that appears to put in place "escape clauses" to pre-empt future challenges for failures to implement the norms.
The draft delineates tiers of infrastructural provisioning. In terms of the first tier, provinces are required to prioritise the availability of classrooms, electricity, water, electricity and sanitation, and perimeter security.
The second tier, which concerns the provision of libraries, laboratories, sport and recreational facilities, and electronic connectivity, may be delivered over a longer period of time.
The greatest concern is not about the delineation. But getting all schools to attain a minimum level of functionality is urgent and necessary. Therefore, it is the time frames for compliance in each of the two tiers that are questionable and run counter to the necessity of urgent action.
Provinces need only comply with the first tier of infrastructure provisioning in the next 10 years and with the second tier by 2030 — that is, in 17 years' time.
Although the extent of the problem in many schools is overwhelming, time frames of 10 and 17 years respectively appear to run counter to the constitutional standard of "immediately realisable".
Although provinces cannot be expected to upgrade their schools magically overnight, because planning, budgeting and construction do take time, these time frames appear unreasonably long.
The latest draft also contains qualifiers to implementation. For example, in addition to establishing unreasonably long time frames, these are simultaneously subject to the qualifier of "as far as reasonably practicable". The norms further suggest that the implementation is "subject to the resources and co-operation of other government agencies and entities".
It would appear that, if the government is challenged in the future for failing to deliver in 10 or 17 years respectively, or even where it cannot show sufficient progress in the interim years, it could rely on these fallback clauses by making arguments based on resource allocation.
A meaningful attempt
The original 2008 draft remains the only meaningful attempt at addressing the infrastructural challenges that are evident in schools. At least, it provides specific details that speak directly to the challenges that pupils face daily.
For example, given that many pupils walk extremely long distances to and from schools, often in unsafe circumstances, the 2008 norms determined a catchment zone of a school as being within a 3km radius. Where pupils had to walk longer distances, schools would have to be built closer to homes or transport would have to be provided.
The 2008 norms also required that schools should, as far as possible, not be located next to places such as sewage plants or taxi ranks.
In previous documents, materials such as asbestos, mud, corrugated iron and wooden structures were deemed to be unsafe for schools. This is pertinent, given the cases of mud schools collapsing, especially in the Eastern Cape.
The absence of similar detail in the latest draft leaves pupils vulnerable to unsafe conditions.
Ironically, the latest draft norms are more specific about seemingly less crucial issues such as the signage that must be visible at a school.
The norms are needed because infrastructural inequality in schools remains one of the most visible indicators of the perpetuation of the apartheid legacy.
Reports abound about the impact of poor infrastructure on teaching and learning, and academic research shows there is a link between poor schooling conditions and pupil performance.
We also know that, despite the allocation of grants specifically earmarked for the development of school infrastructure, they have not always been spent, especially in the provinces that require them the most.
Therefore, what we need is to put effective norms in place that will remedy this. The norms should also include milestones so that each year measurable progress can be shown towards achieving the objective of equitable infrastructure in South African schooling.
The norms in their current guise suggest that a poor pupil will have to wait until 2030 to have an education on a par with her or his middle-class counterpart — and then only maybe. This means that three generations of South Africa's born-frees must defer their right to a basic education.
Faranaaz Veriava is a human rights lawyer. This is her monthly column on the right to basic education