Earlier this month, civil society organisation Section27 once again returned to court, this time asking for an order compelling the government to deliver textbooks to 39 schools in Limpopo.
The alleged recurrence of this problem is disappointing, not only because of the prejudice Section27 argues it has caused to those learners without textbooks but also because the many insights gained from the 2012 textbook crisis informed recommendations subsequently made to government to prevent any such recurrence.
Section27 first launched an urgent application on May 4 2012 to compel the government to deliver textbooks for grades R, one, two, three and 10 to schools in Limpopo. Delivering a seminal judgment on May 15 2012, Judge Jody Kollapen ordered that the textbooks be delivered to all schools in the province by no later than June 15 of that year.
He also declared that textbooks were an “essential component” of the right to basic education and, accordingly, the failure to deliver textbooks to schools in Limpopo was a violation of this right.
But that was not the end of the matter. In the event, the parties returned to court on two further occasions and two more court orders followed, both prescribing new deadlines for textbook delivery. It was only in December 2012 that Section27 issued a statement noting that there had finally been “substantial” delivery of textbooks to schools in the province for that year.
The Limpopo textbook case of 2012 did more than merely confirm the centrality of textbooks for teaching and learning in South Africa: it contributed to a heightened public awareness of the education crisis in public schools and the necessity for rights-based mobilisation advocating for education reform. It also provided greater transparency regarding the problems blighting education governance, particularly in Limpopo.
In particular, the litigation provided valuable insights into the modus operandi of the tender and procurement processes for textbooks and the widespread failings in the system. It highlighted the state of maladministration and mismanagement in the Limpopo department of education that resulted in it being placed under national administration in terms of Section 100 of the Constitution.
Three significant investigations into the procurement and delivery of textbooks followed the 2012 litigation.
In June that year, Professor Mary Metcalfe was appointed to lead a process aimed at verifying official progress reports on textbook delivery. Section27 and the government agreed to this process after the department failed to meet the court-imposed deadline of June 15 2012 and similarly failed to meet an extended deadline of June 27 2012 for the completion of textbook delivery.
The Metcalfe report was finalised in July 2012. Discussing the value of the litigation, it noted: “It is my view that the public interest litigation initiated by Section27 has directed public attention to a component of the difficult conditions under which teachers teach, and learners learn. All energies must be directed to ensuring that all learners have adequate access to learning and teaching support material. This is in the spirit of the Kollapen judgment, [which] indicated that one week or even one day without LTSM [learner teacher support material] is material to the education rights of the affected children.”
The report sampled 411 schools “as part of the verification process”. As of June 27 2012, “only 15% of textbooks had been delivered to schools”, it said. By July, 48% of schools had received their textbooks, and by July 11, 22% “were still awaiting delivery of textbooks”.
It also made several recommendations aimed at addressing systemic problems in the procurement and delivery of textbooks. Some of these recommendations are particularly relevant within the context of Section27’s return to court this year.
The founding affidavit in its current application alleges that government does not appear to have accurate and detailed information about schools in Limpopo that would enable it to deliver textbooks to those schools.
It also alleges that, where Section27 reported shortages to the education department, it also had to provide the department with details such as each school’s official “EMIS” (education management information system) number, and the district and circuit of the school – a requirement that highlights the continued existence of poor communications systems between government and Limpopo schools regarding textbook procurement.
On exactly this point, the Metcalfe report noted that Limpopo schools have “the poorest communication infrastructure in the country”. The report therefore made recommendations for “rapid and efficient mechanisms” to be put into place to communicate with schools and to “improve connectivity with schools”.
In another example, when the state entered into a contract with a private company to procure and deliver textbooks, the entire book unit in the Limpopo department of education was dismantled and the database on textbook procurement was handed over to the company.
But when this contract was cancelled, the department had no access to the database, which provided information about which schools existed in the province and their textbook requirements.
This proved to be one of the major obstacles to the timeous textbook delivery and the government’s ability to comply with the various court orders. The Metcalfe report therefore also made the important recommendation that, if key functions of the government such as the procurement of textbooks are outsourced, all data must remain the property of the state.
Finally, this report recommended that the government conduct a full audit of the delivery process to ensure the complete delivery of textbooks to all schools in Limpopo. The founding affidavit in the 2014 application notes that this audit was never conducted.
The second of the three investigations into the 2012 crisis was conducted by a presidential task team, also established that year to ascertain the reasons for the delay in the delivery of textbooks.
This team released its report in October 2012. One of its recommendations was that national policy be developed to standardise the procurement and distribution of LTSMs across the country. The report further recommended that this policy should include an “operation plan” for the procurement and distribution of LTSMs.
It is well worth adding here that section 5A of the South African Schools Act also requires that norms and standards for the provision of LTSMs be developed – but this has yet to happen.
The national picture
The third investigation followed in 2013, when the South African Human Rights Commission embarked on an inquiry into the state of children’s access to learning materials nationally. The terms of the inquiry required that the national and provincial government departments provide submissions to the commission on the state of delivery of learning materials across South Africa.
The commission’s enquiry included hearings involving all parties concerned, with the overall aim of establishing a mechanism for the monitoring of the delivery of learning materials nationally.
The rights commission’s report has yet to be finalised. But its interim report states that whether a child will “have access to primary learning materials is vastly dependent on where they live, how their provincial government utilises the funds apportioned to them, [and] what kind of monitoring system is put in place by the provincial government.”
In other words, the commission – like the presidential task team – also appears to favour a standardised national system.
Even if Section27’s current action in the courts is successful, the larger question will remain: Have the lessons learnt from the 2012 textbook crisis led to reforms that are capable of addressing the systemic weaknesses with textbook procurement and delivery?
Unless, and until, this occurs, the government will continue to struggle to meet its obligations concerning LTSM provisioning, and the problem of the nondelivery of textbooks is likely to recur time and again, not only in Limpopo but also in other provinces such as the Eastern Cape, where similar problems have been reported in past.
Faranaaz Veriava is a human rights lawyer. She writes a monthly column in the education section on the right to basic education