A high court judge in Pretoria refused on Tuesday to draw any conclusions on allegations that Limpopo school principals who reported textbook shortages were being intimidated.
Judge Neil Tuchten said this would be his stance unless there was a full investigation.
He made the remark during legal argument by Adilla Hassim, counsel for community-based organisation, Basic Education for All (Befa).
Befa, supported by civil rights group Section27, applied for a court order to force Limpopo education authorities to deliver all textbooks to the province's schools by the authorities' own deadline of June 6.
Hassim said a court order was necessary because the department had in the past failed to adhere to its own deadlines and the applicant did not have the resources to return to court. They also want to force the department to come up with a plan to prevent the future non-delivery of textbooks, for the Human Rights Commission to police the process and for the court to declare the non-delivery of textbooks a violation of the constitutional right of pupils to basic education.
In court papers the department admitted that over 158 000 textbooks had not yet been delivered to its central warehouse. Befa contested this figure because the department counted textbooks that had been delivered to its warehouse as already delivered.
They regarded the actual delivery as a mere formality. Hassim said apart from the 39 schools on its list which had not received their full complement of textbooks, at least 15 more schools had approached Section27 but did not want to be identified out of fear or reprisal.
Judge Tuchten remarked that there was no such evidence before court.
Hassim argued that non-delivery at the 39 schools were the symptoms of a systemic failure and that an independent audit by the Human Rights Commission was necessary to ensure that the problem did not recur.
However, the South African Human Rights Commission said in court papers it did not have the resources to police the system.
The department blamed budgetary constraints for the late delivery of textbooks but Hassim argued they could not use this as an excuse because the national executive had taken over the department's administration in 2011.
She said the responsibility for the delivery therefore rested on both the national and provincial education departments which could have made use of an emergency fund due to the exceptional nature of the problem.
Hassim said the department's contention that no rights had been violated because the vast majority of over six million textbooks had been delivered was "startling".
"The right to basic education is an individual right … each child must have every textbook. It's a bizarre proposition to say that because most have been delivered there has not been a violation of rights," she said.
Hassim also disputed the department's argument that there were other means for teachers to convey the same information, such as chalk boards.
Tuchten remarked that one could then say you did not have to have school buildings because that was not necessary either. " … I don't understand how they can say it is not part of basic education and if you don't get it [textbooks] it doesn't matter … I understand the respondents to say well, it's not the end of the world because there is education," the judge remarked.
The application continues on Wednesday. – Sapa