Government has violated the constitutional right to basic education by failing to deliver all textbooks to all Limpopo schoolchildren on time this year, the Pretoria high court ruled on Monday.
Judge Neil Tuchten made specific orders seeking to prevent a recurrence next year of the financial constraints that government argued in court had prevented full and timeous delivery of the books.
Tuchten ordered government to pay the costs of community-based organisation Basic Education for All (Befa), its representative in the case, rights organisation Section27 and the 39 applicant schools. But he was content to accept the national and Limpopo education departments’ stated new deadlines for final delivery, rather than make these orders of court as well.
But these deadlines start on Thursday for grades seven to nine and grade 12, Befa member Tebogo Sephakgamela told the Mail & Guardian on Wednesday. For other grades, the deadline that Tuchten “noted” is June 6.
“We’ll give them [government] a few days and then start monitoring schools next week,” Sephakgamela said. One of the judgment’s welcome effects is that “it gives us [Befa] the power to monitor ourselves and to enter school premises to do so”.
‘Component of basic education’
In finding that pupils’ rights had been violated, Tuchten alluded extensively to Judge Jody Kollapen’s landmark 2012 judgment, which also centred on undelivered Limpopo textbooks, though on a far larger scale.
Kollapen “found that the provision of textbooks was indeed a component of basic education … I agree with the conclusion reached by the learned judge”, Tuchten said.
“The delivery of textbooks to certain learners but not others cannot constitute fulfilment of the right”, he said, stressing that the Constitution’s section 29(1)(a) “confers the right of a basic education to everyone“.
“If there is one learner who is not timeously provided with her textbooks, her right has been infringed” – however many other learners “have been given their books”.
He could accept only “up to a point” the basic education department’s argument to the court that “the teacher can fulfil the functions of a textbook”.
“What a teacher tells her class is ephemeral and subject to the perceptions, preconceptions and world view of the individual teacher. An inattentive pupil may miss entirely what the teacher is saying, with no way of retrieving the information being imparted.
“Notes prepared by teachers will vary in quality from one individual to another. The absence of textbooks places an additional workload on the teacher. And there is evidence before me that in some schools in Limpopo, there are no copying facilities.”
Section27 attorney Nikki Stein told the M&G: “This is an important judgment because it confirms that the right to a basic education includes the right of every learner to have a textbook for every subject and that textbooks are an essential teaching and learning tool.
“The basic education department and the Limpopo education department tried to undermine this in their papers by saying learners could use photocopies of textbooks or copy from notes taken from textbooks and written on the blackboard, or use other learning materials.”
Elijah Mhlanga, acting chief director of communications for the basic education department, said: “The judgment [was] overtaken by events because, since we were taken to court [on April 1], we have delivered more than 270 000 textbooks to schools that had reported shortages to the department, including some of those that were part of the court action.”
Credible data shortage
Such “shortages do happen because of learner migration and inaccurate information received from schools. The judgment merely confirmed what we also said in court – that the lack of credible data affects the right of learners to education. Hence we have worked very hard to put in a place a system [so that] before we even went to court we had delivered six million books to all the [province’s] 4 059 schools.”
Tuchten’s judgment is unequivocal, however: “Because textbooks were not provided to all the learners in Limpopo before the commencement of the curricula for which they were required, ie at the beginning of the academic year, the rights of the learners were violated.”
Befa’s Sephakgamela particularly welcomed this facet of the judgment, saying: “This is going to deter the department from ignoring the point that every pupil needs textbooks.”
He recalled that, “when we launched our case, we were called ‘political attention-seekers’ and accused of lying. This judgment shows we were telling the truth. The public needs to know the truth: we’re not acting in our interests but in the learners’ interests.”
Tuchten’s judgment addressed government’s argument to the court that financial shortages had caused delays in some textbook deliveries.
The judge ordered the national and provincial education ministers to provide the applicants with “affidavits” that must include departmental “submissions … to the fiscal authorities” to support their “requests for funds for textbooks for learners in Limpopo for … 2015”.