Education’s legal fires ‘need dousing’

If a uniquely wide-ranging application due to be heard in the Western Cape High Court next week succeeds, the government might have to submit regular reports to the public protector, the South African Human Rights Commission or the auditor general detailing how it is remedying its alleged failures to comply with the Constitution’s requirements on the right to basic education.

Applicants Jean Pease, a longtime educationist and civil society activist, and the Progressive Principals’ Association, a 200-member Western Cape-based organisation, specify four areas in which they contend that the government’s systemically dysfunctional implementation violates constitutional rights.

Pease’s founding affidavit describes these deficiencies as:

• Age-appropriate early childhood development programmes;

• Mother tongue-medium education in the primary and intermediate school years;


• Timeous supply and delivery of adequate quantities of textbooks and relevant teaching materials in appropriate languages in all schools; and

• Professionalising teachers.

The respondents include the ­government of South Africa, the minister of basic education and the nine provincial education MECs.

The application is unusual not only in its scope – previous education litigation has generally focused on single areas at a time, such as infrastructure – but also in the kinds of orders it asks the court to make.

Chief among these is the so-called “supervision” order that in this case would entail a chapter nine institution or courts “monitoring” the government’s “progress … towards full compliance with [its] constitutional obligations”, Pease’s affidavit says.

In one of the few evident points of agreement between the applicants and the respondents, Basic Education Minister Angie Motshekga’s answering affidavit calls such an order “unprecedented”, and advocate Paul Hoffman SC told the Mail & Guardian it is “novel”.

Hoffman is a director of the Institute for Accountability in Southern Africa, and has been engaged by the applicants’ attorneys with the institute’s permission.

What does basic education mean?
On the application”s scope, he said: “Previous cases have dealt with one fire at a time, instead of installing a sprinkler system. It’s all been crisis management. We need to concretise what ‘basic education’ means.”

Pease elaborated: “We all agreed in 1994 that a total revamp of the education system was needed, but the manner in which [the government] revamped it has created more problems than solutions.

“We’ve specified four pertinent areas that all go to the central problem of basic education. We felt that dealing with just one or another symptom [of dysfunction] wouldn’t be helpful.”

The ministry did not respond to the M&G’s questions. But Motshekga’s affidavit argues “there is no basis” for the “unprecedented” supervisory order the applicants seek. On this, Pease’s answering affidavit expresses the essence of the applicant’s case: “Literature indicates that there is gross failure to deliver basic education and that, indeed, the respondents are not performing their constitutional and statutory functions.”

In support of their core contention that the state of basic education is “highly dysfunctional” in about 80% of schools, the applicants marshal official data, reports and other documents, as well as articles by more than 20 education experts, about the four areas their action specifies, attaching these as annexures.

Polarised disagreement
Motshekga’s strategy is similar – with the result that well over 3 000 pages now comprise the documents filed with the court. But in each of the four areas, it is frequently exactly the same data that elicits polarised disagreement between the parties.

Ever-rising matric results, for instance, are in Motshekga’s contention a success story. But for Pease, these results “are not a true reflection of the dismal reality that currently more than 50% of the learners entering the education system do not reach grade 12, with many of them dropping out after the age of 15, attempting – and unsuccessfully so – to enter the job market functionally illiterate, innumerate and unemployable.”

Equally, the annual national assessments (ANA), showing very low levels of literacy and numeracy in the early grades, receive divergent interpretations, as Motshekga’s affidavit suggests: “It is … with considerable surprise that I note that much of the founding papers invoke the ANA in support of the applicants” cases that the government is not furthering the right to basic education. The ANA is, in fact, proof to the contrary. ANA is not only a measure of progress, but helps the government know where support for better learning and teaching is mostly needed.”

In sum, the applicants identify what they describe as “the false, bare denials, the obfuscation, [and] the emaciated and the ill-informed content” of Motshekga’s answer.

But for the minister, the applicants’ case is “legally misconceived”, “constitutionally inappropriate” and “blinkered”. The battle comes to court on May 19.

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David Macfarlane
Guest Author

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