Don’t argue with what a court has already patently decided on – that textbooks are a fundamental component of basic education and that if you don’t give every pupil the books they need, then you are violating their rights.
This is what court papers submitted last week to the Constitutional Court say in further court action on the persistent Limpopo textbook debacle.
The papers also allege that at least 9 000 textbooks remain undelivered to 11 schools in the province.
“[We] submit that it is not competent for the [basic education minister and other] applicants to reopen issues that have already been determined by the high court in the judgments of [Jody] Kollapen and which the applicants did not seek to appeal [then, in 2012],” Section27’s court papers say on behalf of nongovernmental organisation Basic Education for All (Befa).
Their answering affidavit responds to Basic Education Minister Angie Motshekga’s application last month to the Constitutional Court to appeal the earlier judgment handed down in the most recent textbook court action (“Motshekga: ‘We can’t be perfect’ ”, Mail & Guardian, June 20).
Motshekga is appealing Judge Neil Tuchten’s ruling after Befa took the department to court in March for failing to provide all necessary textbooks to 39 Limpopo schools. Tuchten’s judgment said the delay in delivering textbooks to pupils was a violation of pupils’ rights (“Court rules government violated right to education”, M&G, May 7).
Government not perfect
The minister’s appeal argues that ensuring every single pupil has every single textbook amounts to a level of “perfection” that “is not the standard required from [government]”. Failure to meet that standard therefore does not mean that a pupil’s right to basic education has been violated and it is not for a court to determine what that standard should be.
But Section27 and Befa argue this appeal “is a regrettable course of action”.
It is common cause that the problem of textbook shortages at Limpopo schools has persisted since at least 2012, Section27 attorney Nikki Stein told the M&G.
Kollapen’s orders in that year “made clear that as long as there remains one learner without one book, then that learner’s right to basic education has been violated”, she said.
So it was “curious”, Befa’s papers argue, that Motshekga did not appeal those orders then. “There was already a judgment against the department on the same issues, which they did not appeal,” Stein said. “They cannot seek to do so now.”
Motshekga’s appeal says budgetary constraints and the failure of school principals to report shortages had caused this year’s shortages and delays. But her department had taken “much more than reasonable measures” to ensure that, despite these delays, pupils’ right to basic education was realised.
Although she was addressing textbook shortages, pupils still had access to teachers, notes written on blackboards and photocopies of textbooks, she said in her papers.
But Befa’s answering affidavit says Motshekga has “misconstrued” the nature of the right to basic education.
“[T]his court has on more than one occasion affirmed that the right to basic education is not subject to progressive realisation … It is therefore not open to the applicants to contend that the test is whether they have taken reasonable measures to achieve the progressive realisation of the right. More is required of the state …”
The affidavit also notes that, on a trip to Limpopo between June 17 and 19, Section27 found that at 11 schools 9 005 textbooks were still outstanding.
Befa’s Tebogo Sephakgamela told the M&G on Wednesday that “some of those schools have received their textbooks since that visit and others have not … There are still many textbooks outstanding.
“How will these schools do in their exam results?” he asked.
“Compared to other schools, they will perform badly.”
Basic education department spokesperson Elijah Mhlanga declined to comment.