Court tells Angie to fix schools – now

“The crude and naked facts staring [at] us are that, each day, [when] the parents of these children send them to school, as they are compelled to, they expose these children to danger which could lead to certain death. This is [the] fate that also stares the educators and other caregivers in the school in the face.” — Acting judge Nomawabo Msizi

Education lobby group Equal Education has won another round in its long battle with the department of basic education over setting norms and standards for the provision of school infrastructure.

This week, in the Bhisho high court, acting judge Nomawabo Msizi ordered Basic Education Minister Angie Motshekga to meet the infrastructure targets that the state had set itself to fix public schools.

This has a direct effect on schools across the country that are dilapidated, or where parts of the building are falling apart.

According to Thursday’s judgment, all “classrooms built entirely or substantially” of inappropriate materials must be fixed, and schools without electricity, sanitation and water must be given these resources.

These problems should have been fixed by the department’s self-imposed deadline of November 2016 — three years after the release of the regulations, which were only formulated after a court case to force the government to set them.

The department also won’t be able to hide behind the failings of other state entities — such as Eskom and the department of public works — to provide infrastructure in schools. The judgment found that this argument is “unlawful and invalid” and is inconsistent with the Constitution.

Equal Education had argued in March that the norms and standards regulations had “unconstitutional loopholes and gaps” that allowed the department to get away with not doing what it was meant to do.

Equal Education first took Motshekga to court in 2012 to force her to establish the norms. She published the first draft in January 2013, but the lobby group lambasted it and went back to court to have it amended. This led her to publish the current regulations in November 2013.

In its latest court case, Equal Education wanted the high court to set aside what it called the “get out of jail free card”, where Motshekga said that though she is accountable for providing basic education, she cannot be held accountable for providing infrastructure, which is the role of other state entities.

According to her court papers: “She is not the minister of public enterprises, water and sanitation, and human settlements. Requiring her to provide what is outside her competence is not in accordance with the Constitution.”

But the judgment is scathing on this score: “The natural consequence flowing from the stance assumed by the minister is that she cannot make any commitment regarding the basic norms and standards for the infrastructure in public schools. This is unpalatable given the requirement here is for a minimum requirement for basic infrastructure — nothing more, nothing less. It is also inconsistent with the Constitution. In response, while resisting the relief sought by the applicant, the respondent offers absolutely nothing. This is untenable.”

Equal Education also challenged the use of the word “prioritised” in the regulations when it came to schools built entirely of mud, wood, zinc or asbestos and schools that do not have any form of power and water supply, as well as sanitation.

The group argued that the regulation does not state what is meant by “prioritisation” and whether these conditions have to be eradicated within the three-year timeframe.

In her judgment, Msizi referred to testimony from pupils from Limpopo about how inadequate school infrastructure poses a risk to their health and safety. The testimonies were part of an affidavit by Basic Education for All, a Limpopo-based education lobby group that was admitted as a friend of the court.

Pupils from Masereleng Secondary School told of how they only had one pit toilet that was used by teachers and girls. This meant that boys had to walk a long distance to relieve themselves in the bush. Schoolboys from Segware Secondary School also spoke about having to relieve themselves outdoors, where they are often confronted by violent gangs.

Just this week, the Limpopo education department was forced to deliver mobile classrooms and furniture to Makangwane Secondary School, following an order by the high court in Polokwane. The pupils had been learning under trees because the classrooms were dilapidated.

This week, the Daily Dispatch reported that parents of pupils at Schornville Primary School in King William’s Town removed their children from the school because it was falling apart and was a “death trap” waiting to happen. They had been promised a new school 14 years ago.

In a statement, Equal Education (EE) said the judgment was a “momentous victory” that would protect the rights of pupils to dignity, equality and education.

“Victories such as this validate the necessity of organising young people to demand rights that would otherwise not be freely afforded to them. Armed with an improved infrastructure law, EE will continue to keep a very close eye on the [basic education department] and on the provincial education departments. We will not back down from the fight for quality school infrastructure,” it said.

The department said in a statement that it would incorporate the order made by the court into its amendments to the regulations, which, it said, were in the process of being implemented.

It said, however, that although it had made progress in providing school infrastructure in some cases, it had also been let down by implementing agents who had cancelled contracts, which meant that work had to be reallocated to other companies.

The department said it had also made it compulsory for each province to set aside at least 12% of its education budget for school maintenance, to compel provinces to make provision for this eventuality. 

Bongekile Macupe
Bongekile Macupe is an education reporter at the Mail & Guardian.

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