Summing up the legal battles fought for better schools

In 2010 former deputy chief justice Dikgang Moseneke had this to say about the state of education in South Africa:

“Apartheid has left us with many scars … It is so that white public schools were hugely better resourced than black schools. They were lavishly treated by the apartheid government … That is why perhaps the most abiding and debilitating legacy of our past is an unequal distribution of skills and competencies acquired through education. In an unconcealed design, the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular.”

His comment was made in the case of Mpumalanga Department of Education v Hoërskool Ermelo. Despite the Constitution’s demand to transform education, all three levels of the government have often been dragged to court over the basics: teachers, furniture, textbooks, classrooms, transport and toilets.

Teachers: In 2012, in terms of a partial settlement and a court order, Eastern Cape schools were compelled to fill vacant teaching and other posts, which had already been budgeted for.

Norms and standards: In 2012, after a bitter legal battle with Equal Education, the government settled a case in which the nongovernmental organisation sought to compel the government to adopt national norms and standards for education. But Equal Education then went back to court in 2016, arguing that parts of the norms, adopted in 2013, were unconstitutional and for an order that read into the norms a deadline for when schools substantially built from mud and wood would be replaced with proper structures. The order was granted in 2018.


School furniture: In 2014, parents, assisted by the Centre For Child Law, returned to the Eastern Cape high court for the third time over providing desks and chairs for their children at school. The court found the department had breached the children’s constitutional rights and ordered that appropriate furniture was provided.

Textbooks: In 2014, the Supreme Court of Appeal gave a scathing judgment on the failure to provide textbooks to learners in Limpopo. The judgment was the culmination of a two-year battle by parents and school governing bodies, assisted by the NGO, Section27. The appeal court declared that the Constitution entitles every learner at public school in that province to be provided with their prescribed textbooks and government’s failure to do so violated the education rights of learners, as well as their rights to equality and dignity.

Identity documents: In 2019, the Eastern Cape high court ordered schools to admit children who did not have identity documents — even those seen as illegal foreigners.

Toilets: In 2019, the Komape case revealed the appalling state of sanitation facilities at Limpopo schools after five-year-old Michael Komape fell into a dilapidated pit latrine and drowned in faeces. The Supreme Court of Appeal lashed the education authorities for their unfeeling attitude to the case, saying it was “to be deprecated in the strongest possible terms”.

Overcrowding: In February the high court in Mthatha ordered the provincial department of education to provide additional classrooms to four schools that had taken it to court for overcrowding. The schools said the maximum number of learners in a class was 100 and the minimum 80.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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