Sam has foetal alcohol syndrome and is severely intellectually impaired, but the Free State department of education and a special needs school have ignored a 2018 high court order that she be found a place in the classroom.
The 12-year-old’s parents died when she was five and she was left in the care of her extended family. When Sam was seven she was raped by a local resident, who is serving life in prison for that crime.
The girl attended a mainstream school for a brief period but was then removed because of her special needs. She has not been to school since then and had no one to fight for her to get an education — until advocate Hasina Cassim was appointed as her curator in 2018.
Last week Cassim returned to the high court in Bloemfontein to compel various respondents, including the education department and a special needs school, to adhere to the original court ruling.
By law all children between the ages of five and 15 must go to school.
Cassim argues in her founding affidavit that the respondents had undertaken to assess Sam so that she could be admitted to a school but that nothing had been done past the point of doing the assessment.
“Thus, despite a year and seven months having passed since the court order, no progress has been made … [Sam] remains neglected, vulnerable, addicted to snuff and possibly alcohol, her behavioural issues are not being managed and she remains out of school,” reads the court papers.
Medical practitioners also confirmed that the girl has epilepsy and behavioural problems.
“A collaborative approach has not born fruit and so I institute this
litigation to compel the respondents to take steps to appropriately assist her and to help realise her basic rights.”
The papers cited a report by the Xhariep education district that, after assessing Sam, it recommended that Lettie Fouché School admit her. The report stated that the school would evaluate her and admit her in January or February 2019 “due to the urgency of the matter”.
The report said Sam was 95 on the waiting list of learners to be admitted to the school, but, “due to her circumstances, she will be placed immediately after the assessment in the first week of school re-opening in 2019”.
Sam was not reassessed by Lettie Fouché School and was not admitted even though the district report had guaranteed this.
Instead, Cassim says in the papers, in April 2019 the school “changed the goalposts” and said Sam needed to be treated for her addiction and behavioural problems.
The school “admitted” Sam “conditionally” and is, according to Cassim, collecting a state subsidy for her even though she is not attending classes. Cassim said this amounted to fraud.
The school opposed the case on the basis that it was not urgent and was premature and recommended the case be dismissed.
The school states a number of reasons it has not admitted Sam — the Covid-19 regulations, that its staff members are not trained to deal with Sam’s addiction and that it is not obliged to meet Cassim’s demands. Instead the school argues that it should be allowed to run its process and only then can it meet its legal obligation.
“Lettie Fouché School specialises and staff are trained in the remedial field of severe impaired disabilities and learning problems. They do not have the manpower or facilities to cater for [Sam’s] special needs of addiction to snuff and alcohol. Only if she has been rehabilitated will Lettie Fouché be able to admit her fully as a day learner,” read the papers.
Lettie Fouché School further argued that it would be impossible to admit Sam because “public schools are closed for an indefinite time [under Covid-19 regulations]. Special schools are probably only reopening in November 2020.”
But this is not true. According to a note by Basic Education Minister Angie Motshekga in a Government Gazette published early this month, all learners will return to school on August 31.
The Free State department of education filed a notice to abide by whatever decision the court came to.
Cassim said it would have been prudent for the department to file papers explaining why Sam had not been placed in the school despite it undertaking to do so.
In the answering affidavit, Cassim also said it was not true that Lettie Fouché School had no knowledge of Sam’s addiction; in correspondence in April last year the school had only said that her problems needed to be dealt with before she could be admitted into the school’s hostel.