Learners and members of EE gathered outside the Bhisho High Court on Wednesday with banners that read: “No more broken promises”. They were demanding infrastructure plans to prioritise the Eastern Cape’s “forgotten schools”. A huge plastic doll satirised the Minister of Basic Education, Angie Motshekga, listing broken promises to fix schools.
The court case is part of Equal Education’s #FixOurSchools campaign.
The Department of Basic Education set out regulations for norms and standards for school infrastructure on 29 November 2013. These regulations set a deadline of 29 November 2016 for the replacement of schools made of inappropriate and often unsafe structures, and the provision of basic levels of water, sanitation and electricity in schools. EE had campaigned for these regulations and welcomed them: “For the first time, South Africa had a piece of law which said that a school must have decent toilets, electricity, water, fencing, classroom numbers, libraries, laboratories and sports fields. “
But the department did not meet the deadline. EE says the regulations are now being used to avoid responsibility. It wants the court to address four problems:
- An escape clause in the regulations says the education department “is only responsible for the fixing of schools to the extent that other parts of the State (such as Eskom or Public Works) cooperate and make resources available.” EE wants this set aside.
- The wording of the regulations apparently means that the department is only obliged to fix schools made entirely out of mud, wood, zinc, or asbestos. “This means that if an otherwise entirely inappropriate school has even one structure made of proper building materials, a brick toilet block, for example, government may ignore its duty. The law needs to be tightened so that these schools are fixed urgently,” explained an EE statement.
- The regulations do not allow for sufficient accountability, including making regular reports available to the public.
- Some schools, already scheduled to be built, were excluded from the regulations.
Advocate Geoff Budlender for EE began with testimonials from teachers and students from various schools describing dilapidated classrooms and appalling conditions under which children are expected to learn.
“If a child does not get basic education today, that is a breach of the Constitution,” said Budlender. He said the right to basic education includes the provision of furniture in school, transport to and from school. And if learners could not access services at school like toilets or water, then that undermined the importance of basic education.
“We make the obvious submission that there is one national government. The Minister bears a constitutional obligation as minister and also a representative of the national government to fix the norms and fulfil Section 29 of the Constitution,” he said.
Advocate Nikki Stein for SECTION27 representing Basic Education for All, which has been admitted as a friend of the court, told the court that there are thousands of schools across the country with infrastructure that is unsafe and inadequate. “This case is not about the individual circumstances of each of these schools per se. It’s about the regulations that the minister has passed.”
Advocate Chris Erasmus for the state said Motshekga should not be second-guessed and that provinces had budgetary limitations.
He said it was “common cause” that the duty to implement the norms and standards was “subject to the resources and cooperation of other government agencies and entities responsible for infrastructure”.
Erasmus said Motshekga could not speak for other departments or ministers; these included the Minister of Public Works being responsible for infrastructure of the state in general, the Minister of Water and Sanitation being responsible for infrastructure relating to water and sanitation, and the Minister of Energy being responsible for the provision of electrical infrastructure.
“None of these entities have been cited as respondents, despite a list of other respondents having been identified as necessary parties,” said Erasmus.