Litigating The Right To Education In SA - An Overview Of Some Of The Most Important Cases Of The Last 10 Years

The following op-ed is written by Ona Xolo of the Legal Resources Centre. The basic education system in South Africa is steeped in a history of systemic inequality that was institutionalised by the apartheid government. This created a clear divide between the good quality of education provided to white learners and the underfunded, abysmal education provided to black learners in the country. Twenty-six years after the first democratic election, the remnants of apartheid education’s dual system in which a minority of learners benefit from good quality education, while the majority of learners in the country were taught in schools that lack the basic resources to ensure academic success, continues. This exasperates and perpetuates the inequalities in the country and has created another generation of young people who struggle to secure employment and who are unable to access tertiary education as a result of the poor education they received in the first eighteen years of their lives. Section 29(1) of South Africa’s Constitution provides that “[e]veryone has the right to a basic education”. While the right is framed in a manner that makes it “immediately realisable” (unlike other socio economic rights which are subjected to caveats of progressive realisation and “within the state’s available resources”), it has been up to the courts to provide much of the detail as to what a learner can demand from the state in terms of a “basic education”. Over the last ten years the Legal Resources Centre (LRC) has played a significant role in developing the jurisprudence on the right to education and has used the law to try and ensure that millions of learners in South Africa have access to quality, equitable, and inclusive education. The LRC is currently embarking on a new strategic trajectory that will see even more of our focus and resources shift to education litigation and advocacy. It seems appropriate to now take stock of some of the successes that have already been achieved through our work, and to flag those areas that still require urgent attention. Below we give a brief overview of some of the most important education cases of the last ten years. These cases developed the right to basic education to include school infrastructure, furniture, teachers, and scholar transport. It also ensured access to education for learners with disabilities, and most recently, access to education for undocumented children. This discussion is followed by an overview of some of the upcoming strategic interventions that the LRC will be embarking on in the next five years and that will have a profound impact on ensuring access to education for all learners in South Africa. Mud schools and the provision of school infrastructure as part of the right to education One of the worst legacies of the apartheid education system was that hundreds of schools for black children in rural parts of South Africa consisted of unsafe, collapsing mud structures or flimsily constructed corrugated iron shacks. These structures are unsafe for teaching. In 2010 the LRC acted for the “Infrastructure Crisis Committees” of seven mud structure schools located in the rural Libode District of the Eastern Cape. The litigation sought to address this long-standing problem of inappropriate classrooms. The LRC identified twenty of the worst “mud schools” using the Department of Education’s 2005 district profiles. We conducted comprehensive interviews with twenty schools and decided on seven schools that would form part of the litigation. We also acted for an institutional applicant (the Centre for Child Law) who approached the court on behalf of all the learners in the Eastern Cape who were being educated in similar structures. Whatever relief the court granted, would therefore be applicable to all the mud schools in the province. The litigation against the Eastern Cape Department of Education (ECDOE) and the Minister of Basic Education was directed at their failure to provide the schools with adequate and safe school infrastructure. The application argued that the right to basic education in the Constitution included the right to infrastructure that is safe for teaching and learning. The government’s failure to provide the infrastructure did not meet the requirements of the Constitution. The Minister and the ECDOE initially opposed the application, arguing that the schools were not the worst-off in the province and that they would receive assistance in due course when sufficient budget was available. They however later agreed to settle the matter by providing both temporary and permanent infrastructure relief for the seven schools. Most importantly, the agreement also recorded that R8,2 billion (approximately $500 million) would be committed by the state for the replacement of inadequate school structures countrywide. This strategic litigation gave rise to the establishment of a state program known as the Accelerated Schools Infrastructure Development Initiative (ASIDI). The ASIDI programme has made enormous strides in eradicating mud schools across the country. 134 schools were replaced with new buildings in the Eastern Cape and another 248 schools have since been provided with water. In addition, 167 schools received sanitation services and 180 schools were provided with electricity. There are still enormous infrastructure needs at many schools in South Africa, but the litigation in the mud schools matter was critical in establishing infrastructure as a component of a basic education and recognising the link between teaching and learning and a safe and sturdy school building. Norms and Standards for school infrastructure A report conducted by the Department of Basic Education (DBE) in May 2011 revealed that over 3 500 schools in South Africa did not have access to electricity, 900 did not have sanitation facilities and 2 400 were without water. A principal problem in resolving these infrastructural issues was a complete lack of regulations which clearly set out what a school in South Africa should consist of, and what minimum requirements in terms of sanitation, electricity, and running water needed to be met. Acting on behalf of Equal Education (EE) and two public schools in the Eastern Cape, a court application was launched in March 2012, seeking an order directing the Minister of Basic Education to establish binding minimum norms and standards to regulate school infrastructure throughout the country. The application included affidavits from 26 public schools illustrating the pervasiveness of dire infrastructure problems. The relief sought included a declaration that the failure of the Minister to make regulations that prescribed minimum norms and standards for schools infrastructure constituted a breach of the constitutional rights to basic education, equality, dignity, and a breach of the statutory duties under section 5A of the Schools Act which specifically allowed the Minister to make the regulations. It was also argued that this failure was a breach of the values of accountability, responsiveness and openness that underpin the Constitution. After initially opposing the application, the state entered into a settlement agreement on 19 November 2012, whereby the Minister agreed to provide the two applicant schools with sufficient infrastructure, and, perhaps more importantly, to publish regulations setting out minimum norms and standards required in schools. By May 2013, however, the Minister had failed to publish the regulations, leading to a further round of litigation to force the Minister to publish the regulations. On 29 November 2013, a set of regulations was finally promulgated, to ensure that each learner is guaranteed to be educated in a safe environment, with access to electricity, sanitation, and clean water. While this was a breakthrough in advancing the right to a basic education and ensuring that children are safe at school, much work still has to be done to ensure that the regulations are fully implemented. School furniture as part of the right to education In a series of ongoing cases against the ECDOE, the LRC has represented parents whose children attend public schools with severe furniture shortages. The problem is most pronounced in rural areas of the province and in the no-fee paying schools where shortages of desks and chairs result in learners having to share desks, sit on the floor, or make use of makeshift table and chairs while in class. The impact on the learners was described in the founding papers before the court: “Multiple learners are forced to share a desk, which means that the learners squashed together and struggle to concentrate on their work. Moreover, it is difficult for them to write on the desk space provided. In some instances, learners are even forced to stand throughout lessons, leaving them with no writing surface. The overcrowding around the desks also causes discipline problems, as children fight over the few available desks and chairs. These discipline problems can disrupt the lesson and inhibit learning. The lack of furniture results in an environment that is not at all conducive to teaching and learning. Learners are squashed together, and some students are forced to squat on their haunches, stand, or sit on the floor during the lessons. Sometimes the learners are forced to sit on each other’s laps. This makes it virtually impossible for the learners to take part in lessons. Many learners bring their own plastic chairs to the school, while others use empty beer crates and furniture cobbled together with broken frames and loose planks of wood. This helps children to have somewhere to sit, but almost none of the students have a desk to write on. This is completely unacceptable. Teachers are unable to give the students any writing exercises.” In 2012 the LRC approached the court with two goals in mind. Firstly, we wanted an order instructing the ECDOE to provide every learner with a desk and a chair in every public school in the province. Secondly, we wanted to develop the jurisprudence and substantive content of the constitutional right to a basic education to include school furniture as non-negotiable component to achieving a meaningful education. The litigation resulted in the successful delivery of furniture to the schools that we represented, but the ECDOE failed on several occasions to comply with all the parts of the November 2012 order. The ECDOE was ordered to compile an audit of the furniture needs in the province, but the audit omitted several schools and failed to verify the data of the schools they did include. In August 2013 the LRC again approached the court to have the ECDOE declared in contempt of the 2012 order. The court in this case found that “[t]he state’s obligation to provide basic education as guaranteed by the Constitution is not confined to making places available at schools. It necessarily requires the provision of a range of educational resources: - schools, classrooms, teachers, teaching materials and appropriate facilities for learners. It is clear from the evidence presented by the applicants that inadequate resources in the form of insufficient or inappropriate desks and chairs in the classrooms in public schools across the province profoundly undermines the right of access to basic education.” The LRC continuously monitored the implementation of this order and returned to court twice to ensure that children are off the floor, and have proper desks and chairs. By 2020 the ECDOE has provided the vast majority of the learners in the province with desks and chairs and has established a programme that refurbishes broken school furniture and places it back into schools. More than 600 000 units of furniture have been provided in schools. The success of this case lies in the persistent monitoring of the ECDOE’s implementation of the order in the years following the judgment. Teachers as part of the right to a basic education Realizing the right to education requires the fulfillment of several components, but one that stands out is the need for suitably qualified educators. For many years too many vacant educator posts in South Africa have not been filled by provincial education departments, with the problem being particularly acute in the Eastern Cape. This often means that learners attend classes without an educator to teach them unless governing bodies step in and appoint and pay the teachers that should be paid by the department. On 20 March 2014he LRC, on behalf of 90 applicant schools in the Eastern Cape, challenged the ongoing failure by the provincial education department to appoint educators in vacant posts at various public schools throughout the province, and the consequent violation of learners’ constitutional right to education. This took the form of the first “opt-in” class action in South Africa. The first part of the application was brought in respect of 32 schools and sough an order directing that the department reimburse the schools the amounts the schools had paid to educators to fill vacant posts during 2013. Secondly, suitably qualified educators who occupied vacant posts in 2014 had to be appointed as temporary educators by the department and paid for their services. These teachers had to be permanently appointed with effect from 1 July 2014 to ensure that the department filled the posts. This led to the development of the opt-in class action in 2015. The class action was instituted on behalf of all public schools in the Eastern Cape. 90 schools opted into the class action. The schools were required to show that they a) had educator posts allocated to them which had not been permanently filled and/or, b) had appointed and remunerated educators occupying vacant posts that had not been filled and had not been reimbursed by the department. The court found that the failure to provide teachers to the schools constituted a violation of the right to basic education, as it deprived learners, especially in poorly resourced schools, of education. Since the class action was finalised, the department has paid over R81 million to the school governing bodies of the 90 schools to reimburse them for the expenses they incurred in paying the teachers in the place of the department. This has had the long-term effect of greatly reducing the number of vacant posts that are not filled. Scholar transport as part of the right to basic education Thousands of learners across rural South Africa find themselves walking a daily round-trip of 10km or more between their homes and their schools, often in dangerous conditions. While the DBE makes provision for scholar transport to transport learners between their homes and their schools, the policy is poorly implemented. The result is that learners often undertake long and arduous journeys to get to school, waking up before sunrise to walk for hours. They are tired and hungry when they arrive at school and are unable to concentrate on their schoolwork. There is also a direct correlation between a lack of scholar transport and learners dropping out of school. The LRC has made great strides over the years in ensuring that learners have safe transportation and access to their schools. In 2015 the LRC successfully challenged the ECDOE’s decisions to deny scholar transport to several learners in the province. This case was the first of its kind in the country and argued that part of the right to basic education included the right to transport. Drawing on earlier litigation on the right to education Judge Plasket found that “scholar transport was a key component of realizing the constitutional right to education.”[1] This case was an important first step in establishing the constitutional and legal framework for scholar transport in the country, but implementation remains weak and there are still thousands of learners that walk to school every day. In 2019 the LRC brought another case on the provision of scholar transport. Acting for the Khula Community Development Project and four schools in the Peddie area of the Eastern Cape, the LRC challenged the ECDOE’s failure to take steps to resolve the systemic administrative crisis that continuously left thousands of learners in the province without scholar transport. This was based on the ECDOE’s repeated failure to take decisions on the schools’ applications for transport for learners, or to respond to letters inquiring about transport provisioning. The LRC sought a two-part order, providing urgent relief to the learners at the four schools, but also seeking systemic relief in the form of a policy that clearly sets out the application process and makes it easier for schools to apply on behalf of the learners. The ECDOE acknowledged its constitutional obligations to provide scholar transport to qualifying learners and agreed to urgently provide transport to 91 learners at the four schools. The ECDOE also argued that it is improving the systemic administration of scholar transport by using the digital database, the South African Schools Administration Management System, to log and process applications. Many schools, however, have encountered difficulties in using the new system, and there is a lack of training on how the system works. The LRC continues to pursue its claim for systemic relief. While many of the LRC’s cases have focussed on resource provisioning, there are two cases that have dealt almost exclusively with the issue of access to education and the devastating impact that exclusion from education can have on learners. Securing access to education for learners with special education needs While the South African government establishes and funds special schools, which seek to provide specialised care for children with moderate to mild intellectual disabilities, it does not afford the same level of funding to children living with severe or profound intellectual disabilities. These learners, among the nation’s most vulnerable, are therefore left with no choice but to rely on the assistance of centres funded by non-governmental organisations. However, the limited number of these educational facilities means that many disabled children have simply been unable to benefit from any instruction, in clear violation of their constitutional rights to education, equality, and human dignity. One of the LRC’s organisational clients, the Western Cape Forum for Intellectual Disability (WCFID), is a not-for-profit support network that represents more than 150 schools, centres and non-governmental organisations that care for some 1,200 severely and profoundly intellectually disabled children who would otherwise be denied access to quality education. Critically however, none of the WCFID’S member clients received any funding or form of support from the provincial Department of Education. In 2010 the LRC represented WCFID in its struggle to secure access to education for these vulnerable children. The national government, named as first respondent for strategic reasons linked to the national scope of the issue at hand, along with the Government of the Western Cape, argued that the inequality within its funding of special schools was a result of budgetary constraints as well as doubts surrounding the effectiveness of schooling children with severe intellectual disabilities. In November 2010, in what constituted a major victory for children with severe intellectual disabilities in this country, the court ruled in favour of WCFID, holding that the national and provincial governments had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the province. The judge dismissed the government’s two principal claims on the basis that their reasoning was flawed. Firstly, he held that expenditure on education was a legitimate government purpose and that the claimants were arguing for available funds to be fairly spread between all children, and not for an extra provision of funds. Secondly, he rejected unequivocally the government’s argument that these children could not be taught, citing evidence that demonstrated that it was internationally accepted that education and training benefited children with such disabilities. The court found that the respondents had breached the children’s rights to basic education, protection from neglect or degradation, equality and human dignity. The court ordered the government to take reasonable measures to ensure the constitutional right to a basic education for these vulnerable children, resulting in critical jurisprudence of national importance for disable learners. Undocumented Learners The Bill of Rights has a broad and inclusive approach to afford everyone who is physically living within the borders of South Africa, regardless of his or her immigration status, the right to basic education. In 2019 the LRC represented the Centre for Child Law and the school governing body of Phakamisa High School in an application to challenge the decision of the ECDOE to stop funding learners without identity documents, passports, or permits. The decision to stop funding undocumented learners was communicated to schools in the Eastern Cape in March 2016. This decision left about 996 900 undocumented learners who were attending school without any education funding. The application argued that, by withdrawing funding, the ECDOE was violating the learners’ constitutional right to basic education (section 29), particularly when read in conjunction with the learners’ rights to dignity (section 10) and the right to equality and non-discrimination (section 9). The funding failure was also a gross violation of the learners’ constitutional rights to basic nutrition (section 28) and to have access to sufficient food (section 27). Furthermore, the decision to exclude learners without identity number, passports or permits is not in the best interest of the child and violates section 28(2) of the Constitution. In the past, schools were funded based on actual numbers of learners, regardless of whether they had valid identity, passport and permit numbers. Deprived of funding for learners without identity, passport and permit numbers, schools had less to spend on learners registered in the system, compromising their education and nutrition. To support those not registered in the system, schools had to either fundraise for their shortfall or ask undocumented learners to leave. The ECDOE was also excluding foreign national learners who were undocumented and denying them access to schools unless they could show that they had applied to have their stay regularised in South Africa. The application was initially opposed by the Eastern Cape Department of Education as they argued that it was necessary in order to curb human trafficking, child abduction, child prostitution, and related abuses. In respect of “illegal immigrants” or non-national children, the department argued that they could not provide public education to people who were in the country illegally and not documented, as these children do not have a right to basic education. Further, sections 39 and 42 of the Immigration Act made it an offence for any learning institution to provide training or instruction to an “illegal foreigner”. The perception often exists that undocumented learners must be “illegal foreigners” as all South African children have their births registered and are in possession of an identity document. This perception is however not supported by the data of the Department of Basic Education, which shows that the overwhelming majority of undocumented learners in the education system are, in actual fact, undocumented South African children. On 12 December 2019 the Grahamstown High Court confirmed that children without documentation have the right to basic education under the Constitution. The court declared that the right to education under the Constitution extends to “everyone” within the boundaries of South Africa and that their nationality and immigration status is immaterial. This is a landmark judgment that will better the lives of undocumented children in the Eastern Cape and the rest of South Africa and allow them the opportunity to access basic education. What does the future hold? The brief overview above is an introduction to some of the education work the LRC has embarked on in the last ten years. But there are plenty of challenges in the education sector and the LRC’s work continues. Black learners continue to suffer from multiple forms of intersecting disadvantages and barriers. Access rates are especially low for children with disabilities and special educational needs. Drop-out rates and poor attainment levels are particularly high for black learners, resulting in lifelong impacts on generations of learners’ ability to enjoy their socio-economic rights, fulfil their potential, and fully participate in society. The LRC is now embarking on a new five-year strategy that is aimed at addressing the systemic and institutionalised barriers that prevent children from accessing basic education or that impact on the quality of education in the country. We are building on a strong foundation of education litigation with the hope of bettering the lives of millions of learners in the country. This includes challenging the inequitable distribution of education resources, overcrowding and the continued failure to provide scholar transport, the literacy crisis beginning at the foundation level, delays in the provision of crucial early childhood development, ensuring access to internet and data resources, and removing some of the barriers that still prevent access to inclusive quality education for learners from marginalised communities. The LRC’s five-year education strategy will continue to shift the equity barometer towards equality and justice by helping structurally marginalised, discriminated and vulnerable communities and groups to access the information and justice they need to claim and experience their constitutional education rights. [1] Tripartite Steering Committee and Another v Minister of Basic Education and Others (1830/2015) [2015] ZAECGHC 67; 2015 (5) SA 107 (ECG); [2015] 3 All SA 718 (ECG) (25 June 2015) para 17.