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Open letter on SECTION27’s priorities in 2013

7 February 2013

Dear friends and partners of SECTION27

2013 already feels old and the holidays long gone. January has passed and our staff have had time to meet, take stock and plan. We would therefore take this opportunity to brief you on our priorities for 2013 and the results we seek to achieve.

The priorities we set out below are far from the sum of our work. They are just the areas that we have prioritised and in which we seek to achieve demonstrable social change.

SECTION27 starts 2013 with two new Board members. We are extremely pleased to welcome Justice Zak Yacoob, until last week a judge of the Constitutional Court, and Alice Brown, the former resident co-ordinator of the Ford Foundation, onto our Board of Directors. We also now have an able team of researchers and lawyers who, on a daily basis, provide legal advice to people who seek our assistance on education and health rights; assist to build and strengthen Local AIDS Councils; research aspects of the health system and food security policy; and talk to the media. We collaborate closely with valuable partners such as the Treatment Action Campaign, Médecines Sans Frontières, the Rural Health Advocacy Project, the National Association of School Governing Bodies and COSATU. We are managing numerous individual matters to do with health and education but also provide on-going legal advice to senior officials in government.

This open letter sets out our agenda for 2013 and how we will approach the social and legal issues that fall under our mandate. We are making it available to you, our friends, so that you can follow, support and assist us.

Zak Yacoob

Alice Brown

On the right of access to health care services

The Constitution dictates that the state should “progressively realise” the right of “everyone to have access to health care services”. But, in fact the opposite is happening. Despite the hard work and excellent plans of the Minister of Health, Dr Aaron Motsoaledi, we are witnessing a ‘progressive deterioration’ of vital parts of the public health system – with disastrous consequences for individuals and public health. There are frequent stock-outs of essential medicines, including ARVs, shortages of health workers, breakdowns in vital equipment and ailing and dangerous infrastructure.

Particularly evident now are the problems caused by Provincial health departments who refuse to follow national priorities and/or face a collapse of management of the systems they have responsibility for. MECs and Heads of Departments hold onto their positions long after they have demonstrated failure to manage and despite the taint of corruption.

Consequently, on a daily basis people contact us about medicine shortages, preventable deaths, corruption and theft.

The question we have debated is what can SECTION27 do to reverse this?

In 2013 we have decided to focus intensively and systematically on health care services in the Eastern Cape and Gauteng. This is because it has become clearer and clearer that political commitment and more able management of health at a national level is unable to overcome the problems of gross mismanagement and corruption at a provincial level – where responsibility lies for the delivery of health.

In January together with MSF, TAC and RHAP we published a report on the Mthatha Medicines depot. This month we will publish a report on the deadly Gauteng health crisis of 2012. Our focus throughout 2013 will involve analysing the causes of the crisis, engaging communities and health authorities on remedies and, if necessary, taking legal action against these two Provincial Health Departments. The objective is to bring about meaningful turn-around plans in both Provinces, an end to drug and equipment shortages, as well as active monitoring of these plans by communities through the structures that are legally meant to exist under the National Health Act (NHA). To assist health activists, in February, we are publishing a fully updated and revised edition of the Guide to the National Health Act.

Another crucial health issue we have decided to prioritise in 2013 concerns the management (or lack of it) of TB in prisons.

At the end of 2012, SECTION27 intervened as amicus in a Constitutional Court case regarding the state’s duties to prevent TB is prisons that led to a landmark judgement. South Africa’s prison population numbers over 200,000. Uncontrolled TB in prisons is a major driver of the TB epidemic in the general population.

SECTION27, TAC and our partners intend to ensure that the Dudley Lee judgment leads to the rapid development and implementation of a reasonable and transparent plan to control TB in prisons. We will meet the Department of Correctional Services (DCS) and suggest that there is sufficient urgency for this plan to be developed in the first six months of 2013 and its implementation be independently monitored. The Constitutional Court makes a number of clear statements about the state’s duties in the Dudley Lee judgment. These are strong justifications to litigate to achieve a TB plan in prisons. But we would prefer not to follow this route. The ball is in the court of the DCS.

On the pricing of private health care services

SECTION27 believes in accountability, accessibility and affordability of all health services. In this respect, the lack of a regulatory framework in the private healthcare sector, particularly with respect to pricing, continues to have a detrimental impact on individuals as well as the health system as a whole and leaves the system open to abuse. In 2013 the Competition Commission, supported by the Department of Health, will set up an inquiry into aspects of the conduct of private health providers. We will monitor this inquiry closely. In addition, we will motivate for the urgent development of a price-setting framework which will bring stability to the industry and downward pressure on prices.

On the right to basic education

2012 was an important ‘coming of age’ year for SECTION27’s work on education. A very small team achieved very big results. Although the public focus was on the Limpopo textbooks crisis, and the two judgements of the North Gauteng High Court ordering delivery of textbooks and a catch-up plan, we also became involved with numerous other issues.

At the end of 2012, SECTION27 and partners placed newspaper advertisements asking parents and teachers to report late deliveries. We are therefore pleased that public outrage forced the DBE to organise efficient and largely timeous delivery of text books for 2013. This is perhaps the best year yet for book deliveries! Nonetheless we continue to monitor delivery and assist schools that request our attention. We will also be assisting schools in securing the necessary equipment and learner and teacher support materials for learners with disabilities, including blind and partially-sighted learners.

One of our strategic priorities for 2013 is to drastically improve the learning and teaching environment. Our partner, Equal Education, has popularised the demand for Minimum Norms and Standards for school infrastructure, a demand we fully support. Therefore the overriding objective of 2013 must be the promulgation of constitutional norms and standards by the end of the year at the latest.

We will support this campaign, but bring an intense focus on Limpopo Province on two aspects of school infrastructure.

At the end of 2012 the Department of Basic Education (DBE) made a commitment to SECTION27 that, by 31^st January, it would share with us a plan on providing adequate sanitation in the 111 worst affected schools in the Province. We await this plan. If it is a reasonable plan, we hope to assist the DBE with its implementation. However, we also have a responsibility to the various schools we act for in Limpopo, and in the absence of co-operation from the DBE, or an appreciation of its duties to learners, we will consider litigation. In this regard we are also concerned that many schools have reported that their toilets have collapsed in the recent Limpopo floods, and they are left with no operational toilets. We will seek to work with the DBE to put urgent solutions in place to address this, and litigate if this is not forthcoming.

One thing is clear to us: it is untenable and unlawful for learners to face daily degradation and risk to health as they go about something as basic as going to the toilet.

In respect of those schools which have operational, albeit severely inadequate, toilets, we want a school toilet plan in the first half of 2013 and we want it implemented throughout Limpopo within the next two years. Those schools which do not have any operational toilets must have urgent measures put in place immediately.

A similar crisis exists around school furniture and buildings. SECTION27 is acting for several schools in the Giyani area that have paralysing shortages of furniture or hazardous buildings. In response to a letter of demand on behalf of Ximunwana Secondary School that had severe shortages of furniture in November 2012 the Limpopo DoE admitted that there are 200,000 primary and secondary school learners without desks or chairs in Limpopo. It submitted to SECTION27 a detailed plan of action promising to address furniture backlogs. We will monitor closely to ensure this plan is implemented.

Then in January 2013 another school crisis fell into our laps. SECTION27 agreed to be legal representatives for Jaji Secondary School, a school that has petitioned for six years to have its roof fixed to protect learners, teachers and equipment from the rains. A letter of demand was sent to the DBE requesting that roofs be fixed urgently. We await a response.

Both these issues reinforce the need for norms and standards for school infrastructure, already referred to in this letter.

SGBs and school governance

Another important issue that SECTION27 will confront in 2013 relates to the powers of School Governing Bodies (SGBs) vis-a-vis the Department of Education. Under the South African Schools Act, SGBs are justifiably given significant powers over the governance and administration of schools. However, a growing number of schools are using these powers to introduce policies that are discriminatory and unconstitutional. This will be a major issue before the Courts in 2013.

Of course, we are well aware that case-by-case litigation can do little more than shine a light and fix the problems of individual schools in a sea of maladministration. What is really required is genuine political commitment by the government to the education crisis.

We still do not believe that this exists.

On the right to sufficient food

As the economic crisis bites, food prices rise side by side with growing unemployment. Section 27 of the Constitution guarantees “everyone” in South Africa the right to “sufficient food”. Yet an estimated 12 million people in South Africa suffer hunger and malnutrition (http://www.afsun.org). There is no framework legislation on the right to food and food security and the implementation of the policies seeking to protect the right appears to be limited. We have appointed an attorney to analyse what positive duties fall on the government, food producers and retailers when one takes into account this right, as well as what actions might constitute a negative infringement of the right because of their consequences for food security and the right to food. Like medicines, food is a fundamental right that should not be the subject of unbridled profiteering or state inaction.

Accountability, governance and constitutionalism

2013 started with ferocious and violent service delivery protests in Sasolberg. These protests are a sign of the growing inability of communities who remain deprived of many essential services to tolerate corruption, maladministration and the flagrant accumulation of wealth by some people in government. However, violent uprisings will not achieve lasting social improvement for these communities.

Two years ago SECTION27 co-published a Guide that aims to show people that under the Constitution and the law they have significant power over local government. Later this year Local Government Action, a coalition of which we are a part, will hold a conference of community activists in an attempt to better communicate and co-ordinate struggles for rights and good governance at the local level.

Finally a word on politics

SECTION27 is one stream of a current in a huge river of South Africans who long for dignity and equality. We see in government, the private sector and society both great honesty and commitment to justice, as well as gross venality and corruption. We welcome the foregrounding by the ANC of the National Development Plan (NDP), as a roadmap to a better society, and note the recognition the NDP gives to the contribution organisations committed to social justice can make.

Yet, a small number of powerful politicians have accused us of being ‘neo-liberal’, ‘counter-majoritarian’ and other terms whose vitriol is evident but whose meaning is not clear. SECTION27 is not aligned to any political party in South Africa. Our only alignment is to the Constitution, all it promises to create and protect against, and the rules of conduct and governance it sets for our government and society as a whole.

We are not intimidated by threats against us (and other similar organisations) that we anticipate will grow in 2013. We will continue our work, with the growing understanding and support of a larger and larger segment of people who live in South Africa and who believe in non-racialism, equality and social justice.

We will keep you informed throughout the year of progress with this agenda.

Yours in the struggle for equality and justice

Mark Heywood and SECTION27 staff

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Open letter on SECTION27’s priorities in 2013

Published by Section27 on February 8, 2013

Open letter on SECTION27’s priorities in 2013

On the right of access to health care services

On the pricing of private health care services

On the right to basic education

SGBs and school governance

On the right to sufficient food

Accountability, governance and constitutionalism

Finally a word on politics

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