7 May 2014,
NORTH GAUTENG HIGH COURT RULES ON LIMPOPO TEXTBOOKS CASE
- EVERYONE HAS THE RIGHT TO A TEXT BOOK FOR EVERY SUBJECT AT THE START OF THE SCHOOL YEAR.
- GOVERNMENT ORDERED TO REPORT TO BEFA AND THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION ON ITS BUDGETARY REQUESTS AND FUNDS RECEIVED FOR TEXTBOOKS FOR 2015.
SECTION27 and our clients, Basic Education for All (BEFA), welcome the judgment handed down by Tuchten J on 6 May 2014 setting out his findings and order on the non-delivery of textbooks to learners at schools across Limpopo.
The judgment reconfirms the rulings made by Judge Kollapen in the 2012 Limpopo textbooks ‘saga’ by declaring that the content of the right to basic education includes the right of every learner to be provided with a textbook for every learning area before teaching of the curriculum is due to commence. In his words:
The delivery of textbooks to certain learners but not others cannot constitute fulfillment of the right. Section 29(1)(a) confers the right of a basic education to everyone. If there is one learner who is not timeously provided with her textbooks, her right has been infringed.
Tuchten J states that the non-delivery of prescribed textbooks amounts to a violation of learners’ right to basic education as well as of their rights to equality and dignity.
In his judgment, Tuchten J elaborates on the great importance of textbooks to teaching and to life in general stating:
Books are essential tools, even weapons, of free people. … Perhaps one day, books will be superseded by other stores of information. But that day, in my judgment, has not yet arrived. … Textbooks are essential to all forms of education. Textbooks are therefore a component of basic education.
In response to BEFA’s court application the Department of Basic Education (“DBE”) and the Limpopo Department of Education (“LDoE”) have undertaken to deliver all outstanding CAPS textbooks for grades 7, 8, 9 and 12 by 8 May 2014, and for all other grades by 6 June 2014. These dates are “noted” in the court order.
However, we are disappointed that Tuchten J declined BEFA’s request to make this undertaking by the DBE an order of court, or to exercise the court’s power of supervision over delivery by requiring that the DBE report on delivery, or to sanction BEFA’s request that the South African Human Rights Commission (SAHRC) be ordered to monitor textbook delivery to schools in Limpopo. BEFA maintains that independent monitoring is important in ensuring full textbook delivery in realization of the right to basic education.
Tuchten J justifies his decision on the grounds that ‘because the issues raised involve polycentric policy considerations, they are political issues. Political issues require political solutions.’ Accordingly, he says:
Parliament is a more appropriate forum for the ventilation of political considerations than the Courts.
Tuchten J also believes that the Applicants had alternative avenues through which to seek relief, such as the Promotion of Access to Information Act.
However, BEFA and others before them have already taken multiple steps to engage with the DBE and LDoE and have sought relief using other methods. When they approached the court in April 2014 it was as a last resort. Where there is a continued violation of a right and all other methods have failed, the Constitution imposes a duty on our courts to provide relief. This has been confirmed by the Constitutional Court.
Despite this, however, what we find especially significant is that Tuchten J orders the DBE to report to BEFA and the SAHRC on its “submissions for funds for textbooks for the academic year 2015” and then on “the particulars of the funds made available for that purpose.”
This is a groundbreaking aspect of the judgment. By making such an order the Court recognises the inextricable connection between the budget and the fulfillment of rights. This applies to the right to basic education a principle the Constitutional Court has upheld recently in other matters, namely that the State has a duty to develop its budget according to the identifiable needs of its citizens. This recognition is important and we will ensure that it is complied with.
In conclusion SECTION27 congratulates BEFA on its continued struggle to enforce the right to basic education for Limpopo learners, and for placing its trust in the courts, even in the face of denigration and intimidation of principals and school governing body members by the officials in the DBE and LDoE. We once again repeat our call for a constructive, open and honest relationship with the DBE and LDoE in the interests of learners and teachers.
SECTION27 and BEFA will continue to monitor textbook delivery to the best of our ability, and look forward to working with the DBE and LDoE to ensure the fulfillment of the right to basic education.
Please direct all enquiries to Tebogo Sephakgamela on 079 606 8656 or Nikki Stein on 082 528 7232