Johannesburg, 19 July 2018 – SECTION27 welcomes the judgment of Acting Judge Msizi in the case of Equal Education v Minister of Basic Education delivered in the Bhisho High Court this morning.
The judgment finds several sections of the Regulations Relating to Minimum Norms and Standards for Public School infrastructure (the sub- regulations) inconsistent with the Constitution, the South African Schools Act and a 2013 court order mandating the promulgation of the Regulations. It accordingly declares these sections of the Regulations unlawful and invalid.
The judgment affirms that government has an unequivocal obligation to provide safe and adequate school infrastructure as a component of the right to basic education in terms of section 29(1)(a) of the Constitution. It also affirms that this obligation is immediately realisable and any failure to meet the obligation must be justified in full by the government.
In March 2018, SECTION27 represented the Limpopo-based organisation, Basic Education For All (BEFA) that was admitted as an amicus curiae (“Friend of the Court”) in the case in the Bhisho High Court. The intervention sought to support Equal Education’s (EE) bid to declare invalid certain sections of the Regulations. While EE challenged the constitutional validity of several sections in the Regulations, BEFA and SECTION27’s submissions focused primarily on challenging sub-regulation 4(5)(a) of the Regulations. BEFA also introduced evidence of several Limpopo schools in a dire state of disrepair, which the DBE agreed posed threats to learners’ health and safety.
The Regulations in their current form were first published in 2013. The Regulations establish minimum benchmarks in respect of provisioning for amongst other things: classrooms, electricity, water, sanitation, libraries, laboratories, electronic connectivity and perimeter security. They also set incremental target dates for meeting specified goals.
All of this however is subject to sub-regulation 4(5)(a) which makes compliance with the minimum benchmarks “subject to the resources and co-operation of other government agencies”. Both EE and SECTION27 argued that this provision was tantamount to a legal loophole or an escape clause for the DBE to avoid its constitutional obligations to provide safe and adequate school infrastructure. The provision, it was argued rendered the Regulations meaningless.
Both SECTION27 and EE argued that because the provision of basic infrastructure is a component of the right to basic education, the sub-regulation 4(5)(a) in its current frame undermined the right to basic education as an immediately realisable right. SECTION27 went further in arguing that although the requirement of full and immediate realisation may not always be possible in practice, this should not be a justification for diluting the constitutional entitlement; where the government is not able to provide all components of the right to basic education in full and immediately, it bears the responsibility to explain why it cannot do so.
The DBE’s basic argument is that the provision was necessary because its efforts are hamstrung by lack of adequate resources, budget and other organs of state. It did not, however, elaborate on these arguments.
Acting Judge Msizi was scathing in her dismissal of the DBE arguments. Her judgment notes:
“The obligation upon the respondent to provide basic education has been in existence since 1996 when the Constitution was born, 22 years ago. Thus the respondent has had adequate time to plan and budget for all its duties in respect of the right to basic education. Even accepting that apartheid left gaping disparities and wide gap[s] in education infrastructure, with the proviso in sub-regulation 4(5)(a) there is no hope that such a gap will ever be closed or if so to a significant extent. The proviso provides the respondent with a lifetime indemnity against discharging the duty she owes in terms of section 29(1)(a).
The natural consequence flowing from the stance assumed by the Minister is that she cannot make any commitment regarding the basic norms and standards for infrastructure in public schools. This is unpalatable given that the requirement here is for a minimum requirement for basic infrastructure nothing more nothing less. It is also inconsistent with the Constitution.” [Paras 195-196]
In a moment of strange irony, on the day of the hearing of this case in March 2018, another five-year old girl, Lumka Mkethwa drowned in a pit toilet at her school in the Eastern Cape in circumstances, chillingly mirroring those of the tragic death of Michael Komape, the five-year- old who died after falling into a pit latrine in a Limpopo School in 2014.
Following Lumka’s death, President Cyril Ramaphosa, in a statement on 16 March 2018, directed the Minister of Basic Education to conduct an audit of all unsafe sanitation facilities within a month and produce an emergency plan to address unsafe sanitation facilities within 3 months. The expiry of the three-month period fell, incidentally, on Youth Day the 16th of June 2018. A further month has passed since this expiry. Unfortunately, the results of the audit and the plan for urgent interventions have still not been made available to the public.
While the judgment in this matter is undoubtedly a resounding victory for civil society efforts to have in place effective minimum standards for safe and decent infrastructure, the victory will remain hollow unless and to the extent that government takes seriously the rebuke and the principles underlying this judgment and court order. Government must also keep its promise to roll out safe sanitation.
Please find judgment below
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