Victory for Equal Education and South Africa’s learners as Bhisho High Court orders government must #FixTheNorms and #FixOurSchools!
Leanne Jansen-Thomas, Head of Communications, Equal Education – 19 July 2018
Today the Bhisho High Court ruled entirely in Equal Education’s (EE) favour in the #FixTheNorms case, including declaring aspects of the school infrastructure law that allowed government to indefinitely delay fixing the unsafe and inadequate infrastructure in South African schools, as “unconstitutional” and “invalid”.
The Court gave a Constitutionally sound interpretation of the State’s duties to properly address the crisis conditions of South African schools. In doing so, acting Judge Nomawabo Msizi reinforced the nature of the right to basic education and honour Michael Komape and Lumka Mkhethwa.
The relevant law is the Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure (referred to as Norms and Standards). The Norms and Standards stipulate infrastructure standards that all public schools must meet and deadlines by when various kinds of infrastructure must be provided to schools. However, the law was laced with unconstitutional loopholes and vagueness.
We asked the court to deal with five problems in the Norms and Standards, and this is what the Bhisho High Court today declared on each:
The escape clause, which said that infrastructure standards need only be met if co-operation and resources are forthcoming from “other government agencies and entities responsible for school infrastructure”. The implication of this clause was that, if Eskom, implementing agents, municipalities, or the fiscus failed to come to the party, continued generations of learners would suffer the infrastructural legacy of Apartheid and colonialism in schools. The Bhisho High Court declared this clause of the Norms and Standards as “inconsistent” with the Constitution, with the South African Schools Act, and with the 2013 court order secured by EE. The escape clause was thus “unlawful and invalid”.
The exclusion of schools built partly or substantially from inappropriate materials (mud, wood, zinc and asbestos). The Court declared the current phrasing of the Norms and Standards, which obliges the national Department of Basic Education (DBE) only to fix schools made “entirely” of inappropriate materials as “inconsistent with the Constitution”. The Court said the regulations should be changed to reflect that all “classrooms built entirely or substantially” of inappropriate materials should have been replaced by 29 November 2016. This means that the DBE will no longer be able to disregard schools that have one or two brick buildings, with the rest of its classrooms made of inappropriate materials.
The lack of an accountability mechanism ensuring that Norms and Standards plans and progress reports are made public. EE has spent months on end demanding these documents, which are required to be provided to Minister Motshekga annually by each provincial education MEC. Our argument in Court was that principles of accountability and transparency require these documents to be made public, so that schools and communities can see what is being planned and can hold the State to its commitments. The Court agreed that this is “unconstitutional and invalid” and instructed Minister Motshekga to amend the Norms and Standards to provide that plans and reports are made publicly available within a reasonable time after she receives them from provinces.
The Norms and Standards require the DBE to “prioritise” schools with no access to water, electricity and sanitation by the first deadline, 29 November 2016. The Court agreed with EE that the meaning of “prioritise” is vague and declared that the provision is to be read as compelling government to ensure that these schools comply with the Norms and Standards by the first deadline.
The exclusion of schools for which plans existed before the adoption of the Norms and Standards were published. The Court said it is inconsistent with the Constitution that plans for building and upgrading schools that were in place before the Norms and Standards were published, do not have to meet the standards set out in the law. It said all school construction plans should, as far as reasonably possible, be consistent with the Norms and Standards.
It was only after years of campaigning by EE members and a court order, that Minister Motshekga finally published South Africa’s first legal framework for school infrastructure on 29 November 2013.
While the adoption of the Norms and Standards has yielded progress, dangerous and inadequate learning conditions persist. Two months after the law was adopted, Michael died in a pit latrine at his school in Chebeng Village, Limpopo. Only three months ago, in the Eastern Cape, the same fate befell Lumka, who was also 5-years-old.
For two years EE attempted to engage Minister Motshekga on the problems in the law, while following up on progress in work to fix South Africa’s schools. Our request was simple: for government to commit to meeting its own infrastructure targets. During this time Minister Motshekga failed to respond substantively to the problems that we identified in the law.
In the meantime, 29 November 2016, the deadline by which Minister Motshekga had to ensure that no school was without water, electricity or sanitation, came and went, with schools around the country still lacking the most basic infrastructure. The Court has now made very clear that this is entirely unlawful.
This momentous victory has strengthened the ability of learners, teachers, parents, communities and civil society organisations to hold the State to its duty of protecting learners’ right to dignity, equality and education.
Victories such as this validate the necessity of organising young people to demand rights that would otherwise not be freely afforded to them. Armed with an improved infrastructure law, EE will continue to keep a very close eye on the DBE and on the provincial education departments. We will not back down from the fight for quality school infrastructure!