High Court closes government’s escape route on inadequate school infrastructure
For us to live in a constitutional democracy that is serious about redress and justice, the constitution and the laws which give effect to it must mean something. Laws aimed at fulfilling the Bill of Rights cannot be hollow documents that require nothing more than a good old try from politicians. They must require carefully thought-out budgets, proper timelines, meaningful outcomes, political will, and accountability.
On Thursday the High Court in Bhisho declared that vague and evasive provisions in school infrastructure law, the minimum norms and standards for school infrastructure, are unconstitutional and invalid. The judgment came after members of Equal Education — most of whom are high school pupils — campaigned for years, first for the adoption of the norms in November 2013, and then for its loopholes to be corrected and its time frames adhered to.
After unsuccessful attempts since 2013 to engage Basic Education Minister Angie Motshekga on the concerns and consequences regarding loopholes in the norms, there seemed no other option but to return to court.
The court’s ruling is critical. It puts to rest Motshekga’s claim that the legal obligation to fix dangerous and inadequate school infrastructure is limited by difficulties and complexities in intergovernmental co-ordination and resources. The norms had set several time frames for implementation, the first being that by November 19 2016 the minister would address schools without any water, sanitation or electricity supply, as well as schools built from inappropriate structures such as wood, mud, zinc and asbestos. But the norms had also built in an “escape clause”, that the implementation was subject to the co-operation and resources of other government entities responsible for infrastructure.
At the court hearing, Equal Education, represented by the Equal Education Law Centre, argued that the escape clause demonstrated a fundamental misconception of the obligations to provide education and to fix schools.
It created a potentially indefinite excuse of “well, we tried”, and presented an entirely unjustified limitation on the constitutional rights of pupils.
The court agreed with Equal Education. In addressing the escape clause, Acting Judge Nomawabo Msizi wrote: “This simply compromises the constitutional value of accountability. There is no way that the government can be held accountable for the discharge of its duty to provide basic school infrastructure.”
Later on, the judge said: “The crude and naked facts are that each day parents send children to school, as they are compelled to, they expose these children to danger which could lead to certain death.” Judge Msizi’s words are tragically apt. Michael Komape and Lumka Mkhethwa, both aged five, died after falling into pit latrines at their schools, and both after the adoption of the flawed norms.
Equal Education also argued that the law made an arbitrary and irrational distinction between schools built “entirely” of mud, wood, zinc, or asbestos, and schools built predominantly of these materials. The latter were unmentioned in the law, which punished poor, often rural, communities who have pooled scarce resources to build a single brick-and-mortar class or staff room to improve their mud or zinc school. Agreeing with Equal Education, the court has ensured that the law must now be read to require the replacement of all structures built from inappropriate materials.
The norms require each MEC to report to the minister on their province’s plans and progress with school infrastructure backlogs. Until now there has been no obligation to makes these plans and progress reports publicly available — not even to schools most affected by poor infrastructure. Each year members of EE have had to mobilise across the country — picket, sleep outside departmental offices, march, and use access to information requests — in efforts to compel the public release of these documents.
We now have a stronger regulatory framework which says that the state — in its entirety — has an obligation to fix school infrastructure, and cannot rely on a lack of support from another organ of state to escape that constitutional duty. The framework compels the minister to account to the public on plans and progress, and prevents her from making arbitrary distinctions between an unsafe school and an unsafe school structure.
We hope that we are entering a political moment where the state might welcome this decision and the opportunity it brings for clarity, transparency and delivery of the long-overdue promises to fix South Africa’s unequal and dangerous school infrastructure.