It has been increasingly common in recent years for South African civil society organisations to approach the courts to compel government departments to take action on social issues. But even if successful, the legal route doesn’t always guarantee a quick solution. Equal Education staged marches in Cape Town and Pretoria on Monday as part of their lengthy battle to get Education Minister Angie Motshekga to agree to publish norms and standards for school infrastructure. By REBECCA DAVIS.
South Africa has almost 25,000 schools and many of them are in pretty shocking condition. Of them, 3,544 have no electricity, 401 have no water supply at all, 913 have no toilets and 2,703 have no fencing. The vast majority of schools – over 21,000 in both cases – lack libraries and science laboratories, while 19,037 schools do not have a computer centre.
This doesn’t make for a setting that is very conducive to high-quality learning. At Monday’s Cape Town march, Equal Education’s Deputy General Secretary Doron Isaacs read one of 700 testimonials collected around the country, from a Khayelitsha pupil who wrote that he and his classmates were frequently sick during winter because both the doors and the windows to their classrooms were broken.
In the memorandum the organisation handed over at Parliament in Cape Town and at the Department of Basic Education in Pretoria, the difficulties of gaining – or giving – an education under these circumstances are laid out starkly.
“It is impossible to learn and to teach when there are 130 learners in a class. We have experienced this,” the memorandum read. “It is impossible to learn and to teach when the roof may fall on your head. We have seen this. It is impossible to learn to love reading when there is no library with books. Most schools face this. It is impossible to concentrate when there is no water to drink all day at school. We have gone through this. It is impossible to respect school when our toilets don’t work and we feel undignified.”
Equal Education is not guided only by learner experience in this regard; there is also some solid academic research on their side. Stanford professor Eric Hanushek’s 2011 paper School Resources and Educational Outcomes in Developing Countries looked at 20 years’ worth of research on the question of which specific factors in an educational setting had the greatest positive impact on learning. Hanushek determined that there were very few characteristics that had “unambiguous” results, but that “perhaps the clearest finding is that having a fully functioning school – one with better quality roofs, walls or floors, with desks, tables and chairs and with a school library – appears conducive to student learning”.
For almost four years, Equal Education has been campaigning to get proper infrastructure into South African schools. As far back as 2007, government promised – via the amended South African Schools Act – to issue a set of legally binding “norms and standards” for school infrastructure. All this means is that a document would be issued prescribing what South African schools should look like: how many toilets, how many taps, how many computers and so on. On a more basic level, it will specify that schools have to have electricity, drinking water, etc.
It’s hoped that such a document would help students, teachers and parents to hold the government to account when their schools fall short of this legal minimum. But the department of Basic Education, under the leadership of Minister Angie Motshekga, has consistently dragged their feet on this issue. Reading the timeline of Equal Education’s attempts to wring the promised norms and standards out of the department is like witnessing a dreary tennis match where one party seemingly isn’t keen on playing at all.
From 2009 onwards, Motshekga said at various intervals that the norms and standards had been developed and would be released for comment. In August 2011, Equal Education’s attorneys wrote to Motshekga to ask when the norms and standards would be promulgated. In October 2011, Motshekga replied to say that the department had decided to adopt “guidelines” for school infrastructure instead. This was clearly unacceptable, as such guidelines would not be legally binding – and hence might well amount to no particular change in the status quo at all.
In March 2012, Equal Education launched legal action against Motshekga to compel her to issue the norms and standards. A few days before the Bhisho High Court was due to hear the case in November, however, Motshekga reached an out-of-court settlement with Equal Education.
The terms of the agreement were quite clear: “The first respondent (the Minister) has undertaken to make and promulgate regulations which prescribe minimum uniform norms and standards for school infrastructure … before 15 May 2013.” A draft set of the regulations would be published for public comment “on or before 15 December 2013”. The Minister subsequently requested – and received – an extension of one month, to 15 January 2013.
The draft norms were duly published by Basic Education on 8 January. Equal Education described them as “an enormous disappointment”. In particular, the organisation said that the language of the norms is so vague that even the poorest-equipped schools might be able to meet their requirements. Equal Education complained that the draft norms don’t address issues such as overcrowding and the lack of electricity and drinking water in schools, and also fail to lay down concrete timeframes for action.
“We want specific targets and requirements,” the organisation said. Section 27’s Mark Heywood described the draft document to the M&G as being “like a punch in the stomach”.
Equal Education proceeded to submit extensive comments on the draft, which was then supposed to make its way into a final form for promulgation by the end of May. By 31 May, in fact, every school in the country should have received a copy of legally binding norms and standards for school infrastructure in South Africa.
It didn’t happen. Motshekga asked for an extension and Equal Education agreed to one month. If the Minister rejected this offer, the organisation stated, it would renew its application in court. Motshekga returned to say she needed six months, because she needed to seek the input of various heads of education committees; because she was waiting to hear back from Nedlac (the National Economic Development and Labour Council); and because she wanted to release another set of draft norms and standards for public consultation before promulgating them.
Equal Education says that none of these reasons are satisfactory. In the most recent court application, the organisation points out: “The extension sought will mean that yet another school year will come to an end without the Minister having prescribed the Regulations”. As such, Equal Education submits: “This matter is now urgent in light of the seriousness of the breach [of last November’s settlement agreement] and its consequences and the history of continuing delay and broken promises”. In their view, the quickest way forward is through the strong arm of the law again. On 11 July 2013 the matter returns to court.
Some suggest that it is the government’s intention to keep the process bogged down in delays and legal proceedings until the 2014 elections have safely passed. (Cynics suggest, in fact, that the reason Motshekga agreed to a settlement with Equal Education in November last year was to avoid rocking the boat before Mangaung in December.)
At Monday’s march in Cape Town, about a thousand school children carried signs saying they were having none of it. “We Won’t Be Dragged Until the 2014 Elections,” read a huge banner. “No More Delays!”
The memorandum, handed over by an earnestly bespectacled lad in his school uniform to a representative of Basic Education, contains three demands. The first is that Motshekga “immediately” publish legally binding norms and standards for school infrastructure.
If this cannot be done immediately, the second demand is that Motshekga implement the draft norms and standards drawn up in 2008 by erstwhile Minister Naledi Pandor, but never promulgated.
This document, which Equal Education sees as a reasonable temporary solution, contains specifics such as the maximum number of learners per school and the minimum size of the school site. It prescribes, “as a bare minimum”, appropriate fencing and some form of security; electricity and a water source; and some grounds on which to play sport.
It does not aim as high as Equal Education, but intends a “functional level of provision”. For instance, it states, a school “may not have a science laboratory but it must have an alternative way of providing learners an experience as similar to that of a laboratory as possible. Examples of such substitutes could be science kits and, as a last resort, visual laboratories.”
The benefit of this approach, according to Pandor’s document, is that “a functional level of provision affords the system time to plan without dramatically risking the core principles of equal educational opportunity”.
Equal Education’s final demand is that Motshekga convene an urgent meeting of provincial education departments to plan the implementation of the norms and standards.
As things stand, the organisation is prepared to meet the Basic Education ministry once again on 11 July in the Bhisho High Court. But, Isaacs told the Daily Maverick on Monday, “The Minister is trying to settle before we get there”. As has been seen before, however, an out-of-court settlement by Motshekga may ultimately count for very little in concrete terms.
Unless school infrastructure can be fixed, a parent told the Equal Education march on Monday, “our children will not be doctors, lawyers, professors.” Instead, the grinding cycle of poverty and diminished opportunities will be doomed to continue, she warned.
“We have nothing left except education.” DM
All tortoises are actually turtles. Some turtles however are not tortoises.