While we expected draft amendments to be put forward by the Department of Basic Education (DBE) to close gaps in the law — something Equal Education (EE) and the Equal Education Law Centre (EELC) successfully went to court for in 2018 — the changes the department is now proposing would see learners and teachers suffer from poor infrastructure for many more years.

The DBE’s proposed changes essentially erase crucial mechanisms for holding education departments accountable. The scariest of the draft amendments is the erasing of the deadlines for providing schools with safe and proper infrastructure.

It’s no wonder then that the document was tucked away on page 139 of the Government Gazette on 10 June, with zero effort from the DBE to call for public comment until late this week.

An imperfect law

Despite the victory of securing this important law, the Norms are not perfect. The current law contains vague and open-ended wording, creating loopholes for government to evade its legal responsibilities to school communities.

The implications of these loopholes, coupled with the seemingly lackadaisical approach to infrastructure delivery, provoked EE and the EELC to return to the Bhisho High Court in 2018 to get the DBE to review and fix deficiencies in the Norms.

The court ordered government to #FixTheNorms — a triumph in the pursuit of equal and quality education for all learners. As part of the court order, the DBE was to make the following crucial changes to improve the current Norms:

• Remove the “escape clause” which states that government is only responsible for fixing schools if other departments or government entities do their part because it is unconstitutional;
• Expand the scope of priority schools to include schools built partially or “substantially” of inappropriate materials;
• Improve transparency and accountability by making provincial infrastructure delivery plans and progress reports public.

A recipe for disaster

Despite EE and the EELC’s long and public struggle to #FixTheNorms, the DBE’s promises that civil society would be kept updated on all developments related to the amendment of the Norms — as well as the DBE’s obligation to inform the public of changes to regulations with far-reaching consequences for schools — this draft amendment has not been widely circulated.

The DBE’s calls on public forums for public input on the draft amendment come a week before the initial deadline of 10 July 2022. This is after letters were sent to the department by EE, the EELC and other civil society organisations, after which it has also agreed to extend the deadline for comment to 31 July 2022 to allow for more adequate engagement by affected stakeholders.

However, robust and meaningful public participation is still stifled if the most affected cannot understand or engage with the document they are called to comment on.

Essentially, the DBE’s new flurry of actions to publicise the message and encourage public participation are meaningless if the way the document is drafted is difficult to understand.

Among other problems we have identified, most concerningly, the draft amendments are set to do away with crucial timeframes within which school infrastructure backlogs must be eradicated — namely the three-year, seven-year and 10-year timelines.

The removal of these time frames is highly regressive; the timelines contained in the Norms are not merely decorative, but are pivotal in holding national and provincial education departments to account — the removal of which could translate into an indefinite period for eradicating school infrastructure backlogs and ensuring quality schooling.

These time frames provide vital benchmarks through which schools, civil society organisations and the public can apply pressure in asserting learners’ rights to basic infrastructure and services.

Alarmingly, the proposal to remove the deadlines creates a situation that will leave affected schools in a precarious position.

When the Norms were introduced, they not only immediately banned plain pit latrines in schools, but all schools made of inappropriate materials (like mud, asbestos, wood) were to be replaced, and schools were to be provided with water, electricity and safe toilets by 2016.

Despite the legal provisions, government has failed to meet nearly all of the deadlines set out in the Norms.

That said, the timelines have been crucial in ensuring education justice, such as in the Michael Komape court case, where the Limpopo education department said it would only eradicate plain pit toilets in the province by 2031 — we argued that this timeline was obscenely long and went against the Norms.

So, removing these deadlines from the Norms further compromises the urgency toward eradicating backlogs.

Furthermore, an important aspect of the existing Norms is the requirement that provincial education departments report annually to the DBE on their plans regarding the implementation of the law.

These provisions provide much-needed guidance to provincial departments and require that these reports include information on existing backlogs, the costs involved to address these backlogs, plans for new schools, as well as upgrade and maintenance plans for existing schools.

Concerningly, the draft amendments now remove this guidance. From our regular analysis of these reports, we know that the standardisation of this type of reporting is essential for assessing the progress in implementing the Norms.

School infrastructure law pushes progress 

Basic Education Minister Angie Motshekga signed the Norms and Standards into law in 2013, following years of relentless campaigning led by EE members (learners, post-school youths, teachers and parents) and supported by litigation.

This was truly historic — never before did South Africa have a law that defines the basic infrastructure a school must have and by when that infrastructure must be provided.

Before the Norms and Standards, infrastructure backlogs were a nightmare.

According to the DBE’s data (the National Education Infrastructure Management System [NEIMS]), in 2013, 45% (10,915) of South Africa’s then 23,909 public schools had plain pit latrines as toilets; 12% (2,925) had no electricity supply and 7% (1,772) had no water supply.

Nearly a decade later, the situation has improved considerably, but infrastructure backlogs persist.

According to the 2021 NEIMS report, the number of schools with plain pit latrines has halved; only 90 schools are completely without electricity and no schools are completely without access to water.

The introduction of the Norms — with clear, legally binding deadlines for infrastructure provisioning — has contributed significantly to the progress in infrastructure delivery in South Africa’s schools.

Despite some crucial progress in the provisioning of school infrastructure, the national and provincial education departments have continued to fail to meet the legally binding deadlines set out in the Norms, with many schools still in dire need of basic infrastructure.

The DBE now seems intent on removing all forms of monitoring and accountability measures and protections that schools could use to assert learners’ rights to quality education.

This is, indeed, a recipe for disaster. DM/MC

Biney and Khumalo are Equal Education researchers, and Cooper-Bell is an Equal Education Law Centre attorney.