A group of determined Eastern Cape parents returned to the Eastern Cape Division of the High Court in Mthatha to fight against overcrowding at schools, where at times there are close to 100 children in a classroom.

The parents have children attending Attwell Madala High School, Enduku Junior Secondary, Dudumayo Senior Secondary and Mnceba Senior Secondary. In many cases, they have been fighting overcrowding in vain for the entire duration of their children’s schooling careers. 

While the provincial department of education, under the threat of several court orders, has constructed some additional classrooms, the parents’ legal team says their clients have no intention of backing down. They have asked for a judge to be appointed to oversee the department’s efforts to address overcrowding in the province’s schools.

Their latest legal action, heard last week by the Eastern Cape Division of the High Court in Mthatha, comes as Eastern Cape Premier Oscar Mabuyane warned that he feared austerity measures implemented by National Treasury might cause even worse overcrowding at schools. 

Read more in Daily Maverick: Eastern Cape warns of drastic budget-slashing to meet national government targets 

“When this application was launched on 20 August 2018, the school communities saw it as an unfortunate but necessary culmination of their yearslong effort to obtain emergency infrastructure for their schools and those similarly situated to them,” Advocate David Watson, counsel for the parents, told the court. The parents are assisted by the Legal Resources Centre.

“The learners at Attwell Madala Senior Secondary School, Enduku Junior Secondary School, Dudumayo Senior Secondary School and Mnceba Senior Secondary School had to attend schools with chronic overcrowding, with classrooms that had to accommodate in most instances well more than double the prescribed maximum number of learners per classroom.

“Teaching and learning in that context was intolerable. Learners had to sit in classes with in excess of 80 to 90 learners,” Watson said.

“Overcrowding required immediate and concrete intervention by the [Department of Education]. Regrettably, in the almost five years that this litigation has been ongoing, the looming threat of legal action and the weight of an adverse court order have all been insufficient to remedy the [department’s] stubborn disregard of their constitutional and statutory duty to provide adequate basic education to Eastern Cape school learners.”

The parents have asked for a judge to oversee remedial steps taken in these schools or for the Education MEC, Fundile Gade, to convince a judge that remedial steps cannot be taken.

Read more in Daily Maverick: Classes every three weeks: How a Mthatha school deals with severe overcrowding

The legal team for the Eastern Cape Department of Education has argued that the department cannot provide the relief sought because of budgetary constraints and procurement delays. All the department offered was to report within six months on the progress made in providing classrooms to one of the schools. 

Consistent underspending

However, the legal team for the parents pointed out that it was inappropriate for the department to rely on budgetary constraints to justify its failure to comply with court orders, when it “consistently underspends significant amounts of money earmarked for infrastructure. In the 2020/21 financial year, the [department] underspent its budget and had to return approximately R205-million to National Treasury.”

The department had indicated that even emergency procurement for temporary classrooms takes at least four years.

“This offer is startling. The court should direct the respondents to provide the classrooms within 90 days of its order,” Watson said.

Watson described the state’s response as “brutal in its ordinariness, its predictability”.

Watson said that at Mnceba Primary School, “persistent, good-faith requests for emergency relief, in the face of untenable overcrowding, have been met with broken promises for at least eight years”. 

Examples of overcrowding in schools are provided in papers before the court. They include:

• In 2018, Attwell Madala was forced to accommodate 1,716 learners in only 22 classrooms, six of which were temporary structures paid for by the School Governing Body. This meant that even if all learners were divided equally between all classrooms, which is usually not possible, there would be 78 learners per classroom.

The temporary classrooms were burnt down in a protest by learners and then the department built new classrooms. However, the project was suspended in 2021 because of budgetary constraints. Seventeen new classrooms were eventually constructed as per previous court orders. The school received another 22 temporary classrooms in 2022.

• In 2018, Enduku was forced to accommodate 1,367 learners from grades R to 9 in only 24 classrooms, five of which were community-built mud structures. Only two of the 24 classrooms at Enduku had below the statutory maximum of 40 learners per classroom and only five had fewer than 50 learners.

In July 2017, the education department committed to providing the school with a new Grade R classroom by October of that year and building an entire new school by January 2019. When this application was launched in August 2018, no new Grade R classroom had been provided and no further information had been shared about the plan to build a new school. 

By 2023, the new temporary classrooms were still incomplete. The contractor plans to demolish seven unsafe mud classrooms when the new classrooms are ready for use.   

• Dudumayo was forced to accommodate 1,319 learners in just 14 classrooms — on average, there were 94 learners per classroom. Most classrooms at Dudumayo accommodated more than double the statutorily permitted maximum number of 40 learners; four classrooms accommodated more than 100 learners.

In 2016, the department said it would send temporary classrooms from a nearby school but these never arrived. In 2017 and 2018 the department promised to provide the school with new classrooms. This never happened, according to papers before the court. The department has since added 11 temporary classrooms.

• Mnceba has 1,752 learners in only 19 classrooms. Only one classroom held an acceptable number of learners; 12 classrooms held more than double the statutorily permitted maximum number of 40 learners. The school was promised temporary classrooms in 2016 and again in 2017, but they never arrived.

“To explain why they at one point thought it feasible to deliver the 24 classrooms to Mnceba by 1 April 2019 and now, four years later, they cannot commit to the delivery of that same number of classrooms by any date, the respondents rely on a host of factors, some of which are: their lack of budget, the onerous procurement process, Covid-19 and another natural disaster, and an inefficient implementing agent. Together, these excuses illustrate a persistent failure to plan for, budget for, and administer infrastructure provisioning,” Watson said.

Read more in Daily Maverick: Despite court order, EC education department reneges on construction of 65 classrooms in four schools

The department of education’s legal team argued that the department cannot provide a list of overcrowded schools to the court because the “districts have been rearranged and renamed”.

The department also said that “supervisory orders are disruptive and undesirable”.

Judgment was reserved. DM