When Donald Grant, the MEC for Education in the Western Cape, announced earlier this week that his department would close 20 schools in the province at the end of this year, the ANC in the province immediately criticised the move and vowed to challenge the decision in court. This might seem surprising, as ANC members in government often complain that opposition parties abuse the courts in an effort to thwart policy decisions of the government. But the real question is whether such a challenge can succeed.
In my opinion there is nothing wrong with political parties challenging the Constitutionality of government actions in court — whether the challenge is launched by the ANC opposition against the Western Cape government or the DA opposition against the national government. When courts intervene in such cases, they are usually not interfering in an unwarranted manner with the policy decisions of the democratically elected government. When courts interpret and apply the Constitution in line with the precedent set by the Constitutional Court, all they are doing is enforcing the provisions of the Constitution.
ANC provincial leader, Marius Fransman, indicated that the party would challenge the closing of the 20 schools in the Western Cape, saying: “We have decided that we will not leave it as is. All the reasons that they’ve given are wrong and we will take this matter up, and the first thing we will do is to get legal advice and litigate – even if it means an interdict.”
Legal advice provided to Mr. Fransman would obviously focus on Section 29 of the Bill of Rights and on the provisions of the South African Schools Act. Section 29(1)(a) of the Constitution states that “everyone has the right to a basic education, including adult basic education”. Unlike the right of access to housing, health care, food and water, the right to basic education is an unqualified one. The failure of the government to provide everyone with basic education could therefore not be justified with arguments that, given its limited resources, the government is taking all reasonable measures to improve access to better quality schooling over time and is complying with its Constitutional duties.
The Constitutional Court confirmed this principle in the case of Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others, pointing out that — unlike some of the other socio-economic rights — the right to education was “immediately realisable”. This meant, said the Court, that the right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
Where the government fails to provide basic education to learners (for example, by not delivering textbooks to learners almost nine months after the start of the academic year), it would be in breach of its Constitutional duties. That is why the North Gauteng High Court could order the department to deliver school textbooks by a certain date. (Ironically, the department recently took out an advertisement that, in effect, boasted that it was delivering school textbooks to some learners in Limpopo almost a year late.)
Similarly, where the government takes steps to limit the existing enjoyment of the right to education by closing down or merging existing schools and where this would make it more difficult for learners to attend school, it might be in breach of its Constitutional obligations not to limit the rights of learners in an unreasonable manner. Unless such a move was authorised by law and was reasonable and justifiable in an open and democratic society, the closing down of schools would be unconstitutional.
Any “deliberately retrogressive measures” (in other words, measures that would disturb the existing enjoyment of education by learners) “would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for” in the Constitution.
Three questions will have to be asked in a case like this. First, is the closure of schools authorised by law? Second, was the procedure prescribed by the law followed before the decision to close a school was taken? Third, if the closure was authorised by law, is the law authorising the closure compliant with section 29(1)(a) of the Constitution?
The closure of public schools is authorised by section 33 of the South African Schools Act. This is not surprising to hear. After all, according to South African Institute of Race Relations, since 2000, 1,116 schools have been closed in the Free State, 648 in North West, 590 in the Eastern Cape, 215 in Mpumalanga, 173 in Limpopo and 111 in the Northern Cape.
Section 33 requires the MEC to give notice to the school governing body and conduct hearings to enable the community to make representations on the proposed closure. By all accounts this was done in the cases under discussion. After considering representations, the MEC decided to close 20 schools but to keep a further seven schools open.
The section requires the MEC to consider all representations before ordering the closing of a school. However, the MEC is granted a wide discretion to close a school after following the requisite procedure. The Schools Act does not place any substantive limits on the power of an MEC to order to closing of a school. This means the MEC could close a school without taking into account the effects of such a decision on the ability of the government to provide basic education to everyone. The MEC need not take into account whether learners can be accommodated at a nearby school — something MEC Grant claims he took into account when ordering the closure of the schools. Nor does the MEC need to take into account whether the school closure will have a negative impact on the ability of learners to go top school.
The potential impact of school closures on learners could be devastating. Where an MEC is motivated solely by cost considerations (perhaps inspired by a free market ideology), he or she would be able to close down many rural schools that might be costly to run — even if this would make it very difficult for especially poor rural children to continue with their education. Where small schools catering for poor children in deep rural areas are closed down and where no reasonable alternative schooling opportunities are available, children could in effect be denied an education. For example, where the nearest alternative school is situated many kilometres from where children live, the cost and practical difficulty to get to the alternative school could deny such children real access to an education.
As Section 33 of the South African Schools Act, which empowers an MEC to close schools, does not require the MEC to take such factors into account, the section might well constitute an unreasonable and unjustifiable limitation on the right to basic education in section 29(1)(a) of the Constitution and might therefore be unconstitutional. Although the Western Cape MEC stated that he did take these factors into account before making his decision on the school closures, this would not save an otherwise unconstitutional provision on which he relied to close down the schools. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon