Human rights warrior, Mark Heywood, ends his heartfelt plea for better basic education with a question:

“This (basic education) is one issue on which our society ought to be able to find common purpose. Why can’t we?”

The question may have been intended rhetorically, but it is deserving of an answer, no matter how difficult or unpalatable the answer may be.

The Bill of Rights is unequivocal on the matter. It requires of the state that it must “respect, protect, promote and fulfil” all of the rights in the Bill of Rights.

As far as basic education is concerned the wording of the Bill of Rights is plain and clear:

“Everyone has the right to a basic education, including adult basic education and to further education, which the state … must make progressively available and accessible.”

The courts have interpreted this wording to mean that as far as basic education is concerned it is a right claimable in full since the inception of the new order and is not one of those socio-economic rights that is subject to availability of resources and to progressive realisation.

The problem is not availability of resources, it is the lack of political will to make basic education available to all that is actually at the root of the malaise in our basic education system. Some suggest, in whispered tones, that the governing ANC-led alliance prefers not to have an educated populace because those who reach the middle class tend not to vote for the alliance come elections. Whether or not this cynical take on the sorry state of education is valid, the fact remains that basic education is in a sorry state in the majority of public schools.

Some years ago the Rosa Parks of education in South Africa, Jean Pease, combined forces with the Western Province based Progressive Principals Association and sought wide ranging relief to address the state of basic education. Accountability Now provided the legal services necessary to mount an urgent application in the High Court in which declaratory, mandatory and supervisory relief was sought. The matter was heard by Justice Nathan Erasmus. Despite its urgency, he reserved judgment for 17 months and then dismissed the application on a basis that revealed that he misinterpreted the Constitution in a most fundamental fashion. An application for leave to appeal to the Constitutional Court was rejected, possibly because that court wished to know what the Supreme Court of Appeal would make of the judgment in the Western Cape, but more probably because the issues had become stale with the passage of time during which judgment was reserved.

It is nevertheless instructive to see how the principals of schools which cater for the children of the poor focused their case with a view to improving the lot of the children not receiving basic education in the system as it existed then, and still, by and large, exists now.

At the end of the hearing a report to stakeholders was prepared by Accountability Now so that those interested could identify the issues around provision of that basic human right known as “basic education” in our Bill of Rights. The full report , the judgment and the application for leave to appeal are all on the Accountability Now website.

Here are some extracts from that report:

The applicants have raised their concerns about the poor Annual National Assessment results across the board both as regards literacy and numeracy. They regard the scores reflected in the results as proof that the basics of education are not being delivered to the learners in public schools in an alarmingly widespread fashion. This, they contend, is a violation of the right to basic education which has been claimable in full since the dawn of democracy and is not subject to progressive realisation in the same way as access to other socio-economic rights is rolled out to everyone under the Bill of Rights and in the light of available resources.

Relying on the research of Nic Spaull, an economist, they point out that the basic education system, by any and all relevant measures, has evolved into a double humped camel with about 25% of schools (mainly former model C schools) functioning well and pushing up averages while 75% of schools are dysfunctional, especially in mathematics and science. Half of the learners entering the system drop out before reaching national senior certificate level and too many, including some matriculants, emerge from the basic education system short of the skills required for functional literacy and numeracy. The traditional three Rs – ‘reading, ‘riting and ‘rithmatic’ are not being taught in the majority of schools to the extent and level that can be reasonably expected of a schooling system that requires nine years of compulsory attendance. The fact that three quarters of the unemployed people of working age in SA are under 35 years of age is, at least in part, the consequence of the failure to deliver basic education to all. The skills required to participate at all in our modern economy are simply not being imparted to around half of the learners in public schools.

Four main themes are identified by the applicants: the Cinderella status of early childhood development (ECD) in SA, the paucity of mother tongue education in the foundational phase, the need to professionalise teachers and the inability of the system to secure delivery of learning and teaching support materials on time, every time in the right quantities and right languages to every child at our public schools.

The relief claimed

Three forms of legal relief are claimed in the case. The declaratory, mandatory and supervisory relief is complementary and overlapping. It is designed to point to where the most serious challenges arise in basic education, to compel the government to take steps to address areas of weakness and to subject the authorities’ plans for remedial steps to the scrutiny of the court, and possibly Chapter Nine Institutions, so as to supervise the constitutionally compliant adjustment of the conduct of the basic education system in order to render it constitutionally compliant.

The defence to the merits of each claim

In essence the Minister of Basic Education denies that the system, for which she is responsible, is functioning in a manner that is inconsistent with the Constitution. The legacy of apartheid is blamed for the state of play and the prioritisation of the provision of quality basic education by the first Zuma administration is relied upon as proof of the good intentions of government.

It is denied that there is a problem with materials delivery (despite Limpopo litigation, Eastern Cape maladministration of workbook delivery to the chagrin of the Public Protector who has written a scathing report entitled Learning without Books and statistics that indicate that on average 6.6% of households countrywide in all provinces complain of lack of books).

The introduction of a third (African) language is regarded as a panacea for the lack of mother tongue educational facilities for about 70% of the children attending the foundational phase of schooling.

The National Development Plan to transfer responsibility for ECD to the Department of Basic Education is regarded as unconstitutional by the two ministries involved and no steps to implement the transfer have been taken despite its soundness. The professionalisation of teachers is well in hand according to the Minister.

It can be seen from the cries of pain encapsulated in Mark Heywood’s contribution to the debate around basic education that not much has changed since the case was argued.

It would obviously be a good thing to make ECD universally available via the Basic Education Departments around the country. Language of instruction for little people ought to be a no brainer and getting learning and teaching materials into class on time every time in the right quantities and the right languages is a mere matter of logistics competently administered. The real sticking point is the professionalisation of the unionised teachers who have no sense of ethical responsibility for the lives that pass through their hands and no interest in promoting excellence, except in their pay and conditions of service. As the main teacher union is a supporter of the ANC-led alliance at election time, rest assured that not much will be done that disturbs the comfort zone of the teachers who are takers, not givers of educational services as a noble calling and as the mother of all professions.

The answer to the question “Why can’t we find common purpose on basic education?” would seem, on the evidence available, to be: “Because we don’t want to and don’t care to either.” DM