IN THE EASTERN CAPE HIGH COURT, BISHO
(REPUBLIC OF SOUTH AFRICA)
CASE NO. ______________
In the matter between:
THE CENTRE FOR CHILD LAW
First Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
NOMANDLA SENIOR PRIMARY SCHOOL
Second Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
TEMBENI SENIOR PRIMARY SCHOOL
Third Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
MADWALENI SENIOR PRIMARY SCHOOL
Fourth Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
SIDANDA SENIOR PRIMARY SCHOOL
Fifth Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
NKONKONISENIOR PRIMARY SCHOOL
Sixth Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
MAPHINDELA SENIOR PRIMARY SCHOOL
Seventh Applicant
THE INFRASTRUCTURE CRISIS COMMITTEE OF
SOMPA SENIOR PRIMARY SCHOOL
Eighth Applicant
and
THE GOVERNMENT OF THE EASTERN CAPE PROVINCE
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
THE O R TAMBO DISTRICT MUNICIPALITY
First Respondent
Second Respondent
Third Respondent
___________________________________________________________________
FOUNDING AFFIDAVIT
___________________________________________________________________
2
I, the undersigned,
ANN MARIE SKELTON
state under oath the following:
1
I am the Director of the Centre for Child Law.
I am a specialist in Child Law,
and obtained my LLD in 2005. During my legal career spanning over 20 years, I
have concentrated on advancing the rights of children and have played a
significant role in the development of an appropriate legal framework in line with
the Constitution and relevant international instruments. In the last decade my
work has increasingly focused on the lacunae in delivery of services to children,
and the utilisation of various strategies, including litigation, to close such gaps.
2
I am duly authorised to depose to this affidavit on behalf of the Centre for Child
Law, the first applicant in this matter. Separate affidavits will be filed on behalf
of each of the second to eighth applicants. I pray that they be read as
incorporated herein.
3
The facts contained herein are, to the best of my knowledge, true and correct
and, unless otherwise stated or indicated by the context, are within my personal
knowledge.
3
PARTIES
4
The first applicant is THE CENTRE FOR CHILD LAW (“the CCL”).
5
The CCL was established by the University of Pretoria in terms of a constitution
and is a Law Clinic registered with the Law Society of the Northern Provinces.
The relevant sections of the constitution are attached hereto as Annexure
“AMS1”
5.1
The main objective of the CCL is to establish and promote child law and
uphold the rights of children in South Africa, within an international and
regional context, and in particular to use the law and litigation as an
instrument to advance such interests.
5.2
The CCL has been authorised by the University of Pretoria to bring this
application. A letter of authorisation indicating written permission from the
Registrar of the University and the Dean of the Faculty of Law is attached
hereto as Annexure “AMS2”.
6
The second applicant is THE INFRASTRUCTURE CRISIS COMMITTEE OF
NOMANDLA SENIOR PRIMARY SCHOOL (“Nomandla SPS”) and the
members thereof. Nomandla SPS is located in the village of Mabheleni, which
is approximately 20 kilometres west-south-west of Libode, the seat of the
Nyandeni Local Municipality in the Eastern Cape Province. I refer in this regard
to the affidavit by Mr Sikiti, the chairperson of the Infrastructure Crisis
Committee of Nomandla SPS, which is filed together herewith.
4
7
The third applicant is THE INFRASTRUCTURE CRISIS COMMITTEE OF
TEMBENI SENIOR PRIMARY SCHOOL (“Tembeni SPS”) and the members
thereof.
Tembeni SPS is located in the village of Mayalweni, which is
approximately 50 kilometres south-south-west of Libode. I refer in this regard
to the affidavit by Mr Matala, the chairperson of the Infrastructure Crisis
Committee of Tembeni SPS, which is filed together herewith.
8
The fourth applicant is THE INFRASTRUCTURE CRISIS COMMITTEE OF
MADWALENI SENIOR PRIMARY SCHOOL (“Madwaleni SPS”), and the
members thereof. Madwaleni SPS is located in the village of Bomvini, which is
approximately 20 kilometres north-east of Libode. I refer in this regard to the
affidavit by Mr Vula, the chairperson of the Infrastructure Crisis Committee of
Madwaleni SPS, which is filed together herewith.
9
The fifth applicant is THE INFRASTRUCTURE CRISIS COMMITTEE OF
SIDANDA SENIOR PRIMARY SCHOOL (“Sidanda SPS”), and the members
thereof.
Sidanda SPS is located in the village of Mpundweni, which is
approximately 50 kilometres south-south-east of Libode. I refer in this regard to
the affidavit by Mr Fundakubi, the chairperson of the Infrastructure Crisis
Committee of Sidanda SPS, which is filed together herewith.
10
The sixth applicant is THE INFRASTRUCTURE CRISIS COMMITTEE
OFNKONKONI JUNIOR PRIMARY SCHOOL (“Nkonkoni SPS”), and the
members thereof.
Nkonkoni SPS is located in Nkonkoni Location, in the
Mbobeleni Administrative Area, which is approximately 20 kilometres north-east
of Libode.
I refer in this regard to the affidavit by Mr Ngxamafuthi, the
5
chairperson of the Infrastructure Crisis Committee of Nkonkoni SPS, which is
filed together herewith.
11
The seventh applicant is THE INFRASTRUCTURE CRISIS COMMITTEE OF
MAPHINDELA SENIOR PRIMARY SCHOOL (“Maphindela SPS”), and the
members thereof. Maphindela SPS is located in the Ntogwana Location, in the
Lower Ntafufu Administrative Area, which is approximately 40 kilometres due
north of Port St John’s, the seat of the Port St John’s Local Municipality in the
Eastern Cape Province. I refer in this regard to the affidavit by Mr Sicoto, the
chairperson of the Infrastructure Crisis Committee of Maphindela SPS, which is
filed together herewith.
12
The eighth applicant is THE INFRASTRUCTURE CRISIS COMMITTEE OF
SOMPA SENIOR PRIMARY SCHOOL (“Sompa SPS”), and the members
thereof. Sompa SPS is located in the village of Sompa which is approximately
30 kilometres north-north-east of Libode. I refer in this regard to the affidavit by
Mr Songcatha, the chairperson of the Infrastructure Crisis Committee of Sompa
SPS, which is filed together herewith.
13
The first respondent is THE GOVERNMENT OF THE EASTERN CAPE
PROVINCE. It bears statutory and constitutional responsibilities in respect of
the provision, administration and funding of public schools in the Eastern Cape.
These include the responsibilities of the Member of the Executive Council for
Education in the Eastern Cape (“the MEC”) and the Eastern Cape Provincial
Department of Education (“the ECDOE”) arising from the South Africa Schools
6
Act 84 of 1996 (“the Schools Act”) and education policies adopted by provincial
and national government.
14
The second respondent is THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA. It too bears statutory and constitutional responsibilities in
respect of the provision, administration and funding of public schools in the
Eastern Cape.
These include the responsibilities of the Minister of Basic
Education (“the Minister”) and the national Department of Education (“the
national DOE”) arising from the Schools Act and the National Education Policy
Act 27 of 1996.
Amongst the Minister’s powers is the power to prescribe
minimum uniform norms and standards for school infrastructure.
15
The first and second respondents are all cited care of the State Attorney at 2nd
Floor, Nedbank Building, 42-46 Terminus Street, East London].
16
The third respondent is THE O R TAMBO DISTRICT MUNICIPALITY. The
seven schools at issue in the present matter are located within this Municipality.
The third respondent is cited for such interest as it may have in relation to the
present matter, particularly in relation to the question of access to adequate
water which is dealt with below. The third respondent’s address for service is
OR Tambo District Municipality, 5 Textile Street, Southernwood, Mthatha.
7
THE NATURE OF THIS APPLICATION
17
This application concerns seven primary schools situated in the Eastern Cape
in areas that formerly formed part of the Transkei. The seven schools are
Nomandla SPS, Tembeni SPS, Madwaleni SPS, Sidanda SPS, Nkonkoni SPS,
Maphindela SPS and Sompa SPS. For the sake of convenience, I refer to
them collectively in this affidavit as “the seven schools”.
18
All seven schools are primary schools offering education from Grade R through
to Grade 6, 7 or 8. The schools vary in size, with the smallest being Sompa
SPS which has 177 learners and the largest being Sidanda SPS which has 421
learners.
19
These seven schools are located in two of the poorest regions in South Africa.
The learners who attend these schools and their parents are, on the whole,
indigent.
20
The conditions at these seven schools are truly appalling. They are the worst
or, at least, among the worst of any schools in the area that previously formed
part of the Transkei.
As is detailed below and in the affidavits filed on behalf
of the second to eight applicants, the seven schools all lack the basic
infrastructure necessary for effective teaching and learning.
20.1 All seven schools are classified as “mud-schools” by the first and second
respondents. Six have classrooms built from mud and one (Sompa SPS)
has classrooms made from cinder blocks. The fact that their classrooms
are built from these materials rather than from bricks and mortar or pre-
8
fabricated material means that the structures provide little or no
protection from the elements for learners at the schools. Indeed, many
have become entirely unusable.
Many of those that remain useable to
some extent are massively over-crowded.
20.2 All seven schools also lack access to adequate water. They rely on
tanks to catch rain-water but this means that during the dry winter
months there is no water available at the schools.
Learners must
therefore get water as best they can from streams that are 1 – 2
kilometres away, which streams are often themselves not suitable for
obtaining drinking water.
20.3 All seven schools face a severe shortage of desks and chairs.
21
Speeches and policy documents emanating from the national DOE and
ECDOE make clear that the above conditions are entirely unacceptable, that
they prevent effective teaching and learning and that they constitute a breach of
the state’s duties under the Constitution.
22
Despite this, it appears that the first and second respondents have no plan in
place to remedy the conditions at these seven schools.
22.1 No such plan appears from the various documents emanating from the
first and second respondents nor have the seven schools themselves
been informed of such a plan.
22.2 Despite repeated written and verbal pleas by the schools for assistance,
often in response to emergencies caused by weather, they remain
9
entirely in the dark as to why they are not being dealt with by the first and
second respondents, whether they will be dealt with in the future and, if
so, when.
22.3 Attempts by the first applicant, the CCL, to obtain clarity in this regard
have similarly been met with complete silence.
22.4 It moreover appears from the ECDOE’s own documents that the budget
allocated for dealing with school infrastructure is “totally inadequate” and
that the ECDOE has placed a moratorium on infrastructure projects for
the foreseeable future.
23
It is the applicants’ case that the conduct and policies of the first and second
respondents as described in these papers do not meet the requirements of the
Constitution or the relevant legislation.
Such conduct and policies are
accordingly unlawful and unconstitutional.
24
The applicants accordingly seek orders:
24.1 declaring that the failure of the first and second respondents to provide
the seven schools with proper school facilities, access to adequate
waterand sufficient numbers of desks and chairs and/or to develop
and/or make known a plan or plans to provide such is unconstitutional
and unlawful;
24.2 directing the first and second respondents to develop a plan or plans, in
consultation with the seven schools, to provide them with proper,
10
appropriate and adequate school facilities and access to adequate water;
and
24.3 directing the first and second respondents to provide the seven schools
with sufficient numbers of adequate desks and chairs.
25
In what follows I deal with the following issues in turn:
25.1 standing;
25.2 the relationship between the school environment and adequate
education;
25.3 mud schools;
25.4 access to water;
25.5 desks and chairs;
25.6 relevant provisions of the Constitution, statutes and further policy
documents;
25.7 appropriate relief.
11
STANDING
26
The CCL brings this application as the first applicant in several capacities:
26.1 in terms of section 38(a) of the Constitution, in its own interest as an
organisation which has the objective of upholding the rights of children in
South Africa;
26.2 in terms of section 38(b) of the Constitution, on behalf of the learners at
the seven schools who have been and will be affected by the conditions
at the schools;
26.3 in terms of section 38(c) of the Constitution, in the interests of the
learners at the seven schools and their parents; and
26.4 in terms of section 38(d) of the Constitution, in the public interest.
27
The standing of each of the second to eighth applicants is dealt with in the
affidavits filed on their behalf.
I pray that those affidavits be read as
incorporated herein to the extent necessary. Suffice it to say that the
Infrastructure Crisis Committee of each school and the members of that
committee approach this Court in their own interests, in the interests of the
learners and parents of learners at the school, and in the public interest.
12
THE
RELATIONSHIP
BETWEEN
THE
SCHOOL
ENVIRONMENT
AND
ADEQUATE EDUCATION
28
On 11 June 2010, the Minister published in the Government Gazette “The
National Policy for an Equitable Provision of an Enabling School Physical
Teaching & Learning Environment”.
A copy of this document is attached
marked Annexure “AMS3”. I refer to it as “the National Policy”.
29
The National Policy makes quite clear that there is a real and substantial link
between the physical environment in which learners are taught and the
adequacy of the education that they receive.
30
Thus, for example, the document states as follows at page 9:
“Significance
Environment:
of
the
Physical
Teaching
and
Learning
Yet as recent studies show, there is a link between the physical
environment learners are taught [in], and teaching and learning
effectiveness, as well as learning outcomes.
Poor learning
environments have been found to contribute to learner irregular
attendance and dropping out of school, teacher absenteeism and the
teacher and learners’ ability to engage in the teaching and learning
process. The physical appearance of school buildings are shown to
influence learner achievement and teacher attitude towards school.
Extreme thermal conditions of the environment are found to increase
annoyance and reduce attention span and learner mental efficiency,
increase the rate of learner errors, increase teacher fatigue and the
deterioration of work patterns, and affect learning achievement.
Good lighting improves learners’ ability to perceive a visual stimuli
and their ability to concentrate on instructions.
A colourful
environment is found to improve learners’ attitudes and behaviour,
attention span, learner and teacher mood, feelings about school and
reduces absenteeism. Good acoustics improves learner hearing and
concentration, especially when considering the reality that at any one
time, 15 percent of learners in an average classroom suffer from
some hearing impairment that is either genetically based, noiseinduced or caused by infections. Outdoor facilities and activities
have been found to improve learner formal and informal learning
13
systems, social development, teamwork and school-community
relationships.”
(See also pages 29-30 of the National Policy)
31
The National Policy goes on to state that the physical teaching and learning
environment has “historically been one of the most visible indicators of unequal
resource provision” (page 17). In this regard, it defines the “physical teaching
and learning environment” as “comprising school infrastructure; basic services;
furniture; equipment, books, teaching and learning materials, and co-curricular
facilities and equipment.”(page 18) It adds that school infrastructure is broadly
conceived to include the physical teaching and learning spaces and basic
services, including clean and safe water.
32
Identical sentiments have been expressed by the ECDOE. For example, I refer
in this regard to the 2010/2011 version of the ECDOE’s “Infrastructure Plan
2005-2014”.
I refer to this as the 2010/11 Infrastructure Plan.
A copy is
attached as Annexure “AMS4”. It states at para 2.1.2 that:
“A consequence of poor infrastructure is an environment that does
not promote effective quality teaching and learning”.
33
The pronouncements in the government documents just cited are not only
plainly correct as a matter of logic, they are also confirmed by practical
experience. I refer in this regard to the affidavit of Ms Ntloko, the principal of
Sizane Junior Secondary School which is located in the Libode district.
33.1 Ms Ntloko’s affidavit speaks about her experience at her school, and the
extraordinarily positive effect that the replacement of mud classrooms
14
with proper pre-fabricated classrooms has had on teaching and learning
at the school. This took place in 2008.
33.2 While I pray that the entire affidavit be read as incorporated herein, I
emphasise the conclusion of Ms Ntloko:
“The improvements in the school have had a profound effect on the
students’ morale and quality of teaching. Students now come to
school on the weekend, and on holidays, where before they would
often be absent from school. Students frequently arrive at school
early, and leave late – something which never happened when the
school was comprised solely of mud structure classrooms.
Teachers are much more effective now, as a result of the
improvements. It is now easier to ensure students are attending
class. Before, because of the shortage of classrooms, most of the
students spent their time outdoors. It is also easier for teachers to
take attendance, by going from class to class to see which students
are missing. Furthermore, the new classrooms allow for the safe and
tidy storage of textbooks and their effective distribution to learners. It
is now easier for students to progress in their lessons, and for
teachers to monitor their development. There has been a marked
improvement in learner achievement.”
33.3 A copy of Ms Ntloko’s affidavit, in unsigned form, is attached marked
Annexure “AMS5”. Given the remoteness of Ms Ntloko’s location, it has
not been possible to obtain a signed copy of the affidavit prior to
launching the present application. However, Ms Ntloko has confirmed
the correctness and accuracy of the affidavit telephonically in a
conversation with Cameron McConnachie, one of the applicants’
attorneys.
I refer in this regard to the confirmatory affidavit of
Mr McConnachie, which will be filed together herewith. A signed copy of
Ms Ntloko’s affidavit will be filed before the hearing of this matter.
15
MUD SCHOOLS
34
The state of the classrooms at the seven schools is appalling. This is dealt with
in detail in the seven affidavits filed on behalf of the second to eights applicants.
I pray that those affidavits be read as incorporated herein.
34.1 By way of example, Nomandla SPS was founded in 1991. Until recently,
it consisted of five mud structure classrooms, all of which have fallen into
an advanced state of disrepair.
The classrooms have dirt floors and
holes in the roof, which are made of corrugated iron or thatch. The
classrooms have walls that are crumbling and which provide little or no
protection from the elements.
34.2 The situation became particularly severe in May and June 2009 when
two storms resulted in the roofs of two of the classrooms being
destroyed, the corrugated iron roofs of two of the classrooms being
blown off, the collapsing of two walls of the classrooms and the roof
being blown off of a newly constructed block of pit latrine toilets.
34.3 Despite the repeated requests by Nomandla SPS for emergency
assistance, none was provided by the Department.
Instead, the
Department wrote saying that “the provincial office has no funds
available at this stage to entertain your request. The request will be revisited in future once funds improve / become available together with all
other cases on the needs register.”
34.4 Due to the damage to the school, four grades at the school had to be
accommodated in community members’ homes.
16
34.5 In the absence of any sign that the first and second respondents would
assist Nomandla SPS, the school began to construct three brick and
mortar classrooms. 60% of the funds for this project was raised from the
parents of learners, while the remaining 40% used the school’s entire
budget for “maintenance” and “municipal services”. This is not permitted
by DOE policy.
34.6 In April 2010, the school began using the three brick and mortar
classrooms, even though they had not been completed due to lack of
funds, because the school had no option. Despite this, the grade R class
is still being accommodated in a community member’s home, a mud flat,
as it cannot be accommodated at the school. Moreover, Grades 1 to 5
continue to be taught in the five mud classrooms that have fallen into
disrepair.
34.7 There remains severe overcrowding at Nomandla SPS.
Thus, for
example, the Grade 1 class has 61 learners accommodated in a mud
classroom which is approximately 30m2 in size. The grade 3 class has
31 learners accommodated in a mud classroom approximately 19m 2 in
size and the grade 5 class has 67 learners accommodated in a mud
classroom approximately 30m2 in size.
35
The effect of the inadequate infrastructure on school attendance at the seven
schools is palpable. For example, in respect of Tembeni SPS, approximately
only 30% of learners attend school when it rains due to the poor state of the
classrooms and its inability to accommodate the learners adequately.
17
36
The question of safety is also highly concerning. For example, the Madwaleni
SPS affidavit makes clear that a number of Madwaleni SPS learners have been
pulled out of school by their parents who are concerned about sending their
children to learn in unsafe and unhealthy conditions.
37
The first and second respondents have repeatedly recognised the inadequacy
of these mud structures and the need for them to be speedily replaced. (I point
out in this regard that the term “mud structures” includes the cinder block
structures at Sompa SPS – which has been repeatedly and rightly classified as
a mud-structure school by the ECDOE.)
38
However, the general promises from the first and second respondents
regarding when the replacement of mud structures would be effected have
repeatedly not been fulfilled. Moreover, despite the strong general sentiments
expressed by the first and second respondents concerning mud schools, the
first and second respondents have been unable or unwilling to provide any
indication of when the seven schools will have their mud structures replaced.
38.1 The national DOE’s 2001/2002 Annual Report set a goal of replacing all
mud structure schools, lowering classroom shortages and providing
water, sanitation, telephone lines and fences to all schools needing such
infrastructure by 2010. A copy of the relevant pages of the annual report
is attached marked Annexure “AMS6”
38.2 The national DOE was not able to meet this goal and amended the target
date within three years of setting it. Its 2004/2005 Annual Report pushed
18
the date for achieving this goal back to 2014. A copy of the relevant
pages of the annual report is attached marked Annexure “AMS7”
38.3 Despite this extended timeline for achieving the broad range of goals
concerned, the national and provincial governments made clear that the
replacement of mud schools and the provision of water and sanitation
was to occur much faster. Thus, in 2004, then President Thabo Mbeki
stated in his state of the nation address that all mud schools would be
replaced within a year:
“- By the end of this financial year we shall ensure that there is no
learner and student learning under a tree, mud-school or any
dangerous conditions that expose learners and teachers to the
elements;
- By the end of the current financial year we expect all schools to
have access to clean water and sanitation.”
38.4 A copy of the relevant page of President Mbeki’s speech is attached
marked Annexure “AMS8”. These goals were not met.
38.5 Three years later, in 2007, then Eastern Cape Premier Nosimo Balindlela
stated in her State of the Province Address on 16 February 2007 that the
eradication of mud structures was a key priority of the Provincial
Government and would be completed by the end of 2008. She stated:
“The mud structure eradication programme will see all mud
structures replaced by permanent structures by the end of 2008.”
38.6 A copy of the relevant page of the Premier’s speech is attached hereto
and marked Annexure “AMS9”. However, this did not occur.
19
38.7 In the foreword to the ECDOE’s 2007/2008 Annual Report, the MEC for
Education then stated that eradicating “mud and other unsafe school
buildings” was a “key priority” for the ECDOE and “[d]espite the problems
encountered in infrastructure delivery, the Department aims to complete
this initiative in the 2009/10 financial year.” A copy of the relevant page
of the report is attached marked Annexure “AMS10”. This too did not
occur.
38.8 Premier
Balindlela’s
successor,
Premier
Sogoni,
committed
his
administration to the following at the end of July 2008:
“... We will also be tackling blockages in our school-building
programme to intensify our efforts to eradicate mud-schools and
class-room backlogs
For these things to happen, we need to deploy more capacity and
authority to our district offices to enable them to better monitor and
support schools in their area of jurisdiction; and also inequities in the
provision of both the professional and non-professional staff at
school level.”
38.9 A copy of the relevant page of the speech is attached marked Annexure
“AMS11”.
38.10 In the ECDOE’s 2008/2009 Annual Report stated as follows under
“Standard of Service”: “Eliminate mud structures by 2010 at the rate of
20%
per annum”.
The same page stated as follows under “Actual
achievement against standards”: “It was reported by infrastructure that
450 mud structures would be demolished in 2007/2008 and 376 would
remain for demolition after March 2009.” A copy of the relevant page of
the Annual Report is attached marked Annexure “AMS12”.
20
38.11 Yet, subsequently, the ECDOE’s Fourth Quarter Performance Report for
the period 1 April 2008 to 30 March 2009 stated that only 137 schools
with mud and unsafe structures were eradicated at the end of 2008/09. A
copy of the relevant pages of the Report is attached marked Annexure
“AMS13”.
38.12 In his 2009 State of the Province address, Premier Sogoni stated:
“There has been slow progress in the eradication of mud schools.
However, I am pleased to report that in the four months period between
October 2008 and this day, this programme has delivered 28 schools
to replace mud-structures that have been in existence for years, the
highest number at any other corresponding period.”
38.13 A copy of the relevant page of the speech is attached marked Annexure
“AMS14”.
38.14 In the latest State of the Province Address, delivered by Premier Noxolo
Kiviet on 19 February 2010, the Premier stated:
“The programme aimed at eliminating mud structures in the province
is also progressing well. In the current financial year we have
replaced 62 mud schools and 40 more will be finished by the end of
March 2010. We are revising our approach to the programme of mud
schools eradication. The focus of the new approach is on broadening
the scope and standardising the quality of delivery systems.”
38.15 A copy of the relevant page of the speech is attached hereto and marked
Annexure “AMS15”.
38.16 Despite the Premier’s reference to “progress” and the “new approach”
she mentions, the first and second respondents have been unable or
unwilling to provide any indication of when the seven schools at issue in
this matter will have their mud structures replaced.
21
39
In addition to these statements specifically concerning mud schools, in
November 2008 the Minister published the National Minimum Uniform Norms
and Standards for school infrastructure in terms of section 5A of the SA
Schools Act.
39.1 It is not entirely clear whether this was intended as a final determination
of these norms and standards or merely a draft determination for public
comment.
While the publication in the Government Gazette invited
comments on the norms and standards, the notice also stated that the
Minister “hereby determines” the standards concerned.
39.2 In any event, what is of importance is that at page 81 of the document,
the Minister specifies that the minimum unit size for a classroom will be
48m2. Copies of the relevant pages of the norms and standards are
attached as Annexure “AMS16”.
39.3 Of the 49 classrooms at the seven schools, only three meet this
requirement. Indeed some of the classrooms are only half the size of the
lower 40m2 figure.
40
The seriousness of the problems afflicting the seven schools in relation to their
mud structures is further re-affirmed by the recently enacted National Policy for
an Equitable Provision of an Enabling School Physical Teaching and Learning
Environment, to which reference has already been made. In assessing the
different kinds of learning environments concerned, the policy document breaks
down such environments into three main areas: basic safety, minimum level of
22
functionality and optimum level of functionality. In respect of the first of these it
states as follows at paragraph 4.10.1 :
“Basic safety entails the bare minimum of safety requirements below
which a school will be deemed inoperable and immediately closed.
For example, if a school does not have safe water, sanitation
facilities that meet national health standards, if learners are exposed
to intolerable elements such as intolerably bad weather, toxic
substances in their environment; extremely unsafe building
structures that could crumble on to learners, classrooms
overcrowded beyond a pre-defined threshold of classroom size, etc.”
(emphasis added)
41
Despite all of these sentiments, there is no sign at all that the seven schools
are likely to have their mud structures replaced with proper classrooms in the
foreseeable future. The seven schools have had no indication at all as to when
their mud classrooms will be replaced, if at all. This is despite the fact that
each of the schools has written letters and/or petitions pleading for urgent
assistance.
42
For example, on 24 February 2010, the Nomandla SPS Infrastructure Crisis
Committee sent a petition to the MEC. A copy of the petition is attached to the
second applicant’s affidavit. After recounting the massive problems facing the
school, the petition concluded:
“We understand that you cannot attend to all our demands but the
following items need to be provided urgently:
 Properly built classrooms, storeroom, staffroom, and admin block.
 School furniture
...
 Water tanks”
43
No substantive response was ever received to the Nomandla SPS petition, or
the similar petitions by the other six schools. Indeed, the only school even to
23
receive a confirmation of receipt was Madwaleni SPS, which received a letter
on 19 November 2009 confirming receipt of the petition and saying it had been
handed on to acting superintendent-general. No further response has been
received since then.
44
Moreover, the various ECDOE documents that the applicants’ attorneys have
managed to obtain suggest that there is no plan in place to deal with the
structures at the seven schools.
44.1 I refer in this regard to the initial ECDOE Infrastructure Delivery Plan
2008/2009. Copies of the relevant pages of the document are attached
marked Annexure “AMS17”. Five of the seven schools are listed as
“not on programme” and the two other schools (Maphindela SPS and
Nkonkoni SPS) are not listed at all. This indicates that the ECDOE had
no plan in place at that time to improve the infrastructure of the seven
schools.
44.2 It appears that, in April 2008, the DOE produced a “revised version” of
the “Infrastructure Delivery Plan 2008/2009”.
Copies of the relevant
pages of this revised plan are attached as Annexure “AMS18”.
In
terms of this revised plan, the position is as follows:
44.2.1 Maphindela SPS and Nkonkoni SPS were still not listed
anywhere on the plan. Thus, in respect of these schools the
position remained that the ECDOE had no plan in place at that
time to improve the infrastructure of the school.
24
44.2.2 Madwaleni SPS, Nomandla SPS, Sidanda SPS, Sompa SPS
and Tembeni SPS were now listed on the programme under
“Schools under Construction”. However, this was something of
a misnomer. “Construction” under the revised plan did not entail
them having their mud structures replaced. For example, the
revised plan’s “scope of work” for Tembeni SPS entailed “7
seats, 4x5000 litre water tanks, and 800m sock fence.” Tembeni
SPS did receive the water tanks and a fence, but no “seats” –
whatever that may mean – were ever delivered to the school.
Nor has Tembeni SPS seen or heard anything about its
classrooms being replaced or new classrooms being built. The
“scope of work” for the other four schools was virtually identical
and they too have not seen or heard anything about their
classrooms being replaced or new classrooms being built.
44.2.3 In addition, in the revised plan Sidanda SPS was now listed as
one of 116 schools under the “Rapid Intervention Programme Phase 5: Conventional Schools”. The nature and significance of
this particular program is not explained in the revised plan.
More than two years have elapsed since the revised plan was
published and Sidanda SPS has neither received new
infrastructure from the ECDOE, nor been informed of any plans
that
the
ECDOE
infrastructure.
may
have
to
improve
the
school’s
25
44.3 I refer also to the ECDOE’s “Budget Statement 2: 2009/2010” which is a
“summary of details of expenditure for infrastructure by category Vote 06”
and which gives details of expenditure planned up until the 2011/12
financial year.
44.3.1 Only one of the seven schools is listed on that budget statement
– indicating that there is no pending plan, in either the short or
medium term, to improve the infrastructure conditions at six of
the seven schools.
44.3.2 The school that is listed on the budget statement is Sidanda
SPS. It appears on page 242 of the budget statement. It is
indicated that the project duration is from April 2008 to March
2012, the projected cost of the project “at start” is R2,500,000,
and that it is estimated that R511,000 will be spent in
2010/2011, and R285,000 in 2011/2012.
The school was
unaware of these budgeted amounts until the applicants’
attorneys informed them. A copy of the relevant page of this
budget statement is attached as Annexure “AMS19”.
45
I stress that whatever the process the ECDOE has embarked on in order to
determine which schools are to be built, the schools themselves are entirely
unaware of this procedure. There appears to be no communication whatsoever
to the schools regarding what the criteria used are or how schools can get on to
the list. Nor is there any indication as to when the schools are likely to be built.
26
46
I point out, for example, that the only way in which the applicants’ attorneys
were able to obtain a copy of the 2010/2011 version of the ECDOE
Infrastructure Plan 2005-2014 (which has already been attached) was to get a
copy from the Public Service Accountability Monitoring Group.
46.1 The 2010/11Infrastructure Plan is plainly intended as a policy document
– it contains no details as to which specific schools will be dealt with
when.
46.2 However, even taking this into account, the document sheds no light on
why no plan has yet been developed for the seven schools.
For
example, it states:
“the two main criteria for the provision of new facilities, or upgrading /
replacement of facilities are the following :

Shortages of accommodation / facilities (ie overcrowding /
backlogs)

Condition of existing facilities (particularly if these are
considered unsafe or unsuitable for tuition).”
46.3 Yet, the seven schools satisfy both requirements.
47
This lack of transparency is at odds with the sentiments expressed on a paper
obtained by the applicants’ attorneys from the ECDOE website and titled
“Discussion Paper on Infrastructure”. A copy of the paper is attached marked
Annexure “AMS20”. It states:
“The criteria used and the basis for identifying new projects must be
transparent to ensure universal support for the project list. This is of
paramount importance.”
(at pp7 – 8)
27
48
In an effort to achieve some clarity on the position of the seven schools, on 30
April 2010, the first applicant, the CCL addressed a letter to numerous parties,
including the Minister and MEC.
A copy of the letter is attached marked
Annexure “AMS21”.
48.1 The letter explained that the CCL was concerned over certain policies
adopted by the ECDOE and the effect of those policies on schools in the
Eastern Cape and indicated that its concerns fell into three main areas:
the replacement of mud schools with proper facilities; the lack of desks
and chairs available to schools and access to adequate water at the
schools.
48.2 In respect of the mud schools issue, the letter emphasised that of great
concern to the CCL was that there appeared to be no proper financial
and operational plan to achieve the replacement of mud schools and that
the existing budgetary allocation for the objective was hopelessly
inadequate. Moreover, the letter emphasised that the CCL was aware of
nine primary schools in the Eastern Cape, all of which were mud schools
with appalling conditions, and none of which appeared to be specifically
catered for in any plan to replace the mud schools. This included the
seven schools at issue in the present proceedings.
48.3 The letter concluded by saying that it was the CCL’s preliminary view that
the policies and conduct of the ECDOE were unlawful and unreasonable
in at least the respects set out in the letter and, in the circumstances,
requested clarity on a series of issues. These included:
28
“8.1 What efforts, if any, had been made or are on going to ensure
that adequate budgetary provision is made to allow for the
replacement of mud schools?
...
8.4 Is the Department in a position to indicate when the following
schools will have their mud structures replaced, receive
adequate desks and chairs and have access to adequate water
and if not, why not?
[The CCL listed nine schools in this letter, including the seven
schools at issue in the present proceedings.]
8.5 What is the reason that none of the schools concerned is aware
of whether and when they will receive proper facilities to replace
their mud structures, the necessary desks and chairs and
access to adequate water?”
48.4 The CCL received a helpful reply from the Department of Water Affairs
concerning the issue of access to water, which is dealt with below. Apart
from this, no other response was received by the CCL from any of the
recipients of the letter, including from the Minister and MEC.
49
It is therefore clear that, as things stand, there is simply no sign – let alone a
reliable undertaking – that the seven schools will be dealt with in the
foreseeable future.
50
This is despite the fact that:
50.1 all seven of the schools were classified as “very weak” in the ECDOE’s
“May 2005 District Profile”, abridged versions of which are attached to
the second to eighth applicants’ affidavits;;
50.2 six of the seven schools fall into quintile 1 (the poorest quintile) according
to the ECDOE system for grading schools, while the seventh falls into
quintile 2;
29
50.3 all seven schools are located in the former Transkei, an area in respect
of which the ECDOE has said the following in its 2010/11 Infrastructure
Plan:
“The former Transkei homeland had been the most deprived region
in South Africa and had been severely under-resourced prior to
1994, and that post-1994 insufficient effort was made to effect
redress in this region.” (at p9).
50.4 six of the seven schools are located in the Libode district which,
according to the ECDOE 2010/11 Infrastructure Plan, is the district with
the highest degree of socio-economic deprivation and disadvantage in
the Eastern Cape;
50.5 the extensive investigations of the Legal Resources Centre, the
applicants’ attorney, which include discussions with numerous schools in
the former Transkei area, indicate that the conditions at these seven
schools are the worst or, at least, among the worst of any schools in the
Transkei region.
51
Moreover, it is clear that the first and second respondents’ lack of progress in
addressing mud-schools in the Eastern Cape is substantially due to difficulties
caused by government conduct. Thus, in the ECDOE’s “Discussion Paper on
Infrastructure”, which has already been attached, the following is stated:
“The Department’s infrastructure delivery programme since 1995 has
unfortunately suffered a number of setbacks. These have usually
been a result of unfortunate budget cuts, but the most recent
disruption (2007 – 2008) was due to a management decision on the
delivery model (which has since been reversed).
The infrastructure unit has also been grossly understaffed, a
situation that has grown steadily worse over the past few years.”
30
52
The same paper added that until fairly recently the ECDOE “was acknowledged
nationally as a leader in the field of infrastructure delivery” but that this “has
changed to such an extent (over a period of only some 2 years) that the
Department now lags behind most provinces”.
53
The paper also acknowledges that the existing budgets will not be sufficient to
meet all existing needs.
53.1 It states the budgets “are hopelessly inadequate to eradicate the
backlogs in the province” and goes on to say:
“To eliminate the backlogs … within a reasonable timeframe will
require a quantum step up from existing budget levels”
53.2 It concludes that:
“[T]he current budget levels for infrastructure provision and
maintenance are wholly inadequate. A serious effort needs to be
made to source redress funding to address the backlogs within an
acceptable timeframe. Given the magnitude of these backlogs, this
will require a major political intervention from a national level.”
54
The inadequacies of government’s conduct in this regard are further confirmed
by an ECDOE memo sent by one Z. Tom, the Chief Director: Facilities and
Infrastructure Management, to Cluster Chief and District Directors on 13 May
2009. A copy is attached marked Annexure “AMS22”. It states:
“The object of this letter is to inform all districts that the allocated
budget for this financial year, is totally insufficient to fund all the needs
already on the database as well as needs still to be identified and/or
submitted. The budget of Facilities Management has been reduced by
approximately R360m for the 2009/1010 financial year. All District
31
Directors are requested to inform all principals and SGB’s including the
offices of Facilities Management of the current state of affairs.
All forwarded information and requests from the Districts and schools
will not receive immediate attention or action due to the financial
environment described above.”
55
The CCL understands that the effect of this letter was to impose a moratorium
on all buildings projects and school infrastructure maintenance needs for the
2009/10 financial year, only five months into that year. It is not clear whether
this moratorium has yet been lifted. I invite the first and second respondents to
provide full details in this regard.
56
There have recently been statements by the Minister that again show a stated
intention, at least at national level, to change this situation.
56.1 In this regard, I draw attention also to an article that appeared in the
Daily Despatch on 18 June 2010, together with the publication of the
National Policy. A copy of that article is attached marked Annexure
“AMS23”. The salient features of the article include that:
56.1.1 a R9.7 billion investment in the construction of future schools
nationwide had been promised by national government;
56.1.2 according to Ramasethe Solly Mafoko, Director for Physical
Resources Planning in the national DOE, “schools that are
below basic functionality in terms of the norms and standards
will be targeted first” and that this referred to schools that did not
have basic facilities like water, sanitation and electricity; and
32
56.1.3 again according to Mr Mafoko, “dilapidated and inappropriate
structures like mud and metal schools would be first on the list”.
56.2 Moreover, the Minister has stated in an article in the Mail & Guardian on
2 July 2010 that:
“I have also taken measures to ensure that we address the
infrastructural backlogs in the system through an accelerated school
infrastructure delivery initiative. Together with the National Treasury
and the Development Bank of Southern Africa, we are using a new
model that will enable us to utilise the construction capacity of the
2010 FIFA World Cup to eradicate once and for all inappropriate
school buildings”.
56.3 A copy of the article is attached marked Annexure “AMS24”.
57
However, despite these developments, the applicants remain acutely
concerned about the fact that, as things stand, there is simply no reliable
commitment – let alone an assurance or concrete plan – that their needs will be
met in the foreseeable future.
Unfortunately, repeated statements of good
intentions have come to nothing in the past.
33
ACCESS TO WATER
58
In respect of water, the affidavits filed on behalf of the second to eighth
applicants demonstrate the severe problems concerned. I pray that they be
read as incorporated herein.
59
None of the seven schools has a consistent supply of potable water and all are
dependent on rain water caught on roofs and stored in water tanks. This is
inadequate, particularly during the dry winter season.
60
Thus, for example, during the dry winter season, Tembeni SPS is often
completely without water. The closest source of water when the tanks are
empty is a stream that is approximately two kilometres from the school’s
grounds.
Moreover, the stream is often muddied by livestock and is not
suitable for drinking.
61
The position is almost identical in respect of Madwaleni SPS, which has four
water tanks to catch the rain but these are usually empty for about three
months of the year. At that stage, the learners are forced to get water from a
stream two kilometres away, which is often inadequate for obtaining drinking
water.
I point out that these facts concerning Madwaleni SPS were
inadvertently omitted from the affidavit signed by Mr Vula on behalf of the fourth
applicant. It has not been possible to obtain a further affidavit in this regard
prior to launching the present application. However, Mr Vula has confirmed the
correctness and accuracy of these facts telephonically in a conversation with
Cameron McConnachie, one of the applicants’ attorneys.
34
62
The first and second respondents have recognised the critical importance of
access to water for schools. Thus, for example, in then President Mbeki’s state
of the nation address in 2004, quoted above, he emphasised
“By the end of the current financial year we expect all schools to have
access to clean water and sanitation.”
63
Similarly, the recently enacted National Policy, already attached, in defining
“the bare minimum of safety requirements below which a school will be deemed
inoperable and immediately closed” stated that amongst these situations would
be “if a school does not have safe water [and] sanitation facilities that meet
national health standards”.
64
In the National Minimum Uniform Norms and Standards for School
Infrastructure published by the Minister, the following is stated regarding basic
services :
“Water: All schools will be provided with minimum / basic water
supply as stated in Section 3 of the Water Service Act 1997 (Act 108
of 1997). As in [the] case of sanitation the choice of appropriate
water technology to be used will be made at the discretion of the
MEC after all environmental assessments have been made. No
school is allowed to function without portable clean water.”
(para 3.20, emphasis added).
65
There is no sign that the problems of lack of access to adequate water and
sanitation facilities will be resolved in the foreseeable future.
The schools
themselves are entirely unaware of when, if at all, this might occur.
66
In its letter of 30 April 2010, referred to earlier, the CCL dealt with the lack of
access to adequate water. It stated that it was aware that rain water tanks had
35
been provided to numerous schools that did not have access to running water,
but emphasised that these were inadequate during the dry winter months. The
CCL emphasised further that:
66.1 it had been unable to find any policies that the Department had in place
in respect of the provision of water to schools that did not have access to
running water; and
66.2 it appeared clear that the seven schools at issue in this matter were not
receiving sufficient water to meet the needs of learners during the school
days.
67
The letter concluded by saying that it was the CCL’s preliminary view that the
policies and conduct of the Department were unlawful and unreasonable in at
least the respects set out in the letter and, in the circumstances, requested
clarity on a series of issues. These included:
“...
8.3 What policies exist and what efforts have been made, if any, to
ensure that schools have access to adequate water, particularly
in the dry winter months when there is insufficient rainfall?
8.4 Is the Department in a position to indicate when the following
schools will have their mud structures replaced, receive
adequate desks and chairs and have access to adequate water
and if not, why not?
[The CCL listed nine schools in this letter, including the seven
schools at issue in the present proceedings.]
8.5 What is the reason that none of the schools concerned is aware
of whether and when they will receive proper facilities to replace
their mud structures, the necessary desks and chairs and
access to adequate water?”
36
68
On 17 May 2010, the Department of Water Affairs responded in writing to the
CCL’s letter. A copy of the Department’s letter is attached marked Annexure
“AMS25”.
68.1 In that letter, the Department of Water Affairs set out in some detail its
programme for the delivery of water and sanitation services to schools.
68.2 It also made clear that the primary aim of the Schools Water and
Sanitation Programme was primarily to eradicate all water and sanitation
services backlogs “in schools that are formal structures but have no
water or sanitation services”.
68.3 The letter went on to say as follows :
“It was agreed by the two Departments (i.e. Water Affairs and
Education) that the schools that fall outside the scope of this
programme (e.g. the mud schools and farm schools) will be
addressed by the Department of Education.
The nine (9) mud schools referred to in your correspondence, were
not part of the original list of schools that the Department of Water
Affairs implemented as they did not meet the said criteria.
Ensuring access to adequate water at the mud schools is the
responsibility of the Department of Education in consultation with the
OR Tambo District Municipality in this case.”
69
The letter from the Department of Water Affairs is helpfully informative.
However, in respect of the seven schools, it is extremely worrying. It appears
that the seven schools will all be excluded from the Department of Water Affairs
programmes for as long as they have not had their mud structures replaced.
Until that happens, access to water is the responsibility of the Department of
Education and the OR Tambo District Municipality, neither of which has
addressed the problem, or shown any intention of doing so. In other words until
37
the first and second respondents provide adequate school buildings, (of which
there is no sign or plan) the schools will also continue to be without access to
adequate water.
70
This has significant consequences for learners. For example, in the National
Policy, the Minister states as follows :
“As noted, learners are exposed to environments that pose both a
safety and health hazards. Ablution facilities are particularly
inadequate. Nearly 80% of schools have more than 50 learners per
toilet. For the girl child in particular, such constraints may adversely
impact on attendance and consequently in schooling and learning
outcomes. Inadequate provision may translate into denying these
children substantive access to ETSD, and thus violating their
constitutional rights.”
38
DESKS AND CHAIRS
71
At all seven schools, there is a severe lack of desks and chairs.
The position
in respect of each school is set out in the affidavit filed with regard to that
school.
72
For example, teaching and learning at Nkonkoni SPS is greatly hindered by a
shortage of furniture and extreme over-crowding in some classes.
72.1 The school has not received any new furniture since the 1980s and most
of it is in very poor condition.
72.2 There are only 78 desk spaces and 30 seat spaces for the 245 learners
at the school.
72.3 Due to overcrowding and a lack of furniture in the classrooms, it is
extremely difficult for the learners to write. Learners are forced to use
the floor, their knees, or the back of a peer rather than a suitable writing
surface when attempting to write.
72.4 The school does not have seats for any learners in grades three to six.
Teachers encourage learners to bring their own chairs. Some learners
bring old plastic chairs, beer crates or bricks to sit on. Many have to
stand during lessons or sit on the floor.
73
These problems afflict the other schools as well. For example, at Tembeni SPS
there are a total of 53 desk spaces and 42 chair spaces for 257 learners at the
school.
39
74
There is no sign that these problems will be resolved in the foreseeable future.
The seven schools themselves are entirely unaware of what the policies of the
first and second respondents are regarding the supply of desks and chairs and
when (if at all) they might receive such desks and chairs. The applicants’
attorneys and the CCL are similarly unaware and have been unable to find any
information regarding a policy concerning desks and chairs.
75
In its letter of 30 April 2010, the CCL:
75.1 stated that it had been unable to find any policies that the Department
had in place in respect of the minimum standards for the number of
desks and chairs for a given school or when and how such desks and
chairs were to be provided to the schools;
75.2 emphasised that it was clear that seven schools at issue in these
proceedings did not have sufficient desks and chairs for adequate basic
education to take place and that there had been no indication from the
Department as to when such desks and chairs could be received despite
letters written by the schools to the Department making specific
reference to this issue; and
75.3 raised the question:
“What policies exist and what efforts have been made, if any,
regarding the minimum standards for the number of desks and
chairs for a given school and when and how such desks and chairs
are to be provided to schools?”
76
The CCL received no answer to its letter in this regard.
40
77
The haphazard manner in which desks and chairs are supplied (when they are
supplied at all) is demonstrated by the fact that on 26 July 2010, after the
second applicant’s affidavit had been signed, Nomandla SPS unexpectedly
received fifty double desks from the ECDOE.
While this is a welcome
development, it is not clear how and why it occurred, nor why similar
interventions have not happened for the other six schools.
41
RELEVANT PROVISIONS OF THE CONSTITUTION, STATUTES AND FURTHER
POLICY DOCUMENTS
78
I do not wish, in this affidavit, to set out exhaustively the relevant provisions of
the Constitution, legislation and policy determining the legal obligations of the
first and second respondents with regard to school infrastructure. Nor do I wish
to deal in detail with the legal submissions that will be made by the applicants.
Those are all matters for legal argument. However, I briefly highlight certain
provisions by way of outline.
79
The Constitution
79.1 Section 29(1) of the Constitution of the Republic of South Africa provides
that “everyone has a right to basic education”. I submit that this right
involves at least education that is adequate and further point out, as
demonstrated above, that proper infrastructure, including access to water
and desks and chairs, is essential for adequate education to be provided.
79.2 Educating a child requires more than a teacher, a blackboard and a
book.
The right to education requires that a child study in a quality
school, including classrooms that are safe and conducive to learning.
79.3 Section 29(1) must be read together with a series of other constitutional
provisions including the right to human dignity (section 10); the right to
equality (section 9); the rights of children (section 28); the duty of the
state to respect, protect, promote and fulfil the rights contained in the Bill
of Rights (section 7(2)); the basic values and principles governing the
42
public administration (section 195); and the duty on the state to perform
its obligations diligently and without delay (section 237).
79.4 I point out that there has not yet been a definitive judicial interpretation
accorded to section 29(1) of the Constitution. It has therefore not yet
been definitively determined whether the right to basic education
entrenched by that section is to be dealt with:
79.4.1 in a manner similar to other, textually similar, rights such as the
right to life, human dignity and privacy;
79.4.2 in a manner similar to the socio-economic rights in sections 26
and 27 of the Constitution, on the basis that the state’s
obligation is to take “reasonable” measures to achieve the
realisation of the right; or
79.4.3 in some other manner.
79.5 It will be submitted that the first approach is correct, having regard to the
text of the Constitution. However, whatever approach is adopted, the
applicants submit that the conditions at the schools and government
conduct in respect of the seven schools (as set out above) breach the
right to basic education set out in section 29(1) of the Constitution,
particularly when read together with the other provisions of the
Constitution.
79.6 For example, without limiting the obligations of the first and second
respondents, even a “reasonableness” approach places a series of clear
obligations on the first and second respondents. These include that the
43
first and second respondents must make provision for those who are
most vulnerable; must not have a policy with unreasonable limitations or
exclusions; must develop a plan that is capable of being realised and
then implement that plan; must ensure that their plan caters for
emergency situations; and must ensure that there is proper and open
communication with those affected about the nature of plan.
79.7 The conduct and policies of the first and second respondents, as set out
above, do not meet these requirements.
79.8 Also of relevance in understanding the requirements of our Constitution
are statements by the United Nations Committee on Economic, Social
and Cultural Rights concerning the right to education. That Committee
has stated as follows in General Comment 13 regarding the “interrelated
and essential features” of the education to be provided to all children:
“(a) Availability - functioning educational institutions and
programmes have to be available in sufficient quantity within the
jurisdiction of the State party….;
(b) Accessibility - educational institutions and programmes have
to be accessible to everyone, without discrimination, within the
jurisdiction of the State party. Accessibility has three overlapping
dimensions:
Non-discrimination - education must be accessible to all,
especially the most vulnerable groups, in law and fact, without
discrimination on any of the prohibited grounds...;
Physical accessibility - education has to be within safe physical
reach …;
44
Economic accessibility - education has to be affordable to all...
(c) Acceptability - the form and substance of education,
including curricula and teaching methods, have to be acceptable
(e.g. relevant, culturally appropriate and of good quality) …
(d) Adaptability - education has to be flexible so it can adapt to
the needs of changing societies and communities and respond
to the needs of students within their diverse social and cultural
settings.
7. When considering the appropriate application of these
‘interrelated and essential features’ the best interests of the
student shall be a primary consideration.”
79.9 The conditions at the seven schools do not satisfy these requirements.
79.10 It is notable that the Minister has herself recognised the far-reaching
effect of the Constitution in this regard. In her National Policy for an
Equitable Provision of an Enabling School Physical Teaching & Learning
Environment, she considers the effect of the Constitution, the Schools
Act and the Learner Admission Policy and concludes as follows:
“Implication for the Teaching and Learning Environment:
The above three legal instruments demand that education, training
and skills development opportunities should be extended to all South
African learners in an equitable and non-discriminatory manner. The
currently wide disparities in the provision of the physical teaching
and learning environment violate the rights of citizens enshrined in
these instruments in two principle ways: Firstly by affecting physical
access to education and training… Secondly, by affecting the quality
of instruction learners are exposed to, thus leading to unequal
opportunity. This may be the case where intolerable differentials in
the environment – classrooms, special teaching rooms, laboratories,
co-curricular facilities, libraries, books and instructional materials,
equipment etc. – lead to substantial differences in learning
outcomes. Equity in the provision of an enabling physical teaching
45
and learning environment is therefore a constitutional right and not
just a desirable state.”
(para 2.6, p23, emphasis added)
79.11 The policy goes on to add:
“From a political and social angle the conditions under which some
learners are taught are simply unacceptable. It is reminiscent of the
old regime and socially and politically intolerable.”
(para 2.6.2, p23).
79.12 Similarly, in the National Minimum Norms and Standards for School
Infrastructure, attached previously, the Minister states as follows at para
1.1 “Equality of educational opportunity is one of the principles enshrined
in our Constitution. The Ministry of Education … interpret(s) this
principle as entailing equity of both education resource inputs and
thus education outcomes.”
80
South African Schools Act
80.1 The seven schools are all public schools in terms of the SA Schools Act.
80.2 Section 3(1) of the SA Schools Act states that “every parent must cause
every learner for whom he or she is responsible to attend a school from
the first school day of the year in which such a learner reaches the age of
seven years until the last school day of the year in which such learner
reaches the age of fifteen years or the ninth grade, whichever occurs
first.”
80.3 Section 3(3) of the SA Schools Act states that “every member of the
Executive Council must ensure that there are enough school places so
46
that every child who lives in his or her province can attend school as
required by subsection 1.” This, I submit, creates a duty on the part of the
MEC and first respondent to ensure that there are sufficient places and
infrastructure in order to meet the basic education needs of every child
required to attend school.
80.4 Section 3(4) of the SA Schools Act provides that:
“If a Member of the Executive Council cannot comply with subsection
(3) because of a lack of capacity existing at the date of
commencement of this Act, he or she must take steps to remedy any
such lack of capacity as soon as possible and must make an annual
report to the Minister on the progress achieved in doing so.”
80.5 More than 13 years have passed since the promulgation of the SA
Schools Act and it is submitted that the first respondent’s failure to
comply with section 3(3) of that Act or take sufficient steps to remedy the
lack of capacity is unreasonable and unlawful. It is also submitted that it
is unreasonable and unlawful to make attendance at schools
compulsory, yet not provide learners with safe structures, potable water,
or the most basic of furniture requirements to enable teaching and
learning to take place.
80.6 Section 34(1) of the SA Schools Act provides that “the state must fund
public schools from public revenue on an equitable basis in order to
ensure the proper exercise of the rights of learners to education and the
redress of past inequalities in education provision.” Past inequality is
particularly evident at the schools involved in this application. I submit
that the state is obliged under this section to fund the provision of
infrastructure required to provide basic education. I also submit that this
47
necessarily includes provision of safe buildings, desks and chairs, and
potable water.
80.7 This duty is imposed on the MEC and first respondent in terms of section
12(1) of the SA Schools Act. This section provides that “the Member of
the Executive Council must provide public schools for the education of
learners out of the funds appropriated for this purpose by the provincial
legislature.”
81
Eastern Cape Schools Education Act 1 of 1999
81.1 Section 4(1) of the Eastern Cape Schools Act states that the MEC shall
determine school education policy in the Province within the framework
of, inter alia, the following principles:
“(a) every person shall have the right to basic education and to equal
access to schools and centres of learning;
...
(c) no learner or educator shall be unfairly discriminated against by
the Department...;
(d) There shall be a duty on the Department to foster the
advancement of persons or groups or categories of persons
previously disadvantaged by unfair discrimination, in order to
enable their full and equal enjoyment of education rights without
disadvantaging other persons or groups or categories of
persons;...”
81.2 I submit that, in light of the over-crowding, absence of proper
classrooms, lack of potable water for much of the school year and the
absence of suitable desks and chairs, the MEC and first respondent have
failed to fulfil their duties outlined above and that this is both
unreasonable and unlawful.
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82
The National Education Policy Act 27 of 1996 (NEPA) and the Amended
National Norms and Standards for School Funding 2006
82.1 Section 4 of the NEPA provides that the Minister’s national education
policy must, inter alia, be directed towards—
82.1.1 the advancement and protection of the fundamental rights of
every person including the right “of every person to be protected
against unfair discrimination within or by an education
department…on any ground whatsoever” (section 4(a)(i)), the
right of “every person to basic education and equal access to
education institutions” (section 4(a)(ii)), the right of “a parent or
guardian in respect of the education of his or her child or ward”
(section 4(a)(iii)) and the right of every child to his or her
education (section 4(a)(iv));
82.1.2 “enabling the education system to contribute to the full personal
development of each student, and to the moral, social, cultural,
political and economic development of the nation at large,
including the advancement of democracy, human rights and the
peaceful resolution of disputes” (section 4(b)).
82.1.3 “achieving equitable education opportunities and the redress of
past inequality in education provision...” (section 4(c)).
82.2 Pursuant to the NEPA, the present Minister’s predecessor, Naledi
Pandor, established the Amended National Norms and Standards for
School Funding (“Norms and Standards for Funding”) in August 2006.
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82.3 The Norms and Standards emphasise the right to education contained in
section 29 of the Constitution and states that the “basic principles of state
funding of public schools derive from the constitutional guarantee of
equality and recognition of the right of redress” referred to in section
34(1) of the SA Schools Act (at paragraphs 13 – 16).
82.4 The Norms and Standards go on to say as follows (at paragraph 36) :
“An important assumption underlying these national norms is that the
national and provincial levels of government will honour the state’s
duty, in terms of the Constitution and the SASA, to progressively
provide resources to safeguard the right to education of all South
Africans. However, educational needs are always greater than the
budgetary provision for education. To effect redress and improve
equity, therefore, public spending on schools must be specifically
targeted to the needs of the poorest. This will apply to both the
General Education (Grades 1 – 9) and the Further Education and
Training (Grades 10 – 12) phases.”
82.5 Also of relevance is the following statement from the Norms and
Standards at paragraphs 39-40:
“Poor people, on the other hand, especially in former homeland
areas, have contributed a disproportionate share of their incomes
over many decades to the building, upkeep and improvement of
schools, through school funds and other contributions, including
physical labour. All too many schools in poor rural and urban
working-class communities still suffer the legacy of large classes,
deplorable physical conditions, and absence of learning resources,
despite a major RDP National School Building Programme, and
many other projects paid directly from provincial budgets. Yet the
educators and learners in poor schools are expected to achieve the
same levels of learning and teaching as their compatriots.
Such contradictions within the same public school system reflect
past discriminatory investment in schooling, and vast current
disparities in the personal income of parents. The present document
addresses these inequalities by establishing a sharply progressive
state funding policy for ordinary public schools, which favours poor
communities.”
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82.6 A copy of the relevant pages of the norms and standards is annexed
hereto marked Annexure “AMS26”.
APPROPRIATE RELIEF
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The relief sought by the applicants in this matter can be divided into two parts.
The first part, consisting of prayers 1 – 3, concerns declaratory orders that the
failure of the first and second respondents to provide the seven schools with
proper school facilities, access to adequate water and sufficient numbers of
desks and chairs and/or to develop and/or make known a plan or plans to
provide such is unconstitutional and unlawful. I submit that the applicants are
entitled to such a declaratory order.
84
The second part, consisting of prayers 4 – 6, concerns the need to create an
appropriate mechanism to ensure that this long-standing unlawful and
unconstitutional state of affairs is rectified. The applicants have been mindful of
the need to allow the first and second respondents sufficient flexibility to
properly address the issues concerned.
84.1 Accordingly, prayer 4.1 affords the first and second respondents 30 days
in which to develop a plan or plans, in consultation with the applicants, to
provide proper, appropriate and adequate school facilities and access to
adequate water to the schools. Prayer 4.2 requires that the first and
second respondents file an affidavit with this Court and the applicants’
attorneys setting out the plan or plans developed in this regard and
51
details of when and by whom the necessary steps will be taken by the
first and second respondents to implement the plan or plans concerned.
84.2 In respect of desks and chairs, prayer 4.3 requires the first and second
respondents to provide the schools with sufficient numbers of desks and
chairs as per annexure “A” to the Notice of Motion. This entails the
provision of one desk space and chair for each learner at the school to
the extent that such desk spaces and chairs are not presently available
to the school.
85
Prayers 5 and 6 then require the first and second respondents to file reports on
affidavit with this Court and the applicants’ attorneys at least every three
months setting out the progress that has been made pursuant to the other
orders and allows any of the parties to re-enrol the matter for hearing at any
stage, if necessary on duly supplemented papers, to deal with any need for
further orders arising out of the other orders.
This I submit is plainly
appropriate in light of the situation, including but not limited to the lack of
communication from government to seven schools and the lack of progress that
has been made in respect of the seven schools, despite government’s repeated
statements concerning the eradication of mud schools.
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At the time that the second to eighth applicants’ affidavits were signed, the
Notice of Motion was not yet in final form. It is for that reason that those
affidavits do not specifically refer to the Notice of Motion.
In view of the
remoteness of the schools concerned from the applicants’ attorneys it has not
been possible to obtain further affidavits from the second to eighth applicants
52
prior to launching these proceedings. However, Cameron McConnachie, the
applicants’ attorney, has telephonically obtained confirmation from each of the
deponents to the second to eighth applicants’ affidavits that the second to
eighth applicants support the relief sought in the Notice of Motion in its final
form.
WHEREFORE the applicants pray for the relief set out in the Notice of Motion.
_____________________________
ANN MARIE SKELTON
I hereby certify that the deponent knows and understands the contents of this
affidavit and that it is to the best of her knowledge both true and correct. This
affidavit was signed and sworn to before me at __________ on this the ____day of
______________ 2010, and that the Regulations contained in Government Notice
R.1258 of 21 July 1972, as amended, have been complied with.
________________________________
COMMISSIONER OF OATHS
Full names:
Address:
Capacity: