An important victory for education rights

But to support its small teaching staff there are just one cleaner and one security guard, both paid not by the province, but by the school’s governing body. There has been no secretary or receptionist for 10 years.

This is a problem recently grappled with by the Grahamstown High Court. The Court’s judgment last Friday was an important victory for the right to education.

The case was brought by the Centre for Child Law (CCL) and a number of school governing bodies, represented by the Legal Resources Centre (LRC). The National Association of School Governing Bodies (NASGB) represented by SECTION27 was a friend of the court.

The aim of the case was to compel the government to fill vacant teaching posts, to pay the salaries of temporary teachers whose employment was approved by government, or whose posts were agreed to by government, and to compel the government to announce the posts – including teaching and non-teaching – for 2013.

In the build-up to the case almost everything was settled, except for the question of non-teaching posts for 2013. Although this was the only question remaining it still made for a fascinating and important judgment.

The backdrop of political failure that necessitated this case was made plain by the Court:

At the heart of the problem lies the longstanding failure of the provincial Department of Basic Education to attend to post provisioning. This failure has endured for over a decade. The result is that some schools have more teachers than necessary while others have too few teachers… As the provincial department failed to take steps to transfer surplus teachers to where they were required, the budget spiraled out of control because teachers at under-resourced schools were appointed to fill vacant posts on a temporary basis.

This created its own set of problems when, in order to cut costs, the provincial department dismissed some 4 000 temporary teachers, only to be compelled by the court to re-instate them. Other casualties of this abject lack of management were the school nutrition program, which provided a meal a day for school children, and the school transport scheme, which allowed for scholars to be conveyed to and from school instead of having to walk long distances.

The other important piece of background explained by the Court was the attempt by the national government to intervene into the Eastern Cape in order to resolve these problems. In early 2011 the national minister Angie Motshekga announced that she would use section 100(1)(b) of the Constitution to place the national department in charge of education in the province. This intervention has been fraught, partly because it was resisted by local officials who received a sympathetic ear from a President with an eye on provincial support at Mangaung.

Judge Plasket, who wrote the judgment, explained:

The Constitution allocates powers to three spheres of government, the national, the provincial and the local sphere. Generally speaking, one sphere of government may not usurp the powers of another sphere. Section 100 of the Constitution, however, allows for the national government to intervene in a provincial administration in certain defined instances.

In his judgment Plasket also reminds us that the Constitutional Court has previously described these powers as ‘highly circumscribed’ and appropriate only in ‘exceptional circumstances’, ‘temporarily and in compliance with strict procedures’.

Nevertheless, and importantly, the Court held that under section 100 the national government ‘assumes the powers of the provincial administration, and it also assumes its obligations.’ On that basis, the Minister could be held accountable by the Court.

Another important aspect of the judgment is what it says about the right to a basic education. In response to Equal Education’s school infrastructure case the Minister intends to argue that when a court interprets the right to education in the Constitution ‘account has to be taken of socioeconomic realities’ like ‘budgetary constraints’ and the need to make improvements ‘progressively, over time’.

But Judge Plasket makes clear that this is incorrect. He states that the ‘right of children attending public schools … to a basic education … is enshrined, without qualification’. He referred to the Constitutional Court’s judgment in the Juma Musjid case which held:

Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”.

The Grahamstown court applied these strong principles to the one issue that was left to resolve: whether the 2013 posts needed to include non-educators. Plasket came crisply to his point: ‘[W]ithout proper administration in schools the right of scholars to basic education is threatened.’ He cited Mary Waters School as an example.

Plasket went on to explain that where ‘security is lacking, the rights to dignity and to security of the person, as well as children’s rights in terms of s 28 of the Constitution, may be implicated. When administrative capacity in a complex institution like a school is non-existent, administration either breaks down or has to be performed by teachers who have to deviate from their core functions to perform tasks that they are not trained or expected to perform.’

He relied on the Public Service Act and the SA Schools Act in reaching his conclusion:

[T]he MEC is empowered to and obliged to determine the establishment for both teaching staff and non-teaching staff at public schools in the province.

A few final aspects of this case are worth remarking upon.

Firstly, it shows the importance of norms and standards in education. The Court relied upon the Norms and Standards for School Funding (2006) which ‘postulate an adequate number of both teaching and non-teaching staff to be employed at each school’. As is now well known, no such norms and standards exist in regard to school infrastructure.

Secondly, as agreed in the settlement talks, the Court ordered the department to ‘ensure the movement of teachers who are additional to the educator establishment of their schools’. If this is implemented it will begin to address the oversupply of teachers in some schools and undersupply in others.

Thirdly, Judge Plasket has ordered the Minister to provide the Court with detailed reports on 3 September 2012, 4 December 2012 and 31 January 2013.

Fourthly, the case gives a quick glimpse of how government would misuse the Secrecy Bill. In the course of the litigation a document was placed before the Court entitled ‘Statement of Intent on the Remediation of the Present Challenges in Basic Education in the Eastern Cape Province’. This was the Minister’s original written justification for intervening in the Eastern Cape. Equal Education had long called for this document to be made public, but as the judge remarked it was ‘strangely and inexplicably’ classified as ‘top secret’.

This case should create jobs for non-educators. It should also improve the quality and equity of education in the Eastern Cape. These are progressive outcomes. The CCL, LRC, NASGB, and SECTION27 have achieved an important victory. Implementing the Court’s decision is now the real challenge, and this will require communicating the Court’s order, and building organised strength on the ground. The case has struck a blow for effective implementation of teacher post-provisioning. It has not raised the underlying question of inequity in the way posts are allocated in the first place, but that is a battle for another day.

Doron Isaacs is Deputy General Secretary of Equal Education. You can follow him on Twitter: @doronisaacs