Govt delay in fixing poor, unsafe school infrastructure 'unconstitutional' - court

2018-07-19 17:50
School desks. (Duncan Alfreds, News24)

School desks. (Duncan Alfreds, News24)

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The Eastern Cape High Court in Bhisho has ruled that it is unconstitutional and invalid for the government to delay fixing poor and unsafe school infrastructure. 

The ruling was made on Thursday in what has become known as #FixTheNorms matter which advocacy group Equal Education (EE) instituted against the Department of Basic Education (DBE).

In her judgment, Acting Judge Nomawabo Judge Msizi said: "I cannot fathom a reason why, given the nature of the right in question and the abundant crisis, the respondent cannot develop a plan and allocate resources. In the event that she (Minister Angie Motshekga) alleges that she is unable to do so, it is incumbent upon her to justify that failure."  

She said, as she understood the argument which Motshekga put forward, the minister's hands were tied.  

"The natural consequence flowing from the stance of the minister is that government can never be expected to account. Further, it means that the public cannot ascertain whether, when and what school infrastructure to expect," said judge Msizi.

In a statement, EE described the judgment as a "momentous victory" which has "strengthened the ability of [pupils], teachers, parents, communities and civil society organisations to hold the state to its duty of protecting learners' right to dignity, equality and education". 

"Armed with an improved infrastructure law, EE will continue to keep a very close eye on the DBE and on the provincial education departments. We will not back down from the fight for quality school infrastructure," EE said.  

On November 29, 2013, the department set out regulations for Norms and Standards for school infrastructure.

In terms of the regulations, a deadline of November 29, 2016 – which had not been met - was set to ensure that no school was without water, electricity or sanitation. 

EE's request was that the government should commit to meeting its own infrastructure targets.

EE asked the court to address the following: 

- The escape clause, which said that infrastructure standards need only be met if co-operation and resources were forthcoming from "other government agencies and entities responsible for school infrastructure". According to EE, the implication of this clause was that, "if Eskom, implementing agents, municipalities, or the fiscus failed to come to the party, continued generations of [pupils] would suffer the infrastructural legacy of apartheid and colonialism in schools".

- The exclusion of schools built partly or substantially from inappropriate materials (such as mud, wood, zinc and asbestos).

- The lack of an accountability mechanism ensuring that Norms and Standards plans and progress reports are made public.

- The exclusion of schools for which plans existed before the adoption of the Norms and Standards were published. 

Judge Msizi declared the current phrasing of the Norms and Standards, which obliged the national DBE to only fix schools made "entirely" of inappropriate materials as inconsistent with the Constitution. 

"The court agreed that this is unconstitutional and invalid and instructed Minister Motshekga to amend the Norms and Standards to provide that plans and reports are made publicly available within a reasonable time after she receives them from provinces," it said. 

The organisation said the court ruled that the regulations should be changed to reflect that all "classrooms built entirely or substantially" of inappropriate materials should have been replaced by November 29, 2016.

"The court said it is inconsistent with the Constitution that plans for building and upgrading schools that were in place before the Norms and Standards were published, do not have to meet the standards set out in the law.

"The court declared the current phrasing of the Norms and Standards, which obliges the national Department of Basic Education (DBE) only to fix schools made "entirely" of inappropriate materials as 'inconsistent with the Constitution'."

EE said, while the adoption of the Norms and Standards has yielded progress, dangerous and inadequate learning conditions still persisted. 

In March, a five-year-old girl died after falling into a pit toilet at a primary school in the Eastern Cape.

News24 reported at the time that little Lumka Mketwa died at Luna Primary School in Bizana.

She is understood to have been in Grade R.

In 2014, five-year-old Michael Komape drowned after he fell into a pit toilet at his school in Limpopo.

Limpopo High Court Judge Gerrit Muller ruled in April that two of Komape's siblings be paid R6 000 each for general medical expenses.

However, according to legal advocacy group Section 27, which represented the family, the High Court failed to recognise the multiple related functions and purposes of compensation for the vindication of constitutional rights.

Muller granted the family leave to appeal to the Supreme Court of Appeal in respect of the R2m claim for grief the family had suffered, and for future medical expenses and loss of earnings. The family can also appeal in respect of declaratory relief sought.

The judge has, however, declined to grant leave to appeal in respect of a claim for emotional trauma and shock. The family sought R940 000.

"For two years EE attempted to engage Minister Motshekga on the problems in the law, while following up on progress in work to fix South Africa's schools," EE said.

"Our request was simple: for government to commit to meeting its own infrastructure targets. During this time, Minister Motshekga failed to respond substantively to the problems that we identified in the law."

Read more on:    equal education  |  service delivery  |  education

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