It is important to understand that human rights are interrelated, indivisible and interdependent and as such, the right to basic education, as enshrined in section 29 of the Bill of Rights (BoR), cannot be achieved without the fulfilment of other rights. The failure of the State to provide access to adequate sanitation affects the access to human dignity, education, healthcare, and, has been seen, in some cases, to the right to life. The right to education has long been an issue in the EC, Limpopo and even in KZN, where children walk long distances in the dark to get to school on time.
Equal Education, a non-governmental organisation (NGO) which advocates for quality and equality in the South African education system, has taken the DBE in the EC to court demanding the prioritisation of infrastructure plans for what have been described as “forgotten schools” in the province. The infrastructure in question does not only refer to buildings, but includes water and sanitation. These improvements were stipulated in the binding regulations for norms and standards issued by the DBE in November 2013, wherein the content of the right to basic education is elucidated. The deadline for their implementation was November 2016 and was not met.
Equal Education also seeks to use the law to force the DBE to fulfil its constitutional duties. The State argued that the fulfilment of these regulations depends on the available resources and has cited budgetary constraints as an impediment to their execution. This is problematic, as the right to basic education is unique in its construction. It is the only socio-economic right in the BoR – i.e. one that requires resources from the State for realisation – that does not come with the standard qualifier of progressive/incremental realisation. There is no room in this regard for the State to progressively realise the right, rather, it must realise it. This means that the State must go above and beyond to ensure that all learners have access to basic education and all the tools required to access it.
In addition, the DBE has said that its ability to fulfil its obligations rests on compliance by other State actors, namely the Department of Public Enterprises (whose responsibility is infrastructure in the country), the embattled Department of Water and Sanitation, as well as the Department of Energy (which is in charge of electrical infrastructure). Whilst this may be true, none of the parties were identified as necessary to the proceedings in the Bisho High Court. An obvious question then must be asked: has there been collaboration or communication between the DBE and the above-mentioned departments in its endeavour to meet its mandate?
The DBE is known for dragging its feet when it comes to its mandate, as has been noted from matters such as the textbook case in Limpopo. In 2015, R530 million was returned to National Treasury by the EC DBE after failure to use the funds – not for lack of projects to fund – for several years in a row. Basic education is an area of concurrent responsibility between national and provincial government, meaning that the responsibility to address unique problems in a province lie with said province. The lack of capacity on the part of the EC DBE has been repeatedly called into question. This situation is compounded by the perennial politicking by the South African Democratic Teachers’ Union (SADTU), which has been an impediment to the realisation of the right via vexatious litigation, selling of teaching posts and frustrating efforts for innovation at the Department.
Section 27, another prominent civil society organisation, is currently awaiting judgment in the Michael Komape case, where it requested a decision on the DBE’s liability for infrastructure and constitutional damages, in addition to common law damages. Following this week’s iconic arbitration award in the Life Esidimeni case – where R1 million worth of constitutional damages were awarded to each family – another constitutional damages award against the State could result in the vindication of the rights of learners across the country who have sub-standard facilities at their schools.
That the only way the DBE will consider attending to the dire status of schools in the poorest of provinces is only after the needless deaths of young children, speaks to the absence of a human rights culture in the political leadership. Further, it highlights the lack of oversight and accountability in the responsible departments. A judgment that holds the DBE to account may mean that millions of parents will no longer have to worry that they will not see their children at the end of the school day. As we reflect after Human Rights Day, may the inequality and disregard that the State has exhibited towards those who need its assistance the most be motivation to uphold the rights in the Constitution.
By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
22 March 2018