Amid all this chaos, burning of buildings and budgetary analysis, very little has been reported on the status of the Department of Basic Education (DBE). It is perhaps easy to forget about basic education in far flung rural areas in the Eastern Cape whilst Oxford Street in Johannesburg is being blocked by student protestors.
It comes as no surprise then, that the order made by the Eastern Cape High Court in Grahamstown on 11 October 2016 – in which the South African Democratic Teachers Union (SADTU) agreed to not interfere with the Eastern Cape Department of Basic Education’s (ECDBE) ‘post provision process’ for the next three years – did not make headlines.
In order to appreciate the impact of this order, a quick summary of the facts follows. In terms of section 5(2) of the Employment of Educators Act of 1998 (EEA), the Head of the Provincial Department of Basic Education must determine the educator post establishment of each school in the province i.e. the distribution of teaching posts for each school. This is done after the Member of the Executive Council (MEC) for Education in the Provincial Government has determined the number of teaching posts for the province. Following this determination, the ECDBE found that some schools had vacancies whilst others have additional educators. In terms of section 6(3) of the EEA, the Head of the Department may then transfer these additional educators to understaffed schools, in order to address the need for educators. In order to identify these additional educators, District Directors and Principals were then requested by the ECDBE to submit resumés in respect of these additional educators, the procedure of which is all set out in the regulations to the EEA. The ECDBE estimated there to be approximately 4 200 additional educators in the system.
Following this, the ECDBE alleged that SADTU deliberately failed to cooperate with the Department’s ‘post provision process’ for years and that SADTU specifically instructed its members not to participate in the identification of additional educators. This has been followed with picketing by SADTU. According to the Department, 70% of educators in the province are members of SADTU. The Department urgently turned to the High Court in July 2016 in order to interdict SADTU from interfering with the Department’s post provision process and any further unlawful action by SADTU. It also asked for a declaration that SADTU has a constitutional duty to respect and uphold the right of children to basic education in terms of section 29(1)(a) of the Constitution, and not to interfere with this right. It is concerning that SADTU implied that it is under no such constitutional duty as it is not a public body and that no direct reliance on the Constitution can be made.
SADTU further submitted that the Department should have resorted to disciplinary action rather than turning to the High Court. The collective agreement made an order by the High Court on 11 October 2016, declared that SADTU acknowledges it has a constitutional obligation to promote and protect the right of children to basic education and the Union agreed to cooperate with the Department on its ‘post provision process’. SADTU also agreed not to engage in any picketing surrounding the terms of the agreement for the next three years. This agreement is a big victory for the Department and a small victory for access to basic education in a rural area in dire need.
This right to basic education in terms of section 29(1)(a) of the Constitution, which includes the right to adult basic education, is distinctive from the right to further education and any other socio-economic right, as it places a positive obligation on the State to give immediate effect to this right to everyone. This right is fundamental to the exercising of all other rights in the Bill of Rights and cannot be viewed one-dimensionally. The right can only be fully effective if the infrastructure and resources i.e. buildings, water, electricity, sanitation, textbooks and teachers are made available.
In the National Development Plan 2030 (NDP), improvement of education in underperforming schools was highlighted as a direct measure by which to attack poverty. In order to address this need, the Minister prescribed Regulations Relating to the Minimum Uniform Norms and Standards for Public School Infrastructure in November 2013, in terms of which all schools should have some form of power supply, water supply and a sufficient form of sanitation supply which must be realised within three years of promulgation – that is, by 29 November 2016.
However, the stark reality is that this fundamental right is far from fulfilled. According to the most recent National Education Infrastructure Management System (NEIMS) report delivered by the DBE in June 2016, of the 5 433 schools in the Eastern Cape, 1 893 only have a pit as an ablution facility. More shocking is that 62 of these 5 433 schools have no ablution facility at all. In KwaZulu-Natal, of the 5 839 schools, 343 were recorded to have no electricity supply and 91.55% of schools in the Eastern Cape have no library. In the DBE’s 2015/16 Annual Report, wasteful expenditure of R44 million was reported for the DBE’s adult literacy programme, Kha ri Gude. Where is the outcry? Where are the headlines?
Before even considering free further education for everyone, the fundamental right to basic education needs to be realised in full in all corners of this country, especially in rural areas where the cycle of poverty needs to be broken. Free further and higher education will have no value if the children of today are denied the opportunity to learn to read and write.
By Christine Botha: Legal Officer, Centre for Constitutional Rights