This is not the first time that the Department of Basic Education (DBE) has been in the spotlight for failing to provide textbooks. In 2012, the well-documented Limpopo textbooks case, as it came to be known, made headlines. In that case, the North Gauteng High Court held that the Department’s failure to implement its own policy to provide every child in public schools with textbooks prior to the commencement of the academic year was a violation of the right to education. The DBE was ordered to ensure this was done every year. In 2014, after the DBE had repeatedly failed to fulfil its mandate, it approached the SCA citing lack of resources, as well as the fact that education as a socio-economic right, was to be progressively realised and was not set in stone. The SCA held that that this failure amounted to unfair discrimination by the DBE. The affected students were “overwhelmingly, if not exclusively” black learners from rural areas. This put those learners at a stark disadvantage when compared to their peers in other provinces as this problem was only in Limpopo. The SCA declared that the DBE was in breach of the High Court order and in violation of the rights to equality and dignity.
Many government departments have a history of flouting court orders and invariably, those affected are society’s most vulnerable. Limpopo and the Eastern Cape are two of the poorest provinces, consisting largely of rural areas. The vulnerability of these children can only be compounded by a dysfunctional education system which consistently puts their more advantaged peers first. This trend perpetuates the belief that good education, and therefore equality and dignity, are reserved for the privileged.
The DBE was allocated a budget of R204 billion in 2016. In 2017, it was allocated, together with the Department of Higher Education and Training, R320.5 billion. This amounts to 17.5% of the National Budget and yet it consistently fails to execute its duty because resources do not allow it. Considering these figures and the defiance exhibited by the Department, it seems unlikely that this reason is genuine. The Eastern Cape DBE underspent its budget by R500 million last year and failed to deliver on a core element of the right to education.
The progressive nature of socioeconomic rights is often a gripe for the beneficiaries of the rights. The right to basic education, unlike other socioeconomic rights, creates a positive right for which there are no internal qualifiers and requires direct realisation. The phrasing or terminology does not mean government can sit on its hands and cite lack of resources when asked to account for its failure to execute its mandate. The repeated failure to provide textbooks by the Department does not meet this constitutional standard. The government is required to provide means for the fulfilment of this right, such as buildings and qualified teachers, as well as to take steps to ensure that the right is not interfered with by anyone.
The fact that this happens in some provinces and not in others means that perhaps the problem does not lie with the national DBE, but rather with provincial departments. National departments ensure that books are delivered to the provinces but the provinces then fail to follow through on distribution. And whilst the DBE undoubtedly bears the responsibility for this failure, assistance from outside actors could help improve the situation. The South African Democratic Teachers Union (SADTU) could be a positive force used to compel the DBE to fulfil its mandate timeously, as well as to serve as a monitoring body.
Generally, by global standards, there has been a decline in the standard of education in South Africa over the years. This can only be compounded by learners failing to receive the tools necessary to obtain a good quality education. The beauty of justiciable socioeconomic rights is the protection they afford vulnerable groups. The only thing they cannot do is guarantee that court orders are followed by the responsible government departments. Between #FeesMustFall and textbook mishaps, South Africa (read the DBE) needs to rethink its strategy. It must bring the execution of its mandate in line with the constitutional framework which informs its functions to allow the holistic enjoyment of the rights envisaged in the Constitution. Such a strategy must work not just on paper but in reality – to prevent another child from competing unevenly through no fault of their own.
Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
