They relied on the obligation of the state to “respect, protect, promote and fulfil the rights in the Bill of Rights” as is demanded by section 7(2) of the Constitution. The Respondents were the Government, the Minister of Basic Education, as well as the Members of the Executive Council for Education in all of the Provinces, and the South African Human Rights Commission (SAHRC).
In particular, the Applicants averred that the State had failed to respect, protect, promote and fulfil the rights of all children in South Africa to a basic education through:
- consistently failing to equip the majority of leaners in South African public schools with sufficient literacy and numeracy skills to attain functional literacy, which is central to basic education;
- failing to ensure that delivery of textbooks and teaching materials took place timeously in all public schools in the appropriate quantities and in the appropriate languages as used in each individual school according to the enrolment of learners;
- failing to take reasonable steps to equip all teachers in public schools with adequate skills and with suitable training to perform their tasks at a level enabling them to deliver basic education;
- failing to take reasonable steps to curb the high incidence of teacher absenteeism in schools; lack of accountability on the part of teachers, as well as the lack of professionalism amongst the majority of teachers;
- failing to prevent marginalisation and neglect of languages; and
- the failure to deliver comprehensive early childhood development services.
The Applicants sought a structural and declaratory interdict, to address the State’s systemic failure to deliver the right to basic education. Essentially this would be an interdict to the State to take all such measures on an urgent basis. The interdict would also have seen the State take the necessary interim steps in order to reasonably and responsively address each of the identified issues. Additionally, within four months of the interdict, the State would be obliged to report on the implementation of the steps referred to above. Such report would be delivered to Chapter 9 institutions, including the SAHRC.
In arguing their case, the Applicants reviewed all of the State’s steps – whether policy, programmes or plans – to argue that the steps taken thus far fell far short of what the Constitution requires. In addition, the Applicants provided evidence from education experts to support the latter contention.
They raised the issue of separation of powers to argue that the courts had a responsibility to ensure that unconstitutional conduct is declared invalid, in line with section 172 of the Constitution, which establishes the powers of courts when adjudicating constitutional matters. In addition, the declaratory relief sought by the Applicants would allow the Court to declare the law and or conduct invalid, while leaving the decision as to how best to comply with the law, in the hands of the Executive. The structural interdict would further ensure effective monitoring, accountability and impartiality in the State’s compliance with the court order.
In assessing the Applicant’s case, the Court at the outset characterised it as resting on the quality and administration of the education system and the outcomes achieved – rather than the lack thereof. The Court considered that the Applicants should have rather mounted a challenge to the South African Schools Act, rather than directly challenging the Constitution. The Court stated that claims enforcing constitutional rights must be based on and brought in terms of the legislation enacted to give effect to the constitutional right concerned.
Based on the characterisation of the case, the Court stated that the direct reliance on an immediately realisable, but constitutionally unarticulated quality of basic education is legally incompetent. In any event, added the Court, other South African courts have identified textbooks, furniture and school buildings as necessary components to enable government to deliver basic education. This meant, for the Court, that there was some guidance for the State, for a minimum standard on the quality of the education. The Court further rejected the Applicant’s separation of powers argument, taking the view instead, that a court may not under the guise of protection of constitutional rights, encroach on the field of another arm of state and make orders reserved for the domain of such arm.
On the remedy sought by the Applicants – namely a structural interdict to enforce the order – the Court held that that the structural interdict would be impossible to enforce nationwide. Further, courts are not suited to adjudicate issues where court orders have multiple social and economic consequences for the community – therefore in such instances, the Court considered that it could only play a restrained role in the matter.
Adopting a cautious tone, the Court stated that Section 29 of the Constitution did not have a qualitative component, while the South African Schools Act merely referred to the provision of an education of progressively high quality. As such, there was no precedent with which the Court could gauge whether the required quality has been achieved. Under International law, namely the International Covenant on Economic, Social and Cultural Rights (ICESCR) the Court considered that the components of the right to basic education consist of “free and compulsory basic education, the duty of the State to make education generally available and the provision of special education”. These components are already offered by the State. Further, the ICESCR General Comment number 13 on the right to education does not entitle a right bearer to assert an immediate claim to a specific quantity – rather, it simply provides for everyone to be afforded a right to basic education.
For the above reasons, the Court dismissed the Applicant’s case. In doing so, the Court missed an opportunity to make pronouncements on the as yet unknown scope and content of the right to a basic education. The Constitution obliges the State to not only encourage education participation but also imposes a duty on the State to take positive measures to ensure that all children enjoy the right to basic education. Despite the plethora of laws and policies geared towards giving effect to the rights in and through education, it is a fact that many children are yet to enjoy these rights in practice. There are many factors, including recalcitrant unions, which hinder the full realisation of the right to basic education. Despite the adoption of legally binding Norms and Standards for School Infrastructure in 2013, there is still need for greater clarity on the State’s constitutional obligation.
High Courts are empowered to decide on any constitutional matter, and the Western Cape High Court indeed missed an opportunity to make pronouncements on what is needed in order to secure the right to basic education. It is imperative that the needs and concerns of South Africa’s vulnerable children play a central role in giving effect to the right to basic education. Importantly, the case also highlights the importance of a vigilant public that is prepared to play a role in the realisation of constitutional rights. Perhaps on appeal, a different court may very well differ from the Western Cape High Court’s views.
By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights