|2012 08 08 When our government obstructs transformation, the courts must intervene|
Aug 6th, 2012 by Pierre De Vos.
It is perhaps not entirely unreasonable to expect our government to do everything in its power to ensure a more equitable distribution of resources to public schools in an attempt to address the fundamentally unfair and unequal provision of education to learners across South Africa. While some schools are relatively well-resourced, others are chronically under-resourced. To a large degree these differences were caused by the apartheid government’s education policy, which deliberately lavished resources on schools exclusively reserved for white learners while starving schools reserved for black learners from the resources required.
While the unequal distribution of resources to various schools is not the only reason for the vastly unequal education received by different children in our country today, it does help to perpetuate apartheid-created inequalities in education. Even eighteen years after the end of apartheid, a child who happens to have been born to poor parents (who cannot afford to send their child to one of the better schools) will almost certainly be robbed of the opportunity to receive an education that would provide him or her with the chance to flourish in life and to reach his or her full potential. One would think that a government committed to social and economic transformation would leave no stone unturned to address this grave injustice — no matter how daunting and complex the task may sometimes appear to be.
For some utterly unfathomable reason, some officials and politicians do not seem to share the sense of urgency required to begin to rectify the lingering injustices of the past, which still haunt the provision of education in South Africa. This sad fact is well illustrated by the judgment in the case of Centre of Child Law and Others v Minister of Basic Education and Others, in which the Eastern Cape High Court was asked to deal with one aspect of the schools crisis in the Eastern Cape, namely the failure by both the Provincial and then the National Department of Basic Education to allocate teachers and administrative staff to those schools in need.
The court (in a judgment authored by Plasket J) explained the problem in the following terms:
At the heart of the problem lies the longstanding failure of the provincial Department of Basic Education to attend to post provisioning. This failure has endured for over a decade. The result is that some schools have more teachers than necessary while others have too few teachers, with consequent prejudicial effects on teaching and learning. As the provincial department failed to take steps to transfer surplus teachers to where they were required, the budget spiraled out of control because teachers at under-resourced schools were appointed to fill vacant posts on a temporary basis. This created its own set of problems when, in order to cut costs, the provincial department dismissed some 4 000 temporary teachers, only to be compelled by the court to re-instate them.
In other words, the Provincial Department had consistently failed to take steps to ensure a more equitable distribution of teachers and administrators to posts at schools in the Eastern Cape. While this has left some schools with too few teachers and administrators, it has left other schools with too many teachers and administrators. Instead of taking steps to address inequality in the provision of education (which often mirrors race and class divisions in our society), the Department’s inaction contributed to the perpetuation of the very inequality that our government constantly claims to be fervently in favour of eradicating.
The nature and extent of the crisis was recognised by the national Department of Basic Education. In a document dated 24 February 2011 entitled “Statement of Intent on the Remediation of the Present Challenges in Basic Education in the Eastern Cape Province”, the Minister expressed the view that “the problems being encountered in basic education in the Eastern Cape province are extremely serious” and that the “consequences of these problems are such that many learners in the province are already being denied their full rights to quality basic education”. On the basis of this report the national government intervened to take over the running of the Provincial Education Department in terms of section 100 of the Constitution. It later intervened in Limpopo Province on the same basis.
Incidentally, as Plasket J pointed out, the document recommending intervention in the Eastern Cape Education Department and setting out the problems besetting the Department “was strangely and inexplicably … classified as top secret”. The fact that this document was classified as top secret, illustrate perhaps better than any statement by members of the Right2Know campaign why the Secrecy Bill represents a grave threat to our democracy. Will the Bill not ultimately empower the government to classify all documents as top secret if it thinks these documents could shed light on the failures of government?
In any event, the judgment provides welcome clarity on a number of issues. First, it affirmed that when the national government intervened in the Eastern Cape Education Department in terms of section 100(1)(b) of the Constitution, the national Department, headed by Minister Angie Motshekga, constitutionally assumed
This finding reminds us that Minister Motshekga took on all responsibility for the delivery of textbooks in Limpopo when the national government took over the administration of the Limpopo Education Department in terms of section 100(2) of the Constitution. This means that Minister Motshekga is constitutionally responsible for the textbook scandal in Limpopo. Her claim to the contrary is in conflict with the provisions of the Constitution as interpreted and applied by our courts.
Secondly, the judgment confirmed that the fundamental right of children attending public schools to a basic education is enshrined in section 28(1)(a) of the Constitution and that this right is not qualified (like some of the other social and economic rights) as being dependent on the availability of resources. This means the state has an obligation to take immediate steps to ensure the provision of basic education to all. Where there are huge discrepancies in the provision of education and where those children in the worst performing schools are not provided with at least a basic education, the state is in clear breach of its constitutional obligations. Where it could have taken steps to address unjust inequalities in the education system and it had consistently failed to do so, the state would also be in breach of its constitutional obligations.
This is exactly what happened in the Eastern Cape. As Plasket J explained, the South African Schools Act requires that both the establishment of teachers posts and non-teacher posts should be known by governing bodies at the beginning of a budget cycle, as the governing bodies need to know how many teachers and admin staff they have been allocated before their budgets can be approved. This would also allow them to determine how many additional posts are needed at their schools. The only interpretation of the legislation that is consistent with the obligation on the state to respect, protect, promote and fulfil the fundamental right to basic education is that the MEC is empowered to and obliged to determine the establishment for both teaching staff and non-teaching staff at public schools in the province. Where the national minister has intervened in the Province, this obligation falls on her.
Yet in the Eastern Cape the government (and then the national Minister) had failed to fulfil this basic obligation, thus in effect sabotaging an important mechanism that could have been employed to address inequalities in the education system in the Eastern Cape.
The court thus ordered the Minister and others responsible for Education in the Eastern Cape forthwith to implement the 2012 educator establishment of the Department of Basic Education; to implement the 2012 provincial educator establishment and the 2012 educator establishment for public schools, in full, by appointing educators to all vacant substantive posts; to appoint educators on a temporary basis where required; to pay the salaries of all educators whose appointment on a temporary basis has been approved by the Department of Basic Education.
Politicians often complain about our courts interfering with government policy and claim that such interference thwart the implementation of transformative policies by the government. This judgment illustrates that ANC politicians and officials deployed to various government departments are often the one’s who thwart transformation through their failure to act speedily to implement policies and to fulfill prescribed legal and constitutional obligations that might have assisted in addressing the lingering inequality in our society. When that happens, exasperated members of the affected communities (often with the assistance of NGO’s and other civil society institutions) will turn to the courts as a last resort in order to force the government to do what it claims it was elected to do.
No wonder some politicians and government officials hate the judiciary. No one likes to be shown up as a lazy and/or incompetent hypocrite.