Equal Education (EE), represented by the Legal Resources Centre (LRC), has filed its reply to Minister Motshekga’s answering affidavit in the court case for Minimum Norms and Standards for School Infrastructure. In its reply EE shows that Minister Motshekga’s argument against implementing norms and standards is based on a misconception of the right to basic education.
Deputy Director-General (DDG) Padayachee, who deposed the affidavit on behalf of the minister stated that: “[i]t must further be stressed that the right guaranteed by section 29(1)(a) of the Constitution is the right to a basic education. Account has to be taken of socio-economic realities, the need to address inequalities inherited from a past system of apartheid, and budgetary constraints and the limitation of available resources, as well as the need progressively, over time, to improve standards and facilities” (original emphasis).
This argument is misconceived. The right is not subject to progressive realisation. The Constitutional Court held in Governing Body of Juma Musjid Primary School & Others v Essay N.O. & Others that unlike other socio-economic rights, the right to a basic education is immediately realisable and that “there is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to ‘reasonable legislative measures’.”
Furthermore, it is misguided to suggest, by emphasising the word “basic”, that the word refers to the quality of education the state is obliged to provide. The word “basic” plainly refers to the level of education (i.e. basic as opposed to higher education). There can be no suggestion that the constitutional right to a basic education does not entitle learners to a safe and functional learning environment with adequate school infrastructure.
Education MECs Won’t Oppose Court Case
Eight provincial MEC’s and the Minister of Finance filed notices to abide, meaning they have no opposition to the order sought by EE.
Therefore the Minister stands alone in her opposition to prescribing binding Minimum Norms and Standards for School Infrastructure. She nevertheless claims the support of the provinces by citing their supposed opposition as a reason not to prescribe the norms and standards. For example, she claims in the Annual Performance Plan 2012-2013 that “These regulations were converted to guidelines on the instruction of the CEM” (emphasis added). However section 5A of the SA Schools Act makes plain that the Minster is merely required to consult the MEC’s and does not require their consent. In this regard the Minister has misconstrued her powers.
It has also been revealed that the Heads of Education Department Committee (HEDCOM) recommended that the norms and standards regulations be presented to CEM for approval. In an affidavit deposed by Modidima Mannya, the former Head of Department of Education in the Eastern Cape, he states that there was consensus amongst provincial education departments that binding regulations should be adopted.
The court date is set down for 20 November 2012 in the Bhisho High Court.
All the court documents are available on the EE website.
For more information contact:
Yoliswa Dwane (EE Chairperson) on 072 342 7747 or 021 387 0022/3
Doron Isaacs on (EE Deputy General Secretary) 082 850 2111
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