AN END to the Department of Basic Education’s resistance towards national norms and standards for school infrastructure by no means signals an end to the issue.
From May next year the department will have to establish and abide by norms and standards that must include — but need not be limited to — the availability of classrooms, electricity, water, sanitation, a library, laboratories, recreational facilities, internet connectivity and fencing.
In reaching agreement on a settlement last Friday, the department may have avoided the negative publicity of yet more court action brought by civil society organisations seeking improved educational quality. But the settlement could see more conflict as both the department and concerned civil society organisations seek to accelerate progress in addressing school infrastructure backlogs.
And the backlogs are woeful, according to the department’s own data for last year. Of South Africa’s 24,793 public schools, 93% have no libraries, 95% have no science laboratories, while 2,402 schools have no water supply and 46% still use pit latrines.
In terms of the settlement reached with rights group Equal Education last week, the department agreed to promulgate regulations for school conditions. These would first be gazetted for public comment by no later than January 15 next year, with final implementation taking place on or before May 15.
Earlier this year, Equal Education announced its intention to fight for minimum norms and standards as a failure to provide the conditions at schools necessary for effective teaching and learning did not match the constitutional provision of a right to education.
The case, which was set to be heard in the Bhisho High Court yesterday, had cited as respondents all nine provincial education MECs, the minister of finance, and the minister of basic education. The minister, Angie Motshekga, was the only respondent to file notice to oppose. The other applicants indicated compliance with any order of the court.
The department has faced a bruising year, notably multiple court cases arising from the Limpopo textbook saga. It would have faced further scrutiny in opposing the case — with Equal Education planning large protests outside the court and media tours to highlight the conditions of local schools. Indications are that Ms Motshekga was also not confident she would have won. The department has declined to comment until the matter is concluded.
Cameron McConnachie, an attorney at the Legal Resources Centre in Grahamstown, who formed part of Equal Education’s legal team, says that while the settlement achieved an objective, the centre was still of "two minds" about the victory. Court action could have seen jurisprudence being established on the issue, providing clarity on the tension between rights and obligations in education. This would be useful to guide future court action even if turning to the courts was always "the last resort", he says.
Mr McConnachie says the department would now be placed in a "tricky position" of trying to establish reasonable norms and standards, but also standards that would prevent exposure to further legal action. This is despite the settlement terms being satisfactory to the litigants. The settlement also sees Ms Motshekga pay the costs of the application, as well as providing, within three months, plans for appropriate facilities at Mwezeni Senior Primary School, an applicant in the case.
Despite settling, the department’s concerns that saw it oppose the motion will remain. Binding national regulations could cause extra headaches as the provinces have various degrees of financial and management constraints as well as their own projects. The addition of time frames on providing school infrastructure could for example make further litigation difficult, says Mr McConnachie.
The Democratic Alliance welcomed the settlement, but warned on Monday that the regulations would need to be "pragmatic, implementable and in the best interests of learners ".
Equal Education chairman Yoliswa Dwane says the settlement was a "victory" and that the group "will now intensify our efforts, double our activism and triple the pressure".