Ensuring Adequate Support for Children in Need
Nearly twenty years since the first democratic elections in South Africa, vast inequalities remain in the classrooms of the rainbow nation. In an ongoing and concerted effort to help advance socio-economic rights under the new Constitution, the Legal Resources Centre (LRC) has sought to focus its energies on improving access to, and the quality of, education across the country. It is in this vein that the LRC has conducted work surrounding school feeding schemes and the Quintile system, which serves to categorise schools for the purposes of government subsidies. In particular, over the past several years LRC lawyers have been steadfast in challenging the government’s erroneous classification of schools under this system, a bureaucratic miscalculation that can have grave consequences for the learners and the administration of the schools at issue.
In South Africa today, all public schools are funded by the State in accordance with the South African Schools Act. The amount of state funds distributed to these schools by the provinces is determined in accordance with the National Norms and Standards for School Funding. In early 2007, national funding policy was established to identify and support, as a priority, the poorest schools in the country. In line with this overarching policy, the provincial Departments of Education conduct a review and assign a poverty score to each school. As part of this exercise, schools are classi ed into one of five “quintiles”, with Quintile 1 being the poorest classification and Quintile 5 schools being the wealthiest institutions that benefited historically from state support during the pre-democratic era.
Although the State is obliged under this model to allocate school funds on a pro-poor basis, the ranking procedure used does not appear to genuinely consider the poverty of the students who are attending the particular school. Instead, the ranking exercise focuses only on the poverty levels in the communities surrounding the given school, which in turn can lead to serious discrepancies in government data. The accurate classification of a school is of great signi cance, naturally, as the provision and size of government subsidies ow necessarily from a school’s quintile ranking. For example, Quintile 1 to 3 schools, which are considered no-fee institutions in poorer areas, are eligible for the Primary School Nutrition Program which provides much-needed food for learners on a daily basis. This national program is an important tool in ensuring a basic education for poor learners, as many of these children would otherwise go without su cient nourishment during the day, and in some instances without any food at all.
Despite the government’s legislative mandate to identify and support schools in impoverished communities, many believe that the system has misidentified some of the schools most in need. The result of this distortion of the reality on the ground is that many schools simply lack the resources necessary to provide the very basics of a quality education for their learners. In addition to the retraction of the vital feeding scheme as a result of higher quintile rankings, lower funding for needy schools means that vital repairs cannot be performed on dilapidated school infrastructure, that desperate school administrators cannot a ord to pay utility bills in a timely manner, and that institutions located in areas where the personal security of students and teachers is of real concern cannot a ord to pay for full-time security guards.
It is within this context that the LRC represented six schools in KwaZulu-Natal in an e ort to challenge the allocation of funding, set aside the unreasonable and inaccurate decision to rank the schools as Quintile 5, and compel the government to reimburse the institutions for years of underfunding on the basis of their revised quintile ranking. The LRC’s clients, including Phoenix Heights and Highstone Primary School, were incorrectly ranked as Quintile 5 schools despite a high level of poverty and unemployment in the surrounding communities. Many of the learners attending these schools come from one-parent households, while others are cared for by grandparents. Some of the households have no source of income at all, and rely heavily on social grants and government support. Because the schools continue to be classi ed as Quintile 5 and receive only limited state funding as a result, and because many parents in the surrounding community are not in a position to pay school fees, the schools struggle to cover their day-to-day expenses.
In the KwaZulu-Natal Quintile Ranking litigation, the LRC called on the government to conduct a proper and fair assessment of the poverty levels of these schools, for the purpose of resource targeting on a pro-poor basis, as contemplated in the national norms. Following an inability on the part of the parties to reach an agreement as to the proper ranking of the various schools, the LRC now seeks to initiate a fresh round of litigation on behalf of these, and other, schools in the province. It is the LRC’s position that strategic litigation of this nature not only has an impact on the schools at issue, but also has the potential to compel the government to re-evaluate the effectiveness of the entire quintile ranking system nation-wide.
This document is written by Sandra Fredman and Chris McConnachie based on a discussion led by Michael Bishop, Steven Budlender, Sandra Fredman and Tembeka Ngcukaitobi during the closing session of “The Legal Resources Centre and the Courts in South Africa: Realising Social, Economic and Cultural Rights through Litigation,” a conference hosted by the Southern Africa Legal Services Foundation in February 2013 at the Pocantico Center of the Rockefeller Brothers Fund. It reflects the views of the authors and not necessarily those of other conference participants, or of the Rockefeller Brothers Fund or the Wallace Global Fund, their trustees or their staff.
A Justiciable Right to Education: Designing and Perfecting a Litigation Strategy
The relationship between law and constitutional rights is a critical one in this new century. Although many have been sceptical whether social, economic and cultural rights can be realised through litigation, the Legal Resources Centre (LRC) and the courts in South Africa are providing tangible evidence of such success. The strategy behind the LRC’s litigation concerning these rights – as well as the court orders that have followed, requiring the South African government to undertake appropriate remedies – together form an important model for both the developing and developed world.
It is now recognised that realising rights through litigation must play a central role in addressing the widespread de cit in education throughout the world. In South Africa, the right of children to a basic education has been justiciable from the inception of the new Constitutional order. However, realising the right through litigation requires careful thought and strategising.
The LRC has now had extensive experience in litigating the right to education in South Africa in the context of severe and widespread deprivation of the most fundamental components of education, including school buildings, school furniture, trained teachers, non-teaching staff and the absence of national norms and standards for school infrastructure. In February 2013, members of the LRC litigation team came together with colleagues, law professors and litigators from other parts of the world to evaluate this strategy. This article sums up the discussions and conclusions of the workshop.
On one level, the potential for realising socio- economic rights through litigation in South Africa is very positive. Unlike many other nations, South Africa has a progressive Constitution, which embraces socio-economic rights. It also has a Constitutional Court, which is committed to respecting and realising the transformative values embodied in the Constitution. At the same time, the Cour – particularly in the first generation – regarded the political process as the most appropriate vehicle for transformation and was unwilling to issue orders that might be viewed as usurping the newly acquired democratic process or reflecting impatience as that process developed and matured. Subsequently however, it has become clear that the political process and relevant executive institutions have largely failed to deliver on socio-economic rights. Indeed, failure of governance – whether through intransigence, inattention, incompetence or corruption – has loomed large as an obstacle to the realisation of socio-economic rights, particularly health and education. Despite the constitutional changes, the face of poverty remains black and female; there is a culture of an unaccountable bureaucracy; there is a pervasive culture of corruption; and there is a chronic failure to implement the promises in the Constitution. In this context, judicial intervention has become urgent and its legitimacy has secured greater recognition.
This does not mean that litigation can provide all of the solutions. The challenge is to nd the right combination of litigation, civil society activism, political campaigning and patience. As far as courts go, the challenge for litigators is to nd a way of enticing courts to intervene appropriately: to use judicial means to insist on accountability and the appropriate exercise of power, rather than supplanting and substituting political and executive decision-making, At the same time, the insights of re exive law suggest the need to understand the inner workings of the public bodies responsible for delivering the right to education. We need to identify both the barriers to change and the levers which can induce the appropriate sort of change. This might include nding an internal champion, exerting external political or media pressure, or incentives in the right combination with litigation. In some instances, there is little choice but to request the courts to supplant executive decision making.
Below we elaborate on seven central issues which need to be addressed if litigation is to become a valuable means of achieving socio- economic rights, particularly the right to education.
1. Situating the Public Interest Litigator
The first and fundamental component to situating the public interest litigator involves understanding the nature of the State: its structure, powers and composition, as well as the challenges and constraints it faces. For this, the litigator should adopt a nuanced approach. In certain cases the State must be supported, such as where it adopts progressive policies to achieve the realisation of constitutional rights. In other cases, where it adopts retrogressive measures, the State must be resisted. A nuanced approach also necessitates a deep understanding of the di erences between the di erent branches of the State and the organs of state. For example, in the Section 100 Intervention case, the LRC aimed to leverage the di erences between the national and provincial governments to improve the delivery of education in the Eastern Cape Province. In March 2011, the national government invoked its powers under section 100 of the Constitution to take control of the Eastern Cape Department of Education due to maladministration, non-delivery and serious allegations of corruption. However, the problems in the Department persisted, in large part due to confusion over who was in charge. Civil society groups, assisted by the LRC, intervened to clarify what powers and responsibilities had been taken over by the national government. This resulted in a settlement agreement in which the national government reaffirmed its commitment to the intervention and promised greater transparency.1 However, the LRC’s experience is that the Section 100 Intervention has achieved limited success, making it necessary to re-examine such an intervention as a tool for improving governance.
The second key component concerns connections with communities. Public interest litigators, such as the LRC, should be situated in such a way which enables an understanding of the issues affecting poor people, particularly how they are affected by government action. This involves being conscious of the difference between concerns which can be resolved by litigation, those which can be resolved by political action, and those which require a combination of the above strategies. One of the most useful ways to achieve this is to create strong relationships with community-based organisations. Community-based organisations can also be helpful to supplement or substitute for local advice offices. Compiling a list of such organisations would be an important first step.
Some difficult questions arise around potential tensions with other organisations, such as teachers’ unions. This issue should be approached on a case by case basis. Unions should be brought on side where possible, whilst retaining the ability to criticise them. For example, in the Eastern Cape unions have opposed the Eastern Cape Department of Education’s delayed efforts to rationalise the allocation of teachers to state schools, a process referred to as teacher post-provisioning. For almost two decades, the Department has failed to address imbalances in post-provisioning, resulting in a surplus of teachers in some schools and severe teacher shortages in others. Thousands of temporary teachers have been hired at great expense to fill the vacancies, resulting in the Department cutting its school nutrition and transportation schemes to cover the budgetary shortfall. In late 2012, teachers’ unions launched a court challenge seeking to overturn the Department’s post-provisioning plan for 2013. The Centre for Child Law, represented by the LRC, intervened in support of the Department and was instrumental in having the case dismissed.2 However, the LRC has not been able to force the Department to move surplus teachers and confront the unions head on. Victory in court has not led to change.
2. Client Identification and Maintenance
Identifying the client is the next key challenge.
The fact situation experienced by the client needs to t well with the legal requirements and cause of action, while the context of the client is also important. Client selection is also not only about clients per se, but also about getting communities and their organisations connected to the litigation in advance, resulting in stronger cases, better mobilisation and more effective follow-up.
In particular, clients need to be in a position to monitor compliance and take appropriate follow- up action where necessary. The best litigation strategy would therefore be co-ordinated with other mobilisation strategies. It is also crucially important to ensure that major players are on side. In the context of education, cases need to be framed in ways that can garner the support of teachers unions, for example, in relation to pay and training. Thought ought also be given to the appropriate use of class actions and the advantages and disadvantages inherent in them.
It is of crucial signi cance to structure test cases in a way that will attract judicial empathy and possibly that of the media too. Rightly or wrongly, the Constitutional Court is moved by “poorest of the poor” and “most vulnerable” complainants. As an example of the importance of this issue for the case as a whole, consider the di erence between the applicants in Mazibuko,3 a case in which the Court rejected the applicants’ claims in relation to the right to water, and the Centre for Child Law case, which took the government to task for its failure to eradicate “mud schools.”4 In Mazibuko, the claimants litigating for the right to a larger basic provision of free water already had access to water and a provision of free water. The case would have looked and felt very different if the clients had been among the 750,000 people living in Johannesburg (probably South Africa’s richest city) who had no access to water at all. In the Centre for Child Law case, on the other hand, the LRC ensured that all seven applicant schools were from the Eastern Cape (South Africa’s worst o province), were from the Libode district (the worst o district in the province) and were among the worst o schools within that district. The case settled successfully before the hearing in the High Court, but had it gone ahead, there is little doubt that the Court would have been moved to action by the conditions at these schools. It should be borne in mind, however, that although some cases might not ex facie evoke judicial empathy, the manner in which they are presented might do so. The key is the careful presentation of cases in a manner which enables judges to understand that the dispute is capable of resolution by the application of legal principles.
At the same time, the di cult ethical issues surrounding strategic litigation cannot be avoided. If non-ideal clients present themselves, can they be turned away, and why? On the other hand, given the LRC’s limited resources, is it ethical to take on representations that divert critical time and attention from clients whose claims are most pressing and whose suits, if successful, promise greater benefits for larger numbers of similarly situated individuals? Apart from the ethicality, this is also a strategic issue, given the risk that some other less skilled and less public interest-oriented litigator may do so.
3. Entry Points on Right to Education Litigation
Strategic decisions need to be made as to the appropriate focus for right to education litigation. Should priority be given to quality of education, funding, infrastructure, textbooks, teachers’ pay, teacher training, maladministration, or a combination of these?
Several key points emerge in choosing which of these entry points to pursue and when. Firstly, it is necessary to keep an eye on the overall aim: to improve quality of education for learners. If the case is not likely to achieve this, then the question arises as to whether the case should be taken at all. This means that cases should only be chosen if they are likely to have positive results in reality. The decision to litigate should thus take into account not only whether the claim is legally tenable, but also what the likely practical outcome will be, having regard to the likely response of the State and other role-players to this outcome. It is important to recognise, however, that the pace of improvement is likely to be slow and incremental. Again, in this context, the response of teachers’ unions in particular is an important factor.
Secondly, the support of the public and the media generally should not be ignored. For example, in the Textbooks case,5 a challenge to the government’s failure to deliver textbooks to schools in the Limpopo Province was effective in part because it was easy to explain and publicise. The case benefitted from extensive media coverage and was the focus of public attention for many months in 2012. This public support helped give the case momentum and also increased the pressure on the provincial and national governments to comply with the court order.
Thirdly, it is important to give careful consideration to possible unintended consequences: for example, would achievement goals for schools give schools the incentive to exclude failing learners rather than to take more care over bringing them up to standard?
4. Deference and Scrutiny of Evidence
Cases should be framed in a way which “moves the court.” This is partly to do with empathy for the complainant, but also to do with judicial perception of the limits of their legitimacy and competence, factors which often operate together. Thus the language with which courts formulate legal doctrine is not always determinative of the extent to which they are willing to engage with government claims or of the degree of deference that they show. Often more crucial is the way in which the court applies the doctrine. This can be seen by comparing the South African Constitutional Court’s decision in Mazibuko, where it dismissed a claim that the right to su cient water required the greater provision of free water, with the German Constitutional Court decision in Hartz IV, where it found that an unemployment benefit scheme was in violation of the right to dignity because it failed to ensure a minimum level of subsistence.6 Lucy Williams7 argues that, at a doctrinal level, both courts endorsed similar standards of scrutiny for reviewing government decisions. However, in applying these similar standards of scrutiny, the courts showed substantially di erent degrees of deference to their respective governments. The German Court engaged in a searching analysis of the German legislature’s methodology and evidence for determining the amount of the unemployment benefit. It found this decision-making process wanting and sent it back to the legislature to be reconsidered in a constitutionally appropriate way. In Mazibuko, by contrast, the South African Court engaged in a light-touch review that did not engage with the decision-making methods or evidence in great depth. Doctrinal similarity at the level of the standard of scrutiny did not guarantee similar reasoning and outcomes.
Concurrently, the formulation of the doctrine can be of consequence, particularly for future cases. The Constitutional Court needs to be persuaded that the South African Constitution does not require an overly deferential position by courts, but rather gives room to courts to be assertive in appropriate contexts. How to get judges to appreciate this remains an ongoing question. Some suggestions include co-ordinated advocacy over a series of strategic cases, amicus interventions, judicial education, academic articles, or a combination of these. What is clear is that the concerns of the court over the appropriate boundaries of their institutional role are affected by a variety of factors, including who the litigants are, what the substantive issue is, and the extent of public or political mobilisation. Of particular importance is the question of whether the cause of action arises directly from the Constitution or from legislation, as the courts appear to be more comfortable enforcing positive constitutional duties that have been given greater content through statutes and regulations.8 The complex interaction between these factors can be seen by comparing cases such as TAC,9 Glenister10, and Simelane11 – where the Court was willing to intervene in sensitive political decisions – with Mazibuko12 and the E-tolling13 decisions, where the Court adopted a far more deferential approach.
5. How to Make Organisations Act to Fulfil the Right
One of the biggest challenges relating to the right to education is that courts must require government to take positive action to promote and ful l the right. This differs from the traditional role of human rights, which is to restrain the State from breaching individual rights. In the South African Constitution, it arises expressly from the duty in section 7(2) of the Constitution to “respect, protect, promote and ful l” all rights, which mirrors international legal obligations. This challenge arises both at the stage of determining whether to litigate and deciding how to litigate.
In approaching this question, it is useful to draw on insights from regulatory theory. Simply ordering an organisation to change (“command and control” theories of law) might not have the intended consequences. The organisation might simply reorganise itself in order to resist change. For example, it might issue codes of conduct or plans of action, but not act on them. Alternatively, court orders might damage the organisation by decreasing initiative and increasing bureaucracy. Or, the law might simply be ignored, decreasing respect for the effectiveness of court. This is known as a “regulatory trilemma.”14
In order to know whether an issue is appropriate for litigation, the LRC needs to understand the organisation which it expects to take action. Relevant questions include: Why is this institution not ful lling a particular right? What are the structure, rules, processes, culture, history and personnel of the organisation? Can the LRC identify the right “cog” that could set the organisation in motion? At the same time, the LRC needs to understand the role that it wants the court to play in relation to the organisation it is dealing with. One way of approaching the issue is to ask what metaphor best describes the court’s role: policeman, teacher, manager, partner, coach, catalyst or destabiliser?
It should be borne in mind that a decision not to litigate a matter can be as important and as effective as one to litigate. Not litigating does not mean doing nothing: it means nding alternative ways to change the organisation’s behaviour such as lobbying, public or political pressure, using the Public Protector or the South African Human Rights Commission, and so on. This decision must be made in the context of the ongoing duty of the LRC to assist its clients.
6. Remedies and Compliance
In Fose v Minister of Safety and Security,15 the Constitutional Court succinctly captured the aims of constitutional remedies:
In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal.16
It is always important to keep in mind the close link between rights and remedies: the content of the right is de ned in part by the remedies a litigant can obtain if the right is violated, and conversely, the available remedies will affect the way that courts de ne the right. The public interest litigator has the responsibility of identifying the “new tools” and “innovative remedies” mentioned in Fose. It is important to bear in mind, however, that new remedies need to maintain some connection to the “rule of law” and must be neither too harsh nor too weak. Courts should be o ered di erent remedial options, although one di culty in litigation is that o ering too many options may mean that the litigator won’t obtain its first prize.
6.1. Remedial Modes
As a broad classification, the LRC can distinguish between the command-and-control mode and the re exive mode. Note that this is not a strict distinction: many remedies will have element of both modes, and remedies can be both static and dynamic, moving back and forth between the two modes.
In the command-and-control mode, courts order the organisation to act and can impose sanctions for failing to do so. The re exive mode is characterised by inducing, rather than commanding change: facilitating deliberative and co-operative problem-solving by all parties involved, and nding a balance between incentives and sanctions.
It is important to nd the right remedy for the case at hand. Central questions include: What is the “cog” that we need to set in motion? Is the organisation’s failure to ful l the right caused by intransigence, inattentiveness or incompetence, or a combination?17 What type of remedy is most likely to prompt the body into action?
Of particular importance is to structure the case from the beginning with the appropriate remedy in mind. The remedy cannot simply be an add-on that does not t with the way the case has been litigated. This applies to both the legal doctrine used and the attitude chosen, for example, whether to be aggressive, co-operative, confrontational or conciliatory.
Innovative remedies should be crafted beyond the traditional structural interdict. Some jurisdictions have used special masters or receivers who take control of the process. Clients can better monitor compliance and work toward future improvements if agencies are encouraged to be transparent and accountable. Remedies, in appropriate contexts, can include public reporting devices that allow for feedback and adaptation as situations change and remedial approaches are shown to need recalibration. The LRC might also think of co-opting or creating new fora or institutions to address the problem. Indian courts have made extensive use of interim determinations pending further government action.
6.2 Settlement v Judgement
A central dilemma facing litigators arises when faced with an o er to settle a case. The LRC has often felt the disappointment of victory when settling, particularly in the Norms & Standards18 case, an application to compel the Minister of Basic Education to publish national norms and standards for school infrastructure. In November 2012, days before the scheduled hearing, the Minister settled the case and agreed to publish the norms and standards by May 2013. The matter was back in Court in July after the Minister failed to meet this deadline, resulting in another consent order requiring the Minister to publish norms and standards by 30 November 2013. As this case demonstrated, the government has strong incentives to settle a case: it might wish to avoid negative publicity and political pressure, or it might want to avoid giving the court the opportunity to hand down a judgement which sets a robust precedent for the right to basic education. From the point of view of the client, it may be di cult to refuse an offer of settlement which appears to meet the client’s demands. However, for the public interest litigator, settlement has some negative consequences: it deprives the LRC of precedents to use in future judgments, it can de ate associated public action, and it can reduce public attention and public pressure for compliance. This can be seen by comparing the settlements reached in cases concerning school infrastructure in the Eastern Cape,19 which received limited public attention, with the Textbooks case,20 which received a strong judgement and garnered strong public support.
The public interest litigator therefore needs to anticipate settlement and use it to its full advantage. To do so, it is necessary to first of all choose clients in ways that ensure settlement cannot determine the whole case. Such clients would include institutional clients and class actions, whose interest in the matter would remain even if the State takes steps to satisfy the needs of individual litigants. In addition, the notice of motion can be structured in ways which make it di cult to settle. This could be achieved by including, for example, applications for detailed relief, continued court supervision, built-in consequences for non-compliance, and declarations of unconstitutional conduct. The substance of the case may also be crafted in ways that cannot be settled: a case which is ambitious is di cult to settle.
6.3 Personal Liability & Sanctions
Personal liability is unusual in constitutional litigation, however, it may be worth thinking afresh about whether it would be helpful to develop such a doctrine. Personal liability has both advantages and disadvantages. The advantages are firstly that it avoids burdening the scus for unlawful acts by officials, and secondly that it might induce better behaviour from officials in the future. However, the dangers are that it might deter good people from entering government, or deter government from taking risks. Thus it is important to structure the doctrine to maximise advantages and minimise risks. In order to develop a strategy to establish the doctrine, the first step would be to find the right test case.
A further problem concerns widespread non- compliance by state bodies with court orders and settlements. Thus far, sanctions have often proven ineffective at ensuring compliance. Several further possibilities therefor need to be developed. Contempt could be a powerful remedy, but is di cult to prove. Further work on this doctrine is necessary to ease the burden of proof, while alternative remedies following a finding of contempt, apart from fines and imprisonment, also need to be considered. Punitive personal costs orders against offcials and their attorneys might be one possibility.
In any event, sanctions should be built into the order, and the order should provide for a ratcheting up of the court’s supervision if the organisation fails to comply. These lessons have already been put into practice in the ongoing post-provisioning litigation in the Eastern Cape.21 In August 2012, the LRC obtained a structural interdict ordering the Eastern Cape Department of Education, under the control of the national Minister of Basic Education, to implement the 2012 teacher post-provisioning plan and to develop a post-provisioning plan for 2013. The order required the Department to report on its progress and allowed the parties to return to court on short notice. After the Department failed to ll vacant teaching posts in 2013, the LRC brought an urgent application which settled before the hearing. The agreement, which was made an order of court, required the Department to ll the vacancies by the end of May 2013 and stipulated that if it failed to do so, the temporary teachers in the posts would be permanently appointed. After this deadline passed, the LRC obtained a further order forcing the Department to pay these teachers’ salaries. On the LRC’s insistence, the order included a further clause allowing the LRC to attach the Department’s assets if it failed to comply. The Department failed to pay and the LRC duly obtained a writ of execution directing the sheri to attach the Department’s movable assets. 22
Court sanctions are not the only form of pressure. Informal sanctions, such as public pressure and negative media coverage, can also be very effective. In this respect, it is important to keep the media on side. In addition, disciplinary sanctions against o cials who out court orders may be a possibility.
One of the most di cult challenges relates to the budgeting process, which courts have traditionally fought shy of, but which is inevitably key. Socio-economic rights, and particularly the right to education, require governments to allocate appropriate budgets, yet budgeting is traditionally regarded as a polycentric issue which oversteps the limits of judicial legitimacy and competence. It is often argued that courts are not in a position to make hard choices about distribution of scarce resources, and that accountable politicians rather than courts should decide whether to use resources for one pressing need rather than another. For example, it is argued that courts should not decide whether to divert resources from essential health services to education. However, the experience with litigating the right to education in South Africa has demonstrated that the problem is often not of this extreme kind. Instead, the issue often concerns misuse of resources, whether through ine ciency, apathy or dishonesty.23 In this context, it is increasingly important that courts insist on a sound evidential basis before accepting governmental claims that failure to ful l the right to education is due to budgetary constraints. Courts therefore need to pay more attention to the development of principles to scrutinise justi catory defences which depend on budgets, and in particular, to the kind of evidence which should be produced.
The first central issue is to establish clear principles. In Blue Moonlight,24 the Constitutional Court stated as follows:
“This Court’s determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations. In other words, it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the ful lment of its obligations.”25
This is a helpful articulation of the basic principle and it is important to ensure that the Constitutional Court does not backtrack from it. Further development of the doctrine is necessary, too, to determine the limits of Blue Moonlight as part of the continuing development of the doctrine of reasonableness, and the extent to which the Court will scrutinise claims relating to available resources.
To take this forward and begin to create a framework for challenging budgets in courts, litigators should first attempt to establish a strong factual basis: are there in fact available resources and is the budget the true reason for the failure to deliver? Also important is consideration of the respondent’s perspective: does it genuinely believe itself to be constrained by the budget? Budgetary constraints might have important institutional sources: do they arise from the relationship between government organisations, particularly the relationship between Treasury and national departments, or between the provincial and national levels? If so, potentially all relevant actors should be joined as respondents. Other key questions concern the sources of the budget: Are there alternative sources? If so, who has the power to raise additional revenue? Knowledge of the process for determining the budget could help identify potential points for intervention. Increasing use of experts, particularly on budgeting, might take the LRC forward into new territory.
The next step is to consider how to address the budget in litigation. One question is whether to challenge the budget directly or wait for the state to raise the budget as a defence. Challenging the budget directly requires a further decision as to how it ts into the doctrine. Rather than seeing it as a defence, could it be argued that budgetary decisions come within the reasonableness conception,i.e., is there a duty to budget reasonably? Finally, how is the budget related to the remedies sought?
Conclusion: Getting Ahead and Staying Ahead
Strategic litigation requires reflection about the role of litigation and what it can and cannot achieve. The LRC should not adopt or promote a “jurisprudence of exasperation,”26 but instead manage expectations. Litigation cannot achieve the education system or abolish poverty in the short run, but litigation can assist the LRC’s clients, increase accountability and awareness, improve governance, and identify and remove legal or political barriers to implementation.
In addition, the LRC and all similarly minded public-interest litigators can stay ahead in important ways. By stepping outside the day- to-day activity of litigation, the LRC can see the bigger picture, consider new possibilities, and re-connect with the organisation’s basic goals. The LRC needs to innovate in specific ways, particularly in relation to remedies. The LRC should also educate the media to make the interests of its clients visible and to make clear their importance to the future of a democratic South Africa for all. Most of all, the LRC needs to remain in touch with communities so as to understand the issues that are of concern to them and how the law can best be used to articulate the concerns of the poor.
Litigation has its limits, but small victories over time can produce transformative effects. The LRC needs patience and resources to play a long game.
- Settlement agreement in Save our Schools and Community and Another v President of the Republic of South Africa and Others (ECB) case no 50/12, <http://www. lrc.org.za/images/stories/Desktop/2012_03_20_sosac_and_ cie_vs_department_of_basic_education__settlement_ agreement_2.pdf> accessed 10 August 2013.
- South African Democratic Teachers’ Union & others v MEC, Department of Basic Education, Eastern Cape Province & others (ECB) unreported case no 573/12 of 18 February 2013 < http://www.sa ii.org.za/za/cases/ZAECBHC/2013/2.pdf> accessed 10 August 2013.
- Mazibuko & others v City of Johannesburg & others 2010 (4) SA1 (CC).
- Centre for Child Law & others v Government of the Eastern Cape Province & others (ECB) case no 504/10. For further discussion of the case, see Cameron McConnachie and Chris McConnachie, ‘Concretising the Right to a Basic Education’ (2012) 129 South African Law Journal 554.
- Section 27 & others v Minister of Basic Education & another 2013 (2) SA 40 (GNP).
- BVerfG, 1 BvL 1/09, Judgment of 9 February 2010 (Hartz IV). English translation available at <www.bverfg.de/entscheidungen/ls20100209_1bvl000109en. html> accessed 10 August 2013. See further I Winkler and C Mahler, ‘Interpreting the Right to a Digni ed Minimum Existence: A New Era in German Socio-Economic Rights Jurisprudence?’ (2013) Human Rights Law Review 1–14.
- Lucy Williams, ‘The Role of Courts in the Quantitative- Implementation of Social and Economic Rights: A Comparative Study’ (2010) 3 Constitutional Court Review 141.
- See Mazibuko (n 3) : “[O]rdinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right.
. . . This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions . . . and to determine what targets are achievable in relation to social and economic rights. Indeed, it is desirable as a matter of democratic accountability that they should do so for it is their programmes and promises that are subjected to democratic popular choice.” (Emphasis added.)
- Minister of Health & others v Treatment Action Campaign & others (No 2) 2002 (5) SA721 (CC).
- Glenister v President of the Republic of South Africa & others 2011 (3) SA 347 (CC).
- Democratic Alliance v President of the Republic of South Africa & others 2013 (1) SA 248 (CC).
- Above n 3.
- National Treasury & others v Opposition to Urban Tolling Alliance & others 2012 (6) SA 223 (CC).
- See Gunther Teubner, “After Privatization: The Many Autonomies of Private Law” (1998) 51 Current Legal Problems 393, 406-14; Sandra Fredman, Human Rights Transformed (2008) ch 6; Sandra Fredman, “Breaking the Mold: Equality as a Proactive Duty” (2012) American Journal of Comparative Law 265.
- 1997 (3) SA 786 (CC).
- ibid .
- See Kent Roach and Geo Budlender, “Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?” (2005) 122 South African Law Journal 325 at 345 , citing Chris Hansen ‘Inattentive, intransigent and incompetent’ in S R Humm (ed) Child, Parent and State (1994) 232.
- Equal Education & others v Minister of Basic Education & others (ECB) case no 81/2012.
- See Centre for Child Law (n 4); School Governing Body of Amasango Career School v MEC for Education, Eastern Cape (ECG) case no 3838/2009, both discussed in McConnachie & McConnachie (n 4).
- Above n 5
- Centre for Child Law & others v Minister of Basic Education & others (ECG) unreported case no 1749/2012|of 3 July 2012.
- See Victoria John, “EC Department Assets to be Attached for Salaries” Mail & Guardian (Johannesburg, 6 August 2013) <http://mg.co.za/article/2013-08-06-ec-education-department- assets-to-be-attached-for-salaries> accessed 10 August 2013
- See Nick Ferreira, “Feasibility Constraints and the South African Bill of Rights: Ful lling the Constitution’s Promise in Conditions of Scarce Resources” (2012) 129 South African Law Journal 274.
- City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC) 2012 (2) SA 104 (CC).
- ibid .
- Pratap Bhanu Mehta quoted in Kate O’Regan, “Helen Suzman Memorial Lecture – A Forum for Reason: Reflections on the Role and Work of the Constitutional Court” (2012) 28 South African Journal on Human Rights 116, 133.