Fighting To Learn

Furniture – a chair to sit on and a desk to work at

Getting children into school is just one step in the battle to ensure children receive a quality education. Thousands of no-fee South African schools do not have furniture. Children are forced to share desks and chairs, or sit on beer crates, sacks and any other items which can serve as makeshift furniture. This creates disciplinary di culties, as disputes break out over the furniture they do have, as well as health problems, as a result of sitting for hours on end on cold, hard floors.

In November 2012, the LRC represented schools in an application against the Eastern Cape Department of Education (ECDOE) for furniture to be provided. As a result of this, the LRC made an application to court, the aim of which was twofold: 1. To have the ECDOE provide a desk and chair to every schoolchild in every public school in the province, and 2. To develop the jurisprudence and substantive content to the constitutional right to a basic education. On 29 November 2012, the court granted the application and a court order set out the terms applied for. This resulted in some furniture being delivered, but unfortunately there was substantial non-compliance with the order by the Department.

The Department was also ordered to conduct an audit of the furniture needs of the province, and provide the furniture as needed to schools by 30 June 2013. However, the audit initially carried out by the Department contained a number of similarities across multiple school districts, suggesting falsi cation of data. In addition, by June 2013, schools had not been informed of the numbers of desks and chairs they would receive, nor when they would receive them. Although the Department itself had estimated a need of R360 million to satisfy the province’s school furniture, it allocated less than 10 percent of the amount needed from its 2013/2014 budget.

The LRC led a further application in the High Court in August 2013 to have the Department declared in breach of the order of November 2012. A further order was granted, which set out additional promises of a furniture audit and plan for the provision of furniture to those schools which required it.

By February 2014, these children were still sharing desks and sitting on empty paint cans. Conditions had barely improved since the initial litigation of 2012. A third round of litigation ensued, resulting in a hearing before Judge Goosen on 25 February 2014. Goosen’s judgement was scathing of the lack of action taken by the Department, and underlined the fact that education was an immediately realisable right, and therefore necessitated a clear timetable for the provision of relief.

Goosen J ordered the Department to provide full furniture for schools that required it by 31 May 2014. If they were unable to comply with this deadline, the Department would have to make an application to court, setting out fully the steps they had taken to carry out the audit and provide the furniture, and full reasons they could not comply with the court order.

At the end of May 2014, the ECDOE applied for an extension of a further four months to provide furniture to the schools. The Department had failed to provide nearly all of the furniture ordered by the court, and cited as reasons for the delay: 1. constraints in the budget; 2. legal challenges faced as a result of the implementation of tenders (see below); and 3. the assumption of procurement function by the National Treasury meant that the Department was no longer able to purchase furniture.

A major factor in the failure to deliver furniture has been repeated irregular procurement processes, which resulted in the suspension of the Minister of Education, and the National Treasury assuming responsibility for procurement. The LRC, on behalf of the CCL, has been involved in some of the litigation surrounding the procurement as it is concerned about unlawful tender processes, resulting in delays in the delivery of furniture and a large waste of money.

The result is that desks and chairs, which have been ordered and paid for, have been unused, stored in warehouses, while children continue to sit on cold hard floors at school.

The ECDOE have recently led an answering affidavit, which sets out their timeframe for delivery of the furniture. They project that delivery of the furniture will be completed by the end of the second term in 2015. Large quantities of furniture have begun being delivered to schools. Despite the progress, however, the LRC will continue to put legal pressure on the ECDOE by seeking to have the department’s undertakings made an order of court in the first quarter of 2015.

(i) Madzozo obo Parents of Learners at MPIMBO Junior Secondary School and others v Minister of Education and Others: judgment

IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION, MTHATHA

Case No: 2144/2012
Date Heard: 13 February 2014
Date Delivered: 20 February 2014
Reportable

In the matter between:

M Madzodzo obo Parents of Learners at Mpimbo Junior Secondary School

First Applicant

S Mgcanyana obo Parents of Learners at Mbananga Junior Secondary School

Second Applicant

P Vukhapi obo Parents of Learners at Sirhudlwini Junior Secondary School

Third Applicant

Centre for Child Law

Fourth Applicant

S Nokubela obo Parents of Learners at Putuma Junior Secondary School

Fifth Applicant

R Nolugxa obo Parents of Learners at Gwebityala Senior Secondary School

Sixth Applicant

A Zitena obo Parents of Learners at Upper Mpako Senior Secondary School

Seventh Applicant

S Sulwana obo Parents of Learners at Milton Dalasile Senior Secondary School

Eighth Applicant

AND

The Minister of Basic Education

First Respondent

Government of the Republic of South Africa

Second Applicant

MEC For Education: Eastern Cape

Third Respondent

Government of the Eastern Cape Province

Fourth Respondent

Acting Superintendent General of the Eastern Cape Department of Education

Fifth Respondent

Judgment

Goosen, J.

[13] It is not in dispute that the state of public school education in the Eastern Cape Province is seriously and adversely affected by a failure to provide adequate furniture to a signi cant portion of schools in the Province. It is also not in dispute that the shortage of furniture in schools is a serious impediment for children attempting to access the right to basic education in the province. … A more recent report issued by the Department on 28 May 2013 estimates the cost of addressing learners’ furniture needs in the Eastern Cape schools as being approximately R360 million. It is this ongoing state of a airs that prompted the first to fourth applicants to bring this application.

[14] The applicants allege that the respondents’ failure to provide adequate age and grade appropriate furniture to all public schools in the Eastern Cape constitutes a serious violation of the learners’ right to basic education as guaranteed by the Constitution. It is also alleged that the persistent failure to meet the furniture requirements of public schools constitutes a breach of the learners’ right to equality and human dignity.

[15] The right to basic education provided for in section 29 (1) (a) of the Constitution is an unquali ed right which is immediately realisable and is not subject to the limitation of progressive realisation, as is the case with other socio- economic rights guaranteed by the Constitution.

[17] This has important implications for determining whether the state is in compliance with its constitutional obligations in respect of the right to basic education. In the first instance the nature of the right requires that the state take all reasonable measures to realise the right to basic education with immediate effect. This requires that all necessary conditions for the achievement of the right to education be provided.

[20] The state’s obligation to provide basic education as guaranteed by the Constitution is not con ned to making places available at schools. It necessarily requires the provision of a range of educational resources: schools, classrooms, teachers, teaching materials and appropriate facilities for learners. It is clear from the evidence presented by the applicants that inadequate resources in the form of insu cient or inappropriate desks and chairs in the classrooms in public schools across the province profoundly undermines the right of access to basic education. …

[21] The impact that a lack of adequate and age appropriate furniture has upon the learners’ right of access to basic education is not denied by the respondents. It is not denied that this persistent lack of access to appropriate resources at public schools constitutes a violation of the right to basic education.

[22] The respondents nevertheless contend that budget constraints and the availability of resources constrain the respondents in their ability to meet the basic requirements of the right to basic education immediately. In argument, reliance was placed on the National Norms and Standards for School Funding developed in terms of the South African Schools Act, Act 84 of 1996 which, so it was submitted, envisaged the progressive realisation of the provision of the basic requirements. The policy document was not furnished. In any event, it was not submitted that the norms and standards determined for public schools override the constitutional imperative provided by section 29. It was, however, argued that the respondents are doing everything that can reasonably be done to achieve the right to basic education and that the respondents are committed to meeting the furniture requirements of schools in the province as speedily as possible. On this basis it was submitted that the respondents are only able to provide a comprehensive plan for the delivery of school furniture to schools identi ed as requiring such furniture, when the results of the independent audit are known on 28 February 2014. Once the audit results are available appropriate steps may then be taken to determine the budget requirements to meet such needs. In the light of the fact that an amount of R30 million has been allocated in the budget for the forthcoming nancial year, the respondents are not able to meet all of the furniture requirements of schools in the Province within the forthcoming nancial year. Accordingly, the respondents argue that it would be unreasonable to impose upon them a xed time period within which the identi ed furniture needs of public schools must be met.

[23] The stance adopted by the respondents must be viewed against the backdrop of what has transpired since this application was first brought by the applicants in October 2012.

[26] The allegations of non-compliance with the order of Griffiths J are not seriously disputed. In fact it is conceded that the respondents did not ‘‘fully comply’’. Signi cantly the respondents admit in the answering affidavits led in respect of the August proceedings that the May audit was de cient in many respects. In seeking to explain why this occurred, the respondents have sought to suggest that responsibility for the de ciencies was the responsibility of schools as well as the very limited timeframes within which the respondents were operating.

[27] The audit report of May 2013 was also not verified as required by the terms of the order made by Griffiths J, nor were the affected schools visited and therefore furniture needs properly recorded. As already indicated no comprehensive plan for the delivery of the required furniture has been produced. The respondents allege in the answering affidavits that this was impossible within the time constraints since the school furniture needs had to be assessed against the budget and the furniture required had to be sourced and costed. The respondents’ reliance upon the alleged limited time constraints is extraordinary in light of the fact that the terms of the order made by Griffiths J were negotiated between the parties and were accepted by the department’s officials as reasonable at the time that Griffiths J granted the order

[28] The order granted by Griffiths J also included an undertaking made by the respondents that they would endeavour to ensure that the furniture needs of all public schools in the Eastern Cape Province would be met by June 2013. The applicants allege that the respondents have failed to comply with this undertaking.

It is apparent from the May 2013 audit that an amount of R360 million was estimated as needed to satisfy the school furniture requirements of the learners at public schools in the province. By August 2013 when the applicants returned to court no budgetary measures had been taken to give effect to this identified need. In the Department of Education’s 2013/2014 budget only R30 million was allocated to addressing furniture needs in schools in the Eastern Cape. In seeking to explain this, the respondents submitted that the Department had requested the National Treasury to allocate an amount of R120 million but received only R30 million. In doing so it sought to suggest that responsibility for the limited budget available to the provincial Department falls to be placed at the door of the National Treasury.

[29] The order granted by Makaula J on 26 September 2013 made provision for the engagement of independent auditors to verify the results of the May audit undertaken by the Department and to verify the needs of schools for furniture. That report was to be produced by 17 December 2013. The respondents were then again ordered to produce a comprehensive plan, together with the audit, detailing when each of the schools could expect delivery of the furniture identi ed as needed by such school in the audit report. In the case of the 265 schools in the Libode district the order required that their furniture needs be identi ed and that the required school furniture be delivered to those schools by 16 January 2014.

[30] It is not in dispute that the respondents have again failed to comply with the terms of the court order of 26 September 2013. In this regard the answering affidavit states that the furniture needs at 27 schools in the Libode district out of a total of 265 have been identified and met with deliveries. It is common cause that the comprehensive plan and independent audit due by 17 December 2013 has not been completed. In the supplementary answering affidavit the Superintendent General states that by 16 January 2014 the IDT had completed a mere 8 percent of the audit by that date. The revised plan for completion of the auditing process indicates that the audit and verification process will only be completed by 28 February 2014. Furthermore, no comprehensive delivery plan has yet been produced. According to the Superintendent General, the Department obtained only R30 million for school furniture from National Treasury in April 2013, which was the start of the 2013/2014 nancial year. These funds were directed at securing furniture for 25 schools and that tenders for the delivery of furniture were received on an expedited procurement process in May and June 2013. The Superintendent General further avers that in September 2013 the Chief Financial Officer of the Department applied to National Treasury for a special allocation of R60 million for school furniture. This allocation was obtained on 30 October 2013 and a three-year tender for the provision of school furniture has been advertised. In his supplementary answering affidavit, deposed to on 16 January 2014, the Superintendent General explains that the tender process has been delayed as a result of queries addressed to the Department. No indication has been given as to when this tender process would be finalised. [31] In argument before me, counsel for the respondents conceded that the respondents had not complied with the terms of either of the two court orders. This non-compliance, it was submitted, was not willful. It reflected the fact that the Department was not able to meet the impossibly short timeframes and that the Department remains hamstrung by serious budgetary constraints in dealing with the furniture shortage in public schools in the Eastern Cape Province.

[32] Counsel for the respondents was unable to give any indication as to when the respondents would be able to address the admitted furniture shortage in public schools in the Eastern Cape Province. The respondents appeared to adopt the stance that since the IDT audit has not yet been completed they are unable to determine the extent of the furniture shortage in public schools in the Province and therefore are unable to make appropriate plans to address that furniture shortage. This stance is surprising in the light of the fact that a May 2011 audit conducted by the Department had already identi ed a furniture need estimated in the amount of R274 million. The subsequent audits, conducted by the Department pursuant to the present application, reflect that at May 2013 the furniture shortage is estimated in the amount of R360 million. It is also simply quite incorrect to conceive the IDT audit as being an original audit to determine the extent of the furniture needs of public schools in the Eastern Cape Province. The order granted on 26 September 2013 making provision for the IDT audit sought to ensure verification of the results of the May 2013 audit. In other words, the IDT audit was envisaged as a further and additional verification exercise to ensure accuracy of the results already having been obtained in the May 2013 audit. The stance adopted by the respondents, therefore, that the extent of the problem is unknown is simply untenable. It is apparent that the respondents have been well aware of the nature and extent of the furniture crisis for a period well in excess of two years. What owed from this stance adopted by respondents’ counsel in argument was that no practical steps could be taken to address the furniture crisis until after the IDT audit is available. Furthermore, no time periods for addressing the furniture crisis could, therefore, be determined by the respondents at this stage. It was, therefore, submitted that the best that could be hoped for was the formulation of a comprehensive plan to address the shortage, once the extent of the shortage is determined by the IDT audit.

[33] In my view this is wholly inadequate. The approach suggested o ers learners at public schools in the Eastern Cape Province no prospect of achieving access to basic resources required, in order to access the right to basic education. In the light of the fact that the respondents have determined the budget allocation for the forthcoming year, in an amount of R30 million, there is, on the respondents’ stance, no prospect that the dire furniture shortage across public schools in the province will be adequately and appropriately addressed until at least the next budget year, namely 2014/2015. Furthermore, in the light of the amount of money actually budgeted to address the furniture shortage in the province and the admitted problems associated with the so-called three- year tender, which is yet to be awarded, the approach favoured by the respondents o ers little or no prospect that the furniture crisis will be addressed in the foreseeable future. This is the effect of the open-ended approach that the respondents sought to urge upon this court.

[34] In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) at para 74, the court addressed an argument advanced by the City of Johannesburg that it was not obliged to go beyond its available budgeted resources to deal with emergency housing needs, in the following terms:

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.

[35] These remarks, made in the context of evaluating the reasonableness of steps taken to realise a progressively realisable right of access to housing are apposite to this matter. As already indicated the respondents have been aware since at least May 2011 that there is a very serious shortage of furniture in public schools and that this lack of furniture constitutes a serious impediment to the enjoyment of the right to basic education that the Constitution guarantees. Accordingly, the respondents have been well aware for a considerable time that proactive steps need to be taken to address this shortage and to ful l the right to basic education as required by sections 7 and 29 of the Constitution, in these circumstances it is not good enough to state that inadequate funds have been budgeted to meet the needs and that the respondents therefore cannot be placed on terms to deliver the identi ed needs of schools within a xed period of time. Nor is it good enough to state that the full extent of the needs is unknown. The information available to the respondents from 2011 was such that reasonable estimates of the funding required could be made and reasonable steps taken to plan for such expenditure.

[36] In my view the open-ended approach urged by the respondents is unreasonable. Learners in this province are entitled as of right to have immediate access to basic education. They are also entitled as of right to be treated equally and with dignity. The lack of adequate age and grade appropriate furniture in public schools, particularly public schools located in deep rural and impoverished areas, undermines the right to basic education and the persistent failure to deliver such age and grade appropriate furniture to public schools constitutes an ongoing violation of the right to basic education. This court, in the exercise of its jurisdiction, is obliged to give effect to the fundamental rights enshrined in the Constitution and to make appropriate orders to vindicate those rights where such orders are required. In the circumstances of this matter this court is called upon to exercise its supervisory jurisdiction to ensure that the executive authorities charged with responsibility for ensuring the right of access to basic education act reasonably to fulfil their constitutional obligations.

[37] The applicants argued for a time period of 90 days after the date on which the IDT audit becomes available as a reasonable period within which to expect delivery of furniture needed to all public schools. In support of this it was pointed out that the respondents have available to them Treasury Regulation 16A.6.4, which regulates procurement in circumstances of an emergency.

[38] The applicants also point to the fact that in response to both the 29 November 2012 and 26 September 2013 court orders, the respondents were able to procure furniture within a very short space of time and to provide for the furniture needs of the first to third and fth to eighth applicant schools without any apparent di culty. This, the applicants suggest, reflects a welcome response to an emergency situation and that there is no reason why a similar approach could not be adopted more broadly to address the furniture needs of public schools across the province, particularly those in remote rural and impoverished areas.

[39] To ameliorate the effect of imposing a xed time period for the delivery of furniture it was argued that provision should be made for the respondents to apply for an extension of time.

[40] I am mindful of the fact that the extent of the furniture needs in public schools in the province appears, on anyone’s version, is very substantial. The most recent estimate of the projected costs associated with those needs is in the order of R360 million. Securing an appropriate level of budget allocation for the Department from the National Treasury will no doubt take some time and require significant commitment by both the Provincial and National Treasuries. When the budget funds are available the process of procurement of the furniture required will also take time. This much is self-evident. It was suggested by the respondents that this cannot be achieved within a period of 90 days. The respondents however, could not and did not suggest how long it might in fact take. This court is therefore left without guidance from the respondents as to what they consider would be a reasonable period. In the light of this, I am compelled to conclude that a period of 90 days is indeed a reasonable period within which it may be expected that the identi ed furniture needs of public schools in the Eastern Cape Province can be met. To the extent however, that the exigencies of executing so signi cant a project may give rise to legitimate delays and therefore a legitimate inability to meet that projected time period, it will be appropriate to order that the time period may be extended at the instance of the respondents, subject to full disclosure as to the steps already taken to meet the deadline and the projected time period within which the needs will indeed be met.

[41] In the circumstances I make the following order:

1. Declaring that the respondents are in breach of the constitutional right of learners in public schools in the Eastern Cape Province to basic education as provided by section 29 of the Constitution, by failing to provide adequate, age and grade appropriate furniture which will enable each child to have his or her own reading and writing space;

2. Declaring that the respondents are in breach of paragraphs 3.1, 3.2.2, 3.2.3, 3.2.4, 4, 5 and 7 of the order granted by Griffiths J on 29 November 2012 under case number 2144/2012;

3. The respondents are ordered to le at court and to provide the applicants’ attorneys with a copy of the completed Independent Development Trust (IDT) audit of all learner furniture needs at Eastern Cape public schools on or before 28 February 2014;

4. The respondents are ordered to ensure that on or before 31 May 2014 (i.e. 90 days after the ling of the audit referred to in paragraph 3 above) all schools identi ed in the said audit as having furniture shortages shall receive adequate age and grade appropriate furniture which shall enable each child at the identi ed schools to have his or her own reading and writing space;

5. In the event that the respondents envisage that they will not be able to comply with paragraph 4 above, the respondents must make an application on notice to the applicants and supported by an affidavit of the first respondent and / or such of the respondents as may be authorised to depose thereto, seeking an extension of time within which to comply. The affidavit shall deal with:

a. All steps taken up until the time of signing the affidavit to comply with the terms of this order;

b. The nature and extent of the non- compliance;

c. The reasons for the non-compliance;

d. The steps taken or proposed to be taken to remedy the envisaged non-compliance; and

e. The date on which full compliance will be achieved.

6. The respondents shall pay the costs of this application jointly and severally, the one paying the other to be absolved, and such costs are
to include the costs of two counsel where employed.

G. Goosen

Judge of the High Court

Appearances

For the Applications

Mr. T. Ngcukaitobi
Instructed by Legal Resources Centre

For the Respondents

Ms. S. Collet
Instructed by the State Attorney

fightingtolearn22

(ii) Extracts from ECDOE’s responding affidavit

The annexes referred to in the court proceedings are too lengthy to include here. Please contact the LRC for the full court document.

In the High Court of South Africa (Eastern Cape Division, Mthatha)
Case No.: 2144/12

In the matter between:

Centre for Child Law

Applicant

and

Minister of Basic Education

First Respondent

Government of the Republic of South Africa

Second Respondent

MEC For Education: Eastern Cape

Third Respondent

Government of the Eastern Cape Province

Fourth Respondent

Superintendent General of the Eastern Cape Department of Education

Fifth Respondent

Respondents’ Answering Affidavit

I, the undersigned,

RAYMOND MONWABISI TYWAKADI


do hereby make oath and state:

A. The Present State of Furniture Procurement and Delivery in the Eastern Cape

1. The data provided by the IDT audit was found to be not wholly reliable. A copy of the report is annexed as “CA1”. This became evident upon making enquiries from districts and on information subsequently provided by certain districts. The application to intervene brought by the Rockwell Schools similarly illustrates this issue. Furthermore, whilst the audit was in process, delivery was ongoing so the needs of certain schools may have been satis ed. A subsequent list of needs has been compiled by MR MPONGWANA of the Department and is annexed hereto as Annexure “CA2”. The Department is, thus, using this list as a baseline for furniture supplies as it is believed to be more accurate.

2. In terms of Annexure “CA2” the total budget required to address the needs of the schools in terms of the court order dated 20 February 2014 is R193 185 952.50. A School Furniture Update Report prepared by DR A.S NUKU, deputy director – General IOM dated 9 September 2014, Annexure “CA3” indicates as follows:

8.1 In 2013/2014, R48 165 898.11 was utilised to provide furniture to 491 schools.

8.2 In 2013/2014, Department of Basic Education (DBE) supplied 252 schools in the Libode district with furniture, such schools are listed in Annexure “CA4”

8.3 In 2014/2015, DBE has committed to supply 544 schools in eight districts with furniture, such schools are listed in Annexure “CA5”

8.4 The Provincial Department has committed an amount of R100 million for furniture provision as per engagement with provincial treasury. This is evidenced by an internal memorandum written by me to DR NUKU dated 9 September 2014 which is self- explanatory and annexed as “CA6”.

8.5 In March 2014, the Department procured R17 764 704.17 furniture which is presently being delivered to 115 schools. The delivery started on 29 August 2014 and is expected to be completed by 30 September 2014. The schools that are to receive this furniture are listed in “CA7” and include the four (4) intervening schools Mmnceba SSS, Mtonjeni SPS, Redhill JSS and Mzimhlope SPS in the Lusikisiki district.

9. In 2013, a tender for R60 million for the provision of furniture was advertised. Without unnecessarily burdening these papers, the tender became the subject of litigation and in fact is still the subject of litigation. Whilst the monies for the tender were not rolled over to the current nancial year, I have, as accounting officer, taken a decision to utilise R60 million of the allocated R100 million furniture budget for the 2014/2015 year to settle the disputes surrounding this tender and facilitate the procurement of furniture through this tender. I refer to Annexure “CA6” in this regard. This will have the effect of expediting deliveries to schools. I attach a list of schools that were intended to bene t from the R60 million tender but hasten to add that in the interim some of the schools listed therein have been supplied in terms of “CA7” and accordingly this list is presently being cleansed. Those schools who have already received furniture are being replaced with other schools. The total units of furniture to be delivered will remain unchanged.

10. National Treasury in terms of Annexure “MLN3” attached to the application brought by the respondents, indicated that they were ‘formally assuming the procurement process for the Eastern Cape Provincial Department of Education’. There was a misinterpretation between the Provincial Department of Education and National Treasury regarding the exact nature of this assumption of responsibility for the procurement of furniture for the province as contained in Annexure “MLN3” In effect, National Treasury facilitated a transversal supply contract for furniture provisioning in the Eastern Cape. Such process has since been completed. Contracts have been awarded in terms of RT1-2014 for the supply and delivery of fully assembled school furniture for the Eastern Cape for a period ending July 2016. In this regard I annex correspondence of MR PETER MTHOMBENI, Director: Contract Management of National Treasury dated 12 August 2014 as Annexure “CA9”. Accordingly I am advised that the applicant’s intention to join National Treasury is without merit as certainly now they have no direct or substantial interest in the subject matter of this application.

11. The remaining R40 million of the R100 million furniture budget is to be utilised to procure furniture in terms of the RT1-2014 contract. This requires that the schools be identi ed from the list of schools requiring furniture and that orders be placed. Such lists are to be available by 30 September 2014 and orders are to be placed in October 2014. My understanding is that delivery should take place 45 days from order.

12. MS EDITH MAMATHUBA from the Directorate of Physical Resource Planning from DBE prepared a furniture report dated 25 August 2014 annexed “CA10”. Evidenced from the report is that the delivery of the furniture to the schools in the eight districts as contained in Annexure “CA5” is scheduled to commence in September 2014. Presently some of the furniture has been dispatched to warehouses for delivery to schools. It is anticipated that the delivery process will be completed by the end of 2014. The Provincial Department has assisted by providing warehousing in Mthatha and Algoa College in Port Elizabeth for central storage of such furniture prior to distribution to schools. In addition to the delivery to the aforementioned schools, DBE has delivered furniture to 49 ASIDI (previous mud schools) bene ting 9600 learners. Annexure “CA11” lists the schools that have received such furniture.

13. The report Annexure “CA10” records that the Department will require R34 200 995.00 as additional budget to meet the budget of R193 186 260.00 required to provide furniture to the schools in the Eastern Cape.

14. The approximately R17 million furniture deliveries from the warehouse as contained in Annexure “CA7” have not been factored in to the additional budget required. At this juncture, it is envisaged that 862 schools may remain after all deliveries have been completed as outlined supra. I have in the interim, in anticipation of this eventuality, addressed a letter dated 9 September 2014 to MR P. PADAYACHEE, the Acting Director General at DBE requesting assistance to provide such furniture. I annex a copy of the letter as Annexure “CA12”.

15. It is recognised that once all the deliveries have taken place as aforementioned the Department will need to verify and check the remaining needs of schools. Our projection is that such deliveries will realistically have been completed by 31 March 2015. Accordingly, the deliveries to the remaining schools should be achieved by the end of the second term in 2015.

16. It is respectfully requested that this Honourable Court takes cognisance of the fact that any audit or data obtained regarding the furniture needs of schools may realistically have a margin of error. The Department undertakes to address any inconsistencies as a matter of urgency and priority. It is similarly expected that there will be schools with excess furniture and the Department will work with the District Directors to re-route excess furniture to schools in need. MR MPONGWANA, an official in the Department, is to be assigned to the task of overseeing the provision of furniture to schools and discrepancies or problems will be routed through him.

(iii) “South African judge lays down the law on the right to a basic education”

BY Chris Mcconnahie

(Article by Chris McConnahie, 25 February 2014. Original article can be found at: http://ohrh.law. ox.ac.uk/south-african-judge-lays-down-the-law-on- the-right-to-a-basic-education/)

One of the most visible manifestations of the ongoing crisis in South African education is the severe shortage of desks and chairs in schools. Children in the Eastern Cape, South Africa’s poorest province, are among the worst affected. A government audit in 2011 found that 1 300 of the province’s 5 700 state schools lack adequate furniture, affecting over 605 000 children. Many sit on the oor, stand, or squeeze into desks shared with others, making basic reading and writing tasks virtually impossible. In Madzodzo v Department of Basic Education, handed down on Thursday last week, Judge Glenn Goosen of the South African High Court declared that the government’s failure to address this problem is a violation of the section 29(1)(a) constitutional right to a basic education. He further ordered the government to deliver sufficient desks and chairs to all Eastern Cape schools by 31 May 2014.

Madzodzo is arguably the most signi cant judgment yet on the right to a basic education. At this stage, any judgment on this right is significant given the paucity of case law (discussed in a previous post). What makes Madzodzo so significant is that Goosen J has offered one of the clearest accounts of the nature and content of this right, and the most convincing demonstration yet of how to translate this right into appropriate remedies.

This judgment marks the end of three rounds of litigation over school furniture in the Eastern Cape. The first round resulted in a detailed consent order, handed down in November 2012, recording the government’s undertaking to complete a full audit of Eastern Cape schools’ furniture needs, to develop a comprehensive plan to address the shortage, and to deliver furniture to all schools in need by June 2013. The audit was completed three months late, its coverage was patchy, and there was no sign of the comprehensive plan or province-wide delivery. This non-compliance resulted in a second round of litigation in August 2013 and another consent order recording further promises of an independent audit and a comprehensive plan. The sticking point was whether the government should be bound to deliver furniture by a fixed deadline. This led to the third round of litigation heard by Goosen J in mid-February 2014.

In this round, the government readily conceded that its failure to provide sufficient desks and chairs was a violation of the right to a basic education. However, it argued that budgetary and logistical constraints meant that it would take an inde nite time to provide adequate furniture, requiring an open-ended court order. A complication was that the Eastern Cape budgeted a mere R30 million (£1.6 million) for school furniture in the 2013/2014 nancial year, a tiny portion of the estimated R360 million (£20 million) needed to address the shortage.

Goosen J rejected the government’s arguments for an open-ended order. This was motivated, in part, by the government’s consistent non- compliance with the previous court orders which necessitated more stringent judicial control. Furthermore, Goosen J emphasised that an open- ended order would fail to vindicate the right to a basic education. In setting out this argument, Goosen J provided one of the clearest accounts yet of the nature and content of this right. First, he emphasised that the right to a basic education is distinct from other socio-economic rights in the South African Constitution as it is ‘immediately realisable’ (Madzodzo [17] citing Juma Musjid [37], discussed further here). Second, Goosen J stressed that right to a basic education ‘requires the provision of a range of educational resources’, including desks and chairs, and is not merely a right to a place in a school (Madzodzo [20]). This makes explicit a point that has long been implicit in other judgments. Goosen J concluded that an open-ended order with no deadline for delivery would fail to provide effective relief [36]. Underpinning Goosen J’s judgment and order is the important point that the immediately realisable right to a basic education cannot always translate into immediate relief (explained further here). Resource and capacity constraints are always important considerations in determining the appropriate remedy. Nevertheless, immediate realisability does require, at minimum, that remedies must o er a clear timetable for relief. Furthermore, Goosen J emphasised that mere assertions of budgetary incapacity cannot justify watering down remedies. Citing the Constitutional Court’s judgment in Blue Moonlight [74], he emphasised that ‘it is not good enough for [government] 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 [constitutional] obligations’. Goosen J held that the government had been fully aware of the furniture crisis at least since 2011 and its budgeting decisions ought to have responded to this crisis (Madzodzo [35]).

The resulting order demonstrates how to balance the need for effective relief with the need for some exibility to accommodate legitimate budgetary and capacity constraints. The government was ordered to provide furniture to all schools by 31 May 2014, but it may apply for an extension by giving ‘full disclosure’ of the steps it has taken, a full set of reasons for the delay, and a clear timeline for delivery (Madzodzo [41]). The significance of Goosen J’s judgment is not its finality. The government will undoubtedly request an extension, leading to further rounds of litigation. Instead, its signi cance is that it injects greater urgency, transparency and accountability into the delivery of adequate school furniture. All Eastern Cape children may not have a desk and a chair of their own by 31 May, but Goosen J’s order ensures that the government will not escape its constitutional obligations lightly.