Fighting To Learn

Introduction

The Legal Resources Centre was established in 1979 as a public interest law centre that seeks to use the law as an instrument of social justice. Following the transition to democracy in 1994, a central focus of the work of the LRC became the use of the law to realise socio-economic rights – that is, to realise the promise of the new Constitution. In the first decade of democracy, the LRC litigated for poor clients, in particular, to secure basic human needs: housing, land and water. Over the last decade, through the experiences of its client communities, the LRC has come to understand the crucial role access to education plays in building a democratic state and improving the living conditions for all its residents.

The LRC’s work in education began with a series of cases asserting the rights of poor learners and school communities, particularly in the Eastern Cape, to the most basic building blocks of an education – a safe classroom and school, a teacher, a space to read and write and the learning materials needed to teach and learn. These cases are concerned primarily with securing the “inputs” necessary to make education at all possible.

In the “mud schools” litigation in 2010, the LRC instituted proceedings to replace unsafe school structures with classrooms that are safe and functional. The litigation resulted in concrete relief for the individual client schools, which had new classrooms built. However, more importantly, it secured a binding commitment by the state to eradicate all “mud schools” across the Eastern Cape and the rest of the country, including a nancial commitment of over R8 billion and a plan of action.

Following the successful settlement of “mud schools”, the LRC monitored the roll-out of the special plan, Accelerated Schools Infrastructure Development Initiative (ASIDI). By January 2014, the government was far behind schedule, with as many as 200 schools still needing assistance and with no plan in place for improvements. Moreover, many schools with inappropriate structures had not been included in the master list at all and other schools that were on the ASIDI list were not aware of this fact; schools were not aware whether they were to receive new school buildings or, if they were, when they could expect to. As a result, the LRC was instructed by a ected schools to launch “mud schools 2” in order to compel government to develop and publish plans and to put in place a system to ensure that all mud schools are included in the plans. This case, too, resulted in a signi cant settlement agreement in August 2014, requiring these steps to be taken. The material relating to “mud schools 2” falls in Article 1 of this book.

Having successfully litigated a series of cases concerned with specific unsafe schools, over several years, the LRC increasingly came to appreciate the scale of the infrastructural deficiencies at public schools across the country. The infrastructural problems, far from being isolated or sporadic, represent systemic problems affecting thousands of schools across the country. This shift from an individualised perspective to a focus on the systemic needs of schools across the country coincided with the birth of a new national social movement, Equal Education (EE). EE is a learner-based social movement that campaigns for access to an adequate education for all learners across the country.

The experiences of the LRC and of its clients in the “mud schools” litigation, together with the experiences that EE’s members were able to share, led the LRC and EE to identify a key challenge: the absence of a binding law setting minimum standards for school infrastructure. A law was needed to tell the state and communities “what makes a school a school” and to establish standards for adequate classrooms, sanitation, electricity, security and other aspects of school infrastructure. And, crucially, a law was needed to set real deadlines for provincial education departments to provide this infrastructure.

Acting for EE and for individual schools with disastrously unsafe school buildings, the LRC launched the “norms and standards” case. We sought to compel the Minister of Basic Education to make regulations in terms of the South African Schools Act to set minimum uniform norms and standards for public school infrastructure. The Minister had previously promised to make the regulations, but apparently reconsidered and informed EE and the LRC that she would not do so. In response, EE launched a campaign that included letters, petitions and marches to Parliament.

When this still did not succeed, the High Court application was launched. LRC lawyers and EE members visited schools across the country, gathering information and the experiences of poor school communities. The founding papers included graphic detail of the conditions of poor schools across the country; and the impact on their learners and teachers of the grossly inadequate infrastructure at those schools. This included schools where classrooms became unusable in rainy weather and schools without any toilets at all. On the eve of the court hearing, the Minister finally relented and agreed to publish the norms and standards.

EE and the LRC played a further role during the drafting process, engaging with the Minister and providing substantial comments on the initial draft norms and standards. This finally culminated in the Minister publishing binding norms and standards in November 2013. These norms and standards now lay a basis for the LRC to assist schools to secure the basic infrastructure now promised by law, to enable learners to receive an education in a safe and functional school environment. The norms and standards litigation is covered in Article 2 of this book.

Article 3 of this book covers the LRC’s furniture litigation. From the school visits towards the “mud schools” litigation and other cases, the LRC learnt that many schools across the Eastern Cape lacked basic classroom furniture that could enable each child to have a place to sit and write. In addition, the provincial department appeared not to have adequate knowledge of the furniture needs of schools. The LRC accordingly launched the Madzodzo case, in which we sought both systemic relief and speci c relief for individual schools. At a systemic level, we sought and obtained court orders requiring the province to conduct an audit of school furniture needs and to develop a plan to procure and provide the furniture. We also sought specific orders to provide furniture to individual schools. The resultant High Court judgment in Madzodzo reaffirms the nature of the education right as immediately enforceable and establishes that school furniture is one aspect of the content of the right. Many schools across the province have received new furniture as a result of the judgment, giving thousands of learners a space to read and write in their classrooms.

In relation to the equally serious challenge of the lack of sufficient teachers at public schools, the LRC followed a similar trajectory. Initial litigation sought to compel the Eastern Cape government to appoint and pay the teachers that it had itself determined were needed in the educator post establishment for speci c schools. At the same time, the LRC secured an order that the department was obliged to appoint and pay teachers to fill vacancies at all affected schools across the province. However, when the provincial government failed to do this – with thousands of teacher vacancies remaining – the LRC sought a novel legal solution to the systemic problem. In the Linkside case, the LRC succeeded in obtaining the certification of a class action on behalf of all schools with teacher vacancies or unpaid teachers. This was the first opt-in class action ever to be certified by a South African court. The teacher provisioning litigation is covered in Article 4 of this book.

The textbooks litigation conducted by Section27 in Limpopo province has drawn attention to the problems, particularly in certain provinces, of providing textbooks that learners require to complete their curriculum. The LRC’s client schools in the Eastern Cape have experienced similar difficulties relating to textbooks and other learner-teacher support materials (LTSM), including such basic items as blackboard dusters. These problems have been exacerbated by the centralisation of procurement of these materials, depriving schools of the ability to use their budgets to secure the items that they need. Because they lost control of their own budgets for LTSM, schools were forced to divert other funds to buy these materials or risk having learners go without. The LRC was instructed by affected schools to launch an application firstly, that the department reimburse schools for the di erence in the budget between the amount allocated and the value of the textbooks actually received for 2013 and 2014; and secondly, to enable the schools themselves to procure LTSM so that they can obtain materials they require, and not be limited to textbooks obtained centrally by the department. We discuss this litigation in Article 5 of the book.

Finally, the LRC recognises that its education litigation takes place in a broader context. At a national level, the realisation of the right to education is integrally related to the realisation of all socio-economic rights and of the development goals of the state. South Africa’s development needs also to be considered in the context of the international commitments reflected in the Millennium Development Goals and the post-2015 development agenda. We situate our education work in this context in Article 6 of the Book.