This paper was written by the Southern Africa Legal Services Foundation (SALS) staff based on materials prepared for the conference, “The Legal Resources Centre and the Courts in South Africa: Realising Social, Economic and Cultural Rights through Litigation,” hosted by SALS in February 2013 at the Pocantico Center of the Rockefeller Brothers Fund.
The conference was attended by lawyers from the Legal Resources Centre (LRC) of South Africa and other human rights organisations from Colombia, India, Israel, South Africa and the United States, as well as experts from the Harvard Law School, New York University School of Law, Northeastern University School of Law, the Open Society Foundations, and Oxford University. The conference was made possible through generous support from the Rockefeller Brothers Fund and the Wallace Global Fund. This paper 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.
An Unconstitutional State of Affairs
South Africa’s first democratic Constitution of 1994 contains generous social, economic and cultural rights. It guarantees the right of access to adequate housing, health care, food and water, and social security. It also includes the rights of children to education, basic nutrition, shelter, health care services and social services. It further requires the South African government to take reasonable, progressive measures to fulfill those rights. But in spite of many significant victories in court, the promise of those rights – nearly twenty years later — remains elusive to most South Africans. In short, an unconstitutional state of affairs prevails in South Africa with respect to the realisation of these rights. The situation for South African school children, for example, remains dire.
Only half of South Africa’s schools have water and sanitation, 93 percent of its schools do not maintain proper school libraries, and 95 percent do not have science facilities.
Turning Paper Rights Into Actual Rights
The LRC – South Africa’s largest and oldest public interest law organisation – provides pro bono legal services to the poor and vulnerable in the areas of land and housing rights, children’s rights and education, environmental justice,women’s rights, HIV/AIDS and social services, and refugee matters. The LRC, which took the lead in opposing apartheid law, is a legacy institution but today is the champion of communities across South Africa in its quest to realise the rights envisioned in South Africa’s Constitution. The LRC uses a range of creative legal strategies to achieve these ends, including, impact litigation, law reform, strategic partnerships and networking within South Africa, the African continent, and at the international level. The LRC’s work is based on conceptual optimism: its lawyers are willing to do the intellectual work required to find a way forward where many others have found only obstacles, developing an approach for how to enforce these rights, for turning paper rights into actual rights.
The LRC has won a number of crucial cases toward this end. For example, in Government of the Republic of South Africa and Others v. Grootboom and Others, the LRC’s lawyers successfully argued before the Constitutional Court that the government was required to provide temporary relief for those in desperate need of access to housing. In a unanimous decision, Justice Yacoob wrote that the government was obligated “to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness, or intolerable housing.” He argued further that the courts “can, and in appropriate circumstances, must enforce” these obligations. In a settlement regarding the right to education, the South African government agreed to establish regulations mandating that every school in South Africa must meet an acceptable level of infrastructure conducive to learning, including the availability of classrooms, electricity, water, sanitation, libraries, science and math laboratories, sports and recreational facilities, electronic connectivity of schools, and perimeter security.
Holding Those in Power to Account
The main objective of the SALS’s conference at Pocantico was to assist the LRC to determine how best to hold those in power to account, particularly concerning the right of South African children to a basic education.
Central questions posed during the conference included: What can the LRC expect and ask the South African courts to do about the very widespread failure of the South African government to realise these rights? How can the LRC make South Africa’s courts useful in enforcement? How can the LRC make the courts useful in assisting civil society groups that fight for delivery? What legal, institutional and fiscal barriers impede enforcement of these rights?
Discussions were stimulating and productive,and the conference attendees left reinvigorated to tackle their vital, cutting-edge litigation, not only before the courts in South Africa, but also before the courts in India, Israel, Colombia and the United States.
Making the Right to Education Real
The LRC’s lawyers are making remarkable progress concerning the constitutional right of South African children to a basic education. As with all of its cases, the LRC has not relied solely on court action, but works closely with a range of organisations and interested parties to ensure that these public concerns will not be ignored. In addition, the LRC attempts to enable the government to settle matters before pursuing litigation.
1. Replacing mud schools throughout South Africa
Last year, the LRC’s representation of seven mud schools resulted in a settlement in which the government agreed to rebuild the seven schools and set aside funds to rebuild all four hundred “mud schools” by the end of 2014. Thirteen of fifty schools have already been rebuilt, and the remaining thirty seven are nearing completion. The government has begun rebuilding fifty more schools, and hundreds of other mud schools have received temporary pre-fabricated classrooms as an interim measure. However, many schools have been completely omitted from the government’s building lists. The LRC has requested a comprehensive plan from the government, which would include specific time frames for the construction of especially desperate schools, such as one school with an average of 116 students per classroom.
2. Addressing the dire shortage of South African educators
LRC lawyers are working hard to address the critical and chronic shortage of educators throughout South Africa. More than 20,000 of the country’s teachers must teach multi-grade classes, some teaching as many as four grades in one classroom. The government reports that nearly 19,000 teacher posts are vacant throughout South Africa, and that nearly half of those vacancies are in the Eastern Cape. Approximately 9,000 teachers have been on sick leave in the Eastern Cape for up to three years. After the LRC took the South African Department of Basic Education (DBE) to court last year, the DBE was ordered to fill 7,000 vacancies in the Eastern Cape by the start of 2013. The Department consented, but then failed to fully comply. In March of this year, the LRC filed court papers showing that the Minister of Basic Education was in breach of the court order.
In 2013, the LRC also represented 25 temporary teachers in Grahamstown, asking the High Court to order the DBE to pay these teachers, who had not received any pay since the start of their school year. One of the teachers had last received a salary in December of 2011. Some of the teachers faced eviction from their homes and repossession of their furniture. One teacher sold her refrigerator, washing machine, microwave and stove in order to buy food and basic necessities. The LRC made an urgent application to the Grahamstown High Court on 24 May 2013. The matter has been settled and the government has paid salaries to the teachers.
3. Providing a desk and chair for each South African student
The number of South African children who must sit on the floor or squeeze into desks – with three or four students sitting at desks meant for only two students – has reached the point of crisis. At the end of 2012, the LRC obtained a court order by consent, which required the DBE to complete a comprehensive audit of the furniture needs of all schools in the Eastern Cape by February of 2013. The court order also required the DBE to provide a detailed plan, explaining how the required furniture would be provided for each student before the end of June 2013. The DBE failed to publish the detailed plan, and so the LRC prepared a new application to approach the High Court on an urgent basis.
4. Establishing binding standards for South Africa’s schools
The LRC’s lawyers are working to establish binding standards – including adequate classrooms, electricity, water, sanitation, libraries, science and math laboratories, sports and recreational facilities, electronic connectivity of schools, and perimeter security – for all South African schools. The LRC represented Equal Education, an NGO from Cape Town, and two schools in the Eastern Cape (one of them gutted by fire in 2009). The classrooms of these schools were filled with mud, their teachers avoided written assignments because the children had no desks, and untreated drinking water was fetched for the students from a stream 2km’s away. Thanks to this litigation, the government has completely renovated the two schools. The Minister of Basic Education has published revised norms and standards for comment.
5. Securing access to education for learners with disabilities
Four in every one hundred South Africans live with an intellectual impairment – an astonishingly high number compared to the worldwide figure of one in every thousand. While the South African government establishes and funds “special needs” schools for children with moderate to mild intellectual disabilities, it does not provide instruction for severely and profoundly intellectually disabled children. The LRC is working to advance the constitutional right to a basic education for these children as well: securing the rights of severely intellectually challenged learners in the Western Cape to equal funding; helping a special needs school in Grahamstown – which initially had operated out of two shipping containers – to secure adequate structures for its students; and working with a Johannesburg area special needs school to challenge an eviction order that threatened to disrupt the instruction of its vulnerable students. In the Western Cape case, Justice Cleaver ruled in favour of the LRC’s client, holding that the South African government had failed to take reasonable measures to provide for the educational needs of severely and profoundly intellectually disabled children in the province. The judge held that expenditure on education was a legitimate government purpose and that the claimants were arguing for available funds to be fairly spread between all children, not for an extra provision of funds. He furthermore rejected the government’s argument that these children could not be taught, ordering the government to take reasonable measures to ensure the constitutional right to a basic education of these vulnerable children, resulting in critical jurisprudence of national importance for disabled learners.
6. Securing access in the face of discrimination
The right to a basic education is afforded to every child who is physically in South Africa, regardless of his or her immigration status, and the South African Schools Act 84 of 1996 prohibits schools from using immigration status as a basis for exclusion. Nevertheless, refugee children are still frequently denied or delayed entry to a public school by Department of Education officials, who require the children to provide proof of their refugee status. The LRC’s letters of demand to date against the Western Cape Provincial Department of Education have been sufficient to reverse governmental intransigence and successfully secure the children’s access to schooling. Another barrier concerns the issue of school language policy, highlighting the complexities of balancing competing constitutional rights in the new democratic South Africa. Under the Constitution, eleven official languages are recognised and children have the right to receive education in the official language or languages of their choice, where reasonably practicable. In an LRC case involving Hoërskool Fochville in Gauteng Province, which is Afrikaans-medium and the only secondary school in that town, 30-plus English-speaking students sought entry to the school but were denied admission as they did not have strong command of Afrikaans. Because neighboring schools are overcrowded, the Gauteng Department of Education intervened to have them admitted as an English-medium cohort. The LRC has reached an agreement with the school that the English-speaking students will remain there, pending ongoing litigation, and is closely monitoring the situation to ensure that the English-speaking students are receiving competent instruction and fair treatment from the school.
7. Ensuring that the voices of students are heard
In South Africa, the governance of every public school is vested in its school governing body (SGB), which is composed of the principal plus parents and others elected by the school’s parents, and has the power to administer and control school property, formulate student codes of conduct, and determine admissions policies. One LRC case concerning Rivonia Primary School highlights the impact that SGB policies can have on the constitutional right to a basic education. The dispute arose in 2011 when the school, having determined through its admissions policy that it was already full, refused to admit an additional student into its grade one class. The Gauteng Department of Education (GDE) intervened and ordered Rivonia to admit the child. In response, the school launched court proceedings against the GDE. In 2012, the South Gauteng High Court ruled in the GDE’s favour and held that a public school’s enrollment limit is ultimately determined not by a SGB, but by the applicable provincial department of education. This decision was then appealed to the Supreme Court of Appeal which heard the case in November 2012, and again argued before the Constitutional Court in May 2013.
The LRC represents the two amici curiae, Centre for Child Law and Equal Education, in this matter. In its submissions before the Constitutional Court, the LRC urged the courts to consider the effect on children and their access to education if a SGB take the final decision over the enrollment capacity of its school. A situation could be envisioned in which a SGB declares its school to be full even if that school had some of the lowest enrollment figures and student-teacher ratios in the area. A child denied admission would then have to travel further away from her home to attend another school with still available places. The head of the provincial department for education, who is statutorily obligated to provide a school place for every South African child, would also be constrained from fulfilling his or her duty. The LRC further argued that the court must take into account the broader socio-economic context and in particular the legacy of inequality in education in South Africa. Because SGBs of public schools are allowed to charge school fees and allocate the monies towards additional facilities and teachers, beyond what government funding would otherwise provide, fee paying versus nonfee paying public schools often evince substantial disparities in infrastructure resources and student-teacher ratios. An education department without powers to override a SGB’s admissions policies would be seriously undermined in its efforts to distribute educational resources in public schools equitably.
The LRC therefore argued that while a SGB may make the initial determination of capacity in its admissions policy, the SGB admissions policy and determination of capacity is not binding on the relevant provincial department. It was contended that the department may only depart from the SGB’s admission policy and determination of capacity where there is good cause to do so, having regards to such factors as the number of students having to be placed at the school, the alternatives for placement of the students, and the cost implications for the school concerned of the placement of the students.
8. Securing safe transportation and access
In an effort to ensure that all students have safe, reliable and affordable transportation options and access to their schools, the LRC has supported schools and communities in their efforts to compel the government to build bridges across dangerous rivers and busy roads, and to provide transportation for displaced students. Over the last several years, the LRC’s Durban office has been involved in litigation to construct two pedestrian bridges near a busy and notoriously dangerous intersection, where several fatalities have occurred in the recent past, in an industrial section of KwaZulu Natal’s largest city. Three public schools at the heart of the litigation, Clairwood Boys Primary School, Durban South Girls Primary School and Clairwood Secondary School, have a combined student population of over 3,300 coming from formal and informal settlements in the central and southern areas of the city. The LRC’s efforts to negotiate with the municipality involved have been almost entirely unsuccessful. As the LRC prepares for trial, two more students have been struck this year by vehicles.
The LRC is also engaged in a matter involving safe access to schools in the KwaMaphumulo District, some 30 kilometers from the coast in rural KwaZulu-Natal. Inkolovuzane Primary School, which has 126 students and four staff members, is located near the wide Mvoti River, known to be both fast-flowing at times and a carrier of debilitating waterborne diseases such as bilharzia. As there were no bridges within walking distance of the school, students and community members were obliged to swim across the river several times a day, which has resulted in a high rate of illness. Furthermore, the school lacks regular access to clean drinking water and has an insufficient number of pit latrines. Indeed, many local residents, including students and school staff members, use river water for drinking, cooking and washing. The LRC met with the Departments of Education and Transport, and as a result, a bridge has been constructed near the school which allows both pedestrians and vehicular traffic to cross the river. The LRC continues to support this school and the surrounding community in an effort to secure access to clean drinking water and proper sanitation.
9. Ensuring adequate support for needy students
In early 2007, South Africa established a new national policy to identify and fund, as a priority, its poorest schools. The provincial Departments of Education would conduct reviews and assign
poverty scores to each school, with Quintile 1 schools being the poorest and Quintile 5 schools being the wealthiest. Quintile 1 and 2 schools are considered no-fee institutions and are eligible for the Primary School Nutrition Program, which provides much-needed food for students on a daily basis. Although the government is obliged to allocate school funds on a pro-poor basis, the ranking procedure used does not genuinely consider the poverty of the students attending the particular school, but focuses instead only on the poverty levels in the communities surrounding the schools, which has led to serious discrepancies in government data. As a result, many schools lack the resources that they require for feeding their students, performing vital repairs on dilapidated school infrastructure, paying utility bills in a timely manner, and hiring full-time security guards where personal security is of real concern.
The LRC is representing six schools in KwaZulu- Natal, which were inaccurately ranked as Quintile 5 schools, in an effort to challenge the inadequate allocation of funding set aside for them and to compel the government to reimburse the schools for years of underfunding on the basis of their revised quintile ranking. The surrounding communities of these schools have high levels of poverty and unemployment rates. Many of the students come from one-parent households or are cared for by grandparents. Some of the households have no source of income at all and must rely heavily on social grants and government support. Because the schools are classified as Quintile 5, many parents are unable to pay school fees and the schools struggle to cover their day-to-day expenses. The LRC has called on the government to conduct a proper and fair assessment of the poverty levels of these schools and believes this case has the potential to compel the government to re-evaluate the effectiveness of the entire quintile ranking system nation-wide.
A Resource for Expanding the Power of Law to Advance Rights
As the LRC inspires the courts in South Africa to call the elective branches to account, as it creates dialogue between the courts and the legislature, as it engages with civil society about democracy, and as it articulates the rule of law as a vision of justice that includes schools, health care, and housing – South Africa’s constitutional rights are becoming real. Through its work and accomplishments, the LRC serves as an important resource throughout the world for those who seek to expand the potential of social, economic and cultural rights, as well as the power of the law to advance those rights. The LRC also gives others – whether their perspectives are local, national, regional or global – optimism about their ability to meet the challenge of making these rights real.