Fighting To Learn

Mud Schools 2

In 2010 the LRC embarked on litigation to address the problem of unsafe, crumbling mud structure schools in the Eastern Cape after repeated unsuccessful requests to the Education Department to remedy the situation at client schools. The LRC represented the Centre for Child Law (CCL), as well as the “infrastructure crisis committees” of seven schools, whose structures had been built by community members using branches and mud. The schools had no ceilings, and dilapidated corrugated iron and thatch for roofs. Representing the CCL and infrastructure crisis committees of these schools ensured that the LRC could obtain relief on behalf of the named schools as well as on behalf of all schools in the Eastern Cape.

The LRC assisted the schools in establishing crisis committees, and put pressure on the government to provide the infrastructure the schools required. However, there was no response from the Eastern Cape Department of Education (ECDOE), and so court proceedings were issued.

The LRC assisted schools in establishing crisis committees, and put pressure on the government to provide the infrastructure the schools required.

The litigation was successful in that the government, having initially opposed the application, offered to settle the matter and provide temporary and then permanent infrastructure relief to the seven schools involved. Construction of permanent structures was to be completed within one year. Most significantly however, the government agreed to commit R8.2 billion to replacing inadequate school structures nationwide, with R6.36 billion committed to schools in the Eastern Cape. This settlement o er was to be spent over three years to eradicate approximately 500 “inappropriate school structures”. The programme created to oversee the replacement of the schools is known as the Accelerated Schools Infrastructure Development Initiative (ASIDI). Having the CCL as the LRC’s institutional client was instrumental in ensuring an outcome that did not just benefit the seven applicant schools.

Now, three years after the settlement was reached, the seven applicant schools have been replaced, together with 63 other schools with very poor infrastructure. Another 230 schools are under construction or at an advanced stage of planning. Unfortunately however, the ASIDI programme has not been as successful as had been hoped. By January 2014, it was extremely 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 in fact were on the ASIDI list were not aware of this fact. Most schools had no knowledge of the ECDOE’s plans. Tragically, the ASIDI programme has spent only a quarter of the money allocated to it by National Treasury for this three year period. One of the ongoing reasons for under- expenditure has been a failure to plan adequately.

The conditions in many of the schools not included in the ASIDI programme are appalling. Children are exposed to the weather, walls crumble, and strong winds easily blow the roofs off. School attendance suffers, teaching and learning is disrupted and children are prevented from receiving a quality education. Repeated requests by these schools to be included on the ASIDI programme have been ignored, and requests by schools on the ASIDI list for information about their replacement have been similarly disregarded. The LRC, acting on behalf of the Centre for Child Law (CCL) and five mud schools in dire need of emergency relief in the Eastern Cape, applied to the court in January 2014 for an order that the ECDOE immediately provide relief to the five co-applicant schools, publish a list of all schools in the province scheduled to be replaced, and produce and publish a comprehensive plan setting out what each school is to receive and a timetable for this. The application also sought an order directing the Department to publish the criteria to be used when deciding whether to include a school on the list, and to give schools an opportunity to put forward reasons why they should be placed on the list and provided with relief.

On 21 August 2014, a settlement was reached and the Department agreed to publish a list within 45 days of those schools in the Eastern Cape that still comprised of inappropriate structures and to produce the required plan. The settlement was made an order of the court. This is an important step forward and, by ensuring that the ECDOE puts plans into place, it is hoped that it will be able to spend a much larger portion of its budget.

The LRC has embarked on a monitoring programme to track the progress being made.

This involves visiting the 200 schools to establish whether the ECDOE’s lists are accurate and whether the plans produced in terms of the court order are reasonable. Thus far, the monitoring has shown that the Department’s lists are inaccurate (one of the schools on the list was, in fact, closed seven years ago), and a huge amount of work still needs to be carried out. The LRC will continue monitoring and ensuring full compliance with the court order. The production and publication of plans is critical to ensuring there is transparency in the programme, improved expenditure of the budget and accountability to the schools.

Worryingly the Department failed to produce the plan by the end of November 2014 in terms of the court order, and has given no reasons for their failure to comply. Further litigation is being considered to sanction the non-compliance, and appoint an independent administrator to produce the plan if the department remains in breach of the court order.

(i) Extracts from founding affidavit Centre for Child Law

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 Hight Court of South Africa Eastern Cape Division, Grahamstown Case No.

In the matter between:

Makaziwe Maqhelana obo Parents of Learners at Samson Senior Primary School

First Applicant

Nomvuselelo Vukaphi obo Parents of Learners at Sirhudlwini Junior Secondary School

Second Applicant

Menezi Harriot Daniso  obo Parents of Learners at Ncincinikwe Junior Secondary School

Third Applicant

Ngqebelele Nomtati obo Parents of Learners at Melibuwa Senior Primary School

Fourth Applicant

Nobuntu Yengwa obo Parents of Learners at Gqeyana Senior Primary School

Fifth Applicant

Centre for Child Law

Sixth Applicant


Government of the Republic of South Africa

First Respondent

MEC For Education: Eastern Cape

Second Respondent

Government of the Eastern Cape Province

Third Respondent

Superintendent General of the Eastern Cape Department of Education

Fourth Respondent

Minister of Basic Education

Fifth Respondent

Founding Affidavit

I, the undersigned,


state under oath the following:


1. This application is concerned with what are referred to as mud schools, being public schools including the applicants schools, which have unsafe and woefully inadequate school infrastructure. While many public schools face infrastructure challenges, this application is concerned with the worst off schools in the Eastern Cape Province with infrastructure that endangers learners or, at the very least, makes effective learning and teaching virtually impossible.

2. In this regard, the respondents have conceded and recognised the seriousness of the problem. They have consequently developed and, to some extent, implemented an Accelerated Schools Infrastructure Development Initiative (ASIDI) to fast track the eradication of inappropriate classrooms at approximately 500 schools in the Eastern Cape.

3. The applicants welcome the intent of the respondents to develop and implement the ASIDI plan. However, as will be discussed below, the development and implementation of the plan is seriously awed in various respects. Repeated attempts by the applicants to resolve these flaws via correspondence and discussion have proved fruitless. It has therefore, regrettably, been necessary for the present litigation to be initiated.

4. This application therefore has three central purposes and seeks three main forms of relief:

4.1 First, to allow individual schools in the Eastern Cape to understand the state’s plans to eradicate mud schools so that they will know if and when the state will assist them and, if so, what infrastructural assistance they have been identified to receive.

4.2 Second, to ensure that the first and second applicant schools are included on the ASIDI list and to allow other similarly placed schools that have been omitted from the ASIDI list to be given an opportunity to motivate for their inclusion on the list.

4.3 Third, to secure emergency relief for the applicant schools by obtaining temporary infrastructure for those schools in order that they can alleviate the desperate situation in which their learners nd themselves.

5. This case concerns the fundamental right to education as provided for in section 29 of the Constitution. A central component of that right is the duty on the state to provide sufficient, safe classrooms so that children can learn in a properly constructed, safe environment that does not pose a threat to their health, with sufficient space in which to read, write, and learn. In respect of the applicant schools as well as many others, the state (at national and provincial level) has not provided safe classrooms for all learners in fulfilment of its constitutional duties, and has not disclosed any plan to do so. If it does have a plan to do so, this has not been communicated to the CCL, our attorneys, the schools, or the public despite repeated requests to do so. This is an ongoing breach of the right to a basic education, particularly when considered in conjunction with other provisions of the Constitution.

6. It is indisputable that thousands of learners in the Eastern Cape are forced to use classrooms that are made out of mud or other “inappropriate materials” such as corrugated iron, asbestos, or wooden planks. These classrooms are unsafe and do not provide an enabling learning environment. I will refer to these as “inappropriate classrooms”. The children affected are mainly black and poor, and come almost exclusively from the rural areas of the Eastern Cape.

7. The problem of inappropriate classrooms is not a recent phenomenon. Thousands of schools were built by communities, predominately in the former homeland of the Transkei, during the apartheid era when spending on black education was criminally low. Even after 1994 and still continuing to the present day, where there has been a need for classrooms and the state has failed to provide them, communities continue to build classrooms using readily available material such as forest wood and mud, corrugated iron, and timber.

8. Over the past 12 years the state has made repeated promises to eradicate all inappropriate classrooms that have not been kept, and set many targets that have not been met.

9. Despite all of these undertakings, all school building projects had virtually come to a standstill in the province by 2010. Letters written by mud schools pleading for help from the state were met with a simple, “there are no funds to assist”. This led to the CCL and seven mud schools launching a High Court application against the state in August 2010 in the Bhisho High Court under case number 504/10. The application sought to break the impasse and compel the respondents to provide much needed urgent relief to the seven schools and develop a plan for the eradication of mud schools.

10. In settlement of that matter reached in February 2011, the respondents agreed to address the urgent needs of the seven schools and to spend R8.2 billion on eradicating “inadequate structures” nationally, with the lion’s share (over R6.36 billion) to be spent on schools in the Eastern Cape. A copy of the agreement is attached marked Annexure “AS12”. This was recorded in the agreement as follows:

“The Second Respondent has committed R8.2 billion from 1 April 2011 to 1 March 2014 to replace inadequate structures, including mud structures, at schools throughout South Africa and provide basic services to those schools. This amount will be allocated across the next three nancial years as follows:

R700 million for the 2011/12 financial year; R2.3 billion for the 2012/13 financial year; and R5.1 billion for the 2013/14 financial year.”

11. The ASIDI was launched in order to spend this money and to fast-track the eradication of inappropriate classrooms at approximately 500 schools in the Eastern Cape. As will be discussed below, exact numbers on schools needing to be replaced are not available.

12. The ASIDI is funded in the form of a “Schedule 7 conditional grant” known as the “school infrastructure backlog grant”. A screen shot of the ASIDI web page on the Department of Basic Education’s website is attached as Annexure “AS13”.

13. The DBE’s stated plan for the ASIDI to spend these monies included replacing 50 inappropriate structures by 31 March 2012 (which included the seven schools that were part of the February 2011 settlement agreement), another 100 schools by 31 March 2013, and another 346 schools by 31 March 2014. The National Department reported these targets to Parliament’s Select Committee on Education and Recreation on 12 September 2012. Relevant pages of the power point presentation are attached as Annexure “AS14”.

The right to education that enables effective learning for life and livelihood is vital for democracy and development.

14. There has been some progress made in eradicating inappropriate classrooms subsequent to the settlement agreement. The seven schools party to the agreement have either been completed, or are close to being completed, and the 42 other schools which make up the initial 49 are in a similar position. (The initial 50 schools scheduled to be replaced were reduced to 49 after it transpired that one school had been counted twice.) But there have been massive delays and serious underspending of the budget.

15. The initial phase of the ASIDI is at least 18–24 months behind schedule. The second batch of 100 schools has been reduced to 50. Construction on this second batch of 50 schools has begun. Another 50 schools have been identified and are at the “site development” and tendering stage. As reported in an article by Bhekisisa Mncube published on and attached as Annexure “AS15”, the latest projection by the Deputy Minister is that only 150 schools will be completed by 2015. This is a substantial delay and of great concern for hundreds of other schools in the Eastern Cape that are comprised of inappropriate structures.

16. This application does not seek to ignore or undermine what progress has been made in terms of the ASIDI, even if that progress has been slow. The critical issue, however, is the absence of concrete, publicised plans for the future of the programme.

16.1 Not having xed criteria to determine whether schools should be replaced and in what order, the lack of planning by the Department in terms of identifying schools to be replaced, and the failure to communicate plans to schools and communities is a serious breach of the applicants’ rights.

16.2 It raises the very real prospect of perpetual underspending on the grant, the reduction and then termination of the grant for the eradication of inappropriate structures at schools, and many inappropriate structures not being replaced.

16.3 The serious shortcomings in the ASIDI’s planning and communication have resulted in many schools such as those represented by the first and second applicants not forming part of the ASIDI programme at all.

17. The underspending of monies set aside for the eradication of inappropriate structures and the delay in providing safe and appropriate infrastructure is an egregious breach of children’s right to education. The underspending is caused by a failure to plan ahead.

18. Many schools identified as mud schools recorded on the ASIDI list have no idea if or when their buildings are going to be replaced. Enquiries by the CCL and the LRC’s offices have revealed that at least 36 schools are on the ASIDI list but have no idea of this fact. Another 49 schools have been visited by someone who has “surveyed” their school but given them no information about what will happen next. Another 21 schools have been told that their school buildings are going to be replaced, and sometimes even been given a date that has since passed for when construction will begin, but have not been told what is scheduled to be built.

19. There have been repeated requests for:

19.1 information about when the schools represented by the first and second co-applicants would receive emergency infrastructure and be placed on the ASIDI list; and

19.2 the publication of the plans, building programmes, the criteria used to identify schools for the ASIDI programme, and an opportunity for the public to make input.

20. Despite these repeated requests, the respondents have failed to respond in any meaningful way.

21. There is no justification for the ASIDI programme being shrouded in mystery and schools being left to guess their fate in terms of possible infrastructural improvements. The CCL and our attorneys have repeatedly been informed by many schools that they have no idea if or when they are scheduled to receive infrastructural improvements from the department of education.

22. Due to the dire conditions that many schools are in, the schools’ governing bodies are often forced to fund desperately needed infrastructural improvements using a mixture of money raised by the community and portions of the school’s budget earmarked for other line items, such as learner and teacher support material, school nutrition, or non-education consumables.

23. This places extreme pressure on indigent rural communities that can ill-a ord to make donations to school building projects. It also results in schools having to forego essential materials. While schools know that funding infrastructure projects in this manner is against departmental policy and not contemplated by the legal framework governing public schools, the desperate situation imposed by the infrastructural conditions forces them to take desperate measures to ensure that their students can be taught.

24. Equally concerning is that the sacrifices of schools and communities are often unnecessary, as infrastructural improvements arrive or are made unannounced, soon after the school’s own infrastructural efforts are completed, or when they are still underway. Nyangilizwe High School on the outskirts of Mthatha is a good example. Parents made donations and the school rearranged its budget to build four desperately needed classrooms. Weeks before completion, contractors arrived and constructed six temporary classrooms on concrete slabs with shaded walkways. The school abandoned the classrooms they were building to avoid any further nancial loss. The school estimates that it wasted over R200,000 because they were not informed of the Department’s building plans.

25. At schools, such as the applicant schools with inappropriate structures, the conditions of learning are deplorable. Classrooms often have corrugated iron roofs that leak badly and are held down by heavy stones and makeshift wire bindings. They are easily blown off during storms or high winds. Walls made of mud or corrugated iron often crumble or collapse and allow the wind and rain to enter. The floors are usually made of mud and the classrooms are extremely dusty in dry weather and muddy in wet weather. At other schools, such as Samson SPS, there are no classrooms at all and the 200 children are forced to use privately-built rondavels and community-built churches which are even less well-suited for use as classrooms.

26. The respondents simply cannot continue to neglect their legal duties to plan, communicate, and execute their mandate to eradicate inappropriate classrooms and ensure that children can access their right to basic education. Their ongoing failure in this regard creates a real risk that monies allocated to the ASIDI will be reduced and ultimately stopped prior to the eradication of the inappropriate structures.

27. While public schools receive money from the National Department of Education to procure items necessary to provide basic education, the construction of necessary classrooms is not budgeted for in the allocations made to schools. While there is a small budget for the “maintenance” of buildings, there is no line item in any school’s provincially determined budget for infrastructure. The classroom crisis in the Eastern Cape a ects both “section 20 schools” that have limited control over the spending of their state allocated school budget, as well as “section 21” schools that have greater autonomy regarding the allocation of their school budget.

28. It is very difficult for poor and under- resourced schools (which educate children from poor families) to build appropriate classrooms by using money raised through school fees or by readjusting funds from other areas of the school’s budget to build classrooms (temporary or permanent) due to the high cost of building classrooms. They depend on the government to build classrooms.

29. Building programmes, public pronouncements, and the settlement agreement recorded between the CCL and the respondents confirm that the respondents acknowledge their constitutional and legislated responsibilities to provide learners with classrooms and safe school infrastructure. Despite acknowledging their responsibilities, the schools represented by the first and second applicants and numerous other schools whose interests are represented by the CCL are not scheduled to receive appropriate classrooms and have not been informed of any plan to provide classrooms.

30. A vague glimmer of a possible plan for dealing with the hundreds of other inappropriate structures in the Eastern Cape can be found in the minutes of a 20 August 2013 DBE meeting with Parliament’s Education Portfolio Committee. Acting Director-General, Mr Paddy Padayachee, stated that “Although the DBE was making good progress in providing school infrastructure in the Eastern Cape through the ASIDI programme, a number of inappropriate structures still needed to be dealt with, so there was a plan to provide mobile classrooms – and mobile ablution facilities – to address school readiness in 2014 in all the provinces, with the exception of Gauteng and the Western Cape. When the inappropriate structures had been replaced, the mobiles would be moved for use at other locations…” The summary and minutes of the meeting are attached as Annexure “AS16”.

31. Despite this report by the Acting Director- General, the National Department and ECDOE have not provided any plan to the applicants and the other affected schools.

32. It has, therefore, proved necessary for the applicants to seek the three forms of relief summarised in paragraph 4 above and set out in the Notice of Motion to which this affidavit is attached.


33. The first and second applicant schools are both section 21 schools that do not charge fees and are in the poorest quintile of schools. They do not appear on any ASIDI list that our attorneys have had sight of. Despite two written requests from our attorneys for the schools to be assessed and included on the list, the respondents have failed to respond meaningfully and have failed to assess the schools in terms of the undertaking made.

34. Photographs A to E, which are referred to below, were taken by employees of the Legal Resources Centre on the dates set out in the caption appearing under each photograph.


1. Samson SPS

35. As is set out in more detail in the supporting affidavit of the first applicant, Samson SPS has 230 learners enrolled in grades R (reception) to six and has five teachers. The school consists of five privately-built rondawels and two small, community built mud structure church buildings. Some of the rondawels were unused while others were generously provided by local owners willing to vacate their homes during school time. The five rondawels and two church buildings accommodate seven grades as well as the sta and administration of Samson SPS. Each grade has between 25 and 50 students.

36. The rondawels and church buildings are small and are in an advanced state of disrepair. The wooden roof support beams are collapsing. When it rains the school is closed, due to severe leaks in the roofs. Photographs depicting the collapsing roof support beams and the insides of the mud structure classrooms are attached to the affidavit of Mr Maqhelana. These appalling conditions are not conducive to e ective learning and teaching and pose a serious health and safety risk to both the children and teachers. The parents worry about the safety of their children attending a school that could collapse at any time.

37. The school has no toilet facilities and children relieve themselves in the surrounding veldt. Faeces are scattered around the rondawels and church buildings used as classrooms. It is unhygienic and a health risk. It is also an a ront to the learners’ dignity and privacy.

38. Despite repeated requests for assistance, there has been no con rmation from any of the respondents that improvements will be made. The last promise of assistance was made by an inspector in September 2011 who said that the school would be replaced in the 2014-2015 nancial year. There has been no con rmation of this and no further information regarding this promise of assistance, and the school does not appear on the ASIDI programme list of schools to be replaced.

39. The school deposed to an affidavit detailing the dire conditions at the school in 2011. That affidavit was led in the Bhisho High Court under case number 81/2012 in the matter of Equal Education and two others versus the Minister of Basic Education and twelve others where the applicants sought to compel the Minister to promulgate binding minimum norms and standards for school infrastructure in terms of section 5A of the Schools Act. The respondents have therefore had knowledge of the conditions at the school for, at the bare minimum, over two years. As discussed below, in April 2013 the respondents undertook to assess the school and provide assistance if necessary. None of the applicants or our attorneys have any knowledge of an assessment taking place or whether a decision has been taken to provide assistance.

2. Sirhuldwini SPS

40. Sirhudlwini SPS is in the district of Mount Frere, has 124 learners enrolled in grades R (Reception) to 6, and consists of six community- built classrooms. Four classrooms are mud structures and two are made of concrete blocks and cement. There are between 16 and 38 learners in each of the classrooms. Photographs depicting the classrooms are attached to the affidavit of Ms Vukaphi.

41. One of the classrooms is simultaneously used as a staffroom, a kitchen and a storeroom. Grades 1 and 2 share the same classroom and grades 5 and 6 are also combined. Not surprisingly, the fact that four grades must share only two classrooms makes it extremely di cult for teachers to e ectively instruct the children and generally creates a more chaotic atmosphere.

42. The classrooms are not insulated and are extremely cold in winter and hot in summer. The roofs leak and wet weather disrupts learning. Despite repeated requests to the ECDOE for assistance and numerous promises by the ECDOE that they will investigate the conditions at the school, Sirhuldwini SPS still does not appear on any building lists, including the 2012 ASIDI list.

43. As has been made clear in the preceding paragraphs and the affidavits of the first and second applicants, the infrastructure at Samson SPS and Sirhuldwini SPS is hopelessly inadequate. The schools are constructed entirely (or almost entirely) of mud. The infrastructure is so inadequate that it threatens the safety of the learners concerned and, at the very least, severely undermines the ability of learners to be properly educated. Despite this, Samson SPS and Sirhuldwini SPS do not appear anywhere on the ASIDI list.

44. By contrast, the third to fifth applicant schools are (correctly) included on the ASIDI list but the condition of Samson SPS and Sirhuldwini SPS are as bad, if not worse than, the conditions at the third, fourth, and fifth applicant schools.

45. There is no rational, reasonable or lawful basis for Samson SPS and Sirhuldwini SPS to be excluded from the ASIDI list.

Schools on the ASIDI List with no Knowledge Whether They Will Ever be Assisted

46. The schools represented by the third to fifth applicants do appear on the ASIDI list but have no knowledge of whether they are scheduled to receive improved infrastructure. The conditions at all three schools are dire and as bad, if not worse, than the conditions at Samson and Sirhuldwini. All three of the schools are section 21, no-fee schools that have been placed in quintile one. None of them have toilet facilities. Gqeyane Senior Primary School (Gqeyane SPS) and Melibuwa Senior Primary School (Melibuwa SPS) have been visited by officials who surveyed the schools but gave them no information about possible improvements. Ncincinikwe Junior Secondary School (Ncincinikwe JSS) has never been visited by departmental o cials to assess its infrastructure.

3. Ncincinikwe JSS

47. Ncincinikwe JSS is located in the district of Butterworth. It has 117 learners in grades R to 8, and five teachers. As is set out in more detail in the third applicant’s affidavit that is attached hereto, all of the classrooms are made of mud, the zinc roof sheeting leaks badly, the buildings are unstable, and there are not enough water tanks to harvest sufficient rainwater for the schools’ needs. One of the biggest problems at the school is the complete absence of toilets for learners. The learners are forced to relieve themselves in a nearby field which is strewn with faeces and toilet paper. The affidavit of Siyabonga Benile, a female learner in grade 7 at the school, is also attached to this application and describes the hardships faced by female students, particularly when they are menstruating.

48. The schools’ enrolment has been in slow decline over the past few years and the parents attribute this to the failing infrastructure. Many children have been removed from the school and sent to live in bigger towns with relatives where there are schools with better infrastructure. The parents are certain that enrolment at the school would increase dramatically if the state provided improved infrastructure.

49. Since 2003, when the school was informed that it was number one on the priority list of schools to be replaced, it has not heard anything about the government’s plans to improve the infrastructure at the school.

G. The Impact on Inadequate Infrastructure on the Education of Learners

50. There is a direct relationship between adequate school infrastructure and learner performance. Adequate infrastructure is a necessary element for providing an adequate education.

51. The Minister and her Department have acknowledged this causal relationship. This is made clear both in official government documents, and in government’s correspondence with the first applicant.

52. For example, in the Minister’s foreword to the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment (National Policy for an Equitable Provision) she highlighted the significance of school infrastructure as follows:

“School infrastructure remains a critical issue on the social agenda for South Africa for a number of reasons. In the first place, infrastructure di erentials are so large in South Africa and some of the infrastructure available so inadequate that it is inconceivable that it DBEs [does] not impact on learner performance. Secondly, the highly unequal access to quality facilities remains critical in the light of our Constitution and the Bill of Rights which demand equity and equality.” (page 4) (emphasis added)

53. The National Policy for an Equitable Provision states:

“Significance of the Physical Teaching and Learning Environment: Yet as recent studies show, there is a link between the physical environment learners are taught [in], and teaching and learning e ectiveness, as well as learning outcomes. Poor learning environments have been found to contribute to learner irregular attendance and dropping out of school, teacher absenteeism and the teacher and learners’ ability to engage in the teaching and learning process. The physical appearance of school buildings are shown to in uence learner achievement and teacher attitude toward school. Extreme thermal conditions of the environment are found to increase annoyance and reduce attention span and learner mental e ciency, increase the rate of learner errors, increase teacher fatigue and the deterioration of work patterns, and affect learning achievement. Good lighting improves learners’ ability to perceive a visual stimuli and their ability to concentrate on instructions.

A colourful environment is found to improve learners’ attitudes and behaviour, attention span, learner and teacher mood, feelings about school and reduces absenteeism. Good acoustics improves learner hearing and concentration, especially when considering the reality that at any one time, 15 percent of learners in an average classroom su er from some hearing impairment that is either genetically based, noise-induced or caused by infections. Outdoor facilities and activities have been found to improve learner formal and informal learning systems, social development, team work and school-community relationships.” (Page 7. See also pages 23-25.)

H. Legal Basis for Relief Sought

54. The applicants submit that there is unquestionably a legal and constitutional obligation on the respondents to provide adequate and safe school infrastructure and, in doing so, to plan appropriately and provide information to the affected schools. There is, similarly, an obligation to provide emergency assistance to schools where required. These are matters for legal argument and will therefore not be addressed in detail in this affidavit.

55. I emphasise, however, that these legal and constitutional obligations flow from a range of sources, including:

55.1 The right to a basic education contained in section 29(1)(a) of the Constitution;

55.2 Further constitutional provisions, including:

55.2.1 The duty of the state to ensure accountability, responsiveness, and openness (section 1);

55.2.2 The duty of the state to respect, protect, promote and fulfil the rights contained in the Bill of Rights (section 7(2));

55.2.3 The right to equality (section 9);

55.2.4 The right to human dignity (section 10);

55.2.5 The right to freedom and security of the person (section 12);

55.2.6 The rights of children (section 28);

55.2.7 The basic values and principles governing the public administration (section 195); and

55.2.8 The duty on the state to perform its obligations diligently and without delay (section 237).

55.3 The Schools Act, including sections 3 and 34 thereof; and

55.4 The Eastern Cape Schools Education Act 1 of 1999, including section 4(1) thereof.

56. Again, without seeking to anticipate or limit the detailed legal argument that will be advanced at the hearing of this matter, I emphasise the following points.

57. First, the right to a basic education necessarily implies the right to a basic education that is adequate and in an environment that is safe.

57.1 I would be most surprised if the respondents disagreed with this contention.

57.2 As is illustrated by the situation at the applicant schools, safe and functional infrastructure is essential for adequate education to be provided. Educating a child requires more than a teacher, or a teacher and a textbook. The achievement of an adequate basic education requires, amongst other things, that a child study in classrooms and an environment that are safe and conducive to learning.

57.3 Yet the present case demonstrates that learners required to attend school are being subjected to serious health and safety risks from unsafe buildings. In several of the applicant schools, the buildings are in an advanced state of disrepair, and many wooden roof support beams are collapsing. Other buildings are structurally unsound and continue to deteriorate in bad weather.

57.4 There is a real concern about the safety of children attending a school that could collapse at any time. As well as the risk from unsafe structures, learners are subject to health risks from classrooms that are not insulated and are extremely cold in winter and hot in summer; from floors which are very dusty in dry weather and muddy in wet weather; from leaking roofs and other structural defects. The state, by subjecting learners who are required to attend school to such risks, has actively interfered with their rights.

57.5 Learners at the applicant schools and other similar schools are also consequently subject to unfair indirect discrimination on grounds of race and ethnic and social origin. In this case, the state’s provision of inadequate infrastructure at schools overwhelmingly affects black learners.

58 Second, the relevant provisions require that plans by the state to fulfil its constitutional and statutory obligations regarding education be made available at least to those affected by them.

58.1 In the present case, government has already embarked on a plan to fulfil its obligations under the Constitution. This is the ASIDI plan. However, as appears from this affidavit and those led together with it, the design, implementation and communication of the ASIDI plan has varied from haphazard (at best) to deeply awed. This application is a first step in seeking to remedy some of those defects.

58.2 In this regard, it bears emphasis that the Constitutional Court has already emphasised the critical importance of making such plans publicly available and accessible. In the context of government’s response to HIV and AIDS, the Court unanimously held that for a programme to pass constitutional muster, it is essential that it be communicated and made known to those involved:

“The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can be achieved only if there is proper communication, especially by government. In order for it to be implemented optimally, a public health programme must be made known e ectively to all concerned, down to the district nurse and patients. Indeed, for a public programme such as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately.” 1

58.3 There can, in my submission, be no question that this applies equally to government’s duties in relation to the right to a basic education. The rights-bearers themselves are entitled to know when and in what way their rights will be fulfilled and the relevant plans and budgetary allocations should be made public.

59 Third, the relevant provisions require that plans by the state to ful l its constitutional and statutory obligations regarding education must make immediate provision for those who are in immediate need.

59.1 It is now well-established that, even where the state is only required to act “reasonably”, it will not be doing so if those in immediate need are simply told to wait for their position on the waiting list to come up.

59.2 In the present context, the failure of the respondents to provide some form of emergency relief to the applicant schools is itself a breach of the various constitutional and statutory provisions set out in this affidavit, which must be remedied.

60. Finally, I point out that on 29 November 2013, acting in terms of the Schools Act, the Minister prescribed “Regulations Relating to Minimum Uniform Norms and Standards for Public School infrastructure” (the regulations).

60.1 The regulations provide standards for, inter alia, the size of schools, access for disabled people, where schools should be located geographically, classroom sizes, standards for the availability of electricity, water, sanitation, libraries, laboratories, sport facilities, electronic connectivity, perimeter security and school safety amongst other things.

60.2 The ASIDI and the Memorandum of Agreement concluded by the state pre-date the regulations. Prior to the regulations being promulgated, the state had already conceded its legal obligation to provide adequate infrastructure to schools in the position of the applicant schools.

60.3 However, to the extent that the regulations apply, they reaffirm the respondents’ obligations to provide safe and proper infrastructure.


61. The precise relief sought by the applicants is set out in the Notice of Motion and is not repeated here. Suffice it to reiterate that the relief sought takes three forms.

61.1 First, in prayer 1 of the Notice of Motion, the applicants seek relief which would allow individual schools in the Eastern Cape to understand the state’s plans to eradicate mud schools via the ASIDI so that they will know if and when the state will assist them and, if so, what infrastructural assistance they have been identified to receive.

61.2 Second, in prayers 1.4 and 2 of the Notice of Motion, the applicants seek relief to ensure that the first and second applicant schools are included on the ASIDI list and to allow other similarly placed schools that have been omitted from the ASIDI list to be given an opportunity to motivate for their inclusion on the list.

61.3 Third, in prayers 3 and 4 of the Notice of Motion, the applicants seek emergency relief for the applicant schools, in order that they can obtain at least temporary infrastructures and alleviate the desperate situation in which the learners at the applicant schools nd themselves.

62. I submit that this relief is undoubtedly appropriate, just and equitable.

WHEREFORE the applicants pray for the relief set out in the Notice of Motion.


(ii) Examples from LRC monitoring programme

Mud Schools Monitoring


Butterworth District

Name of School Infrastructure Recommendation Problems with Furniture Problems with Enrollment and Teachers Problems with Sanitation Problems with Funding Problems with Nutrition Problems with Transport
Endleleni Junior Primary Remove from list N/A N/A N/A N/A N/A N/A
Hokisi Junior Secondary Rebuild Yes No Yes No No No
Jericho Senior Primary Other
Jojweni Junior Primary Rebuild Yes No Yes No No No
Kokolo Senior Primary Remove from list
Kunene Junior Secondary Remove from list Yes No No No No No
Kuyasa Senior Primary Other Yes No No No No
Lingelethu Senior Primary Rebuild Yes No No No No No
Lower Nofotyo Junior Secondary Rebuild No ? ? ? No ?
Mayibongwe Junior Primary Rebuild Yes Yes Yes No Yes No
Meme Senior Primary Rebuild No Yes Yes No No No
Mvumelwano Junior Primary Rebuild Yes No Yes No No No
Mzinjane Senior Primary Other No No Yes No Yes Yes


Nolita Senior Primary

Principal Name and No.:
Ms Dambisa

SGB Chairperson Name and No.:
Mrs Piliswa


Address: PO Box 1897
Grades: Gr R – Gr 6
No. of Learners: 63
Visited on: 26 August 2014
Visited by: Cameron, Elizabeth, Pasika

Classrooms built of cement and blocks. No ceilings. Nearest schools, which require crossing rivers to reach, are about 3km away.

Mud school with cement plaster. Classrooms in poor condition and have no ceilings.

Nomzamo Senior Primary

Principal Name and No.:
Ms Noluthendo Bovela


Address: PO Box 61, Butterworth, 4990
Grades: Gr R – Gr 5No. of Learners: 41
Visited on: 29 August 2014
Visited by: Cameron, Elizabeth

Buildings are block and cement. Well maintained but inappropriate. Closest school is too far to walk.


  1. Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) at para 123