Ready To Learn

Mud Schools

In 2010 the Legal Resources Centre (LRC) acted for the “Infrastructure Crisis Committees” of seven mud structure schools located in the rural Libode District of the Eastern Cape in the former Transkei homeland. The litigation sought to address the long standing problem of unsafe, crumbling, mud structure classrooms in the Eastern Cape.

Speeches and policy documents by government officials themselves conceded that the conditions at these schools were unacceptable and constituted a breach of the State’s duties under the Constitution. Yet despite repeated requests for assistance, the schools received no help, nor any indication as to when they might receive any. The Education Department’s own documents described the budget allocated for school infrastructure as “totally inadequate” and the province had placed a moratorium on infrastructure projects for the foreseeable future.

Using the Department of Education’s 2005 “District Profiles”, the LRC identified the worst “mud schools” and visited 20 of them in July 2009. Comprehensive interviews with the teachers and School Governing Bodies (SGB’s) at each school were conducted and a decision was taken to assist seven schools in litigation against the State for failing to provide the schools with adequate and safe infrastructure, sufficient desks and chairs, or potable water. All of the schools:

1. were in rural villages and the parents of the learners were predominantly indigent;

2. had been placed in quintile 1 (the poorest quintile), except for 1 school;

3. were designated as “Senior Primary Schools” and catered for learners in grade R (reception) to grade 6, 7 or 8;

4. had between 177 and 421 learners;

5. were classified by the Department of Education as “mud schools”;

6. consisted completely or partially of classrooms built by community members, made from mud and branches (or locally sourced wood), with no ceilings, and roofs that were made of thatch or corrugated iron;

7. were exposed to the elements, and posed a serious risk to the health and safety of learners and teachers as they were unstable;

9. had a serious shortage of desks and chairs;

10. complained bitterly about the conditions at the schools and said that teaching and learning was di cult if not impossible in these conditions;

11. had no potable water except rain water caught in tanks, and had no water for lengthy periods of the dry winter months; and

12. were omitted from any lists that indicated a plan to replace or improve the infrastructure at the school.

The LRC assisted the communities around the seven schools to establish “infrastructure crisis committees” and organised the signing of petitions by the communities stating the needs of the schools. The committees then sent the petitions together with letters of demand to the Eastern Cape Department of Education (ECDOE). The Centre for Child Law (CCL)also joined the litigation as an institutional applicant representing the public interest. The CCL also sent a letter of demand to the ECDOE seeking information on when the seven schools would receive the infrastructure they required (buildings, desks, chairs, water), and what plan was in place to achieve this end. There was no response from the ECDOE.

The application argued that the conduct and policies of the respondents did not meet the requirements of the Constitution or relevant legislation and that such conduct and policies were unlawful and unconstitutional. The applicants sought orders:

1. Declaring that the first and second respondents’ failure to provide the seven schools with proper facilities, access to water and sufficient number of desks and chairs, and/or to develop or make known a plan or plans to provide this, was unconstitutional;

2. Directing the respondents to develop a plan, in consultation with the seven schools, to provide infrastructure and water; and

3. Directing the respondents to provide the seven schools with sufficient numbers of desks and chairs.

The government initially opposed the application and led papers arguing that the schools were not the worst o and would receive assistance in due course, when there was sufficient budget available. In a dramatic about-turn, the government then offered to provide both temporary and permanent infrastructure relief to the seven schools. Firstly, it was agreed that the schools must be supplied with mobile classrooms, sufficient desks and chairs, and water by 31 March 2011. Secondly, construction of permanent classrooms at the schools was to commence by 31 May 2011 and was to be completed within one year. Most importantly, however, the agreement also recorded that R8,2 billion would be committed by the National Government for the replacement of inadequate school structures countrywide and R6,36 billion of that amount was to be used at schools in the Eastern Cape up until 2015. This program is now known as the Accelerated Schools Infrastructure Development Initiative (ASIDI).

While there has been some delay in the implementation of the settlement agreement and roll out of the ASIDI program, overall the litigation has been a huge success. Construction at the seven applicant schools is almost complete with some schools having already taking occupation of new school buildings that include large classrooms, plenty of furniture, libraries, administration blocks, state of the art environmental toilets, and plenty of water tanks. Another 42 schools are being replaced simultaneously with the seven litigant schools, with 34 of these already completed and handed over. Another batch of 50 schools are currently under construction, and a further 100 schools are scheduled to be replaced in the next financial year. Approximately 200 more “mud schools” have received temporary prefabricated classrooms, and the latest estimate is that “mud schools” will be completely eradicated by the end of the 2016 financial year.

Monitoring the implementation of the settlement agreement is ongoing, with the LRC’s attention now focused on ensuring that all schools in need are on the ASIDI list and that schools scheduled to be built are situated in the most geographically practical locations.

In The Eastern Cape High Court, Bhisho (Republic of South Africa)

Case No.

In the matter between:

The Centre for Child Law

First Applicant

The Infrastructure Crisis Committee of Nomandla Senior Primary School

Second Applicant

The Infrastructure Crisis Committee of Tembeni Senior Primary School

Third Applicant

The Infrastructure Crisis Committee of Madwaleni Senior Primary School

Fourth Applicant

The Infrastructure Crisis Committee of Sidanda Senior Primary School

Fifth Applicant

The Infrastructure Crisis Committee of Nkonkoni Senior Primary School

Sixth Applicant

The Infrastructure Crisis Committee of Maphindela Senior Primary School

Seventh Applicant

The Infrastructure Crisis Committee of Sompa Senior Primary School

Eighth Applicant

and

The Government of the Eastern Cape Province

First Respondent

The Government of the Republic of South Africa

Second Respondent

The OR Thambo District Municipality

Third Respondent

Founding Affidavit

I, the undersigned,

Ann Marie Skelton


state under oath the following:

The Nature of This Application


17. This application concerns seven primary schools situated in the Eastern Cape in areas that formerly formed part of the Transkei. The seven schools are Nomandla SPS, Tembeni SPS, Madwaleni SPS, Sidanda SPS, Nkonkoni SPS, Maphindela SPS and Sompa SPS. For the sake of convenience, I refer to them collectively in this affidavit as “the seven schools”

18. All seven schools are primary schools offering education from Grade R through to Grade 6, 7 or 8. The schools vary in size, with the smallest being Sompa SPS which has 177 learners and the largest being Sidanda SPS which has 421 learners

19. These seven schools are located in two of the poorest regions in South Africa. The learners who attend these schools and their parents are, on the whole, indigent

20. The conditions at these seven schools are truly appalling. They are the worst or, at least, among the worst of any schools in the area that previously formed part of the Transkei. As is detailed below and in the affidavits led on behalf of the second to eight applicants, the seven schools all lack the basic infrastructure necessary for e ective teaching and learning

20.1 All seven schools are classified as “mud- schools” by the first and second respondents. Six have classrooms built from mud and one (Sompa SPS) has classrooms made from cinder blocks. The fact that their classrooms are built from these materials rather than from bricks and mortar or pre-fabricated material means that the structures provide little or no protection from the elements for learners at the schools. Indeed, many have become entirely unusable. Many of those that remain useable to some extent are massively over-crowded

20.2 All seven schools also lack access to adequate water. They rely on tanks to catch rain- water but this means that during the dry winter months there is no water available at the schools. Learners must therefore get water as best they can from streams that are 1–2 kilometres away, which streams are often themselves not suitable for obtaining drinking water

20.3 All seven schools face a severe shortage of desks and chairs

21. Speeches and policy documents emanating from the national DOE and ECDOE make clear that the above conditions are entirely unacceptable, that they prevent effective teaching and learning and that they constitute a breach of the State’s duties under the Constitution

22. Despite this, it appears that the first and second respondents have no plan in place to remedy the conditions at these seven schools.

22.1 No such plan appears from the various documents emanating from the first and second respondents nor have the seven schools themselves been informed of such a plan

22.2 Despite repeated written and verbal pleas by the schools for assistance, often in response to emergencies caused by weather, they remain entirely in the dark as to why they are not being dealt with by the first and second respondents, whether they will be dealt with in the future and, if so, when

22.3 Attempts by the first applicant, the CCL, to obtain clarity in this regard have similarly been met with complete silence

22.4 It moreover appears from the ECDOE’s own documents that the budget allocated for dealing with school infrastructure is “totally inadequate” and that the ECDOE has placed a moratorium on infrastructure projects for the foreseeable future

23. It is the applicants’ case that the conduct and policies of the first and second respondents as described in these papers do not meet the requirements of the Constitution or the relevant legislation. Such conduct and policies are accordingly unlawful and unconstitutional

24. The applicants accordingly seek orders:

24.1 declaring that the failure of the first and second respondents to provide the seven schools with proper school facilities, access
to adequate waterand sufficient numbers of desks and chairs and/or to develop and/or make known a plan or plans to provide such is unconstitutional and unlawful;

24.2 directing the first and second respondents to develop a plan or plans, in consultation with the seven schools, to provide them with proper, appropriate and adequate school facilities and access to adequate water; and

24.3 directing the first and second respondents to provide the seven schools with sufficient numbers of adequate desks and chairs

The Relationship Between the School Environment and Adequate Education

28. On 11 June 2010, the Minister published in the Government Gazette “The National Policy for an Equitable Provision of an Enabling School Physical Teaching & Learning Environment”. A copy of this document is attached marked Annexure “AMS3”. I refer to it as “the National Policy”

29. The National Policy makes quite clear that there is a real and substantial link between the physical environment in which learners are taught and the adequacy of the education that they receive

30. Thus, for example, the document states as follows at page 9:

“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 effectiveness, 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 influence learner achievement and teacher attitude towards school. Extreme thermal conditions of the environment are found to increase annoyance and reduce attention span and learner mental efficiency, 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 suffer 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, teamwork and school-community relationships.”

(See also pages 29–30 of the National Policy)

readytolearn5

31. The National Policy goes on to state that the physical teaching and learning environment has “historically been one of the most visible indicators of unequal resource provision” (page 17). In this regard, it defines the “physical teaching and learning environment” as “comprising school infrastructure; basic services; furniture; equipment, books, teaching and learning materials, and co-curricular facilities and equipment.”(page 18) It adds that school infrastructure is broadly conceived to include the physical teaching and learning spaces and basic services, including clean and safe water

32. Identical sentiments have been expressed by the ECDOE. For example, I refer in this regard to the 2010/2011 version of the ECDOE’s “Infrastructure Plan 2005–2014”. I refer to this as the 2010/11 Infrastructure Plan. A copy is attached as Annexure “AMS4”. It states at para 2.1.2 that:

“A consequence of poor infrastructure is an environment that does not promote effective quality teaching and learning”.

33. The pronouncements in the government documents just cited are not only plainly correct as a matter of logic, they are also confirmed by practical experience. I refer in this regard to the affidavit of Ms Ntloko, the principal of Sizane Junior Secondary School which is located in the Libode district

33.1 Ms Ntloko’s affidavit speaks about her experience at her school, and the extraordinarily positive effect that the replacement of mud classrooms with proper pre-fabricated classrooms has had on teaching and learning at the school. This took place in 2008

33.2 While I pray that the entire affidavit be read as incorporated herein, I emphasise the conclusion of Ms Ntloko:

“The improvements in the school have had a profound effect on the students’ morale and quality of teaching. Students now come to school on the weekend, and on holidays, where before they would often be absent from school. Students frequently arrive at school early, and leave late – something which never happened when the school was comprised solely of mud structure classrooms.

Teachers are much more effective now, as a result of the improvements. It is now easier to ensure students are attending class. Before, because of the shortage of classrooms, most of the students spent their time outdoors. It is also easier for teachers to take attendance, by going from class to class to see which students are missing. Furthermore, the new classrooms allow for the safe and tidy storage of textbooks and their effective distribution to learners. It is now easier for students to progress in their lessons, and for teachers to monitor their development. There has been a marked improvement in learner achievement.”

Mud Schools

34. The state of the classrooms at the seven schools is appalling. This is dealt with in detail in the seven affidavits led on behalf of the second to eights applicants. I pray that those affidavits be read as incorporated herein

34.1 By way of example, Nomandla SPS was founded in 1991. Until recently, it consisted of five mud structure classrooms, all of which have fallen into an advanced state of disrepair. The classrooms have dirt floors and holes in the roof, which are made of corrugated iron or thatch. The classrooms have walls that are crumbling and which provide little or no protection from the elements.

34.2 The situation became particularly severe in May and June 2009 when two storms resulted in the roofs of two of the classrooms being destroyed, the corrugated iron roofs of two of the classrooms being blown o , the collapsing of two walls of the classrooms and the roof being blown o of a newly constructed block of pit latrine toilets

34.3 Despite the repeated requests by Nomandla SPS for emergency assistance, none was provided by the Department. Instead, the Department wrote saying that “the provincial o ce has no funds available at this stage to entertain your request. The request will be re- visited in future once funds improve / become available together with all other cases on the needs register”

34.4 Due to the damage to the school, four grades at the school had to be accommodated in community members’ homes

34.5 In the absence of any sign that the first and second respondents would assist Nomandla SPS, the school began to construct three brick and mortar classrooms. 60% of the funds for this project was raised from the parents of learners, while the remaining 40% used the school’s entire budget for “maintenance” and “municipal services”. This is not permitted by DOE policy

34.6 In April 2010, the school began using the three brick and mortar classrooms, even though they had not been completed due to lack of funds, because the school had no option. Despite this, the grade R class is still being accommodated in a community member’s home, a mud at, as it cannot be accommodated at the school. Moreover, Grades 1 to 5 continue to be taught in the five mud classrooms that have fallen into disrepair

34.7 There remains severe overcrowding at Nomandla SPS. Thus, for example, the Grade 1 class has 61 learners accommodated in a mud classroom which is approximately 30m2 in size. The grade 3 class has 31 learners accommodated in a mud classroom approximately 19m2 in size and the grade 5 class has 67 learners accommodated in a mud classroom approximately 30m2 in size

35. The effect of the inadequate infrastructure on school attendance at the seven schools is palpable. For example, in respect of Tembeni SPS, approximately only 30% of learners attend school when it rains due to the poor state of the classrooms and its inability to accommodate the learners adequately

36. The question of safety is also highly concerning. For example, the Madwaleni SPS affidavit makes clear that a number of Madwaleni SPS learners have been pulled out of school by their parents who are concerned about sending their children to learn in unsafe and unhealthy conditions

37. The first and second respondents have repeatedly recognised the inadequacy of these mud structures and the need for them to be speedily replaced. (I point out in this regard that the term “mud structures” includes the cinder block structures at Sompa SPS – which has been repeatedly and rightly classified as a mud- structure school by the ECDOE)

38. However, the general promises from the first and second respondents regarding when the replacement of mud structures would be effected have repeatedly not been fulfilled. Moreover, despite the strong general sentiments expressed by the first and second respondents concerning mud schools, the first and second respondents have been unable or unwilling to provide any indication of when the seven schools will have their mud structures replaced

38.1 The national DOE’s 2001/2002 Annual Report set a goal of replacing all mud structure schools, lowering classroom shortages and providing water, sanitation, telephone lines and fences to all schools needing such infrastructure by 2010. A copy of the relevant pages of the annual report is attached marked Annexure “AMS6”

38.2 The national DOE was not able to meet this goal and amended the target date within three years of setting it. Its 2004/2005 Annual Report pushed the date for achieving this goal back to 2014. A copy of the relevant pages of the annual report is attached marked Annexure “AMS7”

38.3 Despite this extended timeline for achieving the broad range of goals concerned, the national and provincial governments made clear that the replacement of mud schools and the provision of water and sanitation
was to occur much faster. Thus, in 2004, then President Thabo Mbeki stated in his state of the nation address that all mud schools would be replaced within a year:

“- By the end of this financial year we shall ensure that there is no learner and student learning under a tree, mud-school or any dangerous conditions that expose learners and teachers to the elements;

– By the end of the current financial year we expect all schools to have access to clean water and sanitation.”

38.4 A copy of the relevant page of President Mbeki’s speech is attached marked Annexure “AMS8”. These goals were not met

38.5 Three years later, in 2007, then Eastern Cape Premier Nosimo Balindlela stated in her state of the Province Address on 16 February 2007 that the eradication of mud structures was a key priority of the Provincial Government and would be completed by the end of 2008. She stated:

“The mud structure eradication programme will see all mud structures replaced by permanent structures by the end of 2008.”

38.6 A copy of the relevant page of the Premier’s speech is attached hereto and marked Annexure “AMS9”. However, this did not occur

38.7 In the foreword to the ECDOE’s 2007/2008 Annual Report, the MEC for Education then stated that eradicating “mud and other unsafe school buildings” was a “key priority” for the ECDOE and “[d]espite the problems encountered in infrastructure delivery, the Department aims to complete this initiative in the 2009/10 financial year.” A copy of the relevant page of the report is attached marked Annexure “AMS10”. This too did not occur

38.8 Premier Balindlela’s successor, Premier Sogoni, committed his administration to the following at the end of July 2008:

“… We will also be tackling blockages in our school-building programme to intensify our efforts to eradicate mud-schools and class-room backlogs

For these things to happen, we need to deploy more capacity and authority to our district offices to enable them to better monitor and support schools in their area of jurisdiction; and also inequities in the provision of both the professional and non-professional staff at school level”

38.9 A copy of the relevant page of the speech is attached marked Annexure “AMS11”.

38.10 In the ECDOE’s 2008/2009 Annual Report stated as follows under “Standard of Service”: “Eliminate mud structures by 2010 at the rate of 20% per annum”. The same page stated as follows under “Actual achievement against standards”: “It was reported by infrastructure that 450 mud structures would be demolished in 2007/2008 and 376 would remain for demolition after March 2009.” A copy of the relevant page of the Annual Report is attached marked Annexure “AMS12”

38.11 Yet, subsequently, the ECDOE’s Fourth Quarter Performance Report for the period 1 April 2008 to 30 March 2009 stated that only 137 schools with mud and unsafe structures were eradicated at the end of 2008/09. A copy of the relevant pages of the Report is attached marked Annexure “AMS13”

40. The seriousness of the problems afflicting the seven schools in relation to their mud structures is further re-affirmed by the recently enacted National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment, to which reference has already been made. In assessing the different kinds of learning environments concerned, the policy document breaks down such environments into three main areas: basic safety, minimum level of functionality and optimum level of functionality. In respect of the first of these it states as follows at paragraph 4.10.1:

“Basic safety entails the bare minimum of safety requirements below which a school will be deemed inoperable and immediately closed. For example, if a school does not have safe water, sanitation facilities that meet national health standards, if learners are exposed to intolerable elements such as intolerably bad weather, toxic substances in their environment; extremely unsafe building structures that could crumble on to learners, classrooms overcrowded beyond a pre-defined threshold of classroom size, etc”

41. Despite all of these sentiments, there is no sign at all that the seven schools are likely to have their mud structures replaced with proper classrooms in the foreseeable future. The seven schools have had no indication at all as to when their mud classrooms will be replaced, if at all. This is despite the fact that each of the schools has written letters and/or petitions pleading for urgent assistance

42. For example, on 24 February 2010, the Nomandla SPS Infrastructure Crisis Committee sent a petition to the MEC. A copy of the petition is attached to the second applicant’s affidavit. After recounting the massive problems facing the school, the petition concluded:

“We understand that you cannot attend to all our demands but the following items need to be provided urgently:

• Properly built classrooms, storeroom, staff room, and admin block.
• School furniture
• Water tanks”

43. No substantive response was ever received to the Nomandla SPS petition, or the similar petitions by the other six schools. Indeed, the only school even to receive a confirmation of receipt was Madwaleni SPS, which received a letter on 19 November 2009 confirming receipt of the petition and saying it had been handed on to acting superintendent-general. No further response has been received since then

45. I stress that whatever the process the ECDOE has embarked on in order to determine which schools are to be built, the schools themselves are entirely unaware of this procedure. There appears to be no communication whatsoever to the schools regarding what the criteria used are or how schools can get on to the list. Nor is there any indication as to when the schools are likely to be built

46. I point out, for example, that the only way in which the applicants’ attorneys were able to obtain a copy of the 2010/2011 version of the ECDOE Infrastructure Plan 2005–2014 (which has already been attached) was to get a copy from the Public Service Accountability Monitoring Group

46.1 The 2010/11Infrastructure Plan is plainly intended as a policy document – it contains no details as to which specific schools will be dealt with when.

46.2 However, even taking this into account, the document sheds no light on why no plan has yet been developed for the seven schools. For example, it states:

“the two main criteria for the provision of new facilities, or upgrading / replacement of facilities are the following: 

• Shortages of accommodation / facilities (ie overcrowding / backlogs)

• Condition of existing facilities (particularly if these are considered unsafe or unsuitable for tuition)”

46.3 Yet, the seven schools satisfy both requirements

47. This lack of transparency is at odds with the sentiments expressed on a paper obtained by the applicants’ attorneys from the ECDOE website and titled “Discussion Paper on Infrastructure”. A copy of the paper is attached marked Annexure “AMS20”. It states:

“The criteria used and the basis for identifying new projects must be transparent to ensure universal support for the project list. This is of paramount importance” (at pp7–8)

48. In an effort to achieve some clarity on the position of the seven schools, on 30 April 2010, the first applicant, the CCL addressed a letter to numerous parties, including the Minister and MEC. A copy of the letter is attached marked Annexure “AMS21”

48.1 The letter explained that the CCL was concerned over certain policies adopted by the ECDOE and the effect of those policies
on schools in the Eastern Cape and indicated that its concerns fell into three main areas: the replacement of mud schools with proper facilities; the lack of desks and chairs available to schools and access to adequate water at the schools

48.2 In respect of the mud schools issue, the letter emphasised that of great concern to the CCL was that there appeared to be no proper financial and operational plan to achieve the replacement of mud schools and that the existing budgetary allocation for the objective was hopelessly inadequate. Moreover, the letter emphasised that the CCL was aware of nine primary schools in the Eastern Cape, all of which were mud schools with appalling conditions, and none of which appeared to be specifically catered for in any plan to replace the mud schools. This included the seven schools at issue in the present proceedings

48.3 The letter concluded by saying that it was the CCL’s preliminary view that the policies and conduct of the ECDOE were unlawful and unreasonable in at least the respects set out in the letter and, in the circumstances, requested clarity on a series of issues. These included:

“8.1 What efforts, if any, had been made or are on going to ensure that adequate budgetary provision is made to allow for the replacement of mud schools?

8.4 Is the Department in a position to indicate when the following schools will have their mud structures replaced, receive adequate desks and chairs and have access to adequate water and if not, why not?

[The CCL listed nine schools in this letter, including the seven schools at issue in the present proceedings]

8.5 What is the reason that none of the schools concerned is aware of whether and when they will receive proper facilities to replace their mud structures, the necessary desks and chairs and access to adequate water?”

48.4 The CCL received a helpful reply from the Department of Water A airs concerning the issue of access to water, which is dealt with below. Apart from this, no other response was received by the CCL from any of the recipients of the letter, including from the Minister and MEC

49. It is therefore clear that, as things stand, there is simply no sign – let alone a reliable undertaking – that the seven schools will be dealt with in the foreseeable future

Litigation has its limits, but small victories over time can produce transformative effects. The LRC needs patience and resources to play a long game.

51. Moreover, it is clear that the first and second respondents’ lack of progress in addressing mud- schools in the Eastern Cape is substantially due to difficulties caused by government conduct. Thus, in the ECDOE’s “Discussion Paper on Infrastructure”, which has already been attached, the following is stated:

“The Department’s infrastructure delivery programme since 1995 has unfortunately suffered a number of setbacks. These have usually been a result of unfortunate budget cuts, but the most recent disruption (2007–2008) was due to a management decision on the delivery model (which has since been reversed)

The infrastructure unit has also been grossly understaffed, a situation that has grown steadily worse over the past few years”

52. The same paper added that until fairly recently the ECDOE “was acknowledged nationally as a leader in the field of infrastructure delivery” but that this “has changed to such an extent (over a period of only some 2 years) that the Department now lags behind most provinces”

53. The paper also acknowledges that the existing budgets will not be sufficient to meet all existing needs

53.1 It states the budgets “are hopelessly inadequate to eradicate the backlogs in the province” and goes on to say:

“To eliminate the backlogs … within a reasonable timeframe will require a quantum step up from existing budget levels”

53.2 It concludes that:

“[T]he current budget levels for infrastructure provision and maintenance are wholly inadequate. A serious effort needs to be made to source redress funding to address the backlogs within an acceptable timeframe. Given the magnitude of these backlogs, this will require a major political intervention from a national level”

54. The inadequacies of government’s conduct in this regard are further confirmed by an ECDOE memo sent by one Z. Tom, the Chief Director: Facilities and Infrastructure Management, to Cluster Chief and District Directors on 13 May 2009. A copy is attached marked Annexure “AMS22”. It states:

“The object of this letter is to inform all districts that the allocated budget for this financial year, is totally insufficient to fund all the needs already on the database as well as needs still to be identified and/or submitted. The budget of Facilities Management has been reduced by approximately R360m for the 2009/1010 financial year. All District Directors are requested to inform all principals and SGB’s including the offices of Facilities Management of the current state of affairs

All forwarded information and requests from the Districts and schools will not receive immediate attention or action due to the financial environment described above”

55. The CCL understands that the effect
of this letter was to impose a moratorium on
all buildings projects and school infrastructure maintenance needs for the 2009/10 financial year, only five months into that year. It is not clear whether this moratorium has yet been lifted. I invite the first and second respondents to provide full details in this regard

Access to Water

56. In respect of water, the affidavits led on behalf of the second to eighth applicants demonstrate the severe problems concerned. I pray that they be read as incorporated herein

57. None of the seven schools has a consistent supply of potable water and all are dependent on rain water caught on roofs and stored in water tanks. This is inadequate, particularly during the dry winter season

58. Thus, for example, during the dry winter season, Tembeni SPS is often completely without water. The closest source of water when the tanks are empty is a stream that is approximately two kilometres from the school’s grounds. Moreover, the stream is often muddied by livestock and is not suitable for drinking

59. The position is almost identical in respect of Madwaleni SPS, which has four water tanks to catch the rain but these are usually empty for about three months of the year. At that stage, the learners are forced to get water from a stream two kilometres away, which is often inadequate for obtaining drinking water. I point out that these facts concerning Madwaleni SPS were inadvertently omitted from the affidavit signed by Mr Vula on behalf of the fourth applicant. It has not been possible to obtain a further affidavit in this regard prior to launching the present application. However, Mr Vula has confirmed the correctness and accuracy of these facts telephonically in a conversation with Cameron McConnachie, one of the applicants’ attorneys

60. The first and second respondents have recognised the critical importance of access to water for schools. Thus, for example, in then President Mbeki’s state of the nation address in 2004, quoted above, he emphasised

“By the end of the current financial year we expect all schools to have access to clean water and sanitation”

61. Similarly, the recently enacted National Policy, already attached, in defining “the bare minimum of safety requirements below which a school will be deemed inoperable and immediately closed” stated that amongst these situations would be “if a school does not have safe water [and] sanitation facilities that meet national health standards”

62. In the National Minimum Uniform Norms and Standards for School Infrastructure published by the Minister, the following is stated regarding basic services:

“Water: All schools will be provided with minimum / basic water supply as stated in Section 3 of the Water Service Act 1997 (Act 108 of 1997). As in [the] case of sanitation the choice of appropriate water technology to be used will be made at the discretion of the MEC after all environmental assessments have been made. No school is allowed to function without portable clean water.” (para 3.20)

63. There is no sign that the problems of lack of access to adequate water and sanitation facilities will be resolved in the foreseeable future. The schools themselves are entirely unaware of when, if at all, this might occur

64. In its letter of 30 April 2010, referred to earlier, the CCL dealt with the lack of access to adequate water. It stated that it was aware that rain water tanks had been provided to numerous schools that did not have access to running water, but emphasised that these were inadequate during the dry winter months. The CCL emphasised further that:

64.1 it had been unable to find any policies that the Department had in place in respect of the provision of water to schools that did not have access to running water; and

64.2 it appeared clear that the seven schools at issue in this matter were not receiving sufficient water to meet the needs of learners during the school days

65. The letter concluded by saying that it was the CCL’s preliminary view that the policies and conduct of the Department were unlawful and unreasonable in at least the respects set out in the letter and, in the circumstances, requested clarity on a series of issues. These included:

“…

8.3 What policies exist and what efforts have been made, if any, to ensure that schools have access to adequate water, particularly in the dry winter months when there is insufficient rainfall?

8.4 Is the Department in a position to indicate when the following schools will have their mud structures replaced, receive adequate desks and chairs and have access to adequate water and if not, why not?

[The CCL listed nine schools in this letter, including the seven schools at issue in the present proceedings]

8.5 What is the reason that none of the schools concerned is aware of whether and when they will receive proper facilities to replace their mud structures, the necessary desks and chairs and access to adequate water?”

66. On 17 May 2010, the Department of Water A airs responded in writing to the CCL’s letter. A copy of the Department’s letter is attached marked Annexure “AMS25”

66.1 In that letter, the Department of Water A airs set out in some detail its programme for the delivery of water and sanitation services to schools

66.2 It also made clear that the primary aim of the Schools Water and Sanitation Programme was primarily to eradicate all water and sanitation services backlogs “in schools that are formal structures but have no water or sanitation services”

66.3 The letter went on to say as follows :

“It was agreed by the two Departments (i.e. Water A airs and Education) that the schools that fall outside the scope of this programme (e.g. the mud schools and farm schools) will be addressed by the Department of Education

The nine (9) mud schools referred to in your correspondence, were not part of the original list of schools that the Department of Water A airs implemented as they did not meet the said criteria

Ensuring access to adequate water at the mud schools is the responsibility of the Department of Education in consultation with the OR Tambo District Municipality in this case”

67. The letter from the Department of Water A airs is helpfully informative. However, in respect of the seven schools, it is extremely worrying. It appears that the seven schools will all be excluded from the Department of Water A airs programmes for as long as they have not had their mud structures replaced. Until that happens, access to water is the responsibility of the Department of Education and the OR Tambo District Municipality, neither of which has addressed the problem, or shown any intention of doing so. In other words until the first and second respondents provide adequate school buildings, (of which there is no sign or plan) the schools will also continue to be without access to adequate water

68. This has significant consequences for learners. For example, in the National Policy, the Minister states as follows:

“As noted, learners are exposed to environments that pose both a safety and health hazards. Ablution facilities are particularly inadequate. Nearly 80% of schools have more than 50 learners per toilet. For the girl child in particular, such constraints may adversely impact on attendance and consequently in schooling and learning outcomes. Inadequate provision may translate into denying these children substantive access to ETSD, and thus violating their constitutional rights”

Appropriate Relief

83. The relief sought by the applicants in this matter can be divided into two parts. The first part, consisting of prayers 1–3, concerns declaratory orders that the failure of the first and second respondents to provide the seven schools with proper school facilities, access to adequate water and sufficient numbers of desks and chairs and/or to develop and/or make known a plan or plans to provide such is unconstitutional and unlawful. I submit that the applicants are entitled to such a declaratory order

84. The second part, consisting of prayers 4–6, concerns the need to create an appropriate mechanism to ensure that this long-standing unlawful and unconstitutional state of a airs is rectified. The applicants have been mindful of the need to allow the first and second respondents sufficient flexibility to properly address the issues concerned

84.1 Accordingly, prayer 4.1 affords the first and second respondents 30 days in which to develop a plan or plans, in consultation with the applicants, to provide proper, appropriate and adequate school facilities and access to adequate water to the schools. Prayer 4.2 requires that the first and second respondents file an affidavit with this Court and the applicants’ attorneys setting out the plan or plans developed in this regard and details of when and by whom the necessary steps will be taken by the first and second respondents to implement the plan or plans concerned

84.2 In respect of desks and chairs, prayer 4.3 requires the first and second respondents to provide the schools with sufficient numbers of desks and chairs as per annexure “A” to the Notice of Motion. This entails the provision of one desk space and chair for each learner at the school to the extent that such desk spaces and chairs are not presently available to the school

85. Prayers 5 and 6 then require the first and second respondents to file reports on affidavit with this Court and the applicants’ attorneys at least every three months setting out the progress that has been made pursuant to the other orders and allows any of the parties to re-enrol the matter for hearing at any stage, if necessary on duly supplemented papers, to deal with any need for further orders arising out of the other orders. This I submit is plainly appropriate in light of the situation, including but not limited to the lack of communication from government to seven schools and the lack of progress that has been made in respect of the seven schools, despite government’s repeated statements concerning the eradication of mud schools

Wherefore the Applicants Pray for the Relief Set Out in the Notice of Motion.