Ready To Learn

Norms and Standards for School Infrastructure

Among the most trenchant legacies of apartheid are the poor building conditions that persist in former black-only schools. In a May 2011 report by the national Department of Basic Education (DBE), it was admitted that over 3,500 schools in South Africa still do not have any access to electricity, over 900 schools are without any sanitation facilities, and over 2,400 schools are without access to water. A major obstacle to resolving the infrastructure crisis in schools is the absence of regulations de ning what a school in South Africa must consist of.

In March 2012 the Legal Resources Centre (LRC), acting on behalf of the non-governmental organisation Equal Education (EE) and two Eastern Cape public schools, led a High Court application seeking an order directing the Minister of Basic Education to set binding minimum norms and standards to regulate adequate school conditions throughout the country. The 600 page application included affidavits from 26 public schools illustrating the pervasiveness of dire infrastructure problems.

On 19 November 2012, the parties entered into a settlement agreement. The Minister of Basic Education undertook to provide the two applicant schools with sufficient infrastructure, and more importantly, to promulgate regulations that would establish minimum norms and standards providing for the availability of: classrooms; electricity; water; sanitation; a library; laboratories for science, technology, mathematics, and life sciences; sport and recreational facilities; electronic connectivity; and perimeter security. Prior to the 15 May 2013 promulgation deadline, the agreement mandated that the Minister publish draft norms and standards for public comment by 15 January 2013 and consider comments by 31 March 2013. In addition, the Minister agreed to address the infrastructure problems of the applicant schools and pay the costs of the application. In the event of the Minister’s noncompliance with its terms, the agreement made specific provision for the applicants to approach the High Court.

Encouragingly, the DBE succeeded in providing sufficient classrooms, security fencing, toilets, water and furniture to the applicant schools. The Minister also released a draft (albeit a very poor draft) of the minimum norms and standards. Extensive comments on the draft were submitted by EE and more than 20 other organisations during March 2013.

However, the Minister failed to publish revised and nal regulations by the May 2013 deadline and asked for a further extension of “at least” six months to do so. This precipitated another round of litigation where the LRC and EE sought to convert the Minister’s November 2012 “undertaking” to set minimum norms and standards, into a court order compelling their creation. After the exchange of pleadings an order was granted (by agreement between the parties) that the Minister would publish a revised draft of the regulations for public comment by 12 September 2013, and the nal version by 30 November 2013. The Minister has thus far complied with the order by publishing the revised draft. The draft does address some of the previous deficiencies in that it provides for specific reporting procedures that provinces must follow when communicating their plans and progress in implementing the minimum norms and standards to the Minister. This should greatly enhance provincial accountability and ensure that proper planning (something that is sorely lacking at present) becomes compulsory.

The latest draft unfortunately still lacks the much-needed specifics on what facilities must be provided to schools. The timeframes proposed for achieving the implementation of the minimum norms and standards are also extremely long: 10 years for basic things like sanitation facilities and classrooms, and 17 years for libraries and science laboratories. Comments on the draft are currently being prepared and it is hoped that the nal version will incorporate shorter time frames for implementation and greater specificity on infrastructure. Should the Minister’s nal version be unreasonable or fail to uphold children’s right to basic education, a further legal challenge on particularly problematic sections is possible.

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

Case No
In the matter between:
Equal Education

First Applicant

Infrastructure Crisis Committee of Mwezeni Senior Primary School

Second Applicant

Infrastructure Crisis Committee of Mkanzini Junior Secondary School N

Third Applicant

and

Minister of Basic Education

First Respondent

MEC For Education: Eastern Cape

Second Respondent

Government of the Eastern Cape Province

Third Respondent

Government of the Republic of South Africa

Fourth Respondent

MEC For Education: Free State

Fifth Respondent

MEC For Education: Gauteng

Sixth Respondent

MEC For Education: Kwazulu-Natal

Seventh Respondent

MEC For Education: Limpopo

Eighth Respondent

MEC For Education: Mpumalanga

Ninth Respondent

MEC For Education: Northern Cape

Tenth Respondent

MEC For Education: North West

Eleventh Respondent

MEC For Education: Western Cape

Twelfth Respondent

Minister of Finance

Thirteenth Respondent

Founding Affidavit

What follows are extracts from the nal founding affidavit prepared by the Legal Resources Centre for its client Equal Education and deposed to by Yoliswa Dawne the Head of the Policy, Communication and Research Department of Equal Education, the first applicant. Yoliswa Dwane was a co-founder of Equal Education. She grew up in Dimbaza Township in the Eastern Cape and nished school in King William’s Town

EE is a community- and membership-based organisation. It advocates for quality and equality in the South African education system, and engages in evidence-based activism for improving the country’s schools. Youth and particularly learner leadership development is central to our work.

EE works to promote quality education for all through campaigns grounded in detailed research and policy analysis and supported, where appropriate, by litigation.

1.1 EE has approximately 1500 members who are active on a weekly basis in approximately 80 schools around the country. It has many more active supporters. Its membership consists of learners, parents, teachers and community members. The largest section of the membership is made up of high school learners. http://www.equaleducation.org.za/.

1.2 The second applicant is the INFRASTRUC- TURE CRISIS COMMITTEE OF MWEZENI SENIOR PRIMARY SCHOOL (“Mwezeni SPS”), and its members. Mwezeni SPS is located in the Mbashe Local Municipality, approximately sixty kilometres south east of Mthatha. I refer in this regard to the affidavit by Nokhululekile Mshu- mayeli, the chairperson of the Infrastructure Crisis Committee of Mwezeni SPS.

1.3 The third applicant is the INFRASTRUCTURE CRISIS COMMITTEE OF MKANZINI JUNIOR SECONDARY SCHOOL (“Mkanzini JSS”), and its members. Mkanzini JSS is located in the Port St Johns Local Municipality, approximately 15 kilometres north west of Port St Johns. I refer in this regard to the affidavit by Fikile Billi, the chairperson of the Infrastructure Crisis Committee of Mkanzini JSS.

2. The Infrastructure Crisis Committee of each school and the members of that committee approach this Court in their own interests, in the interests of the learners and parents of learners at the school, and in the public interest.

The Nature of this Application

3. This is an application in two parts.

4. The first part of this application concerns
two schools in the Eastern Cape, Mwezeni SPS, and Mkanzini JSS. Both have suffered serious infrastructural damage caused by severe weather storms and re, resulting in a situation of danger and emergency. The first part concerns the State’s duty to provide adequate emergency relief to Mwezeni SPS and Mkanzini JSS. It is of a more urgent nature and concerns narrower questions of fact and law than the second part.

5. The second part of this application concerns the failure by the Minister to make regulations prescribing the minimum norms and standards for school infrastructure as contemplated in section 5A(1)(a) and (2)(a) of the SA Schools Act.

5.1 The Relief that the applicants seek: in respect of the first part:

5.1.1 declaring that the failure of the
MEC and the provincial government to address and resolve the dire conditions at Mwezeni SPS and Mkanzini JSS by at least providing adequate emergency structures, is unconstitutional and unlawful; directing the MEC and the provincial government immediately to provide emergency relief to Mwezeni SPS and Mkanzini SPS in the form of safe and adequate structures, temporary or otherwise;

5.2 The relief that the applicants seek in respect of the second part:

5.2.1 declaring that the failure of the Minister to make regulations which prescribe minimum norms and standards for school infrastructure constitutes a breach of the constitutional right to a basic education, a breach of the constitutional right to equality, a breach of the constitutional right to dignity, a breach of her statutory duties under section 5A of the SA Schools Act, and a breach of the values of accountability, responsiveness and openness which underpin the Constitution; and

5.2.2 directing the Minister to make regulations which prescribe minimum norms and standards for school infrastructure in terms of section 5A of the SA Schools Act, within 3 months of the date of judgment.

The legal obligations and underlying statutory schemes are well described in the attached heads of argument

Emergency Conditions at the Applicant Schools and their Impact on the Learners’ Education

6. Mwezeni SPS is a Senior Primary School that provides education to 295 learners in Grade R through Grade 6. Mkanzini JSS is a Junior Secondary School providing education to 408 learners in Grade R through Grade 9.

7. These schools are in the area which previously constituted the Transkei. This is one of the poorest areas in South Africa. The learners who attend these schools and their parents are impoverished people from rural communities.

8. As appears in more detail from the affidavits of the second and third applicants, these schools have been severely damaged either by extreme weather conditions or by re. Mwezeni SPS was seriously damaged by heavy rains in January and February 2011. Mkanzini JSS was gutted by re on 15 July 2009. Menziwa SSS was struck by a tornado on 20 December 2010 and by a severe storm in March 2011. Even before the schools were struck by these disasters, the learners at these schools had suffered deplorable conditions for years. These schools now operate under appallingly unsafe conditions, and require emergency infrastructural relief.

9. As a result of the pre-existing inadequacies and the severe storm or re damage, the condition of the school infrastructure at these schools endangers the physical safety of the learners, and impedes their ability to attain a basic education.

10. The issue of safety is urgent, as described in the second and third applicants’ affidavits:

10.1 At Menziwa SSS, all of the five shutter-board classrooms lack significant portions of their walls; heavy metal gutters dangle from classroom roofs; all of the windows in the school have been smashed or blown out; and electrical wiring is exposed in many classrooms.

10.2 At Mwezeni SPS, learners are being educated in a structure that appears to be in imminent danger of collapse. Parents and educators fear for the safety of these children, but are left with no other option during inclement weather conditions.

10.3 At Mkanzini JSS, learners are taught in corrugated iron shacks that are overcrowded, poorly constructed, leak badly when it rains, and provide little protection from the elements. Two of the school’s five corrugated iron classrooms become unusable in wet weather due to seepage which turns the dirt floors into pools of mud.

11. The effect of the inadequate infrastructure on school enrolment, attendance and learning at the Menziwa SSS, Mwezeni SPS and Mkanzini JSS is demonstrable.

12. High absenteeism and un t conditions for teaching and test-taking have severely impacted on the quality of education at Menziwa SSS.:

12.1 Absenteeism increased among both learners and educators following the storm damage to the school, in part due to frequent illnesses resulting from exposure to extreme weather conditions.

12.2 Enrolment numbers dropped from 416 to 306 following the storm damage. Parents who are able to a ord transport, send their children elsewhere. This leaves the poorest and most vulnerable students continuing to suffer the crisis at Menziwa SSS.

12.3 Due to the deteriorated condition of the classrooms, teachers have found it impossible to maintain discipline in the classrooms. In part because of the di culty of teaching in such circumstances, many teachers are currently attempting to transfer to other schools.

12.4 Matriculation exam pass rates have declined over the past five years – from 47% in 2006, to 29% in 2008, to 10% in 2010. During the matric exams in November 2008, 2009, and 2010, examination monitors stated that the conditions were un t for any assessments to take place. At the time of these exams, some learners collapsed due to the extreme heat in the school.

13. At Mwezeni SPS, the following effects are described:

13.1 After the damage to the classrooms, 220 children in grades R through 4 were taught outside, because of the instability of the remaining standing classrooms. During periods of rain, learners simply did not attend school.

13.2 Teacher morale at the school has steadily declined due to the poor condition of the classrooms. Learner absenteeism has increased. This is attributable in large part to the unsafe and deteriorating conditions in which the teachers and learners must operate. Classrooms are overcrowded, many of the mud walls have serious problems with damp, roofs leak in many classrooms, there is a severe shortage of furniture, and classrooms are dark because of a lack of windows. Teaching and learning is extremely di cult in these conditions.

14. At Mkanzini JSS, the Infrastructure Crisis Committee describes the effects of the poor infrastructure on teaching and learning as follows:

14.1 After the re gutted the four permanent classrooms, the hastily constructed corrugated iron shacks provide inadequate shelter and are inappropriate structures for teaching and learning to take place in. The corrugated iron shack classrooms are dark and dirty and too small to accommodate the learners. Many chil- dren have to be taught outside at some stage of the day. Learner absenteeism is extremely high, particularly when there is wet weather and the shacks’ leaking roofs result in the school’s entire enrolment of 408 children being taught in the two classrooms that are built of bricks.

14.2 The corrugated iron shack classrooms are unstable. Two are completely unusable for weeks after rainfall due to seepage which turns the dirt floors into a quagmire. In warm weather the tin shacks become unbearably hot and students struggle to concentrate in the extreme heat. There is also a dire lack of furniture at the school.

Government’s Failure to Remedy Emergency Conditions

15. In the many months following these disasters, these schools have not received any emergency or other relief from the government. Damaged walls, fallen roofs, re gutted classrooms and broken windows at the schools have not been fixed since they were destroyed by the storms or fire. The schools remain unsafe, and present a dangerous environment for the learners.

16. Both applicant schools have repeatedly written letters to the government pleading for urgent assistance. Despite these e orts, neither of the schools has received a response to any of its correspondence, or any form of assistance. The schools have been given no indication of when they will be provided with emergency classrooms, if at all.

Respondents’ Breach of their Constitutional and Legislative Duties

17. The unsafe and otherwise unacceptable conditions at the applicant schools make them wholly inadequate as a learning environment. The physical conditions at these schools threaten the safety of the learners and teachers on a daily basis; result in high absenteeism among learners; and have made it practically impossible for the learners to obtain adequate basic education.

18. By failing to remedy these conditions, the respondents have denied the learners at the applicant schools the enjoyment of an adequate basic education. I submit that the respondents have failed to ful l their constitutional duty to respect, protect, promote and ful l the learners’ constitutional right to a basic education, and have violated the learners’ constitutional right to a basic education under section 29(1)(a).

19. I submit further that, in failing to respond to the repeated requests from the applicant schools for emergency relief and assistance, the MEC has breached his duties under the Schools Act to provide public schools, which must necessarily mean safe and functioning schools. In particular:

19.1 The MEC failed to ful l his duty under section 3(3) of the Schools Act (read with section 3(1) of the Schools Act) to ensure that there are sufficient places and infrastructure at the public schools in the province to meet the basic education needs of every child required to attend school in the province.

19.2 The State has breached its duty under section 34(1) of the SA Schools Act by failing to “fund public schools on an equitable basis in order to ensure the proper exercise of the rights of learners to education and the redress of past inequalities in education provision”.

20. I submit further that, by failing to develop policies to address emergency situations at poorly-resourced, poorly-built and historically- disadvantaged schools such as the applicant schools, the MEC has failed to comply with section 4(1) of the EC Schools Education Act.

Relief

21. The Applicants accordingly seek the following relief in respect of the first part of this application:

21.1 A declarator that the failure of the MEC to provide the applicant schools with adequate emergency structures is unconstitutional and unlawful.

21.2 An order requiring the MEC to provide the second and third applicants with immediate emergency relief in the form of safe and adequate infrastructure, temporary or otherwise.

21.3 Structural relief to ensure the MEC’s compliance with that order.

 

Section 5A of the South African Schools Act

22. One of the mechanisms created by Parliament to ensure adequate education for all, and some measure of equality, is contained in section 5A of the SA Schools Act. It was inserted in the Act in 2007 in order to give effect to the recognition in the Preamble to the Act that it is “necessary” to set uniform norms and standards for the education of learners at schools throughout the Republic.

23. I submit that the prescription of minimum norms and standards for school infrastructure is (in the words of the Preamble to the Act) “necessary” for at least the following reasons:

23.1 It provides a legal standard and mechanism for ensuring that government meets its constitutional obligation to ful l the right to an adequate basic education.

23.2 It provides a legal standard and mechanism for ensuring that a basic level of educational facilities is provided to every learner, thus addressing the issue of equality.

23.3 It enables government to meet its constitutional obligations within a clear framework of targets and priorities. As I show below, on the Government’s own admission this is necessary for the equitable provision of adequate school infrastructure. Spending and development of infrastructure planning must be guided by a clear policy framework with de ned and measurable targets.

23.4 It enables national government to exercise its oversight and monitoring role in respect of provincial education departments.

23.5 It sets legal standards by which MEC’s are bound.

23.6 It enables communities, learners and educators, civil society organisations, and the public at large to know what they are entitled to require of government. It enables them to monitor government’s performance, hold government accountable for meeting its obligations, and ensure that government meets those obligations. This is an element of the participatory democracy which is contemplated by the Constitution.

Widespread Lack of Adequate Infrastructure at Schools

24. Today there are still thousands of schools across South Africa that are operating without adequate resources and in unsafe conditions. Government reports, most notably the National Education Infrastructure Management System Report (NEIMS), detail the lack of resources at public schools in the country. Relevant pages of the most recent NEIMS Report, published by the national Department of Basic Education (DBE) in May 2011, are attached as annexure YD10. The Report notes that of the 24 793 public ordinary schools:

a) 3 544 schools still do not have electricity, while a further 804 schools have an unreliable electricity source;

b) 2 401 schools have no water supply, while a further 2611 schools have an unreliable water supply;

c) 913 schools do not have any ablution facilities while 11 450 schools are still using pit latrine toilets;

d) 22 938 schools do not have stocked libraries, while 19 541 do not even have a space for a library;

e) 21 021 schools do not have any laboratory facilities, while only 1 231 schools have stocked laboratories;

f) 2 703 schools have no fencing at all; and

g) 19 037 schools do not have a computer centre, while a further 3267 have a room designated as a computer centre but are not stocked with computers.

25. The NEIMS Report shows that inadequate school infrastructure exists particularly in the former Bantustan areas. Although the Eastern Cape and KwaZulu-Natal are in the worst condition, the problem of poor infrastructure is also found in other provinces.

26. Some of the very worst conditions are found at the schools which are known as “mud schools”, because they are constructed of mud. The existence of these schools has become more widely known as a result of litigation which was instituted in this regard in the Eastern Cape. As a result of that litigation, the government committed funds towards addressing that problem in the Eastern Cape and other provinces. That is a welcome development, however:

26.1 If uniform and legally binding minimum norms and standards had been in place, provincial education MEC’s and departments and school governing bodies would have been placed on notice that the existence of these mud schools was unlawful, and would have been prompted to take steps to remedy the situation.

26.2 If uniform and legally binding minimum norms and standards had been in place, and made widely known, affected communities would have been empowered to insist that the situation be remedied, and it is unlikely that the situation would have continued for as long as it has (and still does).

27. The problem of poor infrastructure at schools was highlighted in a study conducted by Transparency International, which looked at primary schools in the Gauteng, North West, and Mpumalanga provinces. The study was released in August 2011. It states:

“There are major problems related to the learning environment, both in terms of safety and infrastructure. Three out of four principals estimate that they don’t have the means required to run the schools, and one out of two learners says she is not always provided with a desk. About 15 per cent of schools had no electricity and 10 per cent no water supply.

For instance, 76 per cent of principals reported not having the required facilities to run their schools and a further 52 per cent of learners indicated that they are not always provided with a desk.”

28. The Report of a study by the “SACMEQ III Project in South Africa”, which was released on 18 January 2012 by the Department of Basic Education and the Southern and Eastern Africa Consortium for Monitoring Educational Quality (SACMEQ), again highlights the problem of inadequate school infrastructure in South Africa.

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29. SACMEQ III is titled “A Study of the Conditions of Schooling and the Quality of Education”. It found as follows in relation to school toilets:

“Provision of adequate separate sanitation facilities such as separate toilets for boys and girls is another basic requirement. Otherwise female learners may feel unsafe in the absence of these facilities and be forced not to stay long in school. In Table 1, the average numbers of learners per toilet in 2000 and 2007 are shown separately for boys’ toilets and girls’ toilets. For boys and girls it is worrisome that the ratio of learners to toilets increased between 2000 and 2007. Although no norms for numbers of learners per toilet were available for South Africa, the recommendation of the World Health Organisation is a ratio of 1:30, i.e. 30 learners should be sharing a toilet. Using this norm (in the absence of a national norm) it is evident that Grade 6 learners in South Africa were in schools where toilets were overcrowded as can be evidenced from the relatively high learner- toilet ratios and the fact that these increased considerably during the period in question.” (page 41)

30. The report’s recommendations in relation to toilets are clear:

“the Physical Planning Unit of the Department of Basic Education should immediately seek to: (i) establish and publish norms and standards for provision of separate toilets for boys and girls; and (ii) monitor that all schools adhere to the norms and standards.” (page 87)

31. I submit that the SACMEQ III report’s recommendation in relation to toilets – that norms and standards should be established, published, and then enforced – applies to all infrastructure indicators in schools. Publishing norms and standards will not ensure that the necessary results are achieved unless the norms and standards are made binding. If they are binding, it will be possible for the school authorities to be held to account, including by the learners and their parents, and if necessary through the courts. While non-binding recommendations are no doubt helpful, they are inadequate in ensuring that learners achieve their right to basic education, their right to equality, and their right to dignity.

32. A major cause of the widespread inadequacy and inequality in infrastructure and amenities in schools is the legacy of the apartheid education system. Racist apartheid laws and policies, and the apartheid government’s deliberately unequal allocation of resources, favoured schools reserved for white learners, to the detriment of black learners (African, Coloured and Indian). This resulted in massive racial inequality in school resources and infrastructure.

33. This is recognised by the Minister in the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment (“the National Policy for an Equitable Provision”). She states that the physical teaching and learning environment “has historically been one of the most visible indicators of inequitable resource inputs” (pg 7). The National Policy for an Equitable Provision is annexed as YD12.

34. The o cial statistics show that inadequate infrastructure is still widespread. This situation has a clear racial dimension. Overwhelmingly, it is black children who attend the schools where the infrastructure is inadequate. Most schools in South Africa, including the original Mwezeni SPS and Mkanzini JSS buildings, were built during apartheid. The infrastructure reflects the racial inequality which was then a matter of policy. Many schools in poor rural communities had to be and were built by community members themselves, using the limited resources that they had.

35. It is of course no longer policy to maintain this inequality. But the inescapable fact is that gross inequality continues with regard to school infrastructure. It has a clear racial dimension, with black children suffering the consequences of under-provision. It is the most disadvantaged learners whose education and opportunities in life are compromised by the continuing failure to provide adequate infrastructure.

 

The Impact of Inadequate Infrastructure on the Education of Learners

36. There is a direct relationship between adequate school infrastructure and learner performance. Adequate infrastructure is a key element of providing an adequate education.

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

38. For example, in the Minister’s foreword to the National Policy for an Equitable Provision she highlighted the signi cance 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)

39. The National Policy for an Equitable Provision states:

“Signi cance 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 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 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, team work and school-community relationships.” (Page 7. See also pages 23–25).

40. These statements are consistent with international and local research on school infrastructure and its relation to learner performance. A review of the international research compiled by Specialist Researcher, Debbie Budlender, demonstrates that:

40.1 International research supports the nding that a causal relationship exists between the quality of school infrastructure and learner outcomes and performance.

40.2 The causal relationship is stronger in disadvantaged schools where the state of school infrastructure is poor and inadequate.

40.3 The causal relationship is stronger in developing countries.

40.4 There is a strong relationship between the lack of adequate school infrastructure and the negative impact this has on learners’ self-esteem and the importance of school. It ultimately increases absenteeism among other things.

Supporting Affidavits From Schools

41. Equal Education’s work in the Western Cape, Limpopo, Mpumalanga, Gauteng, KwaZulu-Natal, Eastern Cape and North-West had shown it that the problem of inadequate school infrastructure is widespread. In order to document this and its impact on school education, Equal Education and attorneys from the Legal Resources Centre collected 24 affidavits from schools situated throughout South Africa during November and December 2011. Learners, parents, teachers and principals discussed, at length, the infrastructure problems facing their schools and their impact on teaching and learning. They deposed to supporting affidavits that are attached to this affidavit.

42. These affidavits paint a bleak picture of schools with poor or absent infrastructure, demotivated teachers and learners, frustrated parents, and schools that are rarely provided with any information regarding the Department’s plans, if any exist, to provide desperately needed infrastructural improvements. Classroom shortages and classrooms that are structurally unsafe or leak; a lack of electricity; inadequate water and sanitation; absent or non-functioning libraries, science laboratories and computer facilities; and poor security were prevalent infrastructural problems at the schools.

43 An overview of some of the problems at these schools including some examples that illustrate their impact on the education of learners at these schools follow. Further detail is contained in the individual school affidavits.

 

Shortage of Classrooms/Overcrowding

44. The shortage of classrooms at many schools causes extreme disruptions and seriously impedes teaching and learning. Of the 24 schools visited that deposed to affidavits, 15 reported problems with overcrowding. While the accepted, but non-binding, number of pupils that should be in a single classroom is 35 in high schools and 40 in primary schools, many schools are forced to accommodate more than double that number. Steven Matsimbi, the chairperson of the School Governing Body (SGB) at Malatse Secondary School in the village of Le so in Mpumalanga, describes the debilitating problem of overcrowding in classrooms with as many as 58 learners:

“The challenges the learners face in these poor quality classrooms that leak, don’t have electricity, and have crumbling floors are exacerbated by the fact that the classes are overcrowded and the school’s furniture is old and inadequate. Learners are forced to share desks and this is uncomfortable and distracting. Completing writing tasks is virtually impossible when there are up to four learners squashed into a desk made for two. These cramped conditions make it di cult for learners to write and focus, which is especially problematic during examinations.” (annexure YD34)

45. SGB member Makhaya Bophi of Sakhikamva Senior Secondary School in East London, Eastern Cape explains the effects of having only one classroom for 80 grade 8 learners and one classroom for 90 grade 9 learners.

“The overcrowding means that learners do not do their work properly. On average, three learners share one desk… It is di cult for teachers to give learners individual attention. Classes are crowded and there is poor ventilation so classes are hot and stu y. There have been instances where learners are taking drugs at the back of classes and ghting. But teachers can only teach from the door as they can’t move around the over-crowded space.” (annexure YD18)

46. At Mabu-a-tlou Primary School near Suurman in Gauteng Province, the minimum number of learners in a classroom is 50. Dikeledi Shabalala, an SGB member at the school, describes the impact of overcrowding on teaching and learning as follows.

“The overcrowding is compounded by the limited amount of furniture. Teaching is not as effective as it could be. Because there are too many learners for each teacher, the teachers are not able to give the students the individual attention they require. Students are forced to resort to relying largely on the help of fellow students to assist them if they fail to grasp the lesson taught. While peer teaching can be bene cial when it is in addition to teachers providing explanation and assistance, on its own it is insu cient. This is apparent especially in mathematics where the poor performance of the majority of the students indicates there is a systemic problem.” (annexure YD36)

 

Deteriorating Infrastructure

47. Poor quality buildings and leaking roofs are a major source of frustration at 18 of the 24 schools deposing to affidavits. Creating an environment conducive to teaching and learning is extremely di cult at many schools due to leaks or crumbling walls. At some schools it is bearable and simply a nuisance to be contended with, while at others it is so problematic that a large portion of the teaching year is lost due to having to close classrooms during inclement weather.

48. At Bogosi Primary School in the village of Moretele in the North West Province,

“The structure of the buildings is dangerous, as the buildings are very old. They were built in 1967 and have not been renovated or improved since. When it rains or when there are strong winds we have to send the students home because we are scared that the structure may collapse and fall on them.” (affidavit of Amos Hlungwane, principal, annexure YD37)

49. Maceba High School is located in Nqutu, KwaZulu-Natal. The principal of the school, Mr Bethwell Mweli, describes the impact of leaking roofs on teaching and learning as follows:

“When it rains learning and teaching has to stop in half of our classrooms, because learners, their books and the desks get wet. It rains on up to half of the school days in the year. Learners and teachers also fear that the roof, which has holes in it, could blow o or collapse on them. Many of the wooden ceiling beams are also broken and bent and could easily fall on the learners and teachers.” (annexure YD26)

 

Toilets

50. The absence of clean, functioning, adequate toilets at schools was a major concern at 20 of 24 schools that were visited. These are 20 of the 913 schools nationally that do not have any ablution facilities, and the 11 450 schools that are still using pit latrine toilets (as per the NEIMS Report referred to above). At Lehabe Primary School near Hammanskraal in the North West Province, the Department of Health declared during a 2004 visit to the school that the 13 pit latrines were unsuitable for use by the school. Eight years later there has been no improvement to the situation, and students constantly complain to the principal about the terrible smell of the latrines. The structure is old and unstable and the roof is not properly secured. In fact, the pit latrines are the same ones used by the principal when she was a student at the school.

51. At Meadowridge Primary School in Mitchell’s Plain (Western Cape), there are sufficient ushing toilets for the students but they are in a deplorable state of disrepair. The principal, Norman Daniels, states in his affidavit that

“The pipes are very old and have corroded, the lids are broken, there is no tiling, and there is urine seeping into the cement. It is unhygienic, and some parents instruct their children not to use the toilets at the school…. The poor state of the toilets means that many learners do not go to the toilet all day which also then affects their concentration in class. It is also extremely unhygienic and we even had 2 separate cases where learners caught Hepatitus C from the toilets. This was verified by their doctors, who told the parents that it was most likely from a toilet, and since the toilets at their homes were hygienic, it was likely to be the school’s toilets that caused the diseases. An adequate learning environment is one in which there is no health risk.”

52. August Filander, a senior teacher at Alpine Primary School in Mitchell’s Plain, describes the toilets for the school’s 1300 students as very problematic.

“There are approximately 6 (toilet) seats available for 700 girls, but many of the toilets are broken and not functioning and often there are only2 working toilets. The boys toilets have similar problems. Our janitors work hard to keep the bathrooms clean but often because of theft there are broken seats, tap handles and door handles. This creates hygiene and privacy issues for the learners and often they have to wait to use the bathroom.”

53. At Samson Senior Primary School near Libode in the Eastern Cape, the roof on the block of pit latrine toilets was blown o by a storm in November 2010. At the time of signing this affidavit, 15 months after the storm, the toilets have not been repaired.

“The teachers have no choice but to use the damaged toilets, even though there is no roof or shelter. There is no privacy, humanity or dignity when they have to use the open toilets. More importantly, the toilets are a health hazard. Most learners use the elds surrounding the school to relieve themselves because the toilets are unusable. Livestock often enter the toilets and make a terrible mess.”

54. At Ashburton Primary School, located near Pietermaritzburg in Kwazulu-Natal, the poor state of the school’s three pit latrine toilets that are used by 133 children has a particularly harsh impact on female students.

“The toilets are smelly and unhygienic. The fact that there are no doors on the toilets also means that you have no privacy. This is degrading and humiliating and grossly violates their dignity. You think twice before using the toilet. You think whether you can’t just wait until you get home, and if you really have to use the toilet, you sometimes go the schools’ neighbours and ask them if you can use their toilet. When the girls and teachers are experiencing menstruation, they do not have the necessary privacy or facilities to take appropriate care of themselves. As a result, some of the girls stay away from school when they are experiencing menstruation, which can mean they are away for up to a week.” (affidavit of C E Ntshangase, principal)

55. At Lehlaba Primary School outside Tzaneen in Limpopo, there is one pit latrine toilet for 90 learners. At Iqonce High School in King William’s Town, Eastern Cape, there are two toilets for the 254 learners at the school.

Absence of libraries, science laboratories, and computer facilities

56. The absence or inadequacy of library facilities and the severely negative impact it has on education was widespread at the schools visited. Only 5 of the 24 schools visited had a library. This is consistent with national government statistics (see the NEIMS report referred to above), which show that 22 938 schools do not have stocked libraries, while 19 541 do not even have a space for a library. The principal of Nape a Ngwato Secondary School in Tsimanyane village Limpopo, Mathabethe Hlokoa, stated:

“The school does not have a library or even a space for a library. The lack in variety of reading and media resources inhibits the kinds of assessments that teachers can set for the learners. Those who can a ord to travel to Marbel Hall to visit the town public library are able to go there and source additional information for their projects. They often perform much better than those who cannot a ord to travel to the public library. The fact that the school does not have a library limits the teachers’ ability to teach, and the learners’ ability to study in a suitable environment and access resources for their education.”

57. The principal of Maceba Secondary School in Nqutu, KwaZulu-Natal, Mr Bethwell Mweli, refers not only to the negative impact on education which results from the absence of a library, but also to the fact that donated resources cannot be accepted because of a lack of infrastructure for storing them.

“Without a library, learners do not have access to reading and reference books, only textbooks. This affects their ability to do research and complete assignments, which is a crucial part of their education… When the learners need to do research, we have to take them to Town. This costs a lot of money. It costs R60 to transport a learner by taxi to Town and back home again. The school has to pay for this. We can’t a ord to pay for everyone, so we usually select a few learners to go to Town to do the research for everyone. The learners who do not get to go to Town complain to me, but there is nothing that I can do to change this… Not having a physical space for a library also means that the school loses out on books which ELITS, the Department’s Library Services Unit wants to donate to us. We cannot accept these books because we have nowhere to put them. As a result, our learners suffer.”

58. The lack of science laboratories, particularly in high schools, has had devastating consequences for many matric students. At Iqonce High School in King William’s Town all 10 matriculants writing science in 2010 failed the subject. At Sakhikamva Secondary School in East London, only two out of approximately 40 matric students passed science in 2010 and both received an E symbol or lower. At Malatse Secondary School in Mpumalanga only 10 out of the 39 candidates writing matric science passed the subject in 2010. None of those schools have science laboratories. Virtually all of the schools visited stressed the di culty of trying to teach complicated scientific concepts without the assistance of a laboratory where practical experiments can be performed. The overall national picture is that 21 021 schools do not have any laboratory facilities.

59. The negative impact of the absence of computers and computer laboratories on education in primary and secondary schools was referred to by two thirds of the schools visited. Nationally, 19 037 schools do not have a computer centre, while a further 3267 have a room designated as a computer centre but not stocked with computers. The impact of not having computers was summed up by Makhaya Bopi, an SGB member at Sakhikamva Senior Secondary School in East London, Eastern Cape.

“There are five computers in the school, however only three of them work. The members of staff use the computers to prepare lessons. Our learners have no exposure to the computers themselves and will leave the school with no computer skills. This directly and negatively impacts on their ability to study further or seek employment that is better than irregular physical labour.”

60. For schools like Lehabe Primary School in the North West Province, the infrastructure needs are even more fundamental than computers and science laboratories:

“Although we would like a computer lab and a science lab for our learners at the school, these are not our most urgent problems, we need to have the roofs and toilets xed as a necessity before we can begin to think about the luxury of a computer lab or a science lab.”

 

Electricity

61. Six of the 24 schools stressed that the absence of electricity was a major problem for the proper administration of the school. This echoes the national picture, described in government statistics, which show that 544 schools still do not have electricity, while a further 804 schools have an unreliable electricity source. At Malize Senior Primary School near Lusikisiki in the Eastern Cape,

“The lack of electricity frustrates the teachers’ ability to effectively run the school as teachers struggle to communicate with the DOE. In the absence of a school phone and fax, energy and time is wasted in travelling to meetings to receive information that could have been relayed via fax. This comes at the expense of being able to singularly focus on the students. The absence of electricity also means that should we be able to secure a computer through a donation, it would be almost impossible to use it at the school.”

62. Similar problems face Samson Senior Primary School near Libode in the Eastern Cape.

“Samson SPS has never had an electricity supply. This means that we cannot operate a photocopier to prepare for lessons, we don’t have computers for students to use, and administrative tasks are made much more di cult without fax machines and computers.”

 

Water

63. At more than one third of the 24 schools deposing to affidavits the absence of a reliable source of potable water was a serious infrastructural concern, having a negative impact on teaching and learning in many ways. This problem of access to potable water is national, with 401 schools having no water supply, and a further 2611 schools having an unreliable water supply. At Milente Secondary School near Polokwane in Limpopo,

“The school does not have running water and therefore relies on two water tanks provided by the community. There are weeks when the school is unable to obtain any water and the tanks run dry. When the tanks are dry the school must purchase water with money from its own limited budget. We then have to sacri ce the purchase of additional educational resources for the students. We have wanted to purchase an extra computer for student to use but have had to postpone this purchase because we do not have the funds.”

64. Five of the 24 schools are totally reliant on seasonal rain for their water supply. At Samson SPS near Libode in the Eastern Cape, storms have damaged the school’s limited capacity to collect seasonal rainwater.

“Previously, the school relied on rain water tanks. However, the metal gutters of the buildings have been damaged by storms and now hang o the buildings. The water tanks no longer collect rainwater and pose a serious danger to learners and teachers. The nearest tap is approximately five kilometers away. The lack of water negatively affects the learners as they are often extremely thirsty and lose concentration easily.”

 

Security

65. For nine of the 24 schools, security issues were a major infrastructural concern. This supports government statistics which show that 2 703 schools in South Africa have no fencing at all. For many schools in rural areas, the lack of perimeter security means that livestock can wander freely through the grounds after school hours, and leave droppings which must be cleaned up. For some schools, the lack of fencing and security has a more sinister impact on education. At Mabu-a-tlou Primary School in the village of Suurman, Gauteng, SGB member Dikeledi Shabalala describes the need for perimeter security as the most pressing infrastructural need at the school.

“During the 2011 school year we have had three incidents of theft. Thieves break the doors and steal the food meant for the learners as part of the feeding program. Older boys who are not learners at the school loiter near the premises. They smoke and disturb the students. The teachers are constantly monitoring the premises and the safety of the learners during school hours. We are very concerned about the safety of learners within the school vicinity after school hours. The school is not adequately fenced in and is therefore vulnerable to acts of vandalism and petty theft. The fence is constantly being cut leaving gaping holes for persons to pass through. We do our best to repair it, but it is always cut again. There is a security guard but he only arrives at the school late in the evening. Our school needs a proper fence or wall to better protect our learners and the school during and after school hours.”

66. The schools whose stories are told in the affidavits attached are by no means the worst public schools in terms of infrastructure. I submit that they give a fair representation of the types of problems faced by many public schools. They show the consequences for learners of the facts set out in the NEIMS Report.

 

Government’s Response to the Widespread Infrastructure Problems

67. The national Government has acknowledged that the problem of poor school infrastructure is widespread. It has taken some steps towards addressing this problem. However, I submit below that the Government has acted unreasonably and unlawfully by failing to take the steps it has  acknowledged are needed to address these problems adequately and comprehensively.

68. I submit that in light of the repeated a rmations by the Minister and her Department of the critical need for minimum norms and standards for school infrastructure, and the undertakings to prescribe them, the Minister’s abrupt and unexplained about-turn and her decision to adopt non-binding “guidelines” (which have still not been published for public comment) is irrational and unlawful. Her decision is not rationally related to the purpose for which she is to exercise her powers. Her decision will inevitably have a negative impact on the provision of school infrastructure, and result in children not achieving their right to an adequate basic education. This is contrary to the purpose for which she is given the power.

69. The absence of binding minimum norms and standards for school infrastructure contributes directly to the continuing failure to provide adequate infrastructure at public schools. This in turn undermines and prevents the achievement by learners of their right of learners to adequate education. It impacts disproportionately on black learners, and on learners from poor families, who are overwhelmingly black.

70. The absence of prescribed minimum norms and standards impacts particularly harshly on learners at thousands of poor and historically disadvantaged schools, such as the second and third applicants. In the absence of prescribed norms and standards, the poor and hazardous condition of infrastructure at these schools is allowed to persist, leaving the learners and teachers in an unsafe environment that is unconducive to learning.

71. In saying this, Equal Education recognises that government wishes to remedy the school infrastructure crisis, and has taken material steps in that direction. Its nancial commitments include an R8.3bn allocation for school infrastructure in the Medium Term Expenditure Framework, announced in the 2011 budget speech. Various new initiatives including the Accelerated Schools Infrastructure Delivery Initiative (ASIDI) and the Priority Spending Unit (PSU) are intended to address the situation, and have made some progress. However, these e orts are bedevilled and undermined by the absence of legally binding Norms and Standards. The provinces are the sphere of government which are responsible for the construction of schools.

Some of them overspend, whilst the province in greatest need, the Eastern Cape, had only spent 28% of its school infrastructure allocation at the start of the fourth quarter. As a result of this, the Department of Basic Education decided to withhold additional funds.

72. The result of the failure to prescribe legally binding Norms and Standards is twofold. First, the national Department of Basic Education is unable to exercise the necessary oversight and enforce “top-down” accountability, as has been demonstrated most vividly but not only in the Eastern Cape. Second, local communities lack both a standard by which to assess their entitlements, and a mechanism for enforcing them. They have therefore not generated an effective bottom-up accountability mechanism.

 

Relief in Respect of Part Two

73. In respect of the second part of the application, the applicants seek orders which may be summarised as follows:

a) declaring that the failure of the Minister to make regulations which prescribe national minimum uniform norms and standards for school infrastructure constitutes a breach of the constitution and of section 5A of the Schools Act; and

b) directing the Minister to make regulations which prescribe national minimum uniform norms and standards for school infrastructure in terms of section 5A of the Schools Act, within three months of delivery of judgment in this application.

74. The applicants accordingly pray for an order as set out in the notice of motion.