Off the Floor and into a Desk and Chair
To see one of the most vivid disjuncts between the promise pro ered by South Africa’s economic might and progressive Constitution, and the actual reality on
the ground, one should go to the public schools in the former Black “bantustans” in Eastern Cape Province. There, almost twenty years after the advent of democracy and the dissolution of race-based disparities in educational funding, thousands of schoolchildren still sit on the ground because their classrooms have no, or an insu cient numbers of, desks and chairs. They hunch over workbooks and crane their necks to see the blackboard. They often get sick from sitting for hours on cold, dirty oors.
Those who do manage to get a seat still have to share a desk with several others. Discipline problems arise in the daily ght for desks and chairs. It cannot be said that these students are deriving the same teaching and learning bene ts as their peers in adequately resourced schools.
In a series of ongoing cases against the Eastern Cape Department of Education (ECDOE), the Legal Resources Centre (LRC) is currently representing Eastern Cape parents whose children attend public schools with severe furniture shortages. The goals for litigation are two-fold: to have the ECDOE provide a desk and chair to every schoolchild in every public school in the province, and to develop the jurisprudence and substantive content to the constitutional right to a basic education. The LRC and its clients rmly believe that desks and chairs are non-negotiable components to achieving a meaningful right to education.
Litigation has successfully resulted in furniture delivery for some of the applicant schools, however, the matter remains ongoing due to the ECDOE’s substantial non-compliance with the terms of a 29 November 2012 court order. Instead of a comprehensive recording of furniture shortages in all Eastern Cape schools, the ECDOE’s audit omitted a number of schools and failed to verify data from those schools that it did include. Of concern is that data similarities across multiple school districts raise strong suspicions of falsification.
The ECDOE was also directed to deliver all furniture needs noted in its audit by 30 June 2013. Instead the ECDOE has neither informed the identi ed schools about the numbers of desks and chairs they will receive, nor when they will receive them. On its own estimated need of R360 million to satisfy the province’s school furniture shortfall, the ECDOE has allocated less than 10% of the amount needed in its 2013/14 budget.
It does not appear that the ECDOE has a reliable mechanism of establishing or funding the actual furniture needs of its schoolgoing children. In the nine months since the ECDOE agreed to the court order in seemingly good faith, the situation on the ground remains frustratingly much the same.
The LRC led an urgent court application on 23 August 2013 to have the ECDOE declared in breach of the 29 November 2012 order. We have further requested that the High Court is requested to order the ECDOE to:
1. provide the schools involved in this matter with the quantities of furniture they need within 90 days;
2. advertise a summarised form of the court order in the media with an invitation for other public schools to report their furniture needs;
3. appoint and pay an independent body or person to:
- receive the reports from any public schools in the Eastern Cape whose furniture needs are not accurately recorded in the current audit;
- visit the schools and verify the furniture requested;
- file a revised audit at court reporting the furniture needed within 90 days of being appointed; and
4. Procure and deliver the furniture recorded by the independent body in respect of all schools in the province within 90 days of the revised audit being led at court.
The LRC and its clients believe that the granting of a structured court order and the appointment of an independent auditor is within the South African courts’ powers in this matter. Moreover, it is believed that such an order is warranted and necessary in light of the ECDOE’s repeated violations of the immediately realisable, constitutional right to a basic education. The LRC will be closely monitoring the implementation of this order in the ensuing months. We also expect that Eastern Cape school children will soon be o the oor, and into proper desks and chairs.
In the Eastern Cape High Court, Mthatha (Republic of South Africa)
Case No. 2144/2012
In the matter between:
M Madzodzo obo Parents of Learners at Mpimbo Junior Secondary School
S Mgcanyana obo Parents of Learners at Mbananga Junior Secondary School
P Vukaphi obo Parents of Learners at Sirhudlwini Junior Secondary School
Centre for Child Law
S Nokubela obo Parents of Learners at Putuma Junior Secondary School
R Nolugxa obo Parents of Learners at Gwebityala Senior Secondary School
A Zitena obo Parents of Learners at Upper Mpako Senior Secondary School
S Sulwana obo Parents of Learners at Milton Dalasile Senior Secondary School
Eight Respondent and
Minister of Basic Education
Government of the Republic of South Africa
MEC For Education: Eastern Cape
Government of the Eastern Cape Province
Acting Superintendent General of the Eastern Cape Department of Education
Supplementary Founding Affidavit
I, the undersigned,
Ann Marie Skelton
state under oath the following:
1. I am the Director of the Centre for Child Law, the fourth applicant in this matter. I am duly authorised to bring this application on its behalf.
2. The respondents’ failure to comply with the court order granted by this Honourable Court, and by agreement between the parties, on 29 November 2012 (“the court order”) has given rise to this application. Paragraph 6 of the court order reserved the applicants’ right to approach this Court on two weeks’ notice, with duly supplemented papers, for an appropriate order should the respondents fail to comply with the court order.
3. This matter is inherently urgent. In August 2012 Justice Gri ths of this court agreed that this matter was sufficiently urgent to dispense with the normal rules of court regarding timeframes for the exchange of pleadings and gave directions for them to be shortened appropriately. Furthermore, as I have indicated, paragraph 6 of the court order permitted the applicants to approach this Court for further relief on two weeks’ notice.
4. As will be set out below in more detail, the respondents have not only failed to produce a legitimate audit recording the furniture needs of all public schools in the Eastern Cape, but they have failed to deliver the furniture needed by those schools that were recorded on the audit. I submit that with each passing day that learners are required to be at school without adequate furniture, the urgency increases. The absence of furniture in schools on such a large scale is a violation of learners’ right to basic education. I ask that all of my submissions regarding the urgency of the matter that I set out in my founding affidavit to the main application at paragraph 25 be read as incorporated herein.
5. The Eastern Cape Province has been gripped by a crisis in the education sector for many years, one aspect of which lies in the chronic failure to provide adequate furniture to a signi cant portion of the schools in the province.
6. Thousands of learners in the Eastern Cape do not have desks and chairs, and the absence of adequate furniture constitutes a signi cant impediment to effective learning.
7. According to an audit of furniture needs conducted in the province in April/May 2011, the total cost of furniture needed for learners in the province was R274,2 million. The audit indicated that out of 5,700 schools in the Eastern Cape, there were nearly 1,300 schools in need of furniture, affecting 605,163 learners in the province. (The results of this audit were reported by the former Superintendant-General of the Eastern Cape Department of Education in answering papers in the matter Save our Schools and Communities and others v President of the Republic of South Africa and four others, case no. 50/2012, Bhisho High Court.)
8. In August 2012, the first through fourth applicants launched the main application in this Court, on an urgent basis, seeking the relief set out in the original notice of motion. The applicants sought, inter alia, an order directing the respondents to provide furniture to the schools represented by the first through third applicants, and to conduct an independent audit across the province and provide all schools with the furniture they required by 30 June 2013.
9. In their answering papers, the respondents did not dispute the extent of the furniture crisis, nor that the shortage of furniture in schools was a serious impediment for children attempting to access their right to basic education.
10. After the exchange of pleadings and settlement negotiations, the parties obtained the court order of 29 November 2012 by agreement.
It directed the respondents to furnish the three applicant schools with adequate furniture, and further directed the respondents to complete
a comprehensive audit recording the furniture shortages of all schools throughout the Eastern Cape. The court order recorded that the respondents would “endeavor to ensure” that all furniture needs recorded in the audit would be delivered to the schools by 30 June 2013. The court order also required the respondents to take the following steps:
“3. Ensure that a comprehensive audit to assess the furniture needs at all public schools in the Eastern Cape is conducted and nalized on or before 28 February 2013.
3.1 The Respondents will furnish a copy of the audit report to the applicant’s attorneys before 14 March 2013. The audit report must be combined with a comprehensive plan detailing when each child at the schools listed in the audit report will have his or her own separate reading and writing space delivered.
3.2 For the purposes of conducting the audit, the First Respondent will ensure:
3.2.1 By 10 December 2012 a “Furniture Task Team” for the Eastern Cape will be constituted by the Respondents;
3.2.2 the publication and communication of a circular to all schools in the Eastern Cape on or before 1 December 2012 informing them of the audit and inviting schools to submit their furniture needs to the department on or before 21 January 2013;
3.2.3 the circular referred to at 3.2.2 will also be included in every Eastern Cape public school’s set of documents to be collected by the schools from their respective district o ces prior to the first day of the 2013 school year.
3.2.4 that each school requesting furniture is visited and that the furniture needs of all schools visited are properly recorded and there is a thorough verification of the furniture needs submitted.
4. Ensure that all schools requiring furniture in terms of the audit referred to at paragraph 3 above, are informed in writing when they will receive furniture and what furniture (including the specific number of desks and chairs) they will receive, by 30 April 2013.
5. The respondents will endeavour to ensure that the furniture needs of all the schools listed in the audit will be met by 30 June 2013.
7. The respondents will report by way of an affidavit to the attorneys of the Applicants by 20 July 2013 indicating the extent of their compliance with paragraphs 3, 4 and 5 above.
7.1 In addition to detailing compliance with prayers 3, 4, and 5, the affidavit shall state the names of each school and the quantity and type of furniture delivered to each school;
7.2 To the extent that there is a dispute about the furniture delivered to each school, the Applicants are hereby given leave to bring proceedings on an urgent basis for the resolution of any such disputes.”
11. The respondents did deliver the required furniture to the three schools represented by the first through third applicants in January 2013 in accordance with paragraph 1 of the court order. The first through third applicants therefore no longer form part of the proceedings as the relief sought by them has been obtained.
12. Further, to the extent that the respondents have attempted to comply with the court order, their compliance has been only partial, and
the steps they have taken have been largely ineffectual.
12.1 It is clear that the requisite budgetary measures have not been taken to give effect to the court order. The audit conducted recorded that R360 million was needed to satisfy the school furniture needs of students in the province, yet less than 10% of this amount (only R30 million) was allocated to furniture in the EC DOE’s 2013/2014 budget.
12.2 At the time of signing this affidavit, no furniture has actually been delivered to schools using the R30 million budget despite the court order directing the respondents to take reasonable steps to meet all furniture needs at all schools identi ed in the audit in the province before 30 June 2013.
13. As a result of the respondents’ non- compliance with the court order, there are thousands of learners in the Eastern Cape that still do not have a chair to sit on or a desk to write at during school hours. This constitutes
a serious and ongoing breach of the learners’ constitutional right to basic education, to dignity, and to equality; it is a gross and inexcusable failure by the State.
14. The applicants are compelled again to approach this court for an order that will ensure that the respondents supply the necessary furniture so that all children in the province can enjoy their rights. The applicants seek a new order for the following relief:
14.1 a declaration that the respondents are in breach of material parts of the court order granted by this court on 29 November 2012;
14.2 a mandatory interdict that the respondents:
14.2.1 provide the schools represented by the fth through eighth applicants (the new applicant schools) with the quantities of furniture required within 90 days;
14.2.2 advertise a truncated form of the court order in the media with an invitation for schools to record their furniture needs (as set out in Addendum 2 attached to the supplementary notice of motion);
14.2.3 appoint and pay an independent person/body to receive the reports from any public schools in the Eastern Cape whose furniture needs are not accurately recorded in the current audit lists, to visit the schools making requests and verify the furniture requested, and to le a revised audit at court enumerating the furniture needed within 90 days of being appointed; and
14.2.4 procure and deliver the furniture recorded by the independent body in respect of all schools in the province within 90 days of the revised audit being led at court.
D. Respondents’ Failure to Comply with Material Parts of Court Order
21. Despite the respondents having agreed to the terms of the court order, there has been gross non-compliance on their part with the most important terms of the order. While three schools received furniture and a Furniture Task Team was set up (in terms of paragraphs 1 and 3.2.1 of the court order respectively), the department failed to conduct a proper audit of the school furniture shortages in the province and failed to deliver furniture where it is desperately needed.
22. In what follows, I detail the nature and instances of the respondents’ non-compliance.
No Circular was Issued
23. Paragraph 3.2.2 of the court order (cited above) directed that a circular be sent to all schools in the province on or before 1 December 2012 “informing them of the audit and inviting schools to submit their furniture needs to the department on or before 21 January 2013.” None of the schools contacted by the LRC had received a circular or were aware of the audit.
Incomplete March Audit and Failure to Submit a Plant
24. The audit submitted to our attorney’s o ces before the 15 March 2013 deadline (“the March audit”) was obviously incomplete.
24.1 Firstly, only 21 of the 23 education districts submitted audit information (East London and Mount Frere districts were excluded). The failure to include these districts means that the furniture needs of tens of thousands of children were not taken into account at all.
24.2 Secondly, eight of the districts that did make submissions only included a “priority list” of between 18 and 45 schools that needed furniture, despite many more schools in these districts desperately needing furniture. Again this means substantial numbers of learners were excluded from the audit and their furniture needs were not taken into account.
24.3 Thirdly, many schools in dire need of furniture did not appear on the audit at all. In the Mthatha district for example, Upper Mpako Senior Secondary School (SSS), Lutubeni SSS, Lutubeni JSS, Milton Dalasile SSS, Zanokhanyo JSS, Mpako JSS, and Sea View JSS were all excluded from the audit despite suffering from severe furniture shortages.
25. When submitting the March audit, the department also failed to comply with paragraph 3.1 of the court order, which directed that the audit “must be combined with a comprehensive plan detailing when each child at the schools listed in the audit report will have his or her own separate reading and writing space delivered.” No explanation for the respondents’ failure to provide the plan was given.
26. On 22 May 2013 the department’s legal representative telephoned our attorney of record and advised him of the following:
26.1 The furniture budget for the 2013/14 year was R30 million but that the Eastern Cape Department of Education was hoping to obtain more funding from provincial treasury and the national Department of Basic Education in the form of a conditional grant;
26.2 The department was currently trying to purchase all existing stock in the Eastern Cape from furniture manufacturers and suppliers and that they had authorisation to avoid normal tender procedures which would cause delay;
26.3 The department was currently putting together a plan to provide furniture to the 25 schools most in need in each district;
26.4 Furniture manufactured by the King Hintsa FET College would soon be distributed;
26.5 Furniture obtained from a donor in London England would also be distributed soon;
26.6 The department was identifying furniture in excess at schools that were being closed and would arrange for its distribution to schools in need;
26.7 The new audit would be sent through shortly.
27. A Daily Dispatch article dated 10 June 2013, attached as “AS Sup 5”, suggests that the department’s plan to purchase recycled school furniture from the King Hintsa FET College was not as far advanced as our attorneys were led to believe. As regards the other statements made by the department’s legal representative, I have no knowledge of their status or the department’s progress in their implementation – save for the last. An updated audit was delivered to the LRC’s o ces in late May.
Incomplete May Audit
28. In late May 2013 the amended audit (“the May audit”) was made available to our attorneys. The audit is 86 pages in length and is attached.
29. There were some improvements in the May audit, in that –
29.1 it included the furniture needs of the East London and Mount Frere education districts;
29.2 it appeared to include more schools in most of the districts, and
29.3 fewer “priority lists” were submitted.
30. However, despite these improvements, many glaring irregularities were still evident. It has obviously not been possible for our attorneys to verify the entire May audit. But even their limited investigations have highlighted numerous problems with the audit which are sufficient to warrant an independent verification process and an investigation into the irregularities uncovered. I detail some of the problems below.
Many Schools Excluded
31. Many schools left o of the March audit, including those that the LRC had specifically highlighted in their letter of 8 April 2013, are still excluded from the May audit, or are recorded as not needing student furniture.
31.1 While Upper Mpako SSS is now cited, it is recorded in the May audit as not having any shortage of student furniture. The school, however, still needs 442 desks and chairs. The school’s governing body chairperson, Aron Zitena, has therefore made application on behalf of the parents of the learners at the school to join this matter and is requesting that the school’s furniture needs be recorded and supplied to the school. His affidavit is attached hereto.
31.2 Milton Dalasile SSS, Lutubeni JSS, and Lutubeni SSS are not listed in the May audit at all. This is so despite our attorneys’ letter to the respondents of 8 April 2013, specifically pointing out that these schools had been excluded from the March audit. Simona Sulwana, Milton Dalasile school’s governing body chairperson, has made application to join this matter and for the school’s furniture needs of 149 desks and chairs to be recorded and supplied, and his affidavit is attached hereto.
31.3 Putuma JSS and Gwebityala SSS in the Dutywa district are not part of the March or May audits. They both have serious furniture shortages and have applied to join this matter. In this regard I refer you to the affidavits of Sanyana Nokubela and Radebe Nolugxa led in support of this application.
32. The failure to include schools in such dire need is unconscionable. It is reasonable to believe that there are many more schools, in many of the other 21 districts in the province, whose furniture needs have not been recorded in the May audit.
33. In addition to failing to include all needy schools, the May audit appears to record inaccurate, and possibly falsi ed, shortages at other schools. The Libode and Lusikisiki districts both include information which appears to be false.
34. In Libode, the numbers listed for many of the schools are very suspicious, as the exact same number of desks is recorded as needed for every grade at 55 schools. For example, Ntaphane JSS is listed as needing 110 desks for grades R–3, 110 desks for grades 4–5, 110 desks for grades 6–8, and 110 desks for grades 8–12. The relevant page of the audit is attached as annexure “AS Sup 6”.
35. An LRC intern and law student Jon Tepe telephoned Ntaphane JSS, which con rmed that they were not contacted by the respondents for the audit, that they did not report any furniture shortages to the department, and that they do not have any furniture shortages. A confirmatory affidavit deposed to by Jon Tepe in this regard will be led before the hearing of this matter.
36. Using the lowest quote provided by the Department in its “Provincial Schools Furniture Needs Estimates: 2013/2014”” attached as annexure “AS Sup 7”, the unneeded furniture allocated to Ntaphane JSS in the audit would
cost R559,086. If this furniture were delivered it would constitute wasteful expenditure and would potentially deny (or at least seriously delay) another school’s ability to receive the furniture it desperately needs.
37. Similarly, the May audit recorded Coza JSS in the Libode district as needing 130 desks for grades R–3, 130 desks for grades 4–5, 130 desks for grades 6–8, and 130 desks for grades 8–12.
38. Jon Tepe also telephoned Coza JSS, which likewise con rmed that they had not been contacted by the respondents regarding the audit, that they had not reported furniture shortages to the department and that they too do not have any furniture shortages. The furniture Cosa JSS was recorded as needing would cost R420 641.70.
39. These inaccurate audit entries call into question whether the respondents conducted an audit in the Libode district at all.
40. In the Lusikisiki District there are also numerous sections of the May audit where the shortages for many schools are remarkably uniform. Twenty-one schools are listed in a row as needing 50 desks for every grade-grouping (R–3, 4–5, 6–8, 9–12). The chances of these numbers being accurate are virtually nil. Jon Tepe contacted two of the 21 schools to verify the recorded information.
40.1 Mjobo SPS informed the LRC that their school was not contacted regarding the audit, and that while their school does need some furniture, the shortages listed do not accurately record their school’s needs. Alarmingly, Mjobo SPS only goes up to grade 6, but the audit still lists them as needing 50 desks for grades 9–12. The unneeded furniture in the audit for Mjobo SPS is estimated to cost R181 643.70.
40.2 Hillside JSS in the Lusikisiki district also said that they were not contacted for the audit, that they did not report any furniture needs to the department, and that they do not have any furniture needs. The furniture needs recorded in the audit for Hillside JSS is also estimated to cost R184 143.70.
41. Our attorney of record, Cameron McConnachie, also contacted Canham JSS which is recorded as needing 400 double desks. The school con rmed that it did have serious furniture shortages but that it only had 700 learners in the school and that 400 double desks would be in excess of what the school required. The school does not o er grades 10, 11, or 12, and only needs five double desks in grade 9. The school needs a total of 145 double desks. The Lusikisiki audit data also records 27 Senior Primary Schools as needing a total of 1,413 single desks for grades 9–12. None of these schools, however, offer grades 9 to 12 as Senior Primary Schools only o er grades R through 6 or 7. Using the lowest price tendered by a company for this item (R481.26 per unit), as recorded on the “Schools Furniture Supply for 2013–2015” attached above as annexure “AS Sup 7” above, the cost of these unneeded desks in the Lusikisiki district is just over R680,000. This is not an insigni cant error.
42. The above discrepancies highlight the complete failure of the department to conduct a credible audit (at least in some districts) and makes it impossible to estimate the budget required to comply with the court order. It also means that there are large numbers of learners whose furniture needs remain unknown and cannot be catered for.
Irregularities in Other Districts
43. In Graaf Reinet some schools appeared on the March audit but were inexplicably left o of the May audit. Thembalesizwe Primary School, for example, submitted their furniture needs to the district director on 24 January 2013. The submitted needs, however, do not correlate with those recorded on the audit. The school has con rmed with LRC attorneys that they have not received any furniture in 2013 and still desperately need furniture. It is extremely problematic that Thembalesizwe has been removed from the May audit which is, seemingly, the audit used by the respondents to quantify and budget for the furniture needs of the province.
44. In Fort Beaufort, Cwaru Primary School was recorded in the May audit as only needing 20 educator chairs and no student furniture. The school’s principal has informed the LRC that the school in fact needs 50 desks and chairs for its students.
45. The respondents’ legal representative forwarded documents to our attorneys on 28 May 2013, one of which was entitled “School readiness assessment: 09–18 January 2013–Key Challenges in Inland Schools” and is attached as annexure. This report identi ed 37 schools that were in need of furniture, but there are major inconsistencies between this report and the audits. Seventeen of the listed schools were not included in the audits at all. Among the schools that were included in the audits, the audit and the assessment report often di er regarding the amount of furniture needed. While the “school readiness assessment” is more likely to be accurate – as it was arrived at by officials visiting schools – the May audit is seemingly being used by the department to determine the procurement and allocation of school furniture in the province.
Ongoing Failure to Inform Schools What Furniture They Will Receive and When
46. Contrary to paragraph 6 of the court order, the respondents have still not informed schools listed on the audit when they will receive furniture and what furniture they will receive (including the specific number of desks and chairs). This process was supposed to have been completed by 30 April 2013.
47. As a result, hundreds of schools continue to struggle without adequate furniture and still have no idea if or when it will be delivered. This constitutes poor governance by the respondents, and a failure to comply with both their statutory and constitutional duties to provide basic education. It is also a demonstrable failure to comply with the court order and to uphold the rule of law. This will be addressed further during argument.
48. The Department does not have any reliable mechanism of establishing the actual furniture needs of learners in the province. The Court Order was structured so as to produce a reliable measure of establishing the furniture needs of learners in the province. My experience is that the furniture needs of learners in poor schools are dire. The absence of a reliable database in relation to the furniture needs of the learners has an obviously adverse impact on poor learners.
E. Insufficient Budget
49. The respondents’ legal representatives and numerous schools have told our attorneys that schools have not been provided with the furniture they need. A failed audit and tardiness in procuring furniture with the budget that has been approved for the 2013/2014 nancial year are largely to blame. However, in addition, it is clear that the respondents’ failure to allocate sufficient funds to the procurement of school furniture has, and will continue to, thwart the implementation of the court order.
50. A document titled “Costed Provincial – Furniture Needs 2013” estimates that the cost of providing the furniture recorded in the audit to be approximately R360 million. (This figure is arrived at after subtracting the R270 million recorded for teacher furniture which does not form the subject matter of this application, from the total of R630 million). Even though there are serious irregularities in the furniture audits, it is evident that the R30 million budgeted by the respondents to supply the necessary furniture is wholly inadequate.
51. A Daily Dispatch newspaper article dated 22 June 2013 reports that the Eastern Cape’s education portfolio committee chairperson, Mzoleli Mrara, con rmed that the R30 million furniture budget was inadequate. In a report tabled and accepted in the Eastern Cape legislature he is reported to have said that, “The province is faced with a huge backlog in school furniture that was estimated at R300 million in 2011/2012. Despite these backlogs, the pace of delivery is still very slow”.
52. I do not wish to unnecessarily burden this application by repeating what is stated in my replying affidavit to the main application on the budgetary issue. I do wish, however, to foreshadow any possible continued reliance by the respondents on “budgetary constraints” and draw the court’s attention to paragraphs 6 to 15 of my replying affidavit where I indicate why such a position is not sustainable in law. In particular, I repeat that –
“Learners have an unquali ed right to a basic education under section 29 of the Constitution. This right is immediately realisable and not subject to the internal limitations that can be found in the other socio-economic rights, such
as the right of access to adequate housing in section 26 of the Constitution. That means the government is under a direct constitutional obligation to give effect to the rights with immediate effect. Any reliance by the government on budgetary constraints is inconsistent with that right.” (para 6)
53. This issue will be addressed further in argument if necessary.
F. Need for a New Court Order
54. Part B of the original Notice of Motion in the main application launched in August 2012 sought the following relief:
“7. Directing the Respondents to appoint and pay an independent rm of auditors to contact, by direct visits or written communication, each and every school identified in the audit conducted in April/May 2011 (the list of which is attached to this Notice of Motion marked “8a–8i”), as experiencing furniture shortages, by not having adequate furniture for every learner and classroom, to conduct an inspection and audit of the furniture needs of all the schools concerned;
8. Directing the fth respondent to contact, by way of written communication, each and every public school in the province within 10 days of the granting of this order, informing schools of this court order and inviting them to contact the independent rm of auditors appointed in paragraph B.7 above in order to report furniture shortages to the auditors within 30 days of receipt of the written communication by the school;
9. Within three months of the order the independent auditors designated in terms of paragraph B.7 above shall submit a report which details the furniture needs of the schools named in the April/May 2011 audit and the schools that have reported shortages to the auditors, by way of an affidavit to the Registrar of this Court and a copy thereof shall be delivered to the Legal Resources Centre at the same time as it is provided to the Registrar of this Court;
10. Each school that has been identi ed in the report referred to in paragraph B.9 above shall be entitled to receive adequate furniture, to ensure that each child has adequate, age and grade appropriate furniture to have his or her own separate reading and writing space (“school furniture”), which shall be delivered within one month of the delivery of the report to the Registrar of this Court;
11. Directing the Respondents to ensure that each school named in paragraph B.9 above receives furniture to ensure that his or her own separate reading and writing space within 3 months of the report…”
55. During negotiations prior to the court order that was made by agreement, the respondents’ legal representatives strongly objected to the appointment of an independent auditor on the grounds that an audit had already been conducted and that it merely needed updating. From the aforementioned analysis of the March and May audits it is clear that this representation was extremely misleading. We negotiated in good faith with the respondents and granted their request to leave the audit process in their hands.
This has proven to be a grave error.
56. To date the respondents have failed to acknowledge the shortcomings of the May audit. I submit that the audit irregularities I have highlighted above justify the relief set out in the supplementary Notice of Motion. It is clear that the respondents are either incapable of or unwilling to comply with the court order of 29 November 2012.
57. The new court order that the applicants seek is imperative to ensure that a reliable and comprehensive audit of the school furniture shortages in the province is conducted, and that all of the schools receive adequate furniture
in compliance with the original court order. In addition to the verification by the first respondent of the May audit, the applicants require the following further measures to be taken:
57.1 First, the appointment and payment of an independent person or body to receive furniture requests from schools that are not captured, accurately or at all, in the May audit and to visit those schools and verify their furntisture needs (prayer 5.1 of the supplementary notice of motion). The appointment of an independent person or body to focus solely on this issue is far more likely to deliver an accurate account of what furniture is required and where. With independently verified information the respondents will then be able to make the necessary budgetary arrangements to ensure that all learners have sufficient, age-appropriate furniture.
57.2 Second, it is necessary to advertise the audit in newspapers and on radio because of the respondents’ failure to make the audit known themselves. The respondents’ failure to inform schools and school governing bodies of the audit robbed the audit and verification procedure of transparency, integrity and regularity. It has also denied thousands of learners the possibility of receiving furniture. The responses from many of the schools contacted by our attorneys indicate that the respondents’ complete reliance upon district o cials to carry out the audit resulted in many schools having no knowledge of it. Advertising the court order and the audit process to the public increases the chances that schools, parents, teachers, learners, and communities will be made aware of the audit and ensure that furniture needs are submitted. Prayers 4.2 and 4.3 of the supplementary notice of motion are directed at ensuring proper publication of the court order and audit process.
58. I submit that the disparity in the Eastern Cape between the amount of school furniture required and the amount that has been provided represents a serious failure by the department to meet its constitutional and legislative obligations to provide for an equitable and enabling learning environment as well as a breach of the right to basic education.
59. In the circumstances I submit that the relief sought in the supplementary Notice of Motion must be granted, including an appropriate order as to costs.
I hereby certify that the deponent stated that she knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and sworn to before me at PRETORIA on this the ___ day of AUGUST 2013. The Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
Commissioner of Oaths