Judge Dukada of the Bhisho High Court has today directed Equal Education’s case against Basic Education Minister Angie Motshekga will be heard on an urgent basis. Yesterday Equal Education (EE) filed a supplementary affidavit to re-open our case against Minister Motshekga. EE is represented by the LRC. While the Minister’s spokesperson has said EE’s action is “unnecessary” Judge Dukada has said the matter is urgent.
This follows Minister Motshekga breaching the settlement agreement in which she agreed to publish binding Minimum Norms and Standards for School Infrastructure (Norms and Standards) by 15 May 2013. After offering the Minister a one-month extension which she refused by demanding six months, we must now return to the courts and the streets.
The Minister’s spokesperson has described EE as “somebody who wants to play to the gallery, somebody who wants to be seen, who wants to dictate to government”. Considering that EE heard about the DBE’s claim that it intends publishing a new draft within two weeks through the media the claim of playing to the gallery is a touch rich. But judge for yourself. In this press statement, in a way we never have before, we detail the full extent of the four years of delays that Minister Motshekga has subjected the learners and teachers of South Africa to.
THE FRIGHTENING FULL HISTORY OF FIVE YEARS OF DELAYS
- Draft Norms and Standards for School Infrastructure were originally published for public comment by Minister Motshekga’s predecessor, Minister Naledi Pandor, in November 2008. The Draft Norms stated: “These norms and standards will be fully adopted by the end of 2009 and will be implemented in a phased manner starting from 2010.” The Minister has stated in Parliament: “Comments were received in response to the 2008 call for comments and these were incorporated into the document”. She also stated in Parliamant that the draft was approved by the Council of Education Ministers and Heads of Education Committee. But although the 2008 draft was an impressive document it was never promulgated into law.
- The Draft National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment (NPEP) was also published in November 2008 and stated that “National norms and standards will be developed during 2008, and fully adopted by the end of 2009… Effective from January 2010, all provinces will have aligned their provision programs to national norms and standards and set targets.”
- In 2009 an updated set of Draft Norms and Standards for School Infrastructure emerged, although not gazetted for public comment. This 2009 draft stated: “These norms will be fully adopted by the end of the 2009/2010 financial year and will be implemented in a phased manner during the 2010-2014 Strategic Plan period.”
- On 11 September 2009 Minister Motshekga stated in Parliament: “We have developed norms and standards that commit government to providing school buildings of a particular standard.”
- The Minister stated in Parliament on 25 September 2009: “Norms and standards for physical infrastructure [were] approved by both the Council of Education Ministers and the Heads of Education Committee in 2008” and “are awaiting concurrence of the Minister of Finance”.
- On 26 Feb 2010, answering a question in Parliament, the Minister wrote that the National Minimum Norms and Standards for School Infrastructure exist and that “they will be implemented with effect from the 2010 financial year”.
- On 9 May 2010 the Minister wrote to EE stating that the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment (NPEP) was soon to be published. She then stated: “This policy will be followed by the Norms and Standards for School Infrastructure.”
- On 11 June 2010 the Minister published the finalised NPEP which stated: “National Norms and Standards will be fully adopted by the end of the 2010/2011 financial year (i.e. by 31 March 2011).” This deadline came and went without any explanation.
- On 20 July 2010 the Minister’s Director General, Mr Bobby Soobrayan, wrote to EE stating that “the Minister must develop national minimum norms and standards … by the end of the 2010/2011 financial year” and that the norms and standards “are currently with the DBE Legal Services and will be promulgated as regulations thereafter.”
- On 3 September 2010 in Parliament the Minister cited the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment. She then stated: “This policy will be followed by the Norms and Standards for School Infrastructure.”
- In a presentation to Parliament’s Portfolio Committee on Basic Education on 13 October 2010 the Director General, Bobby Soobrayan, stated: “The Minister of Finance concurred on the Policy on Infrastructure as well as the Norms & Standards for School Infrastructure.”
- In a presentation to Parliament’s Portfolio Committee on Basic Education on 9 Nov 2010 the DBE stated: “Specifications for making ordinary schools environmentally accessible to the disabled … were incorporated into the national Infrastructure Norms for application in all new classrooms and buildings.” And: “Development of infrastructure norms for special schools would resume shortly.”
- Addressing Parliament’s Portfolio Committee on Basic Education on 1 November 2010 the DG Mr Soobrayan said that because there was “a lack of provincial capacity to spend funds” the plan was to create capacity in the National Department to “monitor, design, support infrastructure norms”.
- On 26 November 2010 the Minister stated in Parliament: “The Department of Basic Education developed the Minimum Uniform Norms and Standards for School Infrastructure.” She cited these to claim that standards exist for sports facilities and classroom sizes.
- Also on 26 November 2010 the Minister was asked a Parliamentary Question about the cost of providing sports facilities at schools. In Parliament she answered by citing “the Norms and Standards for School Infrastructure”.
- The Department of Education’s Annual Report 2009/2010 stated on pg 29: “The Regulations in terms of Section 5A of SASA (Norms and Standards for School Infrastructure) was drafted. A plan to process and finalise these regulation is underway.” And on pg 54: “The Draft Norms and Standards Regulations were obtained from Legal Services and are being prepared for gazetting.” It also stated on pg 24: “The Minister of Finance concurred on the Policy on Infrastructure, as well as on the Norms and Standards for School Infrastructure.” (See also pg 175)
- On 18 April 2011 the Deputy Director General, Mr S G Padayachee, gave a presentation to EE stating: “The draft Norms and standards were approved by CEM and the Minister of Basic Education and received concurrence from Minister of Finance during 2008/09 financial year. The Norms and Standards were then translated into regulations and were presented to the State Law Adviser for comments.” He added that: “Amendments will be effected and the Norms will be presented to HEDCOM and CEM.”
- On 8 May 2011 the Minister wrote to EE stating: “In respect of the National Minimum Norms and Standards for School Infrastructure, the Document will serve at the next Council of Education Minister’s (CEM) meeting and once approved will be published for public comment and then follow the subsequent necessary processes. Once the document has gone through the necessary processes, I will announce a date for its release.”
- Briefing Parliament’s Portfolio Committee on Basic Education about sports in schools on 20 June 2011 the DG, Mr Soobrayan said: The DBE had developed norms and standards which, as policy, was applied to every school constructed. The school would have to comply with basic norms and standards. He states that infrastructure norms and standards had been passed and were used to guide new developments in infrastructure. These norms and standards were applied to backlogs.
- On 25 June 2011, at the People’s Summit for Quality Education in Khayelitsha, the Minister said that Norms and Standards would be released shortly for public comment. She said the barrier to promulgation was the need for approval from the CEM. “Unless I get concurrence I am not, by law, able to move.” In fact, approval by CEM was not a requirement, and in any event, the CEM had already given its approval.
- On 13 November 2012 the Minister was asked in Parliament about “national minimum norms and standards for school infrastructure as recommended by the Auditor-General in August 2011”. She replied in Parliament: “The Department of Basic Education developed the Guidelines Relating to Planning for Public School Infrastructure which were published on 15 May 2012. These guidelines are in the process of being converted into regulations.”
Having made all of these false claims and promises, not a single one of which has to-date been honoured, the Minister reversed her position entirely. In response to a letter from the LRC on behalf of EE the Minister wrote to EE on 10 October 2011 stating that she did not intend to promulgate regulations for Minimum Norms and Standards for School Infrastructure, and would instead adopt “guidelines”.
In November 2011, the Minister wrote to the LRC stating that even the non-binding ‘guidelines’ were still in draft form and also needed approval from the HEDCOM and CEM. The Minister then said that she could not share the document with EE before it was approved by those two bodies later that month. Three months passed without the Minister releasing the document.
DECISION TO GO TO COURT
It was all of this which forced EE to resort to the courts to compel the Minister to publish the regulations. This did not stop the pattern of delays though. Three separate extensions were necessary before the Minister filed her responding papers, which in the end consisted of a single short affidavit from a Deputy Director General.
Finally in November 2012, only days before the case was to be heard, the Minister agreed and undertook to publish draft Norms and Standards for comment by 15 December 2012. At her request, we extended the date for the draft norms to be published by a month to 15 January 2013. The date for promulgation of the final legally binding Norms and Standards was agreed as 15 May 2013 in a settlement agreement.
Now the Minister has broken the settlement agreement and yet her spokesperson says it is “unnecessary” for EE to return to court.
EE STILL OPEN TO AVOIDING GOING TO COURT
Even at this stage, if the Minister promulgates high quality, legally binding norms and standards by 15 June 2013, or at any time before this matter returns to court, EE would likely suspend its legal proceedings.
EE is planning mass mobilisation on 17 June 2013. In Cape Town we will march to Parliament and in Pretoria we will march to the Department of BasicEducation. The following day, 18 June, we will hold a picket in Bhisho.
For details of the marches: http://www.equaleducation.org.
For a video of why EE must win this campaign: http://www.youtube.com/watch?
For more information please contact
Yoliswa Dwane (EE Chairperson) on 072 342 7747
Brad Brockman (EE General Secretary) on 072 267 8489
Doron Isaacs (EE Deputy General Secretary) on 082 850 2111
Cameron McConnachie (EE legal representative at the LRC) on 083 387 8738