Today, 11 July 2013, the Bhisho High Court made an order-by-consent compelling Minister Motshekga to publish norms and standards for school infrastructure. This is a victory for Equal Education, which is represented by the Legal Resources Centre in its campaign for norms and standards for school infrastructure.
Failure to comply with a court order is a serious offence and may be punishable by a fine or imprisonment
SUMMARY OF THE ORDER
Read the order here. The important features are:
-The Minister must, by 12 September 2013, publish for comments, amended draft regulations for Minimum Uniform Norms and Standards for School Infrastructure.
-The Minister must, by 30 November 2013, prescribe Minimum Uniform Norms and Standards, by the promulgation of Regulations, for School Infrastructure, in terms of Section 5A(1)(a) of the South African Schools Act, 84 of 1996, which provides for the availability of the school infrastructure referred to in Section 5A(2)(a) of the Act. The Regulations shall prescribe Minimum Uniform Norms and Standards for school infrastructure, and the time-frames within which they must be complied with.
A WIN FOR EE
This takes the campaign for Norms & Standards forward because:
– EE has secured a court order which compels the Minister to promulgate norms and standards. The Minister has continued to maintain, as claimed in the recent affidavit of the Director General, that she has a “discretion” on whether to promulgate norms and standards, or not. This despite the November 2012 settlement agreement. But now, with a court order compelling her to prescribe the norms and standards, there can be no further discussion of any remaining “discretion”.
– In the DG’s affidavit, it was contended that a court order was not necessary, but EE has secured one.
– The language of the order, which refers to “the promulgation of Regulations” makes it clear that the norms and standards must create binding legal obligations. A regulation is a form of law. This is very different to the non-binding Guidelines the Minister previously sought to substitute for Norms and Standards.
THE DELAY IS FRUSTRATING
EE faced a simple choice regarding the timeline. We could either have had useless norms and standards now, or improved norms and standards later in the year. This choice was made very clear to us when we met the Minister, the Deputy Minister and the MECs for Education on 23 June. The Minister stated that adequate norms and standards simply do not yet exist. We have therefore made the difficult choice to allow additional time, rather than have the absurdly inadequate draft from January 2013 promulgated into law. The Minister has therefore succeeded in wasting six months, but we will get decent norms and standards in the end.
Because the Minister was in violation of the November 2012 settlement agreement, we could have tried to force a quicker publication of final norms and standards. After all there was a six month timeline which concluded on 15 May 2013, agreed to by the Minister in the November 2012 settlement, which the Minister has failed to comply with. But we did not think that getting empty norms and standards a little sooner would be worthwhile.
The granting of additional time is in no way an acceptance by EE of the validity of the delay. The volume of criticism received in response to the January 2013 draft, which is cited as the reason for the delay, was generated simply because the January draft was so absurdly inadequate. Nedlac too, like the Auditor General and the National Development Plan, has now come out in support of norms and standards.
Read EE’s arguments in this latest round of the case here and here.
EE will continue to mobilise to ensure the court order is complied with.
Today, 11 July at 9am hundreds of EE members will congregate outside the Bhisho High Court to celebrate the court order, and will hold a seminar there on the way forward.
EE will continue to engage the Minister and the DBE constructively during the drafting process.
Once the Norms and Standards are finalised EE will turn to driving and supporting the implementation of the Norms and Standards at provincial level. This will include holding government departments, and private companies awarded construction tenders, to account.