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Joint media statement: Equal Education and the Equal Education Law Centre disappointed at the Western Cape Government’s persistent use of “legal gymnastics” to avoid their obligations towards black and working class out-of-school learners in the Western Cape 

26 April 2024

Joint media statement: Equal Education and the Equal Education Law Centre disappointed at the Western Cape Government’s persistent use of “legal gymnastics” to avoid their obligations towards black and working class out-of-school learners in the Western Cape 

#SofundaSonke

Today, the Western Cape High Court disappointingly – on the suggestion of the Western Cape Government (“respondents”) legal team – struck Equal Education (EE) and the Equal Education Law Centre’s (EELC) urgent application for the placement of unplaced learners in the Western Cape’s Metro East Education District off the urgent court roll.  

We were in urgent court seeking the immediate placement of all unplaced learners in the Western Cape. This follows a lengthy series of attempts to engage the Western Cape Government on placing out-of-school learners including a letter of demand that we sent over two months ago and the urgent court application we launched on 11 April 2024. 

Since, the respondents have failed to file an answering affidavit in time for the initial deadline of 19 April 2024 as well as the extended deadline of 25 April 2024. There are no clear reasons given for this delay. Instead, the Western Cape Government approached the EELC and EE proposing that the matter, which was originally set down to be heard by the Western Cape High Court today, be postponed to 24 May 2024, a whopping five months after the beginning of the school year. EELC and EE refused to entertain this suggestion and insisted the Western Cape Government file their answering papers in order for the matter to be urgently heard, failing that we would proceed to have the matter heard urgently on an unopposed basis.

Despite having been afforded two chances to file their answering affidavit the Western Cape Government wrote to the court on 25 April asking for a “case management” meeting for a judge to let them know when they should file their papers. 

At court the presiding judge informed our counsel she had received instructions from the Western Cape Government’s legal team that she did not need to read the court file. We were not aware of any discussions to this effect between the Western Cape Government’s legal counsel and the judge’s registrar and find this of utmost concern. Despite this, and having not read our court papers, the judge struck the matter off the urgent court roll without giving our counsel an opportunity to explain why the case is clearly urgent. The judge held that the learners could obtain substantial redress in due course and that the matter did not belong in the urgent court because of submissions made by the Western Cape Government. These submissions led the judge to understand that EE did not intend to continue on the urgent court roll but would be going to the ordinary (non-urgent) court roll.  

We strongly believe the court made an error. The High Court is the upper guardian of every child in South Africa and the court has the responsibility of protecting every child’s immediately realisable right to access education. The fact that there are still children who remain without a school, four months into the 2024 academic year, is an urgent matter.

We therefore believe the judge erred in striking the matter off the roll for lack of urgency without having read the application or considering the merits of the application, urgency and whether substantial redress could be obtained in due course. We further believe that the actions of the Western Cape Government and the manner in which they have litigated this matter is of great concern.

Accordingly, we have set the matter down on the unopposed urgent roll and we will be back in the Western Cape High Court on Monday, 29 April 2024 because, as every day passes, children from marginalised communities like Khayelitsha, Strand and Kraaifontein remain unplaced and are being deprived of their constitutional right to education. EE and the EELC will remain resolute in ensuring the placement of all learners. Sofunda sonke – no learner should be left behind!

[END] 

To arrange a media interview, contact: 

Sesethu August (Equal Education Communications Officer) sesethu@equaleducation.org.za 

WhatsApp: 083 890 8723

Call: 063 221 7983

 

Leanne Jansen-ThomasJoint media statement: Equal Education and the Equal Education Law Centre disappointed at the Western Cape Government’s persistent use of “legal gymnastics” to avoid their obligations towards black and working class out-of-school learners in the Western Cape