To view a visual timeline, click here! Or click on the pamphlet below.
1. What are Minimum Norms and Standards?
On Friday 29 November 2013, something truly positive and historic happened in South Africa. The Minister of Basic Education, Angie Motshekga, published legally binding Norms and Standards for School Infrastructure. For the first time ever it is now the law that every school must have water, electricity, internet, working toilets, safe classrooms with a maximum of 40 learners, security, and thereafter libraries, laboratories and sports facilities.
Minimum Norms and Standards are regulations that define the infrastructural conditions that make a school a school. They stipulate the basic level of infrastructure that every school must meet in order to function properly.
These legally-binding standards set a standard for provincial education departments to work towards, and against which to be held accountable, and enable communities to hold government officials accountable. Norms and Standards are therefore a mechanism for top-down and bottom-up accountability.
The Norms and Standards regulations apply to all public schools in South Africa. This is of great significance because it means that all learners in South Africa, regardless of race and class, will be able to learn in environments with adequate infrastructure.
2. Why are Minimum Norms and Standards important?
Thousands of schools in South Africa lack the infrastructure necessary to provide learners with the quality education which they are legally entitled to receive. The Department of Basic Education’s (DBE) National Education Infrastructure Management System (NEIMS) Report, published in May 2011, and indicates that schools in the Eastern Cape and KwaZulu-Natal are in the worst condition, but that the problem of poor infrastructure is not exclusive to rural provinces. Equal Education’s audit of sanitation in schools in Tembisa, Gauteng, echoed this finding. The audit, which surveyed 11 public secondary schools, revealed that the vast majority have insufficient infrastructure or a dysfunctional sanitation system. Gauteng, despite being the wealthiest province, suffers from significant infrastructural inadequacies.
The NEIMS Report also provides detailed statistics on the lack of resources at public schools across the country. It is noted in NEIMS that, of the 24 793 public ordinary schools:
3 544 schools do not have electricity, while a further 804 schools have an unreliable electricity source;
2402 schools have no water supply, while a further 2611 schools have an unreliable water supply;
913 do not have any ablution facilities while 11 450 schools are still using pit latrine toilets;
22 938 schools do not have stocked libraries, while 19 541 do not even have a space for a library;
21 021 schools do not have any laboratory facilities, while 1 231 schools have stocked laboratories;
2 703 schools have no fencing at all; and
19 037 schools do not have a computer centre, whilst a further 3 267 have a room designed as a computer centre but are not stocked with computers.
There are also currently over 400 schools in the Eastern Cape that are classified as “mud-schools”, many of them consisting of mud and shacks. In terms of the Norms and Standards for Public School Infrastructure, the provincial departments have three years to eradicate schools made from inappropriate materials such as mud, wood, metal and asbestos.
Education in South Africa is highly unequal. Decades of Apartheid policy meant that previously White schools received more funding than schools in Black, Coloured and Indian communities. Many of the inequalities created during Apartheid remain today – 28 years into our new democracy.
3. A Brief History
It was against the reality described above that in 2007 Parliament amended the South African Schools Act. This saw the introduction of section 5A into the Act. Section 5A provides for the Minister to make regulations prescribing minimum uniform norms and standards for public school infrastructure, and it specifies what the regulations must contain. The Amendment Act simultaneously inserted section 58C which imposes mechanisms to ensure that the provinces comply with the norms required under Section 5A by requiring MECs to annually report to the Minister on provincial progress.
In addition, section 58C provides that Heads of Department (HODs) must comply with norms and standards by identifying resources to comply, identifying risk areas for compliance, developing a compliance plan for the province, developing protocols with the schools on how to comply with norms and standards and manage risk areas, and by reporting to the MEC on the state of compliance.
These amendments to the Act clearly indicate the conscious and deliberate intention of Parliament to ensure that all learners in South Africa attend schools where the infrastructure conditions meet the minimum standards required to enable effective teaching and learning, and that progress towards these should be reported to ensure accountability. The purpose and meaning of the sections of the Act that deal with norms and standards is also evident from the Preamble to the Act, which states that “it is necessary to set uniform norms and standards for the education of learners at schools … throughout the Republic of South Africa”.
However, the reporting imperatives incumbent upon MECs and HODs in terms of section 58C are meaningless without comprehensive, clear and binding norms and standards. Finally, we have secured such standards.
4. EE’s Campaign
Equal Education’s concern over the unacceptable state of school infrastructure in many of the country’s schools prompted the organisation to initiate a sustained campaign to compel the Minister to promulgate legally-binding regulations for norms and standards for school infrastructure in line with her responsibilities under the Act.
EE members have marched and picketed, petitioned, written countless letters to the Minister, gone door-to-door in communities to garner support for the campaign and have even gone so far as to spend nights fasting and sleeping outside of Parliament. EE lobbied Parliament and politicians, and on Human Rights Day in March 2011, it led 20 000 learners and supporters in a march to Parliament to demand that the Minister and the DBE keep their promise and adopt Minimum Norms and Standards that will lay down the blueprint for ensuring that all learners in South Africa, regardless of race or wealth, are able to learn in schools with adequate infrastructure.
The memorandum handed over to government at the 2011 March read:
“Once norms and standards are in place, every school and community will be able to use them to hold circuits, districts and provinces accountable to deliver. Minister Motshekga has said that communities must be the ‘eyes and ears’ of education delivery; these norms and standards will be a powerful tool for that activism.”
5. The Decision to go to Court
EE’s approach was to win gains politically rather than through the courts. However, in 2012 it became increasingly apparent that resorting to the courts to compel the Minister to promulgate the norms was necessary. Section 29(1)(a) of the Constitution provides that “everyone has the right to a basic education”. Unlike other socio-economic rights, this right is unqualified and immediately applicable. So on 2 March 2012, the Legal Resources Centre (LRC) on behalf of EE and the infrastructure committees of two applicant schools in the Eastern Cape, filed an application in the Bhisho High Court against the Minister, all nine MECs for Education and the Minister of Finance to secure national minimum uniform norms and standards for school infrastructure. At the press conference called to announce the litigation, then-Coordinator of EE, Doron Isaacs stated the following: “The papers seek an order compelling Minister Motshekga to prescribe minimum norms and standards for school infrastructure. This is the most far-reaching court case about the right to basic education to have been launched in the democratic South Africa.”
The application addressed and described the widespread results of the government’s failure to provide adequate infrastructure standards for public schools in terms of section 5A of the Act, a problem that most harshly affects the poorest schools in the country by perpetuating systemic school infrastructural problems and gross educational inequalities. The application showed in vivid and personal detail how many learners and teachers have been left in unsafe environments that are not conducive to learning, and which have undermined the ability of the learners to achieve in the classroom and fully realise their rights to an adequate education, equality and dignity.
6. The Campaign Intensifies
Even though EE had launched litigation this did not interrupt the public campaign; in fact it intensified it.
Ten Days of Action: From 12 to 21 March 2012 EE undertook Ten Days of Action (#10DOA) in schools across South Africa. Each day was filled with a different activity to draw attention to the campaign. These included cleaning the schools, organising pickets, producing drama shows in order to inform learners about the case, holding door to door visits in communities, social media, and much else.
Human Rights Day march: On 21 March 2012, at the culmination of the Ten Days of Action, EE held its annual Human Rights Day march, this time in Khayelitsha.
March through Tembisa on 12 July 2012: The day after EE’s First National Congress the newly elected EE leadership led a march for Minimum Norms and Standards in Tembisa, Gauteng.
Newspaper adverts: EE took out two full-page adverts in the City Press and Daily Sun. These powerfully contrasted images of depressing present-day mud-schools with lofty promises made previously by political leaders.
Write-in: In September over 250 Equalisers and EE supporters gathered outside Parliament in Cape Town to send 51 emails, 129 letters, 20 faxes, 57 tweets and 148 pictures to Minister Motshekga: telling her to set Minimum Norms and Standards for School Infrastructure.
Mass distribution of posters, fliers and pamphlets: EE distributed thousands of posters, flyers and pamphlets to members across South Africa, so that they could mobilise their communities.
The Masked-march: On 17 October 2012 Equalisers marched in Kraaifontein wearing masks of Minister Angie Motshekga’s face. This was done in an attempt to show who was responsible for not finalising the Norms and Standards for School Infrastructure, something only the Minister has the power to do. The march was held just one month prior to EE’s pending court case.
Radio Adverts: A radio advert featuring EE Deputy Chairperson Bayanda Mazwi, aired in English and isiXhosa, spoke to the reality of poor infrastructure and called on listeners to support EE’s court case.
Animated video: During the first week of November 2012 EE released an animated video explaining the campaign for Norms and Standards.
Fix Our Schools Camp outside the Bhisho High Court: EE announced and prepared a camp of 150 people outside the Bhisho High Court for the duration of the Norms and Standards case which was due to begin on 20 November 2012. Over 150 people from all over South Africa were scheduled to attend the camp, which would also serve as a site to host debates, seminars, pickets and marches. Whilst EE was setting up the Fix Our Schools Camp, the Minister finally capitulated and agreed to settle the case.
7. The Minister Agrees to Settle the Case!
None of the nine MECs for Basic Education, nor the Minister of Finance, disputed the need for binding Minimum Norms and Standards for School Infrastructure. Instead they all elected to abide by the Court’s decision.
In addition, numerous state bodies indicated their agreement with EE’s position. These included the Auditor General, the Fiscal and Finance Commission, the National Planning Commission and the South African Human Rights Commission. This encouraged EE that we were doing the right thing.
During this period the Minister and her legal team asked for three separate extensions to file their court papers. EE agreed to these, but began to pressure the Minister to respond. When the response finally came – a weak affidavit from a Deputy Director General – it was clear that it had misconstrued the very nature of the right to a basic education.
In May 2012 the Minister published Infrastructure Guidelines, which had no legal effect, as they were not binding and therefore could not ensure that schools be equipped with an adequate minimum core level of infrastructural facilities necessary for learners to learn in a healthy environment.
In response to EE’s court application, the Minister stated that there was no need for regulations on school infrastructure, as distinct from guidelines. The Minister took the view that guidelines would therefore suffice. EE, however, regarded the guidelines insufficient because they failed to carry the force of law. EE thus continued to prepare for the court hearing which was set down for 20 November 2012 in the Bhisho High Court.
Just days before the hearing, the Minister acceded to EE’s demands. On 19 November 2012 the Minister entered into a settlement agreement with EE in which she undertook to publish a draft of the regulations for public comment on or before 15 January 2013 and to promulgate regulations on school infrastructure by 15 May 2013.
8. The Draft Norms & Standards and the Public Hearings
The public was given from 9 January until 31 March 2013 to comment on the draft. During the comment period Equal Education organised five public hearings across the country, in the Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo and the Western Cape. The aim was to educate learners, parents and community members on the draft and to collect testimonies about their schools’ infrastructural needs. Over 700 individual submissions were collected from around the country.
9. EE’s Submission on the January Draft
On Sunday 31 March 2013, Equal Education (EE) submitted its written comment on the Department of Basic Education’s (DBE) draft regulations on Minimum Norms and Standards for School Infrastructure, with assistance from the Equal Education Law Centre (EELC). The EELC contributed significantly to the content of the submission and provided the legal perspective of the document. The public comment period closed on Sunday, and the Minister will now consider all comments submitted to her before publishing the final regulation on or before 15 May 2013.
EE’s submission consists of two parts. The main submission is a thorough analysis of the Draft Norms and Standards, showing that they are neither legal nor appropriate [PDF]. In addition there is an Appendix based on over 500 submissions made by learners, parents and teachers from across South Africa [PDF].
EE’s submissions raise a number of concerns, including the fact that the draft does not contain figures relating to classroom sizes; the number of toilets required; the type of electricity and water supplies to be provided; nor clarity or specificity on numerous other essential aspects of school infrastructure. The draft does not provide provinces with clarity as to what is adequate; does not provide clear timeframes; and does not include mechanisms for accountability. The draft states that there will be an 18 month delay before the publication of a document which will provide technical details to the Norms and Standards in the form of non-binding ‘guidelines’. EE submission makes clear that these and other aspects of the draft fall short of the requirements of the Constitution, the South African Schools Act, the National Education Policy Act, and the settlement agreement reached between the Minister and EE.
EE’s submission points out that there is broad support within the state for binding and specific norms and standards. The submission contains extracts from official statements by the Auditor General, the Human Rights Commission, the Fiscal and Finance Commission, the National Development Plan, and legal judgments to this effect.
EE’s submission also draws upon the 2008 draft, published by the former Minister of Education Naledi Pandor, which was a far more serious document.
The Appendix to EE’s submission is an extremely powerful and vivid rendering of 532 submissions by learners, parents and teachers from across the country. It weaves together their personal descriptions of the crisis in school infrastructure, with their cogent comments on the draft itself. Many learners make incisive comment on the defects in the Minister’s draft. These testimonies were gathered during public hearings organised by EE in the Eastern Cape, Limpopo, KwaZulu-Natal, the Western Cape and Gauteng.
Although the publication of the 2013 draft regulations [PDF] was met with enthusiasm by members of EE, this soon became disappointment when we realised the extremely weak content of the document, particularly when compared to the 2008 draft, which contained greater detail, tangible goals and clear timeframes [PDF].
Nevertheless, the publication of the draft is a step forward. It means there is no longer debate on the need for a legal regulation that enshrines norms and standards in law. The only debate is over the content of the regulation.
EE’s campaign over the past three years has been supported by litigation (in which EE was represented by the LRC).The actions of thousands of dedicated young people, parents and teachers assisted in highlighting the inequality that exists in our education system, in relation to access to facilities at South African schools. Young people play a critical role in this struggle for equality in education. Should the final version of the Norms and Standards, expected by 15 May, remain as inadequate as the draft, EE is poised to return to the streets and the court.
10. Various other organisations make submissions on the draft
The following organisations have made submissions on the Draft Norms and Standards for School Infrastructure, which were published by Minister of Basic Education Angie Motshekga on 9 January 2013.
· Council for the Advancement of the South African Constitution
The following organisations made submissions on the Draft Norms and Standards for School Infrastructure, which were published by Minister of Basic Education Angie Motshekga on 12 September 2013. You can download the submissions by clicking on the organisational names.
On 11 June 2013, Equal Education reopened its court case against Minister Motshekga in the Bhisho High Court. While the Minister’s spokesperson has said EE’s action is “unnecessary”, Judge Dukada ruled that the matter is urgent. The matter was set to be heard on 11 July 2013 in the Bhisho High Court in the Eastern Cape.
As well as returning to the courts, Equal Education took to the streets calling for Minister Motshekga to immediately publish the regulations. Youth Day marches were held in Johannesburg, Durban, Pretoria and Cape Town.
12. Minister Motshekga lashes out at Equal Education
Following Equal Education’s nationwide marches, Minister Motshekga released a racist and misleading statement about the organisation. In it she accused Equal Education of being ” a group of white adults organizing black African children with half-truths”. Equal Education released a statement calling on the Minister to distance herself from the statement, retract the statement and apologise publicly.
Following the incident, Minister Motshekga invited Equal Education to a meeting to discuss the finalisation of the norms and standards. Eight National Council members attended the meeting with Minister Motshekga, Deputy Minister Enver Surty and the education MECs of Gauteng, KwaZulu-Natal, North West, Western Cape, Northern Cape and Mpumalanga.
The meeting was robust, frank and constructive; however, no agreement was reached. During the meeting Minister Motshekga refused to discuss the racist and misleading statement she released. She suggested a separate meeting about the issue.
13. EE secures Court Order compelling the Minister to prescribe regulations for Norms & Standards for School Infrastructure
On 11 July 2013, the Bhisho High Court made an order-by-consent compelling Minister Motshekga to publish Norms and Standards for School Infrastructure, by 12 September 2013. Read the order here.
14. Minister Motshekga publishes new Draft Norms and Standards for School Infrastructure
On 12 September 2013, Minister Motshekga published new Draft Norms and Standards for public comment. Equal Education welcomed the Department of Basic Education’s more detailed draft but raised concerns about its time frames and accountability measures.
15. EE and the EELC make a joint submission on the September Draft
On Friday 11 October 2013, Equal Education (EE) and the Equal Education Law Centre (EELC) filed a joint submission on the Department of Basic Education’s (DBE’s) draft Minimum Norms and Standards for School Infrastructure.
These draft Norms and Standards were released on 11 September 2013 for public comment, following an order by consent obtained by EE, represented by the Legal Resources Centre (LRC), in the Bisho High Court on 11 July 2013. By order of court the Minister of Basic Education has until 30 November 2013 to finalise and adopt the Norms and Standards.
The submission drew together the comments of hundreds of learners and parents who participated in public workshops EE organised on the draft in September and October in Gauteng, Limpopo, the Eastern Cape, KwaZulu-Natal and the Western Cape.
EE and the EELC welcome the improvements from the previous draft Norms and Standards released in January 2013. The current draft contains much more detail, including built-in timelines and accountability measures, which the previous draft did not. However, we do not think that the time-frames in the draft recognise the urgency of the problem, and that its accountability measures are strong enough.
The draft says that water, electricity, classrooms, toilets and fencing should be provided within 10 years, and all other norms by 2030. We consider schools without water, electricity, proper classrooms and sanitation to be in an emergency situation.
The delivery of basic services and infrastructure to these schools is an urgent priority, and the Norms and Standards should recognise it as such. Learners and parents who attended the EE workshops felt very strongly about this.
As Mvelo Zondi, a learner from Nqutu in KwaZulu-Natal said, “Learners who are learning under trees cannot wait for so long as they suffer a lot.”
Learners also felt that it was not fair that they had to wait 17 years for libraries, laboratories, sports fields and facilities and computer centres. Tibatso, a learner from Tembisa in Gauteng expressed this when he said, “In 17 years I’ll be so old, having children, and they cannot learn under such conditions.”
The Norms and Standards should classify schools according to need. Schools in the worst condition, in unsafe structures, should be classified as such and prioritised. These learners cannot be expected to wait 10 years.
The current draft stipulates that six months after the Norms and Standard are finalised and adopted, provincial MECs will have to submit a plan to the Minister on how they will ensure implementation. MECs will also have to report annually on their progress to the Minister.
We welcome the stipulation that these plans and reports will have to be completed – in accordance with Section 58C of the South African Schools Act (SASA) of 1996. However, we believe that MECs should release their plans and annual reports to the public.
Norms and Standards afford learners, parents, schools and communities a unique opportunity to monitor and hold provincial education departments to account. However, they need to have easy access to all relevant information to be able to do so.
Mantoko Mojakisane, a parent from Kraaifontein in the Western Cape, expressed this when she said that parents “want the truth as to how the education of our children and the conditions of their schools will improve.”
Learners and parents were also not satisfied with the fact that the current draft only provides two deadlines, both of which are far off into the future (10 and 17 years). They felt that shorter, intermediate time-frames, would enable them to hold Government to account and spur it into action.
As a learner from Tembisa in Gauteng commented, “Procrastination is the thief of time. If the Minister keeps on proposing too much time, she will end up not providing any of the things listed on the draft.”
Other important concerns with the current draft include:
The classroom capacity of 40 learners is too high: Learners expressed an overwhelming sentiment that acceptable class sizes must be at a learner educator ratio of 30:1.
It is insufficient to have rainwater harvesting as a sole source of water: It is important that if rain water tanks are used, the consistency of water supply is guaranteed by an alternative ‘back-up’ source.
The DBE should accept overarching responsibility for the implementation of Norms and Standards: The Draft correctly recognises the need for cooperative governance in implementing the norms and standards, however, it gives the DBE a way out by making its ability to deliver on its obligations contingent on the cooperation of other government departments.
The goal should be to provide every school with a library and a laboratory: We welcome that the draft provides for laboratory materials and library resources schools. But it does not guarantee that a dedicated library and laboratory will be provided to each school, even over the long-term.
Schools already planned but not built must be included in the Norms and Standards: The Draft makes no provision for schools where planning has already started but do not yet exist at the date of publication
The Norms and Standards should include more guidance on where new schools should be built: There is a need to be more specific in the planning norms so that those involved in the planning and construction of the school know what factors should guide their decisions.
The Norms and Standards should prohibit using inappropriate materials for school construction: It is disappointing that the Draft fails to set out what materials classrooms can be made from, and that they must be safe and comply with relevant building regulations. There must be a clear statement that schools made of inappropriate building materials such as corrugated iron, mud, or asbestos will not be tolerated.
Equal Education’s sustained campaigning over three years, involving thousands of young people and parents from across the country, compelled the Minister to draft Regulations that lay the physical foundations for an adequate education. We look forward to the finalised and improved Norms and Standards being adopted by Minister Motshekga by 30 November 2013.
On Friday 1 October 2013, EE and the EELC filed a joint submission on the Department of Basic Education’s (DBE’s) draft Minimum Norms and Standards for School Infrastructure. This submission identified two substantive problems that persisted in the September draft: the draft’s timelines for implementation were too long, and it failed as an effective accountability mechanism.
The Minster was given until 30 November 2013 to consider the public’s response to the September draft, and pass final legally binding Norms and Standards Regulations.
Equal Education members wrote opinion pieces in prominent newspaper to articulate the key problems with the draft Norms and Standards, and to keep pressure on the Minister to finalise Norms and Standards by the agreed upon date of 29 November.
16. Minister Motshekga finally adopts Norms and Standards for School Infrastructure!
On 29 November 2013, the Minister complied with the court order and published final and binding Norms and Standards for School Infrastructure. These are the third version this year, and although they are not perfect, they address many of the problems that EE raised with the draft version and, as such, constitute vastly improved Norms and Standards. They are a tool with which to improve thousands of schools and change millions of lives.
It is worth remembering what it took EE to get here, and who got us here. Above all this is a victory for the thousands of school-going members of Equal Education, the Equalisers. It is they who have marched, fasted, held vigils, slept outside Parliament, and marched again, and again, and again. They spoke at rallies, sent letters to countless editors, wrote to the Minister, and made the case on videos, radio and TV. It is their voices – their collective voice – that created the moral consensus to fix our schools.
The staff of EE have worked tirelessly over many years to bring us to this point. Many others have played invaluable roles. The Legal Resources Centre (LRC) represented EE at every crucial step of the legal process, as did Advocate Geoff Budlender SC. The Equal Education Law Centre (EELC) provided support at every step too. Many organisations made vital submissions and supported the campaign. In the end there was a coalition far bigger than EE that propelled this campaign to success. For a visual timeline of all of the above, click here!
17. Going forward
Equal Education is extremely pleased to be walking forward with Minister Motshekga. We are here after three years of sustained activism, and many broken promises, but we’re here. The Minister has done the right thing. She deserves substantial credit for that. These regulations will be a proud part of her legacy.
The Norms and Standards for Public School Infrastructure stipulate that provincial education ministers have 12 months to provide detailed plans to the Minister explaining how they will implement and monitor school infrastructure development in their respective provinces. By 29 November 2014, or sooner, EE expects these plans. To read about our new implementation campaign, click here.
18. Back to court in March 2018 to #FixTheNorms
After years of campaigning and mobilising by Equal Education members, the Minister of Basic Education Angie Motshekga promulgated Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure on 29 November 2013. This school infrastructure law sets out the obligations on the State to fix the crisis in South Africa’s school infrastructure.
In 2014 EE and the EE Law Centre raised a number of concerns with the Department of Basic Education (DBE), relating to the vague and open ended wording of the Norms and Standards. The Minister asked for time to work on implementation, and undertook to respond to our concerns during January of 2015. As of October 2015, no response had been received, and the provincial plans for implementing the regulations reflected the same worrying vagueness and uncertainty as the law itself.
During August 2015 the EELC assisted EE in analysing the implementation plans, and addressing letters to all Provincial Education MECs about the inadequacies in the plans.
The EELC represented EE in the Bhisho High Court in March 2018, challenging the loopholes in the Norms law, and in seeking an order from the Court that the Minister must take certain minimum steps to oversee and monitor implementation of a binding set of standards for school infrastructure.
On 19 July 2018, the Bisho High Court ruled entirely in our favour. That means the Court agreed that the government must #FixTheNorms.
The Court said that:
The “escape clause” is invalid:
This section of the Norms and Standards said that government is only responsible for fixing schools, if other departments or government entities do their part. We asked the Court to remove this clause. The whole government must work together to deliver the rights to safety, equality, dignity and education.
The Court agreed with us, and said the ‘escape clause’ is ‘inconsistent’ with the Constitution. The Court also said that it is unconstitutional for the DBE to not be accountable for meeting its own deadlines.
2. All schools with structures built of inappropriate materials must be fixed:
The Norms and Standards said that schools built “entirely” from mud, metal, wood and asbestos must be fixed by November 2016. But what if a school is not built “entirely” from these materials – even if it is mostly built from them? According to the Norms and Standards, the Minister would not have had to fix these schools urgently.
The Court ruled that all classrooms “built entirely or substantially” of inappropriate materials should have been replaced by 29 November 2016. This means that the DBE will no longer be able to ignore schools that have one or two brick buildings, while the rest of the classrooms are made of inappropriate materials.
3. There must be transparency and public accountability:
The Norms and Standards say that every year each provincial MEC of education must report to Minister Motshekga on progress with providing school infrastructure. But the Norms and Standards did not say that these documents must be made public. How can learners, teachers and school communities hold government accountable without these documents?
The Court said Minister Motshekga must change the Norms and Standards to include that plans and reports be made publicly available.
4. Government must fix schools, not just “prioritise” them:
The Norms and Standards say that the Minister must “prioritise” schools , but do not actually say they must be fixed. Prioritising could mean placing a school on an implementation plan, but not actually fixing it. We argued that the Norms and Standards must require the department to actually fix schools.
The Court said the word “prioritise” in the Norms and Standards must be read to mean the government must actually fix schools.
This Court case was a huge victory for EE, Equalisers and learners across South Africa. It meant that there was no excuse for government to miss the deadlines in the Norms and Standards.
Rather than welcome the Bhisho High Court judgment, Minister Angie Motshekga and all the provincial MECs for Education decided to spend more time and public funds in court. The government appealed the Bhisho High Court’s decision and applied directly to the Constitutional Court to do so.
This meant that instead of focusing on the danger presented by crumbling and dilapidated school infrastructure and the deadlines that are coming up, the DBE continued to delay its responsibility to #FixOurSchools.
On 29 October 2018, nine Constitutional Court judges issued an order which stated that the appeal by the DBE and the MECs had “no prospects of success” and dismissed the application. This means the Constitutional Court, the highest court in South Africa, has reinforced the decision of the Bhisho High Court. This is another major victory for EE’s members, including Equalisers, parents and teachers.
From the second half of 2011, when the preparation of court papers began, until the publication of the final and binding Norms and Standards in November 2013, EE was represented by the Legal Resources Centre (LRC). EE is now represented by the Equal Education Law Centre (EELC).
Part 1: From launching until the settlement agreement
Equal Education has campaigned for over two years to get Minister of Basic Education Angie Motshekga to publish Minimum Norms and Standards for School Infrastructure. In March 2012, after exhausting all other forms of democratic engagement, Equal Education, represented by the Legal Resources Centre, launched a court case against the Minister. The founding papers were comprised of an affidavit by Equal Education’s Chairperson Yoliswa Dwane and supplementary affidavits from over 20 schools from across South Africa. These describe in great detail the appalling conditions faced by many schools.
On 17 April 2012 Minister Motshekga filed her notice to oppose Equal Education’s court case. All nine provincial education MECs and the Minister of Finance filed notices indicating that they will not oppose the court case and would abide by the Bhisho High Court’s ruling.
Minister Motshekga was expected to file her answering affidavit on 11 May 2012; however, the state attorney requested an extension until 24 May 2012. Equal Education granted Minister Motshekga two extensions on the original deadline but refused to grant her request for a third extension. Minister Motshekga authorised Deputy Director-General Shunmugam Padayachee to depose the answering affidavit on her behalf on 5 July 2013. In light of this, DDG Padayachee’s affidavit detailing Minister Motshekga’s personal decision making processes can only be considered hearsay.
The Bhisho High Court accepted numerous amici curiae (friends of the court). These were organisations and individuals who, although not a party in the court case, could offer information on the matter.
On 14 August 2012 Yoliswa Dwane filed Equal Education’s reply affidavit. The replying affidavit showed that Minister Motshekga’s argument against implementing norms and standards was based on a misconception of the right to basic education. The affidavit also brought into question Minister Motshekga’s argument that education MEC’s opposed Minimum Norms and Standards. The court date was set down for 20 November 2012.
Following the publication of ‘The National Development Plan – 2030’ (NDP), Equal Education filed a supplementary affidavit. The supplementary affidavit highlighted the fact that the NDP called for the department’s school infrastructure guidelines to be “legislated to ensure they are adhered to.”
Equal Education planned to hold a ‘Fix Our Schools’ Camp outside the Bhisho High Court during the court case. The camp would be a venue for people from across South Africa to learn about the court case and about the struggle for quality and equal education in South Africa. A team was sent to the Eastern Cape to begin preparations for the court case and camp.
A week before the court case was meant to begin Minister Motshekga’s counsel contacted Equal Education and offered to settle the case. Equal Education’s leadership met with Minister Motshekga and other Department of Basic Education Officials in Pretoria. During the meeting Minister Motshekga acknowledged that she had to settle the case because it “could not be morally defended”. In the settlement agreement Minister Motshekga agreed to publish draft Minimum Norms and Standards for School Infrastructure by 15 January 2013. The public was able to make submissions on the draft until 31 March 2013. The final regulations would be published by 15 May 2013.
Part 2: The Minister violates the agreement, EE re-launches and wins a court order
On 9 May 2013, just a week before the deadline, Minister Motshekga wrote to Equal Education requesting more time to publish the regulations. After wide consultation amongst our members and our legal representatives, Equal Education offered Minister Motshekga a one-month extension to 15 June 2013. On 17 May 2013 Minister Motshekga wrote to EE saying “six (6) months would be a more realistic timeframe”. This request is part of a long history of delays, extensions and unfulfilled commitments that have characterised the Minister’s generally half-hearted response to the critical question of basic standards for South Africa’s schools.
Paragraph four of the settlement agreement provided that “should there be non-compliance with any of the terms of the undertaking; any of the applicants may approach the High Court on an expedited basis for appropriate relief”. On Tuesday, 11 June 2013, Equal Education reopened its court case against Minister Motshekga in the Bhisho High Court. While the Minister’s spokesperson has said EE’s action is “unnecessary” Judge Dukada ruled that the matter is urgent. The matter is set to be heard on 11 July 2013 in the Bhisho High Court in the Eastern Cape. Were the Minister to promulgate high quality, legally binding norms and standards before this matter returns to court, Equal Education would likely suspend its legal proceedings.
From 23-26 April 2013 Archbishop Thabo Makgoba lead a delegation of eminent South Africans on an Eastern Cape Schools Solidarity Visit. The Solidarity Visit was held in anticipation of Basic Education Minister Angie Motshekga publishing Minimum Norms and Standards for School Infrastructure on 15 May 2013. The delegates were able to witness the extent of the infrastructure crisis and draw attention to the urgent need for infrastructure regulations.
The delegates on the Solidarity Visit included: Elinor Sisulu, writer, human rights activist and political analyst; Janet Love, Commissioner of the South African Human Rights Commission and Director of the LRC; Sindiwe Magona, writer and women’s activist; Professor Njabulo Ndebele, writer and academic; Lindiwe Mokate, Commissioner of the South African Human Rights Commission; Zakes Mda, novelist, poet and playwright; Graeme Bloch, researcher and education analyst; Professor Pierre de Vos, constitutional law scholar. They were accompanied by a group of EE staff led by EE General Secretary Brad Brockman, education scholars Nic Spaull (University of Stellenbosch) and Kim Porteus (Nelson Mandela Institute) and education lawyer Cameron McConnachie (Legal Resources Centre). McConnachie played a huge role in assisting Equal Education with organising the Solidarity Visit.
On the first day of the Solidarity Visit the delegates visited two schools: Putuma Junior School and Sea View High School. Putuma Junior School is in the Mbhashe municipality. Delegates found the school grossly overcrowded. A Grade 9 class had over 100 learners. In one classroom delegates observed learners using concrete building blocks as chairs because the school does not have enough furniture.
Sea View High School in Mqanduli is in a state of disrepair. There are not enough long drop toilets for learners or teachers and the ones that worked were in a terrible condition. The school functions without access to running water or electricity. In desperation the community resorted to building its own classrooms to accommodate the learners.
Media coverage of the first day of the Solidarity Visit:
On the second day of the Solidarity Visit the delegation visited four schools: Ntapane Senior Secondary School, Ngangelizwe High School, Samson Senior Primary School and Nomandla Senior Primary School.
Ntapane Senior Secondary School has 836 learners from Grade R – 9. They are in desperate need of more classrooms to reduce their overcrowding. Delegates visited a Grade 9 class with 135 learners in it. The school does not have adequate sanitation facilities and only has one tap. Professor Njabulo Ndebele, a writer and academic, was shocked by the overcrowding in the school. “There was a great deal of overcrowding. In other words, the spaces between the desks – you can’t even go through. Contact between the teacher and the student, particularly those that are right in the back of the class, is almost impossible. The teacher can’t move around because the kids are bunched up together. The sense of overcrowding is palpable,” he said.
Ngangelizwe High School’s toilet facilities are in a state of disrepair. There is no toilet paper and there are no hand basins. Many of the pit latrines don’t have doors. The school has replaced some of the missing doors with plastic sheeting. Learners take turns holding the plastic sheeting closed for each other when they go to the toilet.
Samson Senior Primary School is in the Libode Education District, 40kms outside of Mthatha. There are 230 learners and 5 teachers, including the principal. The school submitted a supporting affidavit towards the EE court case for Minimum Norms and Standards for School Infrastructure in 2012. The school does not have access to water as the water tanks were damaged by a storm. If learners want water they have to walk 5 kilometres to the nearest tap.
The last school the delegates visited was Nomandla Senior Primary School. The school has recently been rebuilt. However, it has not been handed over to the community. Delegates found learners still attending classes in temporary structures. The impressive new structure showed the delegates how high quality school infrastructure can be provided to learners in rural areas.
The Solidarity Visit was well documented on social media. Both @equal_education and #solidarityvisit trended nationally.
On the third day of the Solidarity Visit the delegates met with officials from the Eastern Cape education department in Mthatha, including its deputy director-general Sithembele Zibi. The delegates asked the officials questions about what they had seen. When asked how much money they would need to improve school infrastructure in the province they said minimum functionality will cost R28-billion, while optimal functionality is R49-billion and pure basic safety is R9-billion. The department officials thanked Equal Education for their interest in the school infrastructure crisis.
That night Zakes Mda, Sindiwe Magona and Professor Njabulo Ndebele spoke at The Book Lounge in Cape Town. The event, REFLECTIONS ON OUR FUTURE: Schools in the Eastern Cape, allowed the delegates to reflect on the Solidarity Visit and answer questions.
Media coverage of the third day of the Solidarity Visit:
The Michael Komape Norms & Standards Implementation Campaign
The next phase of the norms and standards campaign is the implementation of these regulations. This is the most important part of the campaign because it is of no use to have excellent policies if they cannot be implemented and felt at ground level.
The implementation phase of the campaign will be known as the Michael Komape Norms & Standards Implementation Campaign. Michael Komape was a five year old boy who had just begun attending the Mahlodumela Primary School in Limpopo province. He died by falling into a pit toilet. This tragedy was covered in the media (see here, here and here) but as Mark Heywood has written, Michael Komape has been almost forgotten. Michael died on 21 January 2013. Our campaign will now attempt to honour him and to ensure that such injustices are prevented in future.
So far we have been doing the following:
– Accessing the infrastructure backlog lists from all nine provinces (in a few instances using the Promotion of Access to Information Act). These are schools that do not meet the requirements of the norms and standards. These are all the schools without water and electricity, fencing, toilets, mud schools etc.
– These lists were requested as a step towards the implementation plans that every province is required to publish by 29 November 2014. We have been engaging with some provinces, notably the Eastern Cape, in this regard.
– We co-hosted a conference on 14 and 15 July 2014 with SECTION27, the LRC and the EELC. This conference brought different stakeholders together collectively to understand the challenge of implementing the norms and standards, and to plan ways to minitor and ensure that the norms and standards would be implemented. Provincial and national government attended the conference and participated meaningfully.
Please note that Equal Education (EE) is a registered Public Benefit Organisation (PBO) with S18A status, meaning that neither you nor EE pays donations tax on donations, and that donations are deductible from your taxable income. EE is also a registered Non-Profit Organisation. Our registration details are as follows:
Registered S10(1)(cN) and S18A(1)(a) Public Benefit Organisation (PBO) (Exemption Number 930 027 221)
Registered Non-Profit Organisation (NPO) (Registration Number 068-288-NPO)
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