The Court Papers
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 twenty 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 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.
- Social Justice Coalition's Affidavit
- The Most Reverend Dr Thabo Cecil Makgoba's Affidavit
- Dr Ursula Kate Hoadley's Affidavit
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.
On 13 November 2012 Equal Education's heads of argument were filed. Two days later, on 15 November 2012, Minister Motshekga's filed her heads of argument.
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 4 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.
- Certificate of Urgency
- Supplementary Notice of Motion
- Equal Education's Founding Affidavit to Supplementary Notice of Motion (Annexures)
- Judge Dukada's Directions
On 21 June 2013, Director General Bobby Soobrayan filed a supplementary opposing affidavit.
On 3 July EE filed a Replying Affidavit in the Supplementary Application:
On 11 July the Bhisho High Court made an order-by-consent compelling Minister Motshekga to publish draft norms and standards for school infrastructure by 12 September 2013
On 11 September Minister Motshekga published new Draft Norms and Standards for public comment. The public comment period was open until 11 October.
These efforts helped produce the final Norms and Standards eventually published in November 2013.
