GET-OUT-OF-JAIL-FREE CARDS: Basic Education Minister Angie Motshekga. Picture: SOWETAN
GET-OUT-OF-JAIL-FREE CARDS: Basic Education Minister Angie Motshekga. Picture: SOWETAN

Organisation Equal Education will, on Wednesday, ask the Bisho High Court to compel Basic Education Minister Angie Motshekga to fix flaws in her department’s rules for school infrastructure, which it says have let the government shirk its duties.

After a sustained campaign by Equal Education, the minister published legally binding norms and standards for school infrastructure in November 2013, which compelled the Department of Basic Education to ensure schools were safe and dignified places in which to learn.

But Equal Education says these obligations, detailed in regulations to the South African Schools Act, did not go far enough because they allowed the department to break the deadlines they set out.

"The wording of the norms and standards allows the department a ‘get-out-of-jail-free card’," said the Equal Education Law Centre’s deputy director Daniel Linde. Regulation 4(5)(a) says the Department of Basic Education is only responsible for fixing schools to the extent that other parts of the state, such as public works, municipalities or Eskom, co-operate and make resources available.

This "escape clause" made the various deadlines set out in the 2013 regulations aspirations rather than firm commitments, said Linde.

While it did make some progress, the department missed the first deadline contained in the regulations, which said that by November 29 2016 there should be no more schools built from inappropriate materials, such as wood, mud, zinc or asbestos, and that all schools should have water, sanitation and electricity.

As of June 2016, there were still 171 schools with no water, 569 without electricity and almost 5,000 still used pit latrines, according to the department’s most recent National Education Infrastructure Management System report, published on its website.

Equal Education is seeking a court order declaring that Regulation 4(5)(a) of the norms and standards is inconsistent with the Constitution, and the South African Schools Act and is, accordingly, unlawful and invalid. The Constitution says basic education is an absolute right.

Linde said the wording of the regulation that states schools built entirely of inappropriate materials should have been fixed by November 2016 was problematic because if even one classroom was built of brick, the department was not obliged to fix the rest of the school.

Equal Education also wanted a clause to be added to the regulations to compel the government to publish all infrastructure plans and reports, so it can be held to account by learners, teachers and the community at large, he said.

The Basic Education Department’s spokesperson Elijah Mhlanga did not respond to Business Day’s request for comment.