Angie Motshekga. Picture: ESA ALEXANDER
Angie Motshekga. Picture: ESA ALEXANDER

The High Court in Bhisho in the Eastern Cape has ordered Basic Education Minister Angie Motshekga to fix flaws in her department’s rules for school infrastructure, after lobby group Equal Education successfully argued the loopholes enabled the government to shirk its duty to provide safe schools.

The ruling places Motshekga under fresh pressure to speed up school improvement. While there has been progress in recent years, many classrooms are still made of inappropriate materials such as asbestos and mud, and a significant number of schools still lack safe sanitation, water and electricity.

The minister is also under political pressure, after the death of five-year-old Lumka Mkhethwa in a school toilet in March. President Cyril Ramaphosa directed her to come up with a plan by mid-June to eliminate school pit latrines.

School infrastructure

The court judgment is the culmination of a sustained campaign by Equal Education to improve school infrastructure. In November 2013 the minister reached a court-sanctioned settlement with Equal Education and published legally binding norms and standards for school infrastructure. These rules gave the government three years to replace unsafe structures and to ensure schools had appropriate sanitation, water and electricity.

On Thursday the court upheld Equal Education’s argument that aspects of these rules allowed the state to indefinitely delay fixing problems in some schools, declaring them unconstitutional and invalid.

Equal Education Law Centre deputy director Daniel Linde said one of the most significant aspects of the judgment was its ruling that an “escape clause” in the rules was unconstitutional. The clause said the department was only responsible for fixing schools to the extent that other parts of the state and its implementing agencies co-operated. It means the government as a whole is responsible for school infrastructure, Linde said.

The ruling also declared the current phrasing of the norms and standards, which obliges the department to only fix schools made entirely of inappropriate materials, as inconsistent with the Constitution. The court said the wording should be changed so that classrooms built entirely or substantially of inappropriate materials should be fixed. This means the department cannot disregard schools that have one or two brick buildings while the rest of the school is made from inappropriate materials.

The judgment compels the Department of Basic Education to make its plans for fixing school infrastructure public.

Department spokesman Elijah Mhlanga said officials had already begun reviewing the norms and standards for school infrastructure, and the department therefore did not plan to appeal against the judgment.

The minister would make an announcement with the president on August 14 about her plans for eliminating school pit latrines, which included a significant contribution from the corporate sector, he said.

The department faces a significant financial challenge, as the current economic climate and the need to finance former president Jacob Zuma’s promise of free higher education has forced it to cut infrastructure budgets for schools.

The education infrastructure grant and the accelerated schools infrastructure delivery initiative — also known as the schools infrastructure backlog grant — have both been cut. The former grant falls 1.3% from R10.046bn in 2017-18 to R9.918bn in 2018-19, while the latter drops 9% from R1.452bn to R1.321bn over the same period.

Mhlanga said the minister would be sharing the judgment with her cabinet colleagues, emphasising that their departments also shouldered some responsibility for school infrastructure. “We don’t have the capacity to do everything ourselves,” he said.