Madzodzo et al v. Minister of Basic Education et al
Claim presented to South African courts for the protection of children’s right to basic education (art. 28, South African Constitution). Provision of essential school furniture to public schools in Eastern Cape.
This 2014 decision was handed down after three rounds of litigation. In 2012 applicants sought a court order directing the delivery of school furniture to three rural schools in dire need of furniture; a declaration that the State had violated children’s right to education by failing to provide “adequate, age and grade appropriate furniture” at Eastern Cape schools; and an order that the state complete a comprehensive audit of school furniture needs in the province. The order was granted by agreement between the parties in November 2012, but the government did not comply as it failed to complete a comprehensive audit. In August 2013 the applicants again approached the court setting out the extent of the non-compliance, and seeking the production of a comprehensive plan detailing the delivery of furniture within a specific timeframe. An agreement was reached regarding how the independent audit would be conducted, and argument over the date for delivery of all furniture needed was delayed until February 2014. This was also made an order of court by agreement between the parties. Argument over the deadline for delivery of furniture was heard on 13 February with the applicants asking that delivery should take place within 90 days of the audit being completed. The department submitted that they should not be directed to deliver within a specific timeframe and that they need only show that they were making progress and that they had a plan. They also argued that there was insufficient budget to meet all of the furniture needs immediately.
On February 20, 2014, the High Court declared that it was not in dispute that schools were affected by a failure to provide furniture and that such fact was a “serious impediment for children attempting to access the right to basic education in the province.” Citing the decision of Juma Musjid v. Essay NO (2011), the Court highlighted that the “right to basic education provided for in section 29 (1) (a) of the Constitution is an unqualified right which is immediately realizable and is not subject to the limitation of progressive realization”. The right to basic education is also “an empowerment right”. In order to comply with its obligation to respect the right to basic education, the government is required to “take all reasonable measures to realize” the right with “immediate effect”. The High Court ordered that the government ensures that “on or before 31 May 2014 […] all schools identified in [an] audit as having furniture shortages shall receive adequate age and grade appropriate furniture which shall enable each child at the identified schools to have his or her own reading and writing space”(Excerpts from the High Court decision).
The Legal Resource Centre is monitoring the implementation of the decision. The comprehensive audit was completed by 28 February, but the omission of numerous schools requiring furniture is apparent. Another delay is likely due to a tender dispute between the state and furniture manufacturers over irregular tender procedures in the award of R90 million worth of furniture orders. The Legal Resources Centre has intervened on behalf of the Centre for Child Law in this matter in an attempt to prevent the granting of an interdict which would delay the delivery of furniture, but supporting a declaration that the tender was unlawful. Judgment has not been handed down in that dispute (LRC, April 2014).
Legal Resources Centre (LRC) and Centre for Child Law (CCL)
First, the High Court reaffirmed the understanding that the right to basic education is immediately realizable, in particular with regard to schools’ infrastructure. Second, the High Court issued orders that will have a broad impact, benefiting more than 600,000 learners who are currently without adequate (or any) furniture.