Summary
High Court case
In 2012, seeking to standardize education nationwide, the Department of Basic Education (DBE) began the three-year rollout of a new curriculum which entailed staggered introduction of new textbooks. Despite the successful rollout in other provinces, in Limpopo the Provincial Government was unable to deliver textbooks to all learners by the start of the 2012 school year.
Consequently, in 2012, SECTION27, a public interest organization represented by the Centre for Applied Legal Studies, brought a constitutional challenge before the Gauteng Division of the High Court, Pretoria (High Court), regarding the inadequate provision of textbooks in Limpopo by the DBE and Limpopo Department of Education (LDOE). The High Court found that the untimely delivery of textbooks violated learners’ rights under the South African Schools Act 84 of 1996 (SASA), and Section 195 of the Constitution of the Republic of South Africa (Constitution) (on basic values and principles governing public administration). The High Court ordered the DBE and LDOE to provide textbooks by June 15, 2012, develop a remedial plan for affected grade 10 learners, and submit monthly reports on the implementation of the plan. However, the government’s continued failure to deliver the textbooks led SECTION27 to return to the High Court in July and September 2012.
Despite some improvement and the appointment of an independent expert to verify the government’s progress reports, textbook delivery was delayed again in 2013 and 2014. Accordingly, the organization Basic Education for All (BEFA) and the governing bodies of 29 Limpopo public schools initiated another case before the High Court seeking an order declaring that the failure of government actors to procure and deliver books to learners in 39 Limpopo schools for the 2014 school year violated constitutional rights to basic education, equality, and dignity. Alleging that the government respondents had failed to comply with earlier court orders, the applicants also asserted violations of Sections 165(4) (concerning state organs’ responsibility to “…ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”) and 195 of the Constitution. SECTION27 served as BEFA’s attorney, making this SECTION27’s fourth court appearance over the textbook issue. The High Court found in the applicants’ favor but declined to hold that the government respondents had not complied with previous orders. The High Court also rejected the applicants’ requests for the DBE to submit its plan to address textbook shortages in Limpopo and for the South African Human Rights Commission (SAHRC) to monitor textbook delivery.
Supreme Court of Appeal decision
The government respondents appealed to the Supreme Court of Appeal (SCA) where SAHRC joined BEFA and the school governing bodies in their cross-appeal. The SCA held that the government appellants violated rights to education (Section 29), equality (Section 9), and dignity (Section 10) of the Constitution by failing – in accordance with its obligation to fulfil human rights (Section 7(2) of the Constitution) – to provide learners in Limpopo with prescribed textbooks before the academic term commenced. Further, this failure – in a mainly rural province where learners were predominantly poor and black children – amounted to unfair discrimination. The SCA further held that the appellants had failed to comply with previous court orders.
The SCA rejected the government appellants’ arguments that: (1) their efforts to provide textbooks had been hampered by lack of cooperation from the schools; (2) budgetary constraints justified the delayed delivery; (3) the petitioners were asking the government to meet a “standard of perfection” not required by Section 29(1)(a) of the Constitution (on the right to a basic education); and (4) the order granted by the lower court violated the doctrine of separation of powers. Relying on the case of Governing Body of the Juma Musjid Primary School & others v Essay NO & others [2011] ZACC 13; 2011 (8) BCLR 761 (CC), para 37, the SCA confirmed that the right to basic education is “immediately realisable” and not subject to progressive realization.
In making this decision, the SCA noted that the right to basic education is both “constitutionally entrenched and statutorily enforced.” (para. 40). Thus, rather than holding the government to a “‘lofty’ ideal,” as the appellants argued, the petitioners were simply trying to “hold [it] to the standard it set for itself.” (para. 42). The DBE had set a policy but had faced an obstacle in the latter stages of implementation. As such, the SCA characterized the government appellants’ arguments about budget constraints and separation of powers as “fallacious” and seemingly “contrived.” (para. 43).
