African Legal Centre, Supreme Court of Appeal judgment – Minister of Basic Education v BEFA, December 2, 2015


Supreme Court of Appeal judgment – Minister of Basic Education v BEFA

2 December 2015 – Today South Africa’s Supreme Court of Appeal handed down a major judgment on the constitutional right of access to education, Minister of Basic Education and Others v Basic Education for All and Others [2015] ZACC 198 (judgment available here). It is a victory for Limpopo learners and the rights groups who have been working on this litigation for years, and an indictment of the Department of Basic Education.

The facts tell a protracted tale of severe government dysfunction. After a new curriculum was introduced in 2012, the Department had completely failed, for five months, to provide the required textbooks to grades 1, 2, 3 and 10 learners in Limpopo. SECTION27 had to apply to the Pretoria High Court (Kollapen J) for an order directing the Department to deliver the textbooks urgently. The deadlines in that order were not complied with, prompting further litigation which resulted in a settlement agreement. Even after the Department scrambled to meet the new targets, an independent monitor found that 22% of Limpopo schools were still awaiting textbooks on 11 July 2012 – after half the academic year was already over, in other words – and that the Department had drastically overstated the progress it had made. The High Court made yet another order declaring that its previous orders had been violated by the Department.

In 2013 and 2014, things were better, but not by much. Deep into the academic year, and despite constant pressure and negotiation by NGOs, many schools still didn’t have textbooks. The evidence showed that the Department lacked the basic data and structures to monitor textbook delivery. When the rights groups applied yet again to the Pretoria High Court, the affected schools gave detailed accounts of the hardships they faced as a result of the non-delivery of the textbooks. The South African Human Rights Commission substantially agreed with the applicants that the Department had violated the affected learners’ constitutional rights to basic education, dignity and equality and must be ordered to remedy this urgently.

The Department, in response, said it had made earnest efforts to deliver textbooks to all learners, but was hamstrung by supplier shortages and the incorrect learner numbers supplied to it by the Limpopo provincial government and the schools themselves. The first applicant, Basic Education for All, countered that the poor data was a result of the Department’s flagrant and persistent failure to maintain a reliable database. BEFA also noted that the Department had threatened to take disciplinary action against school principals who cooperated with SECTION27 and BEFA, which were attempting to monitor and improve the Department’s roll-out. The Department also said it was under severe budget constraints and could not be criticised for failing to provide a textbook to each and every learner.

The High Court (Tuchten J) quoted at length from the Constitutional Court’s judgment in Juma Musjid, the first to seriously scrutinise the constitutional right to basic education contained in section 29(1)(a). They key point is that this right is, in the jargon, “immediately realisable”. In other words, whereas the state must take only “reasonable measures” to secure other socioeconomic rights, like the rights to housing, healthcare and indeed tertiary education, the right to basic education contains no such qualification: “everyone has the right to basic education”, full stop. And for Tuchten J textbooks are a simple and indispensable educational tool and “therefore a component of basic education”. For this reason, Tuchten J ordered that the Department had violated the constitutional rights of the Limpopo learners. However, he stopped short of making the detailed order the applicants sought which instructed the Department how to remedy the shortfalls. He also did not declare that the Department was in breach of the previous court orders, saying it had attempted to comply, that “lessons had been learnt”, and that the Department would probably not err again.

The Department appealed Tuchten J’s order declaring that it had violated learners’ rights, arguing that the order imposed a “standard of perfection” – supplying a textbook to every single learner in the province – which the Department could not be expected to meet. The rights groups, on the other hand, appealed Tuchten J’s refusal to declare the Department was in breach of the previous orders. The rights groups also led new evidence showing that, even after the High Court judgment, the Department had not delivered all the required textbooks (a failing for which the Department again blamed the textbook publishers).

Navsa JA, in a strong judgment for the Supreme Court of Appeal, was highly critical of the state’s conduct. (The state’s argument was so weak, after all, that Franny Rabkin had wondered after the hearing why it was appealing at all.) He decisively rejected its main argument – that supplying every single learner with a textbook asked too much – by pointing out that the Department’s own policies stated that this was an imperative. The rights groups were therefore “merely seeking to hold government to its own standard”. The problem was not the standard, said Navsa JA, but the Department’s “inadequate” management plan and “woeful” logistical ability. Worse, the Department’s reliance on budgetary constraints was “fallacious and appears contrived”, since it had already committed itself on more than one occasion, both in and out of court, to achieving exactly that goal – commitments which “fly in the face” of the Department’s new excuse. Navsa JA affirmed Tuchten J’s finding that the Department had violated learners’ constitutional rights. But he said Tuchten J was wrong to withhold an order declaring the Department was in breach of the previous court orders: the non-compliance was patent, and the difficulties which caused it “were largely of [the Department’s] own making”.

In the end, Navsa JA made an order declaring that “section 29(1)(a) of the Constitution entitles every learner at public schools in Limpopo to be provided with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed”, that the state bears a duty to fulfil this right, and that it had failed to do so.

SECTION27 has rightly described this as a “beautiful, globally significant judgment“. On the other hand, it does little to flesh out the meaning of section 29 of the Constitution, basically repeating what was held by Tuchten J (himself applying Juma Musjid). And of course, as the factual background plainly shows, there is little reason to think that this court order will end Limpopo learners’ woes.