With the South African elections taking place on Wednesday and the ongoing saga of the Oscar Pistorius murder trial, a relatively small but important judgment out of the High Court is likely to go unheralded.
Assertions of insufficient resources have continually plagued socio-economic rights proponents. The ability to uphold socio-economic rights has always faced an inherent difficulty in that the obligations of governments to progressively realize the rights is limited by available resources. This has tied progressive realization of rights to government budgetary processes that are complex and unavailable for public scrutiny. Courts have understandably been unwilling to engage with cases calling for specific budgetary allocations given the complexity and appropriate maintenance of separation of powers. However, BEFA and Others v Minister of Basic Education and Others handed down on May 6th may have struck upon a remedy that provides a unique ability to intervene in the budgetary process without overstepping the separation of powers doctrine.
The case, brought by Basic Education for All (BEFA) and SECTION27, dealt with the failure of the Department of Basic Education (DBE) to deliver textbooks in Limpopo. This crisis has been going on for several years now. Previous cases were brought, litigated, and settled in 2012 and yet this year, more than five months into the new school year, many students still did not (and do not) have the necessary textbooks to participate in their own education. The details of the background to this case are thoroughly set out in the founding affidavit and SECTION27’s Press Statement on the case.
Section 29 of the South African Constitution guarantees the right of everyone to access basic education. Importantly, unlike the right to access health care services and sufficient food and water in section 27, the right to basic education is not limited to progressive realization but is instead immediately realizable for all.
While this post is mostly about the remedy that the court constructed, I feel it is important to highlight some of the what the court found in relation to the importance of books in education and society more broadly. The DBE had attempted to claim that textbooks were not an essential component of education since teachers could accommodate the lack of textbooks. This is what the court said in response:
Textbooks have been part of the stock in trade of the educator for centuries. There is something special about a book. It has a very long life, far longer than that of the individual reader. It is a low tech(nology) device. It is accessible to anyone who can read the language in which it has been written. During the hours of daylight it can be read (accessed) without any other supporting technology at all. It needs no maintenance except the occasional strip of adhesive tape. It can accommodate the reader’s own thoughts in the form of jottings and emphases. It can accompany the reader wherever she goes, even to prison, to war and into exile. At night, it can be accessed with the help of the simplest technology, like a candle. What is written on one of its pages can readily be compared with what is on other pages by simply using bookmarks. It is always available, without mediation: a book in the hands of a reader cannot be censored or altered to distort what is written in it by anyone trying to exercise power over the reader. Books are the essential tools, even weapons, of free people. That is why tyrants throughout the ages have sought to restrict and even deny the access of their subjects to the written word and to burn and otherwise destroy the books of those whose cultures and ideas they seek to suppress.
Textbooks are essential to all forms of education. Textbooks are therefore a component of basic education.
The delivery of textbooks to certain learners but not others cannot constitute fulfillment of the right. Section 29(1)(a) confers the right of a basic education to everyone. If there is one learner who is not timeously provided with her textbooks, her right has been infringed. It is of no moment at this level of the enquiry that all the other learners have been given their books. (Paras. 47, 51-52)
In the end, this is an important declaration in and of itself. That any failure to provide textbooks to learners is a Constitutional violation brings South Africa near to accepting a minimum core argument that’s long been a rejected notion in South African Constitutional jurisprudence.
However, the importance of this case may lie more in the remedy that the court crafted. While BEFA had sought a supervisory order that would legally bind the DBE to their stated commitment to deliver books by May 8th and June 6th for different grades, this was rejected by the court which stated that there was insufficient reason to believe the DBE did not intend to meet its goals. While the history of litigation in relation to textbooks would seem to disagree with that assertion, the budgetary constraints that the court went to pains to articulate cannot be easily discarded nor the court’s perception of the futility of similar orders issued in the past.
In my view it cannot be said that there has been a bald assertion by the DBE of budgetary constraints. Much information in this regard was placed before the court. The case for the DBE reduces to this: they asked the fiscal authorities for the money they calculated was necessary to enable them to meet their textbook requirements but they were given a lesser sum; they then negotiated with the same fiscal authorities to find alternate ways of raising the necessary money but were only partially successful. […]
The, once again very big, question whether Parliament failed in its constitutional obligations by not making enough money available to the DBE to fund the textbooks required for 2014 is not directly before me. […]
I do not think that orders of court made on capacity predictions have advanced the applicants’ cause. With the advantage of hindsight, I doubt whether those orders, which were effectively unenforceable and were simply varied each time they were breached, advanced the interests of justice. (paras 74-75, 77)
Nevertheless, having found a violation of the right to basic education, the court must fashion a remedy and the court summed up the concerns accurately:
The issue of budgetary constraints is therefore partly of retrospective interest (who is to blame for the late deliveries of books required for 2014?) and party of prospective interest (what is likely to happen in subsequent years, particularly 2015?).
This is where the court developed an innovative order that – whilst it doesn’t remedy the current violation nor secure future vindication of the right – does provide a potentially invaluable tool for civil society organizations if it can be successfully utilized in the future. The court said:
The main obstacle to timeous deliveries of textbooks in the future seems, on what is before me, to be that Parliament will not vote enough money for this to be achieved. I think that it is arguable that a case could be made out to compel Parliament to vote enough money to meet the needs of Limpopo learners in relation to textbooks despite the very difficult nature of the case which would have to be made. Given the fact that Parliament has, on the DBE’s case, denied the DBE the funds they needed in this regard in the past, it is reasonable to predict that it may do so again. I think it would be appropriate if the applicants and the [South African Human Rights Commission] were told by the DBE, at a relatively early stage, if a similar situation is likely to recur. I shall therefore direct the political heads of the relevant national and provincial departments to inform the applicants and the SAHRC of the amounts sought in relation to the provision of textbooks to learners in Limpopo and the amounts actually awarded in this regard.
Essentially, the court has ordered the DBE and Parliament to account for its budget allocations. The extent and utility of this added transparency is yet to be seen. At the very least, in collaboration with the media, it may force the National and Provincial Treasuries to publicly attempt to justify an allocation below that necessary to uphold a basic tenet of the right to education. In more extreme cases, the courts could again be approached to compel a sufficient allocation or the re-development of a realistic plan capable of meeting constitutional requirements but that fits within the available budget allocation.
This is potentially a powerful new remedy and one can immediately see its potential for litigation relating to the right to health as well. While any case challenging budget allocations would still face substantial uphill opposition – both from the governments as well as from the courts – it’s possible to envision how strategically orientated organizations engaging in targeted cases relating to supply chain management systems, emergency medical services, drug procurement, or other critical health care issues could utilize this type of remedy to force more transparency and accountability into the way that budgets are developed and allocated and undermine governmental assertions of limited resources.
Disclaimer: The author previously worked for SECTION27.