An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
When pressure groups, government officials, members of big business, politicians and other self-interested parties talk about the need for “transformation” in South Africa, they usually focus on the need to make workplaces and other institutions more representative in terms of race and (usually as an afterthought) in terms of sex/gender and on opening up economic and other opportunities to black South Africans and women of all races who were discriminated against in the past.
To achieve this kind of “transformation”, our Parliament has adopted the Promotion of Equality and Prevention of Unfair Discrimination Act, Extension of Security of Tenure Act, Restitution of Land Rights Act, Employment Equity Act, National Empowerment Fund Act, Preferential Procurement Policy Framework Act, Minerals and Petroleum Development Act and Broad Based Black Economic Empowerment Act.
These Acts have played a pivotal part in changing the legal landscape in order to begin to correct the effects of the injustices of the apartheid past. If the government had not adopted these laws, the unacceptable and unjust status quo (with white South Africans dominating all aspects of South Africa’s economic life) would hardly have been altered, despite the advent of democracy more than 17 years ago.
Despite the important and laudable goals that form the core of the government’s “transformation” policy, there is a dirty little secret underlying it: the policy has been devised by the new elite to advance their own interests and the interests of the growing middle class, the interests of unionised teachers, police officers, civil servants, and the interests other members of influential political pressure groups. For some inexplicable reason our government has been far less concerned about adopting and implementing policies and programmes that would address the structural inequality and poverty in our society.
Instead, our government has chosen to broaden the network of social grants to ensure that large numbers of destitute and poor South Africans do not starve. Unless one is truly heartless or inherently racist, one would be hard pressed not to support this programme of social assistance. But this does not mean that one should not question the fact that our government has failed to deal decisively and energetically with the structural problems that keep about 40% of South Africans in more or less perpetual poverty. Could it be that selfishness and an inherent lack of respect for the dignity of the poor is to blame for this unacceptable state of affairs?
Nothing illustrates this point better than the failure of the state to improve the education opportunities of the poorest members of our society. In a report published in May by the Department of Basic Education, it is revealed that about 3,500 public schools in South Africa still have no electricity while 2,402 have no water supply. Worse – given the understandable outrage which followed the revelation of the provision of open toilets to poor people across South Africa – is the revelation that out of the country’s 24,793 public schools, 913 have no toilets. (These figures refer to schools that never had these facilities at all, as well as schools where infrastructure was destroyed or not properly maintained.)
The question is whether President Jacob Zuma’s administration will finally be galvanised into doing something about this scandalous state of affairs? Maybe the populist rantings of people like Julius Malema might do some good by reminding the elites and the middle class bureaucrats and state officials that unless they do something to address these problems, they might well be swept away in a destructive and disastrous wave of populism, which will find fertile ground amongst the forgotten 40% of our population who have not (and never will) benefit from the government’s BEE and employment equity policies.
The Sowetan reports that spokesperson for the Department of Basic Education, Granville Whittle, said the infrastructure backlog will be addressed through the department’s Accelerated Schools Infrastructure Delivery Initiative. The initiative aims to eradicate the 395 mud schools in the country, which are all in Eastern Cape, and provide all schools with water, electricity and sanitation by 2014. The National Treasury has allocated R700 million to the department for the 2011-2012 financial year to fund Asidi, said Whittle.
At least three questions arise. Why is this only being addressed now? Will these plans actually be implemented or will corruption and a “lack of capacity” stall the plans? Is it possible that our Constitutional Court will find that the failure of the state to address these basic infrastructural problems over the past 17 years means that it is in breach of its constitutional duty (contained in section 29 of the Bill of Rights) to provide everyone with basic education?
The Constitutional Court has not had the opportunity to deal definitively with the right to basic education guaranteed in section 29(1)(a) of the Constitution. However, in interpreting and applying section 29(2) of the Constitution (which deals with the limited right to be taught in the language of one’s choice), the Court – in the case of Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Others – made the following general remarks about our education system:
It is so that [during apartheid] white public schools were hugely better resourced than black schools. They were lavishly treated by the apartheid government. It is also true that they served and were shored up by relatively affluent white communities. On the other hand, formerly black public schools have been and by and large remain scantily resourced. They were deliberately funded stingily by the apartheid government. Also, they served in the main and were supported by relatively deprived black communities. That is why perhaps the most abiding and debilitating legacy of our past is an unequal distribution of skills and competencies acquired through education. In an unconcealed design, the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular.
Unlike other social and economic rights contained in the Bill of Rights, section 29(1)(a) is not qualified with reference to available resources or the need to accept that progressive access to the right can only be achieved through reasonable measures which, over time, would provide all those who need it with access to basic education. This suggests that the drafters of our Constitution accepted that education had to be prioritised to ensure that all children were provided with access to at least “basic education” immediately.
Surely one cannot be said to have access to basic education if one is forced to attend a school without any toilets, electricity or running water, while the children of the elite (including the children of Ministers and Union leaders and most beneficiaries of apartheid) attend the best state or private schools where they have access to the best paid and best qualified teachers and the most lavish facilities – including computer labs, libraries and swimming pools?
I suspect this is why the Eastern Cape Department of Education decided to settled the case regarding the existence of many mud schools in that province. Officials knew that their lack of action in the previous 17 years could not be justified and feared that our courts would hand down a devastating judgment that would require our government to prioritise the educational needs of the poorest and least well-connected among us.
The spokesperson for the Department of Education promised on the radio this morning that this time the Department was serious about addressing the problem. But none of us who work for government, belong to the chattering classes or are prominent members of a union are affected by these problems. If we have children, our children go to the better schools – not to the schools without toilets, water or electricity. I, for one, am therefore less than confident that those tasked with addressing these problems will actually be held to account and that the money allocated to improve the infrastructure at the poorest schools will all be well spent.BACK TO TOP