As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
As thousands of pious (and often well-meaning) citizens across South Africa congratulate themselves for contributing 67 minutes of their time to a worthy cause on Nelson Mandela’s birthday today (perhaps unconsciously trying to absolve themselves from responsibility for redressing the inequality of opportunity in our country on the other 364 days, 22 hours and 53 minutes of the year) I wonder what our government is doing every day of the year to promote the vision of Nelson Mandela to achieve a just, fair and egalitarian society.
Surely, one of the most pressing priorities for any government in South Africa must be the improvement of the education system and the provision of better education to a far larger range of pupils to ensure that the life chances of all children are not largely determined by how much money their parents can spend on their education, but are rather determined by the talent, hard work and enthusiasm of the children themselves.
After 18 years we are still very far from this ideal and might, in fact, have gone backwards. A child who happens to have a Cabinet Minister, Member of Parliament, City Councillor, or tenderpreneur as a parent or whose parents happen to be relatively wealthy because they had benefited from the apartheid system, has every chance of receiving a relatively good education. But many children in South Africa will never flourish and will never achieve their full potential merely because of an accident of birth.
That is why I was rather surprised to hear that the Western Cape government is considering closing 27 schools in the province. It became even more perplexing to me when I read that Western Cape Education MEC Donald Grant had said at a media briefing that he had drawn up a rough estimate on what the cost savings to the department would be should all the schools be closed and “they were insignificant when one compares that with the (provincial) education department’s R14b budget”.
In a fact sheet, the Western Cape Education Department cited a rather surprising Department of Basic Education statistic that between 2006 and 2010 about 1000 schools were closed across the country. Our education system is in a crisis, yet more than a 1000 schools have been closed across South Africa, a fact that warrants further investigation, it seems to me. Mr Grant said it was not his idea to close the schools and that the national department recommended the closures.
Several reasons have been offered for the possible closure of schools. Some of the schools slated for closure in the Western Cape are situated on private land and the argument is that they need to be closed because government finance regulations prohibited any further investment in the facilities by the department.
Why these regulations could not be changed to facilitate investment in schools on private land, is not explained. Why the common law rules on property rights could not be developed to bring it in line with the spirit, purport and object of the Bill of Rights – which guarantees basic education for all – in order to address concerns about investing in school buildings on private property is also not explained. People, we are never going to solve the problems associated with the provision of education to pupils in deep rural areas, if we do not stop thinking like rule-bound bureaucrats and if we do not begin to think innovatively about problems and how to solve them.
Closing smaller schools, so it is argued, would also save cost in terms of services such as water and electricity. But to what extent such a move would effect access to schooling for especially children living in sparsely populated rural areas is not considered. Sometimes one must incur extra cost to ensure equal treatment of all children as far as access to schooling is concerned. The failure to do so would often discriminate against rural children who might not be able to attend school because they are unable to get to and from the school due to lack of transport or lack of funds to pay for the transport.
Some schools are said to face closure because many of their pupils do not live in the area in which the school is situated. But there might be many reasons why parents send their children to a school in an area in which they are not domiciled. The child may informally stay with a grandparent or another family member who lives close to the school, or the school might be closer to the place of work of the parent and it might be easier for the parent to get the child to the school close to his or her work. The school in the catchment area where the parents live might also be dysfunctional. Closing a school and in effect punishing children for not living in the area in which the school is situated (or living in an area where a school is dysfunctional) seems not to take into account the complexities of people’s lives and their needs as parents and pupils.
Other schools are said to face closure (or have been closed in other provinces) because they were identified as consistently having a high failure rate or a high failure rate in core subjects. While closing such schools will “solve” the immediate problem of the failing school (and is much easier to do than actually turning around the culture in the school and making it succeed), it once again seems to ignore the human element, the needs of parents and pupils and the possible complexities of their lives that led to the children being schooled at that particular school in the first place. Even when schools are therefore closed “for the benefit of the pupils”, it is often done using the cold-hearted logic of a bureaucrat and not focusing on the peculiar and often complex needs of children and their parents who attend that school.
There might well be cases where the only sensible thing to do would be to close a particular school, but surely the assumption must be that this is seldom the right thing to do. Where the National Education Department or Provincial Education Department proposes the closure of a school, the onus should be on them to provide cogent, convincing reasons not merely based on bureaucratic considerations about saving money or about problems with government regulations (which can always be changed). Neither the National Department nor the Western Cape Education Department has really provided cogent reasons, based on the actual needs of the children and their parents, of why these schools have to be closed. (I am not saying such reasons might not exist in individual cases, but if these reasons exist, they have not been properly communicated to the public.)
This, I think, is also what is required by our Constitution. Section 29(1) of the Constitution states that everyone has the right “to a basic education, including adult basic education”, and unlike many of the other social and economic rights in the Bill of Rights, this right is not qualified by the proviso that the state only had to take reasonable steps within its available resources progressively to realise the right. Last year in a judgment in the case of Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others the Constitutional Court confirmed that this means that the right to basic education places an immediate obligation on the state to provide such education to all:
Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”. The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
But even if this was not so, section 29(1) places a negative obligation on the state not to interfere with the existing enjoyment of the right to education. Where the Education Department proposes the closure of a school, it will have to demonstrate that this closure is not going to make it more difficult for the children at the school that is to be closed to access education. For children attending farm schools, for example, the closure of a school might well infringe on their right to education by making it more difficult if not impossible for them to attend another school that is far less accessible to the child. And where a child attends a school because it is closer to the place of work of the parent, the closure of that school might well infringe on that child’s right to education because it would become more difficult for the parent to get the child to school and will potentially limit that child’s access to schooling.
Has the Western Cape Department of Education considered the individual needs of the children attending the schools it now wishes to close? And did the National Department do likewise when it closed more than a 1000 schools over the past five years? I can’t imagine that they have, suggesting that there might well be a legal basis for challenging these decisions on school closures. In the absence of clear reasons, based on the actual situation and needs of the pupils and tehir parents, the closure of existing schools will be unconstitutional as it will infringe on the right of access to education.
Of course, this is a small matter compared to the larger, clearly catastrophic, failure of our education system to provide all children regardless of their race and financial circumstances with at least a basic quality education, a failure shockingly illustrated by the Limpopo textbook scandal. But news that so many schools have been closed and that more closures are to follow does seem to illustrate – in its small way – the rather cold-hearted and bureaucratic manner in which various spheres of our government deal with a pivotal issue around the improvement of our education system.
Instead of bending over backwards and working feverishly to provide more pupils with better access to higher quality education, our politicians and bureaucrats fold their hands and shrug their shoulders, pointing to technicalities and blaming others to evade responsibility for the improvement of education. Running up against government regulations, they throw their hands in the air and decide to close a school, rather than to do the obvious thing and change the regulation to allow for investment in schools on private land.
How can our cabinet – both collectively and individually in the form of the Minister of Basic Education – justify this state of affairs? Why are we – as parents, as citizens, as individuals with even a smidgen of humanity – allowing this to happen? Why did the SACP at its recent conference not produce a ten point plan for the improvement of our education system over the next five years and why did it not set an ultimatum for the ANC-led government to implement this plan or face a breakup of the alliance? Why did the ANC delegates at its recent policy conference not take a stand on the failures in education by refusing to leave the conference hall or to endorse any of the resolutions until the Minister of Education and other Cabinet Ministers had provided them with concrete plans for the immediate improvement of the education system (or had promised to resign)? Why did Cosatu not organise an indefinite strike to achieve the same goals?
Oh yes, I forgot, most of our leaders send their children to private schools or to the best government schools and are therefore not affected by the failure of so many of our schools. It’s “only” the poor, the very poor they profess to respect and serve, who are suffering.BACK TO TOP