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.
On Tuesday Basic Education Minister Angie Motshekga (also known as the Minister of Broken Promises) accused non-governmental organisation Equal Education of being disingenuous in its battle to get her to promulgate binding norms and standards for school infrastructure as provided for in the South African Schools Act, calling its campaign a “gimmick”. According to a statement, the Minister said:
To suddenly see a group of white adults organising black African children with half-truths can only be opportunistic, patronising and simply dishonest, to say the least.
The irony is, of course, that it is exceedingly patronising of the Minister to assume that “black African children” know nothing about the shockingly unequal and inferior schooling that limit the ability of many children to obtain even a half decent education to prepare them for adult life. Unlike Minister Motshekga and her cabinet colleagues, many “black African children” actually experience the lack of basic infrastructure at their schools every day and suffer the consequences.
It is downright insulting for the Minister to suggest that learners who do not attend posh private schools or well resourced suburban schools are either so stupid or so uninformed that they could easily be misled by a few mythical white adults.
The Minister of Broken Promises apparently believes that many “black African children” (unlike white children perhaps?) lack the ability to think for themselves and to demand that the government respect their basic human rights – unless they are told what to think by white adults. Maybe the Minister never heard of the 1976 Soweto uprising?
But leaving the Minister’s shockingly patronising attitude towards “black African children” aside for the moment, a more fundamental principle is at stake here, namely the duty of our government to respect the basic human rights of all South Africans.
Section 29 of the Constitution guarantees for everyone the right to a basic education. In terms of section 7(2) the state has a duty to respect, protect, promote and fulfill the right to basic education. Unlike other social and economic rights, this right is not qualified and the state has a duty to provide everyone with basic education immediately – regardless of any resource constraints.
This is not a duty to provide access to excellent education for the mostly middle-class white and black learners on the one hand while providing abysmal education to mostly “black African children” on the other. If that were indeed the constitutional duty placed on the Minister, she would not have had as many legal problems as she now has.
The South African Schools Act emphasises the provision of equal education to all and requires the government to eradicate discrimination in the provision of education. One of the ways in which the Act gives effect to this constitutional right is by empowering the Minister to prescribe regulations for minimum norms and standards for school infrastructure.
Neither the Minister nor any of her predecessors have prescribed such minimum norms and standards. While Nkandla was upgraded with remarkable speed with no consideration of the cost involved, when it comes to the well-being of mostly “black African children” the government seems remarkably unconcerned about its failure to respect the right of basic education of all.
As long ago as November 2008, then-Minister Naledi Pandor published draft Regulations for school infrastructure for public comment. Those draft Regulations stated:
These norms and standards will be fully adopted by the end of 2009 and will be implemented in a phased manner starting from 2010.
In 2009 a new set of Draft Norms and Standards for School Infrastructure emerged, which was not gazetted for public comment. This stated:
These norms will be fully adopted by the end of the 2009/2010 financial year and will be implemented in a phased manner during the 2010-2014 Strategic Plan period.
Answering a question in Parliament on 26 Feb 2010, the Minister wrote that the National Minimum Norms and Standards for School Infrastructure existed and that “they [would] be implemented with effect from the 2010 financial year”.
Given these various broken promises, Equal Education launched a campaign in March 2010 to encourage the Minister to do what she and her predecessor had promised to do and to fulfill her legislative and constitutional duties. This is not a frivolous campaign about an unimportant issue, but a campaign to assist the government to begin to transform our education system in order to address the shocking and immoral, Apartheid-inherited inequalities in education in South Africa.
In May 2010 the Minister wrote to Equal Education stating that the National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning Environment (NPEP) was soon to be published. She then stated: “This policy will be followed by the Norms and Standards for School Infrastructure.”
On 20 July 2010 the Director General wrote to Equal Education noting that: “the Minister must develop national minimum norms and standards… by the end of the 2010/2011 financial year” and stating that the regulations “are currently with the DBE Legal Services and will be promulgated as regulations thereafter.”
More delays followed, leaving a string of broken promises in their wake.
In March 2012 Equal Education finally launched a court application after the Minister of Broken Promises completely changed her tune in October 2011, stating for the first time that she was not required to promulgate regulations at all, and that any action regarding norms and standards was a matter for her discretion. She said that instead of making regulations she was going to make non-binding “guidelines”.
After many delays by the Minister in filing an answering affidavit, the Minister finally entered into a settlement agreement with Equal Education, which was signed on 19 November 2012. In this agreement the Minister agreed to promulgate regulations, which prescribed minimum norms and standards for school infrastructure, before 15 May 2013.
This deadline has come and gone but the Minister of Broken Promises has not promulgated the norms and standards as she had agreed and is therefore in breach of the very agreement that she entered into when the court case (which she was almost certainly going to lose) was looming. Herad hominem attack on Equal Education stems from her apparent anger at being held to account for once again breaking her promise to promulgate norms and standards for school infrastructure.
If the Minister has even half competent lawyers, they must also be telling her that she cannot afford to go to court because she will lose the case. Given the many broken promises about promulgating minimum norms and standards for school infrastructure, I cannot imagine the Constitutional Court finding that the minister has fulfilled her unqualified duty to provide access to basic education to all – not only to the rich and well-connected.
This is even more evident when you note that the Treasury has already long ago approved the promulgation of minimum norms and standards for school infrastructure and that resources are not the issue here.
At the very least the court will argue that the minister has a duty to act reasonably to ensure that the basic infrastructure at all schools are of such a nature that would ensure at least the possibility of meaningful education for learners.
It cannot be said that a Minister has acted reasonably where she has made many promises, but kept not a single one of them. It cannot be reasonable for the Minister to have ignored the plight of the most marginalised and vulnerable learners who must attend school in the most abysmal conditions while middle-class and rich children in the suburbs enjoy all the schooling privileges that Apartheid reserved exclusively for white children.
It cannot be reasonable for the Minister to have no clear and comprehensive plan (with deadlines and clearly articulated targets), to eradicate the Apartheid legacy as far as school infrastructure is concerned. It cannot be reasonable to expect 120 learners to cram into one classroom and for all learners in some schools to make use of the most appalling toilets because the Minister cannot get her act together to deal decisively to effect infrastructure upgrades of the most needy schools.
In the light of the above, it is not surprising that the Minister of Broken Promises launched a scathing and untrue attack on Equal Education. She must know that she has no legal leg to stand on and that she will lose any court case on the issue. She must also surely know that her failure to act is morally indefensible.
Every day she dithers, she fails many of the most needy children in South Africa. And when you know you have failed, your only way out is to attack those who are reminding you of your own failure. Her attack on Equal Education is therefore an admission of her failure, and a very eloquent admission at that.BACK TO TOP