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.
It has been sixteen years since the ANC took over the government in 1994. During these sixteen years the ANC government has done many good things. It has built more than a million (small) houses, provided access to water to many more people, extended the social grants system to benefit millions of poor South Africans, provided free health care to pregnant mothers and young children, rolled out a comprehensive ARV programme to save the lives of many people living with HIV (after some criminal prevarication on the part of Thabo Mbeki and Manto Tshabalala-Msimang), instituted a school feeding scheme and created a powerful anti-corruption unit called the Scorpions.
Sadly it has also evicted many other South Africans from their houses or from their land, installed pre-paid water meters in many poor household to allow municipalities to cut off water supplies if those poor people cannot pay for the water they need to survive, forgot to build new power stations or maintain electricity grids which have left people without electricity for hours or days on end, and allowed the health care system to deteriorate.
But all is not doom and gloom.
Our government has been extremely efficient in buying expensive cars for Ministers and MEC’s, abolishing the Scorpions who had the bloody cheek to investigate corruption by ANC leaders, refurbishing the offices and houses of politicians with state of the art fittings and furniture (although it has, admittedly, been a bit slow to buy a fancy bed for the Minister of Communication Siphiwe Nyanda who was then forced – the poor man – to stay in the Mount Nelson and other top class Hotels for six months), dishing out tenders to friends and family members (which allowed the tenderpreneurs in one instance to charge R27 for a loaf of bread) and organising “fact finding trips” to wonderful locations like Dubai and China to make sure our politicians remain up to speed with the latest developments in other cutting edge and progressive democracies (or to inspect their construction sites and cranes).
What remains incomprehensible is that it has not shown the same urgency in fixing the education system it inherited. Education in South Africa during the apartheid era was designed to keep black South Africans subservient and to promote the interests of whites. In the 1970s the government’s per-capita expenditure on a white child was ten times more than its per-capita expenditure on a black child. This means that for every R1000 spent on a white child it would spend R100 on a black child.
Maybe there is not a lot of money to be made by tenderpreneurs in this area of government, but it is beyond me that, sixteen years after the advent of democracy, children in the Eastern Cape still go to school in mud huts without reliable access to running water. Surely, if there was ONE thing the government needed to tackle with all the urgency and efficiency it could muster, it would have been the building of classrooms to house poor rural school children and the general improvement of the standard of education provided to the majority of South Africans who do not go to former model C schools.
Now the Eastern Cape government is being sued by seven mud schools in the OR Tambo district to compel it to provide the schools with infrastructure. Driven by the Centre of Child Law (CCL) and the Legal Resource Centre (LRC), the schools want the court to declare the failure by both national and provincial government to provide proper facilities unconstitutional. They have also taken the OR Tambo Municipality to task for failing to provide water to the schools. Six of the seven schools have classrooms built from mud, while one has classrooms made of cinderblocks. All seven face shortages of water, desks and chairs.
This week the government filed papers in the Bhisho High Court giving notification to oppose the action. Provincial government spokesperson Mzukisi Ndara said that it was common cause that government had prioritised the issue of eradication of mud schools. “We concur that (mud schools) are the priority areas and that has been pronounced in all policy speeches,” Ndara said.
Well, after sixteen years, surely, speeches are not enough. We have heard all the speeches and read the policies. We do not believe these speeches and policies anymore and do not believe that something will be done. It is easy to talk, but it is a bit more dificult actually to stop talking and to start addressing the problem. These words therefore ring hollow.
Children who have to be taught in mud huts (while politicians drive around in R1 million cars while claiming that there are “resource constraints” preventing the government from addressing this problem) might be forgiven for laughing cynically every time a politician gives a policy speech in which he or she claims to have prioritised this issue. Time for speeches are surely long past. How about getting off your buts (and out of your airconditioned offices and cars) and actually doing something about the problem? Just a thought.
Section 29 of the South African Constitution states that: “Everyone has the right to a basic education, including adult basic education”. Unlike some of the other social and economic rights relating to housing, water and health care, this right is not qualified. Section 29 does not say that everyone has a right to “have access” to basic education. Neither does it say that the state only has a duty progressively to realise this right by taking reasonable measures within the available resources of the state.
The Constitutional Court has not yet had the opportunity to provide a comprehensive interpretation of this section of the Constitution. The case that will be heard by the Bisho High Court is therefore potentially of great significance. It might eventually afford an opportunity for the Constitutional Court to provide an authoritative interpretation on the scope and content of the right to basic education and might set out in more detail what duties the state have immediately to give effect to this right.
If this happens, will the Constitutional Court grasp the nettle and rule that the state has a duty immediately to provide every child with free basic education of a minimum standard? Or will it falter and forsake our children by reading a qualification into section 29 to give the government more time progressively to provide basic education to everyone? Will it allow the government to hide behind the excuse that there are not sufficient resources to ensure that every child in South Africa goes to school in a brick structure where running water is available? Will it examine the policies and the speeches of the politicians and conclude that they are doing a reasonable job and that the court can therefore not intervene?
I sincerely hope not. There is a reason why the drafters of the South African Constitution dealt with the right to education differently than with the other social and economic rights. The drafters understood that a lack of education is the root cause of poverty and crafted this provision in such a way that it placed an immediate obligation on the state to provide an adequate standard of education to every child – whether that child lives in a deep rural area in Lusikisiki or in Constantia or Sandton.
Now, it might be argued that courts are not institutionally equipped to intervene in such matters and that it should not make orders that would have budgetary implications – even when that order is to force the state to build a school. But the Constitutional Court has shown, amongst others in the Khosa case, that where the state provides a social and economic benefit in terms of its constitutional obligations it cannot do so in a discriminatory manner. Where it does provide the service in a discriminatory manner, the court can intervene – even when this will have budgetary implications – to ensure that the benefit is provided to all on an equal basis.
It is a sad fact that sixteen years after the advent of democracy it is still the case that if one’s parents are middle class or even if one lives in a city, one will probably receive a much higher quality of education than if one happened to be poor and living in a rural area. As far as I know, even in the worst schools in Cape Town, no one is forced to be taught in a mud hut at a school with no running water.
Of course, even in relatively well-resourced cities like Cape Town there are vast discrepancies between the facilities of former model C schools – who often have libraries, laboratories and extensive computer facilities – and township schools where children are condemned to a second class education. Why the state has not addressed this problem more energetically, is also a mystery to me.
Perhaps because the politicians send their children to the former Model C schools or private schools (after all, it would not do for the driver to drop off one’s child in the BMW or Mercedes Benz at a township school), the vast gap in the quality of education received by South African children has not been addressed in any systematic way. As I see it, this failure constitutes an infringement not only of section 29 of the Constitution, but also an infringement of section 9 which prohibits unfair discrimination on any ground including race.
Hopefully our courts will be innovative in this regard and will define the scope and content of the obligations engendered by section 29 in such a way that the government is held accountable for its disastrous failure to improve the standard of schooling for a majority of South African children, while at the same time respecting the principle of a separation of powers. I am not pretending that finding the right balance will be easy. But public confidence in our judiciary can only be boosted if our Constitutional Court demonstrates a willingness to hold the government accountable for the lack of transformation in our education system.BACK TO TOP