Brief Summary

Education — Rights of children with disabilities — Application by the Western Cape Forum for Intellectual Disability challenging the state's failure to provide adequate educational facilities for severely and profoundly intellectually disabled children — The applicant contended that the state's provision infringed the rights to education, equality, and human dignity — The court held that the state's inadequate support and funding for the education of these children constituted a violation of their constitutional rights, necessitating a review of the state's educational policies and practices.

Comprehensive Summary

Summary of Judgment

Introduction

The matter was an application for constitutional relief concerning the State’s provision (or lack of provision) of education to severely and profoundly intellectually disabled children in the Western Cape. The proceedings were brought in the Western Cape High Court, Cape Town, and were decided on affidavit and legal argument.

The applicant was the Western Cape Forum for Intellectual Disability, a corporate body whose members are non-governmental organisations operating special care centres for children with severe and profound intellectual disabilities in the Western Cape. The respondents were the Government of the Republic of South Africa (first respondent) and the Government of the Province of the Western Cape (second respondent), sued in relation to their responsibilities for education and related public functions.

The dispute arose against the background that the applicant’s member organisations were, in practice, providing the only organised educational programming available to many affected children in the province, while the State’s education system (including “special schools”) did not admit these children and made no direct educational provision for them. The applicant sought declaratory relief and structured (supervisory) relief aimed at compelling the respondents to take reasonable measures, including interim steps, to give effect to the affected children’s constitutional rights.

The subject-matter of the dispute concerned the alleged infringement of constitutional rights, primarily the right to a basic education (section 29(1)(a) of the Constitution), together with related claims based on equality, human dignity, and protection from neglect or degradation.

Material Facts

A set of core facts was recorded as not in dispute. The State established and funded schools, including “special schools”, which catered for children classified as having moderate to mild intellectual disabilities (identified in the judgment as IQ levels of 30–70). Children with an IQ under 35 were considered severely (20–35) or profoundly (less than 20) intellectually disabled, and these children were not admitted to special schools or to any other State schools.

It was also common cause that the State made no direct provision for the education of severely or profoundly intellectually disabled children in the Western Cape and did not provide schools for them. In the province, the only education available to such children was at special care centres run by non-governmental organisations, including the members of the applicant. Approximately 1000 affected children were cared for in such centres by the applicant’s members. Children who could not obtain access to these centres received no education at all, and there were insufficient special care centres to accommodate all affected children.

The only State contribution to the education of these children was a subsidy paid by the Department of Health to the organisations providing services. The subsidy and comparative expenditure figures in the Western Cape were recorded as follows: an annual subsidy of R5 092 per child for children attending special care centres; expenditure of R6 632 per child per annum on children in mainstream schools; and expenditure of R26 767 per child per annum on children with mild to moderate intellectual disabilities attending special schools. The court treated the comparative under-funding of the affected children’s education as an important part of the factual matrix.

Although counsel for the State argued during oral submissions that no amount of education would benefit children who do not qualify for admission to special schools, the court noted that this was not the case advanced in the papers. On the papers, the parties were recorded as being ad idem that children with severe or profound intellectual disabilities can benefit from education and training, and this was described as a long-accepted international position. The court also recorded that many of these children have greater needs than other children because they often have secondary disabilities, including epilepsy, visual and/or hearing impairment, and cerebral palsy.

Legal Issues

The central questions were whether, on the established facts, the respondents’ policy and practice infringed the constitutional rights of severely and profoundly intellectually disabled children in the Western Cape. The court was required to determine whether the State’s failure to provide schooling, its reliance on NGO-run centres, and its funding approach constituted a breach of the rights to basic education, equality, human dignity, and protection from neglect or degradation.

A substantial component of the dispute involved the application of constitutional norms to the facts, including the characterisation of the right to basic education and the nature of the State’s obligations to realise it. The equality claim required the court to evaluate whether the differentiation in treatment had a rational connection to a legitimate government purpose, and whether any unfair discrimination had been justified. In addition, the respondents raised a limitation argument under section 36 of the Constitution, which required determination of whether any limitation was authorised by a law of general application, and, if so, whether it was reasonable and justifiable.

A further issue concerned the appropriate remedy once infringement was established, including whether the circumstances justified a structural interdict requiring reporting and allowing supervision of compliance.

Court’s Reasoning

The right to basic education (section 29(1)(a))

The court treated section 29(1)(a) as conferring a right to basic education that has both a positive and a negative dimension, relying on Ex Parte Gauteng Provincial Legislature: In re dispute concerning the constitutionality of certain provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC). The positive component concerns the State’s duty to provide basic education; the negative component concerns the duty not to obstruct or exclude persons from receiving it.

While the respondents emphasised post-1994 transformation and the policy framework of White Paper 6 (inclusive education) and the SIAS Strategy, the court focused on the present practical position: children with severe or profound intellectual disabilities were excluded from State schools, and the policies relied upon did not provide concrete, current mechanisms ensuring access for these children. The court considered that White Paper 6, as implemented, did not make provision for such children to be catered for by special schools at present, and that the respondents’ stated objective to accommodate them at an unspecified time in the future did not meet the constitutional obligation.

The court scrutinised the respondents’ reliance on SIAS levels and observed that, on the respondents’ case, there would still be children with severe or profound intellectual disabilities who would fall outside the SIAS categories that lead to admission to special schools and would instead be directed to “Partial Care Centres” such as those run by the applicant’s members. The court treated the respondents’ position as demonstrating that, even on the implementation of their own framework, some affected children would remain excluded from State schooling.

The court rejected the suggestion (advanced in argument but not in the affidavits) that education would not benefit certain affected children, noting that the submission was inconsistent with the papers and with the premise of White Paper 6 that all children require education. The court referred to international instruments and comparative material to confirm that severe and profound intellectual disability does not render education meaningless, and that education is directed toward developing each child’s abilities to their fullest potential.

A further aspect of the reasoning was that the State’s reliance on NGOs to provide education did not absolve it of its constitutional duties. The court drew on President of the Republic of South Africa and another v Modderklip Boerdery (Pty) Ltd (Agri SA and others, Amici Curiae) 2005 (5) SA 3 (CC) to support the principle that the State cannot shift onto private actors a burden that is constitutionally the State’s to bear.

The respondents’ resource-constraint defence was treated as inadequate in the context of section 29(1)(a). The court held that an attempt to justify differential treatment by pointing to a “rational connection to a legitimate government purpose” was misplaced in relation to a direct infringement of the basic education right. The court further reasoned that, even if scarcity of resources was relevant context, it did not explain why the burden of the shortfall was carried by the affected children alone, rather than being shared more fairly across the education system. The applicant was also not asking for ideal provision but for fair inclusion in the distribution of available resources.

On this basis, the court concluded that the affected children’s right to a basic education was infringed.

Equality (section 9)

In addressing equality, the court accepted that White Paper 6 did not, in its text, expressly differentiate against the affected children. However, it treated the applicant’s case as being that the policy was not assisting affected children in practice and that they would not be accommodated for a lengthy period. The court assessed the equality complaint by reference to the rationality enquiry associated with Harksen v Lane NO and Others 1998 (1) SA 300 (CC).

The court concluded that the differentiation between the affected children and other children did not receive a satisfactory justification from the respondents. It identified key explanatory gaps: the respondents did not explain why budgetary shortfall should be borne by these children rather than shared; they did not adequately address the constitutional concern that the most vulnerable should not bear the brunt of State measures (with reference to Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)); and they did not provide a budgetary analysis showing available resources and the additional cost of meeting these children’s rights.

The court rejected the respondents’ attempt to attribute to the applicant a demand for an “ideal” educational programme and then to calculate cost on that basis, finding that this misconceived the applicant’s case. The applicant’s complaint was directed at exclusion and severe under-provision rather than the insistence on an optimal model.

The court therefore found that the affected children’s rights to equality were infringed.

Section 36 limitation argument

The court dealt separately with the respondents’ reliance on section 36, noting first that this defence was not pleaded and appeared only in the respondents’ heads of argument, which the court considered impermissible because the applicant had not been afforded a proper opportunity to address it. The court nevertheless engaged the argument on the merits.

The respondents contended that the limitation was justified under section 36, relying on the South African Schools Act 84 of 1996, the National Education Policy Act 27 of 1996, and the Mental Health Care Act 17 of 2002 as “laws of general application”. The court held that none of these statutes authorised an infringement of the affected children’s rights, and that section 36 requires the limitation to be contained in the law of general application itself. The court relied on August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) for the proposition that, absent a legislative provision limiting the right, a respondent cannot seek to justify infringement under section 36.

The court further rejected the proposition that a policy (such as White Paper 6), even if issued under statutory authority, is itself sufficient to trigger section 36 as a law of general application authorising a limitation of rights. It referred to Hoffmann v South African Airways 2001 (1) SA 1 (CC) and recorded academic commentary to the effect that policies and programmes generally do not constitute “law of general application” for section 36 purposes, unless an authorising law permits such limitation. The court concluded that White Paper 6 was “merely a document issued by the Department of Education” and that the respondents had not discharged the onus of showing section 36 applied.

In addition, the court indicated that even if section 36 were applicable, the respondents had not shown the limitation to be reasonable and justifiable, with particular reference to reasonableness considerations articulated in Grootboom and principles in Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others [2004] ZACC 11; 2004 (6) SA 505 (CC) concerning the consistency of criteria used to limit benefits with the Bill of Rights as a whole.

Dignity and protection from neglect or degradation

Having found infringements of the rights to basic education and equality, the court held that the same factual pattern entailed infringements of human dignity, because affected children were marginalised, ignored, and effectively stigmatised. It further held that the failure to provide education placed the children at risk of neglect, particularly where parents without skills and already under strain had to attempt to educate them, and that preventing children from developing their potential (however limited) constituted a form of degradation.

Remedy and structural interdict

The court accepted that the constitutional breach was systemic and could not be cured overnight, and that it would not be appropriate for the court to prescribe in detail the programme to be established. Against that, it found this to be an appropriate case for a structural interdict requiring reporting, given the history of limited progress and the need for effective relief. The court relied on City of Cape Town v Rudolph 2004 (5) SA 39 (C) (with reference to section 38 and section 172(1)(b) of the Constitution and Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC)) for the principle that relief must be effective to vindicate rights. It also referred to other instances where structured relief had been granted, including Rail Commuters Action Group and Others v Transnet Limited t/a Metro Rail and Others 2003 (5) SA 518 (C), Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C), and N and Others v Government of Republic of South Africa and Others (No 1) 2006 (6) SA 543 (D).

Outcome and Relief

The court granted declaratory and mandatory relief. It declared that the respondents had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the children’s rights to a basic education, protection from neglect or degradation, equality, and human dignity.

The respondents were directed forthwith to take reasonable measures, including interim steps, to give effect to these rights. The order included (without limitation) requirements aimed at ensuring affordable access to a basic education of adequate quality, providing adequate funding to organisations running special care centres to enable adequate facilities and staffing, providing appropriate transport to and from such centres, enabling staff to receive accreditation, training and remuneration, and making provision for training persons to provide education for affected children.

The respondents were directed, within twelve months, to deliver and file a report under oath on implementation of the order, including what steps had been taken, what further steps would be taken, and when those steps would occur. The applicant was afforded an opportunity to file a sworn commentary, the respondents a sworn reply, and the applicant was entitled thereafter to enrol the matter for a hearing on compliance and further relief.

The respondents were ordered to pay the applicant’s costs, including the costs of employing two counsel.

Cases Cited

| Case | Full citation (as reflected in the judgment text) |
|---|---|
| Ex Parte Gauteng Provincial Legislature: In re dispute concerning the constitutionality of certain provisions of the Gauteng School Education Bill of 1995 | 1996 (3) SA 165 (CC) |
| Autism of Europe v France | (Complaint No 13/2002) |
| President of the Republic of South Africa and another v Modderklip Boerdery (Pty) Ltd (Agri SA and others, Amici Curiae) | 2005 (5) SA 3 (CC) |
| O'Donoghue (a Minor) suing by his mother and next friend O'Donoghue v The Minister for Health, The Minister for Education, Ireland and the Attorney General | [1993] IEHC 2; [1996] 2 IR 20 (27th May, 1993) |
| Sinnott v Minister for Education | [2001] IESC 63; [2001] 2 IR 505 (12 July 2001) |
| Harksen v Lane NO and Others | 1998 (1) SA 300 (CC) |
| Bel Porto School Governing Body and Others v Premiere, Western Cape and Another | [2002] ZACC 2; 2002 (3) SA 265 (CC) |
| August and Another v Electoral Commission and Others | 1999 (3) SA 1 (CC) |
| Hoffmann v South African Airways | 2001 (1) SA 1 (CC) |
| Government of the Republic of South Africa and Others v Grootboom and Others | 2001 (1) SA 46 (CC) |
| Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others | [2004] ZACC 11; 2004 (6) SA 505 (CC) |
| City of Cape Town v Rudolph | 2004 (5) SA 39 (C) |
| Fose v Minister of Safety and Security | [1997] ZACC 6; 1997 (3) SA 786 (CC) |
| Rail Commuters Action Group and Others v Transnet Limited t/a Metro Rail and Others | 2003 (5) SA 518 (C) |
| Kiliko and Others v Minister of Home Affairs and Others | 2006 (4) SA 114 (C) |
| N and Others v Government of Republic of South Africa and Others (No 1) | 2006 (6) SA 543 (D) |

Legislation Cited

The Constitution of the Republic of South Africa, 1996.

South African Schools Act 84 of 1996.

National Education Policy Act 27 of 1996.

Mental Health Care Act 17 of 2002.

Children’s Act No 28/2005 (as referenced in the judgment).

Rules of Court Cited

No rules of court were cited in the judgment text.

Held

The court held that the respondents’ failure to make reasonable provision for the education of severely and profoundly intellectually disabled children in the Western Cape infringed the children’s constitutional rights. The infringements were found to include both the positive failure to provide access to basic education and the negative dimension of excluding these children from admission to special or other State schools.

It held that policy measures referred to by the respondents, including White Paper 6 and the SIAS Strategy, did not cure the present exclusion and under-provision, and that reliance on NGO-operated centres did not discharge the State’s constitutional obligations. The court found that the differential treatment and lack of provision also infringed the rights to equality, human dignity, and protection from neglect or degradation, and that the respondents had not provided a sufficient justification for these infringements.

It further held that the respondents’ reliance on section 36 was procedurally problematic because it was not raised in the pleadings, and substantively unpersuasive because no relevant law of general application authorising the limitation was identified, and the policy documents relied upon were not treated as such a law. The court concluded that structured relief was appropriate to secure effective compliance and granted a structural interdict requiring reporting and permitting further supervision.

LEGAL PRINCIPLES

Section 29(1)(a) of the Constitution was treated as conferring a right to basic education with both positive and negative components, encompassing an obligation on the State to provide basic education and an obligation not to exclude learners from access to education through State schools, as supported by Ex Parte Gauteng Provincial Legislature: In re dispute concerning the constitutionality of certain provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC).

The judgment applied the principle that the State’s constitutional obligations are not discharged merely because private or non-governmental actors are providing services in practice; reliance on such actors does not shift the constitutional burden away from the State, consistent with President of the Republic of South Africa and another v Modderklip Boerdery (Pty) Ltd (Agri SA and others, Amici Curiae) 2005 (5) SA 3 (CC).

In the equality analysis, the judgment proceeded on the basis that where differential treatment is challenged, the court considers whether it bears a rational connection to a legitimate government purpose, and it adopted the structured approach associated with Harksen v Lane NO and Others 1998 (1) SA 300 (CC). The court emphasised that justification requires an adequate explanation as to why the burden of scarcity falls on a particular vulnerable group, supported by meaningful information about resources and costs.

The judgment articulated that section 36 limitations require a law of general application that itself authorises the limitation. In the absence of such a legislative limitation, section 36 cannot be used to justify infringements arising from administrative decisions or policy. This was anchored in the approach taken in August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) and reinforced by reference to Hoffmann v South African Airways 2001 (1) SA 1 (CC).

On remedy, the court applied the principle that constitutional relief must be effective to vindicate rights, drawing on section 38 and section 172(1)(b) of the Constitution and the remedial approach in Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC), as discussed in City of Cape Town v Rudolph 2004 (5) SA 39 (C). It treated a structural interdict with reporting obligations as an appropriate remedy where systemic violations persist and the court cannot or should not prescribe detailed executive measures, as illustrated by the cases it cited on structured relief.

Western Cape Forum for intellectual Disability v Government of the Republic of South Africa and Another (2011 (5) SA 87 (WCC)) [2010] ZAWCHC 544; 18678/2007 (11 November 2010)