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[2018] ZAECBHC 6
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Equal Education and Another v Minister of Basic Education and Others (276/2016) [2018] ZAECBHC 6; [2018] 3 All SA 705 (ECB); 2018 (9) BCLR 1130 (ECB); 2019 (1) SA 421 (ECB) (19 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, BHISHO
Case no:
276/2016
Date heard: 11 to 13
March 2018
Date delivered: 19
July 2018
In
the matter between:
EQUAL
EDUCATION
First Applicant
AMATOLAVILLE
PRIMARY SCHOOL
Second Applicant
vs
MINISTER
OF BASIC EDUCATION
First Respondent
MEC
FOR EDUCATION:
LIMPOPO
Second Respondent
MEC
FOR EDUCATION: EASTERN CAPE
Third Respondent
MEC
FOR EDUCATION: FREESTATE
Fourth Respondent
MEC
FOR EDUCATION:
GAUTENG
Fifth Respondent
MEC
FOR EDUCATION: KWAZULU NATAL
Sixth Respondent
MEC
FOR EDUCATION: MPUMALANGA
Seventh Respondent
MEC
FOR EDUCATION: NORTHERN CAPE
Eighth Respondent
MEC
FOR EDUCATION: NORTH WEST
Ninth Respondent
MEC
FOR EDUCATION: WESTERN CAPE
Tenth Respondent
JUDGMENT
MSIZI
AJ:
Introduction
[1]
Though this application was launched by both
applicants, it is now pursued by the first applicant only, hence
reference
to an applicant in the judgment. Although all the
respondents initially filed notices to oppose the application the
fourth, fifth
and sixth respondents later filed notices to abide.
However, none of the other respondents participated in these
proceedings except the first respondent.
Therefore, in this judgment, the first respondent will be
referred to as the respondent or the Minister, interchangeably.
[2]
On 14 December 2016 the Court admitted the Basic Education for
All (“hereinafter referred to as “BEFA”) to
intervene
as an
amicus curiae
with leave to adduce evidence
and argue the matter. It aligns itself with the cause of the
applicant. This Court is grateful to
the
amicus curiae
for its
assistance.
[3]
Before I delve into the central issue in this application, it is
convenient that I first consider the preliminary points that have
been raised by the respondent.
POINTS
IN LIMINE
A.
APPLICATION OF THE PROMOTION OF ADMINISTRATIVE JUSTICE ACT NO 3 OF
2000 (hereinafter
referred to as “PAJA”)
[4]
The Minister argued that the promulgation of these regulations
constitutes administrative action and in promulgating them she was
performing her public functions in terms of section 5A of the South
African schools Act, No 84 of 1996 (hereinafter referred to
as
“SASA”)
.
Therefore, this application is
subject to the provisions of the PAJA
.
[5]
In support of this contention she referred to the definition of
the term: “administrative action” in section 1 of PAJA.
The terms is defined as
: “any decision taken, or any failure
to take a decision by an organ of sate, when exercising a power in
terms of the Constitution
or a provincial constitution or exercising
a public power or performing a public function in terms of any
legislation, which adversely
affects the rights of any person and
which has a direct, external legal effect.”
[6]
The
Minister relied on what was said Chaskalson CJ in
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another as
amici curiae)
2006
(2) SA 311
(CC).
She
contended that the relief sought by the applicant, insofar as it is
based on a review application in terms of PAJA, is incompetent.
Furthermore, the application is out of time and the applicant has
failed to make out a case that an extension should be granted
for the
time period within which to bring the review application. During the
course of argument, the Minister abandoned the point
regarding the
lateness of the application.
[7]
The applicant’s stance was that there is no comprehensive
rule on whether or not the making of regulations is automatically
an
administrative decision. Whether the exercise of making of
regulation is an administrative decision is a case specific
issue. Mr Budlender SC, for the applicant, proposed that the
best approach is to ask whether the making of the regulation
negatively affects rights because that is part of the definition of
administrative action in PAJA. His explanation was that
it is
not all regulations that have adverse effect, an example of
regulations falling in this category are traffic regulations
regulating the direction of the traffic on the road.
[8]
With respect to the regulations, which are the subject-matter of
this application, he argued that these can be seen two ways: (i)
as
having an adverse impact because they reduce the basic right to
education; or (ii) as violating the principle of legality as
applicable in terms of section 172 of the Constitution and the rule
of law as set out in section 1 of the Costitution. The
applicant has based its case on section 172(1) of the Costitution.
[9]
In addition to this, Ms Stein for BEFA contended further that
PAJA cannot be invoked as a justification for denying a litigant a
constitutional right, which in this case is derived from section 172
of the Constitution. It is the Constitution that is supreme
and not
PAJA.
[10]
This issue of whether PAJA is applicable to the regulation-making
exercise arises because of the oft-held belief that the making
of
regulations is automaticalyy an administrative action. In the
case of
Mostert NO v The Registrar of Pension Funds and Others
2018(2) SA 53 (SCA)
decided on 15 September 2017 case no
986/2016 ZASCA 108, the Supreme Court of Appeal explained the correct
position:
“
[8]
A word of caution may not be out of
place. New Clicks
[1]
is no authority for the proposition that the making of regulations by
a minister, in general, is administrative action for purposes
of
PAJA. It seems, with respect, that the statements in some of the
other judgments in that case, to the effect that this is what
Chaskalson CJ held, were based on a misinterpretation of what he
said. The learned Chief Justice said what is or is not administrative
action for the purposes of PAJA is determined by the definition in
section 1. He analysed the regulations in question in
the light
of the definition, concluded that legislative administrative action
has not been excluded from the definition of administrative
action,
and said:
‘
It
follows that the making of the regulations in the present case by the
Minister on the recommendation of the Pricing Committee
was “a
decision of an administrative nature”. The regulations were
made “under an empowering provision”.
They had a “direct,
external legal effect“ and they “adversely”
affected the rights of pharmacists and
persons in the pharmaceutical
industry. They accordingly constitute administrative action within
the meaning of PAJA’. (My
emphasis).
[9]
In a separate judgment Ngcobo J
expressed the view that PAJA applied to the specific power
to make
regulations conferred by s 22G (2)(a)-(c) of the Medicines and
Related Substances Act 101 of 1965 (Medicines Act). He emphasised
that he refrained from deciding whether PAJA is applicable to
regulation-making in general. Two of the judges in that matter
expressed
their agreement with this approach while Sachs J held that
PAJA was not applicable, save in the specific respect of fixing the
precise amount chargeable as a dispensing fee. Moseneke J held that
it was unnecessary to decide whether PAJA applied to ministerial
regulation-making, and four judges concurred in his judgment.
[10]
In dealing with the applicability of PAJA to regulation-making
Chaskalson CJ was therefore not
speaking for the majority of the
court, and, as I have tried to show, in any event confined himself in
this regard to the specific
regulations that the court was dealing
with. It seems, with respect, that in City of Tshwane Metropolitan
Municipality v Cable
City (Pty)
Ltd
2010
(3) SA 589
(SCA)
the position was also stated too widely (para 10). The final word on
regulation-making and the applicability of PAJA to it
may therefore
not have been spoken. And as this matter shows, not all the
provisions of PAJA, and particularly s 7, are tailored
for the review
of a regulation.”
[11]
Clear from the above, the better view is that there is no
comprehensive rule, whether or not the regulation making process is
an
exercise of administrative action depends on the merits of each
case. It depends on the nature of the power being
exercised
and the consequences of its exercise. The fact
of the matter is that there is no general rule that when a Minister
makes regulations she is exercising administration action.
Mostert
has made it clear that what Chaskalson
CJ said in the New Clicks is no authority for such stance
.
[12]
I have also considered the judicial policy referred to by Ngcobo
CJ (as he then was) in
Albutt v Centre for the Study of Violence &
Reconciliation
2010 (3) SA 293
(CC)
(2010 (5) BCLR 391
;
[2010]
ZACC 4)
in paragraph 82:
“
Sound
judicial policy requires us to decide only that which is demanded by
the facts of the case and is necessary for its proper
disposal.”
This and
the fact that it is clear from the reading of the case as pleaded by
the applicant on its papers that it is only relying
on PAJA as an
alternative to its main case. I have also taken into account
what this case is about, which I address myself
to later.
[13]
This Court is
constrained to adjudicate this matter on the basis pleaded by the
applicant – see
Gcaba
v Minister of Safety and Security 2010(1) SA 238 (CC
)
at paragraph 75.
[14]
Therefore, I reject this point
in limine
.
B
NON-JOINDER
[15]
The Minister contended that the attack levelled at regulation
4(5)(a) (this regulation subjects the realisation of the norms
and
standards to the availability of resources and co-operation of other
government agencies and entities responsible for infrastructure),
compels the applicant to join those entitites in this application.
Therefore, the Minister raised the issue of non-joinder of the
National Assembly, the Minister of Public Works, the Minister of
Treasury, the Minister of Water and Sanitation, the Minister of
Energy, the Minister of Rural Development and Land Reform and Eskom
SOC Limited who she maintained are necessary parties with direct
and
substantial interests in this matter.
[16]
To illustrate the point, she pointed out that she does not have
control over, for instance, the department of public works which
is
the department with the competence to provide the physical structures
required for the schools. Also that her department
lacks the
competence of that department. Consequently she cannot make a
commitment over that department hence the qualification
in regulation
4(5)(a).
[17]
This omission, she contended, is not merely one of non-joinder.
It also violates the constitutional division of powers between
the
different spheres of government and organs of state. It further
permeates the entire application and also manifeststhe
violation of
the principle of subsidiarity, simultaneously short-circuits the
Constitution and SASA.
[18]
Contending
for the joinder of these entities, the Minister argued that it is now
a well-established principle of law that, in the
exercise of its
inherent power, a Court will refrain from deciding a dispute unless
and until all persons who have a direct and
substantial interest in
both the subject-matter and the outcomes of the litigation, have been
joined as parties.
[2]
[19]
Mr
Erasmus SC for the respondent referred to the
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
.
[3]
He pointed out that in that case the Constitutional Court was of the
view that it would generally be preferable for all of
government
departments to be involved in the complex legal proceedings
regarding eviction and access to adequate housing.
[20]
The Minister sought the joinder of other parties mainly on the
basis that they are the service providers to her department.
The difficulty with this submission is that her department has
numerous service providers relative to the provision of school
infrastructure. In her answering affidavit she mentioned the
Departments of Energy, Public Works, Water and Sanitation and
Finance, Rural Development and Land Reform, as well as Eskom. Also
how long is that string? For instance, municipalities
qualify
as service providers they provide water and sanitation services.
Would they also have to be joined?Surely not.
There are 257
municipalities in South Africa, 8 Metropolitan municipalities, 44
district municipalities and 205 local municipalities.
So all
257 would have to be joined.
[21]
Replying to this in the replying affidavit, the applicant pointed
out that in the founding affidavit it cited the Minister in dual
capacity-as the representative of the National Government and the
person required by South African Schools Act, No No 84
of 1996
(hereinafter referred to as “SASA”) to prescribe the
minimum norms and standards for infrastructure.
Its stance was
that it is for the Minister as the bearer of those duties and the
representative of the National Government of which
she is a part, to
engage them in this litigation to the extent that this may be
necessary. It is the Minister who bears the
overall
responsibility on behalf of the National Government for the
realisation of the right to a basic education. These
duties
arise from the Constitution; SASA and the National Education Policy
Act 27 of 1996 (“NEPA”). The applicant
also
submitted that the Minister did not dispute that she has been cited
also in her capacity as the representative of the National
Government. Equally, the MECs are before the Court as
representatives of the Provincial Government. There is one National
Government and nine Provincial Governments. All are before
Court. He refuted that there is a need to join every one
of the
government as contended by the Minister.
[22]
In Court,
Mr Budlender SC
referred to Rule 10A of the
Uniform Rules of Court and to the Interpretation Act 33 of 1957,
pointing out that the definition of“law”,
which is “any
law, proclamation, ordinance, Act of Parliament or other enactment
having the force of law.” He
then submitted that
regulations are included in that definition.
[23]
I have considered that
in the founding affidavit the applicant cited the Minister in her
capacity as both the political head of
national education and the
representative of the
N
ational
Government. The Minister did not dispute that. Similarly,
it cited the MECs as representatives of
P
rovincial
G
overnments.
This also remained undisputed. Therefore, before this Court is the
N
ational
G
overnment
and the Provincial Governments together with the national minister of
basic education and the members of legislatures
heading the education
portfolio in all 9 provinces.
[24]
Considering this
citation, I also gave due regard to the structure of the
N
ational
G
overnment
of the Republic of South Africa as described in section 85 of the
Constitution.
“
85.
Executive authority of the Republic
(1)The executive authority of
the Republic is vested in the President. (2) The President
exercises the executive authority,
together with the other members of
the Cabinet, by —
(a)
implementing national legislation except where the Constitution or an
Act of Parliament provides otherwise;
(b)
…
(c)
co-ordinating the functions of state departments and
administrations;
(d)
preparing and initiating legislation; and
(e)
…”
[25]
From this it is abundantly clear that Cabinet is the national
executive authority which discharges its duty through the President
and the Ministers. With respect to the Provincial Government,
the provincial executive authority lies with the Premier together
with the MECs jointly. Given this, I am thus satisfied that both the
National and Provincial Governments are before this Court.
[26]
In
Gory
v Kolver NO and Others
2007
(
4)
SA 97
(CC) at paragraph [12], that Court held: “This
Court would not be able to function properly if every party with
direct
and substantial interest in a dispute over the constitutional
validity of a statute was entitled, as of right as it were, to
intervene
in a hearing held to determine constitutional validity.”
[27]
Also in
Khosa
and Others v Minister of Social Development and Others Mahlauke and
Another v Minister of Social Development
[2004] ZACC 11
;
2004
(6) SA 505
(CC) the Court proceeded to entertain the matter despite a
point of non-joinder of the Minister of Finance in an application of
constitutional invalidity raised by the MEC of Health and Welfare,
Northern Province.
[28]
In
Economic
Freedom Fighters and Others v Speaker of National Assembly and Others
[2016]
1 ALL SA 520
(WCC) the issue was the non-joinder of President, Chief
Justice and the Minister of Finance to a litigation concerning a
constitutional
challenge aimed at Parliament and the Provincial
Medical Schemes Act. In holding that pragmatism should inform
the principle
of joinder, Binns-Ward J held:
“
That
some degree of flexibility in the application of the principle of
joinder of necessity may be permissible on pragmatic ground
finds
support in the full court judgment of Mohamed J in
Wholesale
Provision Supplies CC v Exim International CC and Another 1995(1) SA
150(T)
where
the future Chief Justice remarked that ‘the rule which seeks to
avoid orders which might affect third parties in proceedings
between
other parties is not simply a mechanical or technical rule which must
ritualistically be applied, regardless of the circumstances
of the
case.”
[29]
In casu
, I have considered the following: (i) that
the Minister has been cited both as the political head of her
department and as
a representative of the National Government. In the
latter capacity all the other Ministers she contends should be joined
have
thus been joined; (ii) I am convinced that given the issue at
hand as founded on the papers of the applicant it is incorrect that
there should have a joinder of other entities. Section 5A of
SASA enjoins the minister to consult with the Minister of Finance
prior to prescribing these regulations. So it must follow that she
would have done so and would have taken the outcome of that
consultation into consideration when she prescribed these
regulations. No purpose shall be served by the joinder of the
Minister of finance. Section 5A puts accountability for these
regulations right at the door step of the Minister; (iii)
furthermore,
the 2013 Court order enjoined the Minister to consult
with all the relevant stakeholders prior to the promulgation of the
regulations;
and (iv) the regulations simply require the Minister to
provide the framework for the essential standards and norms. They are
not
about her expenditure an issue that comes up later at the point
of implementation.
[30]
I have also considered that the nature of the right in question
and who the beneficiaries of the rights are. This case is about
the right to basic education. Its primary beneficiaries are children.
If asserting their right to basic education is made as complicated
as
what the respondent proposes, that amounts to denial of their access
to the courts. That cannot be in the spirit of our Constitution.
I deal with this more when I address myself later to the significance
of the right to basic education.
[31]
From the aforesaid, this Court is entitled to proceed on the
basis that the Minister had already consulted with the relevant
parties
and the regulation in respect of which she bears the primary
responsibility have captured everything emanating from those parties
thus dispensing with the need to join them in this suit.
[32]
I am convinced that in the present case none of the parties the
Minister seeks to join will be prejudiced by the grant of the order
in this application or the order that will eventually issue will be
hollow.
[33]
I, therefore, reject this point of non-joinder
.
[34]
With these preliminary issues out of the way, I now turn to
consider the central question presented in this matter, the impugned
regulations stipulated by the respondent.
THE
BACKGROUND
[35]
The impugned regulations emanate from section 5A of SASA which
provides as follows:
“
5A. Norms
and standards for basic Infrastructure and capacity in public
schools.
—
(1)
The
Minister
may, after consultation with the Minister of
Finance and the
Council of Education Ministers
, by regulation
prescribe minimum uniform norms and standards for—
(a)
schoolinfrastructure;
(
b
)
capacity of a
school
in respect of the number of
learners
a
school
can admit; and
(
c
)
the provision of learning and teaching support material.
(2)
The norms and standards contemplated in
subsection (1)
must
provide for, but not be limited to, the following:(
a
)In
respect of
school
infrastructure,
the availability of—
(i)classrooms;
(ii)electricity;
(iii)water;
(iv)sanitation;
(v)a library;
(vi)laboratories for
science, technology, mathematics and life sciences;
(vii)sport and
recreational facilities;
(viii)electronic
connectivity at a
school;
and
(ix)perimeter security;
(
b
)in
respect of the capacity of a
school
—
(i)the
number of teachers and the class size;
(ii)quality
of performance of a school;
(iii)curriculum
and extra-curricular choices;
(iv)classroom
size; and
(v)utilisation
of available classrooms of a school;
(
c
)in
respect of provision of learning and teaching support material, the
availability
of—
(i)stationery
and supplies;
(ii)learning
material;
(iii)teaching
material and equipment;
(iv)science,
technology, mathematics and life sciences apparatus;
(v)electronic
equipment; and
(vi)school
furniture and other school equipment.”
[36]
This section was introduced into SASA by the
Education Laws
Amendment Act 31 of 2007
, and amended by the Basic education Laws
Amendment Act 15 of 2011.
[37]
Section 5A must be read together with section 58C of SASA which
reads:
“
58C. Compliance
with norms and standards.
—
(1) The
Member of the Executive Council
must, in accordance with an
implementation protocol contemplated in section 35 of the
Intergovernmental Relations Framework Act,
2005 (Act No. 13 of
2005), ensure compliance with—
(
a
)norms
and standards determined in terms of sections 5A, 6 (1),
20 (11), 35 and
48 (1);
(2)
…
(3) The
Member of the Executive Council
must, annually, report to the
Minister
the extent to which the norms and standards have been
complied with or, if they have not been complied with, indicate the
measures
that will be taken to comply.
(4)
…
(5) The
Head of
Department
must
comply with all norms and standards contemplated in subsection
(1) within a specific
public
school
year
by—
(
a
)identifying
resources with which to comply with such norms and standards;
(
b
)identifying
the risk areas for compliance;
(
c
)developing
a compliance plan for the province, in which all norms and standards
and the extent of compliance must be reflected;
(
d
)developing
protocols with the
schools
on how to comply with norms and
standards and manage the risk areas; and
(
e
)reporting
to the
Member
of the Executive Council
on
the state of compliance and on the measures contemplated in
paragraphs
(
a
)
to (
d
)
,
before 30 September of each year.
(6) The
Head of Department
must—
(
a
)in
accordance with the norms and standards contemplated in section 5A
determine the minimum and maximum capacity of a
public school
in
relation to the availability of classrooms and
educators
, as
well as the curriculum programme of such
school
; and
(
b
)in
respect of each
public school
in the province, communicate
such determination to the chairperson of the
governing body
and
the
principal
, in writing, by not later than 30 September of
each year.”
[38]
Section 58C creates a mechanism for ensuring compliance by MECs
and heads of departments with the minimum norms and standards, as
well as providing for regular and accurate reporting as regards
levels of infrastructure in accordance with the Intergovernmental
Relations Framework Act, No 13 of 2005, (hereinafter referred to as
“IGRF Act”).
[39]
Section 35(1) of the IGRF Act provides:
35. Implementation
protocols.
—
(1)
Where the implementation of a policy, the exercise of a statutory
power, the performance of a statutory function
or the provision of a
service depends on the participation of organs of state in different
governments, those organs of state must
co-ordinate their actions in
such a manner as may be appropriate or required in the circumstances,
and may do so by entering into
an implementation protocol.”
THE
2013 COURT ORDER
[40]
The case of the applicant is also based on the Court order of
2013.
[41]
In 2011 the Minister had not prescribed the regulations envisaged
by section 5A. At that point the stance of the Minister was
that she was not obliged to promulgate the regulations as that was a
matter depending on her discretion. After failed attempts
by
the applicant to persuade the Minister otherwise, it took the
Minister to Court to compel her,
inter alia
, to make the
regulations. It is not necessary that I deal with what happened
between the launch of that application and the
ultimate grant of the
court order.
[42]
On 11 July 2013, the parties settled the matter and concluded a
settlement agreement which was subsequently made an order of the
Court, hereinafter referred to as (“the 2013 court order”).
The terms of that order are the following :
“
1.
The Minister must, by 12 September 2013, publish for
comments, amended draft regulations for Minimum Uniform Norms and
Standards
for Schools Infrastructure in terms of
section 5A(1)(a)
of
the
South African Schools Act, 84 of 1996
, and in her sole discretion
consult directly with stakeholders.
2.
The Minister must, by 30 November 2013, prescribe Minimum Uniforms
Norms and
Standards, by the promulgation of Regulations for Schools
Infrastructure, in terms of
section 5A(1)(a)
of the
South African
Schools Act 84 of 1996
, which provides for the availability of the
school infrastructure referred to in section 5A(2)(a) of the Act.
The Regulations
shall prescribed Minimum Uniform Norms and Standards
for School infrastructure and the timeframe within which they must be
complied
with.
3.
There is no order as to costs.”
[43]
On 29 November 2013, the Minister finally promulgated the
regulations. This was precededed by a production of various
drafts
to which the applicant, as a stakeholder, submitted comments
to aspects of those drafts that it was not satisfied with. The last
draft which proceeded the regulations was prepared in October 2013.
[44]
Some of the concerns raised by the applicant on the 2013 draft,
were the following:
(i)
there were no stipulated timeframes within which unsafe structures
and other hazards were to be eliminated. The applicant proposed
norms to be followed in case of emergency or to ensure safety;
(ii)
regulation 3(3) made the implementation of the norms subject to the
resources
and co-operations of other government agencies and entities
responsible for infrastructure in general. The concern of the
applicant was that the regulation would be rendered meaningless if
provincial Education Department could escape responsibility
for
complying with them by shifting the blame to other role players in
the infrastructure delivery process;
(iii)
the members of the Executive Council in the various provinces were to
make
their plans and annual reports available publicly and should
contain detail for school communities to be able to plan properly.
Those plans should identify which schools were earmarked for the
provision of infrastructure;
(iv)
they failed to include within their ambit those schools already
planned for
but not yet in existence at the date of promulgation;
and
(v)
they did not prohibit inappropriate building materials such as
corrugated
iron, mud or dangerous material such as asbestos.
[45]
The applicant was still not entirely happy with these final
regulations as it is of the view that they contain material
problems.
It still holds that view hence this application.
It thus seeks this Court’s intervention in respect of some of
them,
namely, regulation 4(1)(b)(i); 4(2)(b); 4(3)(a);
4(3)(b); 4(5)(a); 4(6)(a) and 4(7).
[46]
The meaning of the regulations is not in dispute. The issue
that remains for determination by this Court is whether these
regulations are inconsistent with the Constitution; SASA and the
order of 2013.
[47]
The parties are also agreed that the right to basic education as
contained in section 29(1) of the Constitution is affected by the
regulations. Furthermore, that the provision of the basic
school infrastructure is an integral component of this right.
Also that this right has been put in the highest hierarchy of the
socio- economic rights. However the Minister contends that this
matter is not about the right to basic education but rather about
infrastructure at black schools.
[48]
The Minister also did not deny the backlog in basic school
infrastructure. The minister readily acknowledged that
significant
numbers of schools still lack the most basic resources:
water, sanitation and electricity. Large numbers of schools
face serious problems with class size, the quality of educators, and
the availability of learning material. She posited though
that there
has been significant improvement.
[49]
The Minister furnished figures of such improvement In her
answering affidavit: in 1994 almost 60% of public schools have
no
electricity; 34% has no water;12% has no toilets; 61% no
phones;82% no library and 57% of schools had class –rooms with
45
or more learnrs.
[50]
Since 1996 the number of schools with no running water dropped
from approximately 9,000 to approximately 1,700; number of schools
with electricity dropped from 15,000 to 2,8000. She then
referred to the National Education Infrastructure Management System
Reports (“NEIMS”) which was produced May 2011 in which
statistics are documented. NEIMS is a database of public
schools derived from surveys conducted in 1996 and updated in 2000.
The Minister then detailed the specific findings regarding
resources
as contained in the survey of public schools conducted in 2011.
[51]
In 2011 her department became more involved in infrastructure
development, largely through the new Accelerated Schools
Infrastructure
Delivery Initiative (“ASIDI’). This
initiative monitors the status of progress and ensures transparency
by compiling
lists identifying schools that are being targeted for
infrastructure improvement through national or provincial initiatives
on
the department’s website.
[52]
To illustrate the strides made by Governement in an effort to
deal withi problems relating to schools, the respondent then set out
the overhaul of the regulatory framework to ensure the realisation of
the right to basic education. Included in this SASA
inter alia,
makes schooling of children between the age of 7 and 15 compulsory;
the Nationa Education Policy Act, No 27 of 1996 (“
NEPA”)
which provides for the determination of the educational
policy. Government also increased its expenditure on education from
6.4%
GDP in 1994 ; 6.8% in 1998 and 5% of GDP in 2012.
[53]
Referring to these, she then pointed out that these overall
statistics compare well with developing and developed countries.
Furthermore,
significant progress has been made and efforts are in
place to improve the infrastructure and reduce or at least eliminate
the
backlog. In this respect she also referred to another NEIMS
report of 2015 which showed the improvements made in infrastructure.
[54]
In its papers, BEFA also introduced evidence in the form of
testimonies from learners in Limpopo. This evidence falls into two
categories:
The first is where the state of the school
infrastructure poses direct and imminent threat to the health and
safety of learners.
The second category is where the state of
school infrastructure is such that teaching and learning cannot take
place, or can only
take place at certain times. BEFA argued
that the first category is of circumstances that constitute violation
of learners’
health and safety, as well as their right under
sections 9;10; 29(1)(a) and 28(2) of the Constitution. The second
category amounts
to denial of access to education as well as the
violation of sections 9;10 and 28(2) of the Constitution.
[55]
Regarding the evidence contained in its affidavit, BEFA referred
to a few cases. I give a sample. It referred to the well known
tragic death of the 5 year old Michael Komape, who fell into a pit
toilet filled with urine and faecal matter and drowned. It also
referred to an account of one Letsoapele Sunnyboy Mokwana, the
chairperson of the Masereleng Secondary School Governing Body. Mr
Mokwana’s account was that the school has one pit toilet only.
This pit toilet is shared between all the teachers at the
school and
the female learners. The male learners are compelled to walk a
distance to the bushes to relieve themselves.
Kgoagelo one of
the male learners at the Masereleng Secondary School, expressed how
unhappy and afraid he is of this predicament.
He does not feel
safe to walk the long distance and being alone so far away from
people. As a compromise he gets others to accompany
him, an option
which while safe, leads to the sacrifice of his privacy. In
this case a better option.
[56]
At Segware Secondary School where the male learners have the same
predicamen as those of Masereleng, one of the learners described
their challenge as follows: “
I hate going to the
bushes because there is a group of gangsters who loiter nearby. They
call themselves “Mabhokaharam”……if
they see
us, they force us to play dice with them. If we refuse to do
so, they try to rob us. I tried to help my situation
by not carrying
money or anything valuable with me to the bushes, but if they find
that we do not have anything, they beat us up.”
[57]
Where the parties part way is: (i) on whether the
respondent can be compelled to commit herself to stipulation of the
norms
and standards for essential basic infrastructure at schools
without the qualification contained in regulation 4(5)(a) any or any
other qualification for that matter; and (ii) whether that
qualification should not be accepted as a law of general limitation
in terms of section 36 of the Constitution; (iii) whether the other
impugned regulations are irrational or unreasonable.
[58]
I now deal with the impugned regulations and the grounds of
attack mounted by the applicant and BEFA.
THE
REGULATIONS
A.
Sub- Regulation 4(5)(a)
[59]
This regulation reads:
“
4(5)(a)
the implementation of the norms and standards contained in these
regulations is, where applicable,
subject to the resources
and co-operation of other government agencies and entities
responsible for infrastructure in general and
making available of
such infrastructure.
(b) the Department of Basic Education
must, as far as practicable, facilitate and co-ordinate the
responsibilities of the government
agencies and entities contemplated
in paragraph (a).” [own underlining]
[60]
The applicant sought the following relief in respect to this
sub-regulation:
“
1.
Declaring that regulation 4(5)(a) of the Regulations Relating to
Minimum Uniform Norms and Standards for Public School Infrastructure,
2013 (No. R. 920 in Government Gazette 37081 of 29 November 2013)
(“the Regulations”) is inconsistent with the
Constitution,
the
South African Schools Act 84 of 1996
(“SASA”)
and the order granted on 11 July 2013 by Dukada J in the above
Honourable Court under case number 81/2012,
and is accordingly
unlawful and invalid;
2.
In the alternative
to paragraph 1 above, reviewing and setting
aside
regulation 4(5)(a)
of the Regulations;”
[61]
The applicant contended that this sub-regulation makes the
implementation of all the norms and standards subject to the
resources
and co-operation of other government agencies and entities
responsible for infrastructure in general. The applicant challenged
this sub-regulation on the basis that It gives Government,
including MEC’s and heads of Provincial Education Departments,
a means of escaping the obligation to provide adequate school
infrastructure in order to fulfil the right to basic education.
[62]
The applicant further contended that this condition amounts to
the failure of the Minister to comply with her obligation to make
binding uniform norms and standards as enjoined by SASA.
Therefore the Minister has failed to adhere to the Constitution,
SASA, and by the Court of 2013.
[63]
Applicant thus posited that the effect of sub-regulation 4(5)(a)
is to render the norms and standards ineffective, because it makes
the duty of the Minister under the regulations subject to unspecified
and indeterminate qualifications which may be superimposed
by other
(unspecified) organs of state, because they decline to co-operate, or
because they choose not to make resources or infrastructure
available
for this purpose, or because they are not competent in providing it.
The result is that these are not uniform norms
and standards as
required by the SASA.
[64]
To illustrate its point, in the founding affidavit, the applicant
referred to two national education grants which are intended for
spending by provinces on school infrastructure. One of the
grants was the Education Infrastructure Grant (the “EIG”).
In the 2014/2015, budget R1 177 914 000 was allocated
to the Eastern Cape through the EIG. R181 343 000
of
this amount went unspent. The National Treasury has since
stopped the allocation of the EIG to the Eastern Cape (which
was to
have been R530 million) in terms of section19 of the Division of
Revenue Act 1 of 2015 (the “Division of Revenue Act”).
Section 19(1) of the Division of Revenue Act provides that allocation
of funds may be stopped (a) on the grounds of persistent
and material
non-compliance with the Division of Revenue Act; (b) if the
National Treasury anticipates that a province or
municipality will
substantially underspend on the allocation, or any programme,
partially or fully funded by the allocation, in
the 2015/2016
financial year; (c) for purposes of the assignment of a
function from a province to a municipality, as envisaged
in section
10 of the Municipal Systems Act; or (d) if a province
implementing an infrastructure project does not comply with
construction industry best practice standards and guidelines, as
identified and approved by the National Treasury. The
applicant’s
assumption is that the reason that the grant was
stopped in this case is because it was anticipated that the Eastern
Cape would
again substantially underspend on its allocation.
[65]
The applicant further contended that this demonstrates that
proper planning and implementation in co-operation between the
department
of education and other departments and entities was not
taking place even when funds were made available.
[66]
Mr Budlender SC then argued that it is reasonable to anticipate
that when a complaint is raised that the norms and standards have
not
been complied with, the answer will be that there has been no breach
because of the proviso in this sub-regulation 4(5)(a).
[67]
Both applicant and BEFA stressed that when the issue of the
purport of this su-regulation is considered, this Court should keep
in mind that the provision of basic school infrastructure is a
component of basic education. Therefore, the sub-regulation in its
current frame threatens the delivery of the right to basic education.
[68]
The position of the respondent is explained in her answering
affidavit. In paragraph 18 thereof she stated:
“
At
first glance ad the mere reading of section 29(1)(a) as opposed to
other relevant rights in the Bill of Rights in the Constitution,
the
right is unqualified, immediately realisable, and not subject to
available resources. Of utmost importance is that the right
to basic
education is not a stand-alone, absolute right and it is limited by
the law of general application such as Regulations
Relating to
Minimum Norms and Standards for Public Schools(Infrastructure Norms
and Standards) (sic) like any of the right in the
Bill of Rights. I
submit that the enabling legislation giving effect to the right
points that basic education is progressively
realisable like any of
the other relevant rights and this resonates with the Constitutional
Court’s dictum in the Ermelo
case by indicating that this is
important and must be understood: ‘within the broader
constitutional scheme to make education
progressively available and
accessible to everyone, taking into consideration what is fair,
practicable and enhances historical
redress…..”
[4]
[69]
In paragraph 88 she further submitted the following: “
I
am advised that the Applicant it is wrong in law to suggest “that
the right to basic education necessarily implies the right
to an
education that is of reasonable quality”. The applicant is
introducing a new undefined standard of quality different
to the one
that is in the enabling legislation. In fact, the right to education
is that of progressively high quality for all learners
and which the
National Planning Commission indicated that: “by 2030, South
Africa should have access to education ….of
the highest
quality, leading to significantly improved learning
outcomes.”(reference omitted) However, I am advised
that
the correct standard set by the Constitutional Court on numerous
occassions is whether reasonable measures have been put in
place by
the State on any matter concerning the adjudication of any right in
the Bill of Rights.”
[70]
In the heads of argument the Mr Erasmus SC submitted that the
Minister is not compelled to provide empirical evidence to support
her stance that the proviso in sub-regulation 4(5)(a) is reasonable.
He advanced that it would have been irresponsible of the Minister
to
promulgate norms and standards that are not subject to the
availability of resources and co-operation of government agencies.
For this stance the Minister relied on paragraph 35 of
Minister of
Home Affairs v National Institute of Crime Prevention and
Re-Integration of Offenders and Others 2005(3) SA 280 (CC)
where the following was said
: “
This calls
for a different enquiry to that conducted when factual disputes have
to be resolved. In a justification analysis facts
and policy are
often intertwined. There may be instances where the concerns to which
the legislation is addressed are subjective
and not capable of proof
as objective facts. A legislative choice is not always subject to
courtroom fact-finding and may be based
on reasonable inferences
unsupported by empirical data. When policy is in issue it may not be
possible to prove that the policy
directed to a particular concern
will be effective. It does not necessarily follow from this, however,
that the policy is not reasonable
and justifiable. If the concerns
are of sufficient importance, the risks associated with them
sufficiently high, and there is a
sufficient connection between the
means and ends, that may be enough to justify the action taken to
address them.”
[71]
Mr Erasmus SC proposed that the matter at hand should be looked
at from the perspective that the promulgation/publication of the
regulations is a matter of choice or the exercise of discretion of
the Minister. The question that begs an answer is thus
not
whether there is a better way of proclaiming the regulations or
getting to the desired results. It would be incorrect
for this
Court to then consider whether the route taken by the Minister in
coming up with these regulations is correct or not.
This Court
cannot look at the regulations
in vacuo
. He criticised
the approach of the applicant and the
amicus curiae
in that
they rely on the fact that there are still schools without proper
infrastructure to conclude that there is thus a problem
with the
norms and standards.
[72]
The Minister acknowledged that
infrastructure is a facet of the right to basic education and that
the right to education is an immediately
realizable right and not
progressively realizable. However, her proposition was that in
this case this Court should take
the approach that the positive
dimension of the right to education is realized or fulfilled
progressively or over a period of time.
[73]
Explaining this submission,
Mr Erasmus SC
stressed that
the infrastructure required for basic education is not provided by
the Minister. Schools are constructed at
the behest of the
Department of Public Works and so are other parts of the
infrastructure. The Minister is constrained by
section 41 of
the Constitution to report the other departments and organs of
state. She also cannot decide and commit on
their behalf on the
availability or otherwise of resources. Therefore, even though
the Minister is accountable for provision
of basic education she
cannot be accountable for the provision of infrastructure as that is
outside her competence.
[74]
These regulations are the product of the Minister’s full
compliance with the provisions of section 5A (1) of SASA subject to
the constitutional constraints created by sections 40 and 41 of the
Constitution. It is incorrect that she should be expected to
provide
things outside the competence of her department which is only the
provision of basic education and not other services.
She is not
the Minister of Public Enterprise, Water and Sanitation and Human
Settlement. Requiring her to provide what is
outside her
competence is not in accordance with the Constitution.
[75]
Her submission was that in terms of section 40 read with section
41, she is obliged to adhere to the principles of co-operative
governance stipulated therein in conducting her business. She
stressed section 41(e)(f)(g) and (h) in this regard. Her
contention
was that clear from these provisions it was already
anticipated in the Constitution that there will be a certain field of
overlapping
and co-operation required by the different organs of
state. The
Intergovernmental Relations Framework Act (IGRF
Act) was
born out of this. IGRF Act defines National Government as the
National Executive established by Chapter 5 of the
Constitution and
includes all national organs of state. Section 91 and 92 (1)
contained in this chapter 5 of the Constitution casts
a
responsibility upon her only for the powers and the functions she is
assigned by the President. This is equally the case with
the other
departments.
[76]
Mr Erasmus SC
then posited that therefore the Minister
cannot willy-nilly decide that she can decide for the other
Ministers. For example,
she cannot decide for the Minister of
Water and Sanitation where water will be, how water will be allocated
and supplied.
[77]
The fact that the full realization of the right can be achieved
progressively does not alter the obligation of the state to take
those steps that are within its power immediately and other steps as
soon as possible.
[78]
Explaining that the Minister is dealing with the failing school
infrastructre, Mr Erasmus SC then referred to the Minister’s
answering affidavit where she deals with the remnants of the
apartheid era regarding the infrastructure in schools. He pointed
out
that the Minister has to date not been able to eradicate the backlog
as she is humstrung by both the depth of the infrastucture
backlog
and the constitutional constraints.
[79]
Mr Erasmus SC stressed that the applicant is not assailing any of
the provisions of SASA, the primary legislation to be resorted
to
regarding the provision of infrastructure for schools. He argued then
that, in that case whatever is contained in SASA and whatever
the
Minister does in accordance with SASA can never be branded
unconstitutional because of the principle of subsidiary which is
that
where legislation has been enacted to give effect to a right, a
litigant should rely on that legislation to give effect to
the right
or alternatively to challenge the legislation as being inconsistent
with the Constitution.
[80]
The Minister’s further contention was that no issue has
been taken with regard to what the Minister set out to achieve in
terms of SASA as described fully in the preamble to SASA. He referred
to the second and third paragraphs of the preamble to SASA.
To amplify his point, he argued that it is clear from the reading of
the preamble that SASA was the voice of the people, the product
of
democratically elected representatives. He then posited that, even
though the term “progressively” is not expressly
used in
the regulations, by implication the delivery of the right to “a
basic education in connection with “availability”
of
education through a adequate and functioning educational institutions
or infrastructure will have to be “progressively
realised”
and qualified by the terms such as “as far as reasonably
practicable” and “subject to the resources”.
According to the Minister SASA contemplates that the right to a basic
education with regard to desired infrastructure at public
schools
shall be realised progressively subject to available resources at the
disposal of the state.
[81]
The minister further relied on
Mazibuko v City of
Johannesburg
2010 (4) SA 1
(CC) to support her case that
socio-economic rights are further limited by the qualification that
they are only available to the
extent that state resources permit.
[82]
The angle assumed by the Minister was simply that this case is
not about the content of the right to basic education but simply
about the infrastructure at schools.
B.
Regulation 4(5)(a) is an unjustified limitation on the right to
basic education.
[83]
The further ground of attack was that the norms and standards
purport to limit the state’s obligation to fulfil the right to
basic education, by limiting the state’s obligation to provide
adequate infrastructure at schools. It makes all of
the norms
and standards subject to the resources and co-operation of government
agencies responsible for infrastructure in general.
This limitation
is not reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom
in light of the
fundamental importance of the right to basic education.
[84]
Regulation 4(5)(a) impermissibly limits that right by allowing
government to remain legally unaccountable for its obligations in
terms of SASA and the Constitution even after the target dates in the
norms and standards have come and gone.
[85]
BEFA also assailed this sub-regulation. It filed various
documents in support of its attack which it postulated serve to
confirm
that this sub-regulation falls short of the constitutional
standard binding upon the respondent. It submiited that the
inconsistency
of this sub-regulation with section 29(1)(a) of the
constitution has a further ripple effect in that it results in the
violation
of other basic rights: to dignity ; equality and further
failure to hold paramount the best interest of a child. Yet,
the
respondent has adopted a course of action that lacks urgency and
ignores the state’s obligation to provide immediate relief
to
the learners.
[86]
Both applicant and BEFA were aligned in the contention that this
sub-regulation subjects the implementation of the norms and
standards to the standard of progressive realisation. BEFA referred
the Court to what was said in
Madzodzo and Others v Minister of
Basic Education and Others 2004(3) SA441 (ECM) paragraphs 19 and 20.
It concluded that therefore, the respondent is obliged to do
everything in its power to realise the right in full and immediately.
[87]
Referring to the
statistics in the
NEIMS Report regarding the dire state of school infrastructure, BEFA,
however, acknowledged that the full delivery
of all the aspects of
safe and adequate school infrastructure is not immediately possible.
It referred the Court to an article:
“Concretising the
Right to Education by Cameron McConnachie and Chris McChonacie
(2012)
129 SALJ 445
at 588 where the authors noted: “
the
disruptive effect that an immediate order would have on the
government’s budgeting and planning and “queue “jumping”
may militate against immediate relief.”
[88]
Proceeding from this BEFA contended that it is nevertheless
possible to strike a balance between an immediately realisable right
and the realitiies of practical constraints in a way such as not to
interfere with the integrity of the content of section 29(1)(a)
of
the Constitution as defined by the Courts. The question of
practicality itself should be located in the areas approproate
for an
analysis of the circumstances, namely, limitation in terms of section
36 of the Constitution and remedy in terms of section
172(1(a) of the
Constitution. BEFA explained that the latter option is
not applicable
in casu
.
[89]
Ms Stein then submitted that to the extent that the respondent is
unable to discharge the right to basic education in full and
immediately,
it must justify such failure through the mechanism of
section 36 of the Constitution. Also it could argue that an order
compelling
it to discharge the right in full and immediately would
not be just and equitable.
[90]
BEFA further argues that by simply relying on budgetary
constraints the respondent has dismally failed to justify the
limitation
it sought to put into the right to basic education which
would be acceptable in terms of section 36 of the Constitution.
[91]
BEFA proceeded on the premise that it accepts that this
sub-regulation is of the law of general application. Once then it is
accepted
that the limitation is through a law of general application,
the question of limitation is one of proportionality which involves
the balancing of different interests. In this regard, it
referred to
S v Manamela and Another 2000(3) SA 1 (CC)
where
the Constitutional Court held:
“
In
essence, the Court must engage in a balancing exercise and arrive at
a global judgment on proportionality and not adhere mechanically
to a
sequential check-list. As a general rule, the more pursuasive or
compelling the justification must be. Ultimately, the
question
is one of degree to be assessed in the concrete legislative and
social setting of the measure, applying due regard to
the means which
are realistically available in our country at this stage, but without
losing sight of the ultimate values to be
protected.”
[5]
[92]
It pointed out that, though the respondent asserted the
sub-regulation as a law of general application, it nevertheless
failed to
justify its limitation against the requirements set out in
section 36 of the Constitution.
[93]
In its
heads of argument BEFA referred to an Indian case of
Avinash
Mehrota v Union of India and Others.
[6]
The
facts of that case are summarised herein. A fire broke out in
the middle of an overcrowded school with thatched roof.
The
fire swept through the school. A large number of the school
children could not escape as there was only one entrance,
a situation
aggravated by there being a narrow stairway and classrooms without
windows. 93 children died. A petition was
made to court for
improved conditions relying on the right to education and to life
both of which are guaranteed in the Constitution
of India. Given
that the problem a systemic problem of unsafe schools, the petitioner
in that case sought a directive regarding
the development of minimum
safety standards for schools and ensuring the implementation
thereof. In response to the petition
each state of India
submitted evidence regarding safety in schools.
[94]
In making its finding the court held: “
we must
hold that educating a child requires more than a teacher and a
blackboard, or a classroom and a book. The right to education
requires that a child study in a quality school, and a quality school
certainly should pose no threat to a child’s safety.”
The
court of India then confirmed that the right to education must
incorporate safe schools.
[95]
Referring to the testimonies of learners and others regarding the
state of disrepair of the infrastructure at the schools, BEFA
prevailed upon the Court to draw from the approach in India. Ms
Stein also pointed out that none of the evidence BEFA has
brought is
disputed by the respondent.
C
Regulation 4(5)(a) is not rationally connected to the purpose
of sections 5A and 58C of SASA
[96]
The applicant proceeded from the premise that the purpose of
sections 5A and 58C of SASA read with the Constitution is to ensure
that legally binding norms and standards relating to physical
infrastructure in schools by which government may be held to account
are prescribed. As already adverted to such norms and standards
are required in order to ensure that the right to a basic
education
is realised.
[97]
For the reasons already stated in the prevus grounds, the
applicant argued by inserting the proviso in this sub-regulation, the
Minister fundamentally undermines the achievement of that purpose.
This provision is not rationally connected to the purpose
for which
the power to make these regulations is conferred upon the Minister.
[98]
The Minister’s response was that the applicant
misunderstood the limits of the rationality review. Mr Eramus SC
argued that
the test is not whether the regulation is fair or
appropriate or even whether there is a bettter way to achieve the
end. The rationality
test is restricted to whether the measure the
law-giver chose is properly related to the public good it seeks.
The decision
may not be the best in the circumstances but as long as
its strikes a reasonable equilibrium, it should stay.
[99]
Mr
Erasmus SC referring to
the
Albutt v Centre for the Study of Violence and Reconciliation
and Others
[7]
at 41 contended that this Court is not at liberty to interfere with
the matter that is in the discretion of the Minister.
In that
case is was held:
“
[51]
The Executive has a wide discretion in selecting the means to achieve
its constitutionally permissible objectives. Courts may
not interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objective sought
to be achieved”.
[100]
Mr Erasmus SC supported this point further by reference to
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) paragraph [54]. He also prevailed upon this
Court to take into account the principle of separation of powers in
this
regard – referring to
Minister of Environmental Affairs
and Tourism and Others v Phambili Fisheries (Pty) Ltd
2003 (6) SA
407
(SCA) at 52 where the Court quoted, with approval what is said in
Hoexter’s
The Future of Judicial Review in South African
Administrative Law
(2000) 117 SALJ 484
at 185
, that, “
the
important thing is that judges should not use the opportunity of
scrutiny to prefer their own views as to the correctness if
the
decision, and thus obliterate the distinction between review and
appeal.
”
[101]
Mr Erasmus SC then emphasised the limitations on the powers of
the Court dealing with rationality. He referred to
Law Society
of South Africa and Others v Minister of Transport and Another
2011
(1) SA 400
(CC) where the court made it
clear
that the requirement of rationality is restricted to the threshold
question whether the measure the lawgiver has chosen is
properly
related to the public good it seeks to realise.
D
.
Regulation 4(5)(a) offends the constitutional value of
accountability
[102]
The applicant argued that the principle of accountability is
entrenched in section 1 of the Constitution as a founding democratic
value. Furthermore, section 195(1)(f) of the Constitution
provides that public administration must be accountable.
In
addition section 41(1)(c) of the Constitution imposes an obligation
“on all spheres of government and all organs of state
within
each sphere” to “provide effective, transparent,
accountable and coherent government for the Republics as a
whole.”
Also, section 7(2) of the Constitution obliges the State to realise
the right to basic education. It has to
do so in an accountable
manner. The provision of adequate school infrastructure is a
necessary ingredient for the realisation
of the right to a basic
education.
[103]
It argued that sub-regulation 4(5)(a) has the effect of rendering
government unaccountable for the proper provision of school
infrastructure.
Where there is a failure to provide adequate
infrastructure, government will seek to justify its failure to
comply with the
norms and standards by contending that they are
subject to regulations 4(5)(a).
[104]
The highly qualified nature of the obligation to provide adequate
school infrastructure will result in the public being unable to
hold
the government accountable for its failures in this regard.
[105]
In addition to this submission BEFA argued that the way the
sub-regulation is framed the onus would be on a party seeking to
assert
its right to show that the Minister has the necessary
resources and co-operation from other agencies and entities. Whereas
It is
the Minister which should advance reasons for her inability to
discharge her duty to provide basic education and not the other way
round.
E
Regulation 4(5)(a) subverts the constitutional requirement of
co-operative governance
[106]
The applicant pointed out that section 41(1)(c) of the
Constitution imposes an obligation on all spheres of government and
all organs
of state within each sphere to “provide effective,
transparent, accountable and coherent government for the Republic as
a
whole.” This subsection should be read with section
41(1)(h)(iv) of the Constitution which requires that all the spheres
of government and organs of state to co-operate with one another in
mutual trust and good faith by co-ordinating their actions.
Governmental co-operation is thus constitutionally mandated as a
means to ensure accountable and coherent governance.
[107]
It stressed that the co-operative governance chapter of the
Constitution is designed to ensure that in fields of common endeavour
the different spheres of government co-operate with each other to
secure the implementation of legislation in which they all have
a
common interest. Co-operation is of particular importance in
the field of concurrent law-making and implementation of laws.
It is desirable where possible to determine the administrations which
will implement laws that are made, and to ensure that adequate
provision is made in the budgets of the different governments.
[108]
The applicant argued that regulation 4(5)(a) deals with
government as if it may permissibly operate in separate components
with
mutually exclusive functions. This is inconsistent with
co-operative governance. All the spheres of government are
interdependent and interrelated, in the sense that the functional
areas allocated to each sphere cannot be seen in isolation of
each
other. The same must apply to departments which are organs of
state.
[109]
Regulation 4(5)(a) permits and in fact facilitates the failure of
co-operative governance. Applicant referred to a letter of 17 March
2014 that the Minister had written to the applicant, where the
Minister said that co-operative governance will take place.
Yet
she has made a regulation which explicitly does not require
co-operative governance, and which ensures that a failure of
co-operative
governance will not have any legal consequences.
[110]
Mr Erasmus SC stressed that the qualification in regulation
4(5)(a) is informed by the constraint created by section 41 as
articulated
in IGRF Act. Simply put the Minister cannot remove
the qualification in this sub-regulation. To do so would open
up
the MECs who are charged with the actual implementation of the
norms and standards, for challenge for failure to deliver the basic
school infrastructure
.
They would never
be able to plead that the services or infrastructure is not
available. The regulation is therefore in full
compliance with
the Constitution particularly section 41 which enjoins
cooperative governance.
[111]
To lend support to this submission,
Mr Erasmus SC
referred
to
IEC v Langeberg Municipality
where the
Constitutional Court held:
“
All
the spheres are interdependent and interrelated in the sense that the
functional areas allocated to each sphere cannot be seen
in isolation
of each other. They are interrelated. None of these
spheres of Government nor any of the governance within
each sphere
have any independence from each other. Their interrelatedness
and interdependence is such that they must ensure
that whilst they do
not tread on each other’s toes, they understand that all of
them perform governmental functions for the
benefit of the people of
the country as a whole section40 and 41 were designed in an
effort to achieve this result.”
[8]
[112]
He further referred to paragraph [37] of the
Grootboom
case
for additional support of this point. For these reasons, argued
the Minister, the relief sought by the applicant, cannot
be granted.
[113]
Mr
Erasmus
SC
furthermore, linked this to the point
of non-joinder. He argued the reasons advanced by the Minister also
explain why there should
have been a joinder of the other entities to
answer on the availability of budget; infrastructure and resources
required.
[114]
He further argued that the sub-regulation is a product of a
democratic process. It was made on the strength of SASA, a
product
of a democraticaly elected parliament. Therefore, it is
incorrect to hold it unconstitutional. It is equally incorrect
to hold the regulation irrational because there is nothing irrational
with the Minister asserting that what she is called upon
to provide
is outside her competence. Equlally, there is no basis for
challenging this qualification on the basis that the
Minister is
shrugging her accountability.
[115]
Over and above this, the Minister simply does not have unlimited
resources and as such is unable to commit on financial resources
for
which she depends on what the department of Finance and the Treasury
allocate for her department. Therefore, it would
not have
helped even if she had consulted with the other entities prior to
making these regulations. The simple issue is
that the Minister
cannot provide for what she does not have. The qualification is
therefore not a limitation of the right
to basic education rather is
in cognisance of the principle of co-operative governance and the
limitation of the state machinery
with limited coffers.
F
.
Regulation 4(5)(a) results in a breach of the July 2013 order of
this Court
[116]
The 2013 court order required the Minister to “prescribe
minimum uniform norms and standards for school infrastructure, and
the time-frames within which
must
be complied with”
(emphasis added). Sub-regulation 4(5)(a) does not contain such
timeframe. Therefore it permits an indefinite
pushing back of the
time-frames contained in the regulations.
[117]
The Minister contended that all she was required to do by that
order was to prescribe the minimum norms and standards for the
availability
of the school infrastructure listed in section 5A(2)(a)
and the timeframe within which such be made available.
This is exactly what she did. The applicant cannot seek
to obtain more than was stipulated in that court order. It is
confined to the four corners of that court order. To lend
support to this contention she relied on
Eke v Parsons
2016
(3) SA 37
(CC) paragraph [31] where it was held: “
The effect
of a settlement order is to change the status of the right and
obligation between the parties. Save for litigation
that may be
consequent upon the nature of the particular order, the order brings
to finality to the lis between the parties; the
lis becomes res
judicata (literally, “a matter judged”).
It
changes the terms of a settlement agreement to an enforcement court
order…..”
[118]
The promulgation of the regulations and the insertion of the
proviso in sub-regulation 4(5)(a) was in compliance not only with
Chapter
3 of the Constitution but also SASA and the 2013 court
order. Lastly, also in compliance with section 35 of IGRF Act.
G.
Regulation 4(3)(a) read with regulation 4(1)(b)(i).
Regulation
4(1)(b)(i)
“
4(1)
”Notwithstanding the provisions of these regulations, the norms
and standards contained in the regulations
–
(a)……
(b)
as far as schools are concerned which exist when these regulations
are published, must,subject to subregulation(5), and as far
as
reasonably practicable-
(i)
with reference to the norms and standerds mentioned in
subregulation (3)(a) and (b), be complied with within the period of
three
years from the date of publication of these regulations;”
Regulation
4(3)(a)
Regulation
4(3)(a) reads:
“
(3)
As far as schools contemplated in subregulation (1)(b) are
concerned –
(a)
and for purposes of subregulation 1(b)(i), all schools built
entirely from mud as well as those schools built entirely from
material
such as asbestos, metal and wood must be prioritised;”
[119]
The applicant’s criticism is that sub-regulation
4(3)(a)does not state what is meant by “prioritisation”
of schools
built entirely from mud or materials such as asbestos,
metal and wood – in particular, and whether these
conditions
have to be eradicated within the three-year timeframe. It
also omits to deal with schools that are built partly from mud,
asbestos,
metal and wood, or which otherwise and also do not comply
with the National Building Regulations, SANS 10-400 or the
Occupational
Health and Safety Act 85 of 1993 (“OHSA”).
[120]
Applicant
pointed out that regulation 18(14)
[9]
of
OHSA requires that the design of all new schools and additions,
alterations and improvements to schools must comply with all
relevant
laws including the national Building Regulations, SANS 10-400 or the
Occupational Health and Safety Act 85 of 1993 (“OHSA”).
[121]
It thus argued that the sub-regulation undermines the rights to a
basic education, equality and dignity. It is also arbitrary.
There is no rational basis for excluding an unsafe school or
classroom from the ambit of the regulation, merely because part of
the school is safe.
[122]
The applicant sought the following relief in this regard:
“
3
Declaring that regulation 4(3)(a) read with regulation 4(1)(b)(i) of
the Regulations
requires that all schools and classroom built
substantially from mud as well as those built substantially from
materials such as
asbestos, metal and wood, must within a period of
three years from the date of publication of the Regulations, be
replaced by structures
which accord with the Regulations, the
National Building Regulations, SANS 10-400 and
Occupational Health
and Safety Act 85 of 1993
;
4.
Declaring that:
4.1
regulation 4(3)(a)
read with
regulation 4(1)(b)(i)
of the Regulations
is inconsistent with the Constitution and invalid insofar as it omits
to deal with schools which are built partly
from mud, asbestos, metal
and wood, must within a period of three years from the date of
publication of the Regulations, be replaced
by structures which
accord with the Regulations, the National Building Regulations, SANS
10-400 and Occupational Health and Safety
Act 85 of 1993 (“OHSA”);
and
4.2
the word “entirely” whenever it appears in regulation
4(3)(a) is struck out’
alternatively, the phrase “Schools
built entirely” is struck out wherever it appears in regulation
4(3)(a), and is
replaced with the words “classrooms built
entirely or substantially”;
[123]
Mr Budlender SC pointed out that the relief sought by the
applicant in fact is consistent with the Minister’s responses
to
the applicant in her letter dated 17 March 2014.
[124]
In its affidavit the applicant has explained that the need for
the expeditious eradication of unsafe schools had always been at the
forefront of the development of these norms and standards. In the
founding affidavit it referred to draft regulations which were
published by the Minister on 21 November 2008. Those regulation were
never made into law. However, they provided a useful
insight
into the reasoning underpinning the need for minimum norms and
standards. The 2008 draft Regulations categorised
norms and
standards into safety, functionality and effectiveness levels.
[125]
Safety norms were described as:
“
the
bare minimal allowable for a school to remain open … is
basically a ‘negative list’ of what an operating
school
should not have like: caving structures that pose danger to
learners, structures without roofing, temporary structures
that do
not meet South Africa’s heal standards.”
[126]
The 2008 draft Regulations recognised the urgency with which
government must ensure that schools are brought into compliance with
safety norms:
“
schools
that do not meet safety norms will not be tolerated and will be
closed with immediate effect. Safety norms and standards
are
therefore regarded as emergency norms and all efforts will be made
not to have any school at this level beyond the current
sector
strategy plan period (2012)”“… safety norms are
the bare minimal allowable for a school to remain open,
and this
level of provision is not meant to be sustained beyond the current
strategic plan period.”
[127]
On the same day that the 2008 draft Regulations were published
for comment, the minister also published for comment the proposed
Equitable Provision Policy. Unlike the 2008 draft regulations,
the Equitable Provision Policy was eventually finalised.
The
Equitable Provision Policy envisages a four tiered continuum of
minimum norms beginning with ‘basic safety’.
Basic
safety entails the bare minimum of safety requirements below which a
school will be deemed inoperable and immediately closed.
For example,
if learners are exposed to intolerable elements such as intolerably
bad weather … extremely unsafe
building structures
that
could crumble onto learners.”
[128]
The applicant also referred to, the
Schools Infrastructure
Guidelines
which state “
6.3
A school environment does not meet the basic safety
requirements if learners are exposed to conditions such as
6.3.3.extremely unsafe
building structures
that
could ‘collapse on top of learners’.
It pointed out
that the 2008 draft Regulations, equitable Provision Policy and
School Infrastructure Guidelines all make reference
to unsafe
‘structures’ (as opposed to entirely unsafe schools) that
pose a danger to learners, and recognise the urgency
of attending to
these situations.
[129]
In argument, Mr Budlender SC referred to the testimonies from
teachers and pupils on the conditions at the schools. He argued
that the extracts from those supporting affidavits demonstrate the
importance of replacing unsafe structures.
[130]
The further contention of the applicant was that these
sub-regulations read together, 4(3)(a) and 4(1)(b)(i) undermine right
of
learners to a basic education, equality and dignity and of
teachers to a safe working environment; equality and dignity. They
are
arbitrary in that they operate only in relation to schools which
are built entirely of unsuitable and unsafe structures and are
not
aimed at replacing unsafe structures wherever they are found to
exist. The applicant posited that there is no reason,
let alone
a justifiable or sufficient reason, for the failure to address unsafe
structures which are found at schools.
[131]
Applicant
also challenged these sub-regulations on the basis that they are also
inconsistent with the state’s duty towards
the teachers whom it
employs.Section 8(1) of the OHSA places a duty on employers to
provide and maintain a safe working environment.
[10]
Furthermore, the Public Service Regulations promulgated in terms of
section 41 of the Public Service Act 103 of 1994 (Govt Gazette
21951)
provide in Part VI of section D that : “
A
head of department shall establish and maintain a safe and healthy
work environment for employees of the department. ”
Mr
Budllender argued that the State, in its capacity as an employer, has
an obligation to ensure that teachers are able to work
under safe
conditions that do not pose a substantial risk to their safety.
[132]
The Minister’s response to this was that it is within her
discretion and in the exercise of the powers vested in her to
promulgate/publish
these sub-egulations the way she has. In the
exercise of that discretion her preference is to prioritise schools
entirely
built of mud and materials such as asbestos and wood. This
does not mean that she does not regard the other schools not falling
into that category as unimportant. This preference has been
dictated to her by budget constraints. The fact that the
applicant disagrees with her preference in this regard does not
entitle the applicant to the relief it seeks unless it succeeds
in
demonstrating that the preference of the Minister flies in the face
of the Constitution, SASA and/ or is an irrational. Otherwise
interference with her discretion should not be allowed.
[133]
Mr Erasmus SC argued that the applicant has not made out a case
for broadening the scope of these regulations. He submitted further
that in terms of sub – regulation 4(1)(b)(i), the schools which
existed when the regulations were published are to be brought
into
the ambit of the regulations under sub-regulations 4(1)(b)(i) to (v)
and should be consistent with the National Building Standards
Act 103
of 1977, SANS 10-400 and
Occupational Health and Safety Act 85 of
1993
.
[134]
Mr
Erasmus SC prevailed upon the Court to follow the reasoning of the
Constitutional Court in
Soobramoney
v Minister of Health, KZN 1998 (1) SA 765 (CC) (1997 (12) BCLR
1696; [1997] ZACC 17)
[11]
where
the Court rejected an application that would have compelled the
Minister of health to provide dialysis to one patient at the
expense
of the larger number of needy patients as the Minister was
constrained by the budget available. The court held that the
patient’s demand to receive dialysis treatment at a state
hospital had to be determined in accordance with the provisions
of
section 27(1)
and (2) which entiltles everyone to health care
services provided by the State within its available resources and not
section 27(3).
The latter section provides that no one may be refused
emergency medical treatment. The Constitutional Court held that
a
court will be slow to interfere with rational decisions taken in
good faith by political organs andmedical authorities whose
responsibility
it is to deal with such matters.
[135]
Mr Erasmus SC also argued that this Court is also constrained to
consider the particular impact that the legacy of apartheid education
had in most black communities referring to what was said in
Head
of Deaprtment: Mpumalanga Department of Education and Another v
Hoerskool Ermelo and Another 2010(2) SA 415 (CC)
at paragraph 46
and in
Governing Body of the Juma Musjid Primary School and
Others v Essay N.O. and Others 2011(8) BCLR 761
at para 42.
H
Regulation 4(3)(b) read with regulation 4(1)(b)(i) (schools
with no power, water or sanitation)
[136]
Regulation 4(3)(b) reads:“(3)
As far as schools contemplated in subregulation (1)(b) are
concerned –
(a)
…
(b)
and for the purpose of sub-regulation1(b)(i), all those
schools that do no have access to any form of power supply, water
supply
or sanitation must be prioritised;”
[137]
The applicant’s complaint is that sub-regulation 4(3)(b)
read with 4(1)(b)(i) does not make it clear how schools that do not
have access to any form of power supply, water supply or sanitation
are to be ‘prioritised’, and what is meant by that
term,
in particular, whether these defects have to be eradicated within the
three year timeframe.
[138]
Applicant submitted that the Minister had indicated that the
intention was that these schools should be brought into
compliance
with the norms and standards (presumably as regards power
supply, water supply and sanitation) within three years of the date
of
publication of the regulations. It argued that however, there is
lack of clarity in this regard reading these regulations as they
stand. This
l
ack of clarity
undermines the right to a basic education, equality and dignity in
that these sub-regulations do not provide clearly
for the material
deficiencies in such schools to be addressed within three years or at
all.
[139]
The applicants sought the following relief:
“
5.
Declaring that regulation 4(3)(b) read with regulation 4(1)(b)(i) of
the Regulations
is to be read as requiring that all schools that do
not have access to any form of power supply, water supply or
sanitation, must
within a period of three years from the date of
publication of Regulations, comply with the norms and standards
described in regulations
10, 11 and 12 of the Regulations;”
[140]
The Minister’s response in her affidavit was that it should
be borne in mind that the services that are required in
sub-regulation
4(3)(b) are outside her scope of services.
Therefore, the IGF Act is applicable. In terms of this Act other
state departments
should be consulted in deciding on the provision of
these services.
[141]
Mr
Erasmus SC argued that this Court is enjoined from granting the
relief sought here. He referred to
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012(6) SA 223 (CC)
[12]
where the Constitutional Court cautioned that courts should be
circumspect and ensure that they do not make orders that would
trench, inappropriately, on the domains that the Constitution has
allocated to other organs of state. He also referred to
the
description of the role of the courts provided in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012(4)
SA 618 (CC)
where
the following was said:
“
[95]
Where the Constitution or valid legislation has entrusted specific
powers and
functions
to a particular branch of government, courts may not usurp that power
or function by making a decision of their preference.
That would
frustrate the balance of power implied in the principle of separation
of powers. The primary responsibility of a court
is not to make
decisions reserved for or within the domain of other branches of
government, but rather to ensure that the concerned
branches of
government exercise their authority within the bounds of the
Constitution. This would especially be so where the decision
in issue
is policy-laden as well as polycentric.”
I
Regulations 4(1)(a) read with 4(2) (schools and improvements
which are excluded
[142]
Regulation 4(2)(a) provides “
New schools and additions,
alterations and improvements to schools excluded from subregulation
1(a) are those of which the planning
and prioritisation within the
current 2013-14, 2014-15 and 2015-16 MTEF cycle have already been
completed. (b) The plans and prioritisation
of the schools
contemplated in paragraph (a) must, where possible and reasonably
practicable, be revised and brought in line with
these regulations."
[143]
Regulation (4)(3) of the norms and standards entitled “
Scope
and application”
states that
: “[t]hese regulations
apply to all schools.”
[144]
In explaining the issue regarding these regulations, Mr Budlender
SC referred to the founding affidavit where the applicant dealt
with
the explanation of the Minister that certain schools have already
been planned and budgeted for within the three year Medium
Term
Expenditure Framework cycle (hereinafter referred to as (“MTEF”)
for the period 2013 to 2016 in the form of User
Asset Management
Plans
(hereinafter referred to as “the
U-AMPs”). He then pointed out that the Immovable Asset
Management Act requires National
and Provincial departments which use
or intend to use immovable assets in support of their service
delivery objectives, to prepare
U-AMPs. (Section 6(1)(b) read with
the definition of “user” in section 1). These plans
must (in the case of provincial
departments) be submitted to
provincial treasuries on a date determined by such treasuries.
[145]
Mr Budlender SC also referred to
section 26(4)(a)(ii)
of the
Division of Revenue Act 2 of 2013
which provides that for purposes of
the EIG in the 2015/16 financial year, the accounting officer of the
provincial department
must submit to the National Treasury by 26 July
2013 a user management plan for all infrastructure programmes for the
financial,
next financial and 2015/16 financial years.
Section
26(4)(b)
provides that the National Treasury must, by 6 December
2013, notify the affected Provincial departments which infrastructure
programmes
and projects it will prose for full or partial
funding through the grant in the financial year in question.
[146]
He then submitted that the applicant understands therefore that
at the time of promulgation of the regulations, there were school
infrastructure projects which had already been planned and budgeted
for. The purpose of the exclusion appears to be to avoid
a
situation in which new schools and improvements are required to be
built in accordance with the norms and standards, which do
not
necessarily coincide with existing plans. In other words, the
intention seems to be to allow infrastructure delivery
to take place
in accordance with existing and budgeted plans.
[147]
The problem is that sub-regulation 4(2) entirely excludes from
the norms and standards, all new schools and additions, alterations
and improvements which are the subject of the MTEF plans. These
schools are not subject to the timeframes for infrastructure
delivery
stipulated in
regulation 4(1)(b).
The norms do not apply at all
to schools referred to in the MTEF plan. If the state plans for
a school in an MTEF period,
and that plan is not fulfilled, the
school remains totally excluded from the ambit of the Regulations.
The applicant contended
that this is arbitrary and irrational.
[148]
The applicant submitted further that
regulation 4(2)(b)
, which
requires that where possible and reasonably practicable the plans and
prioritisation of the schools contemplated in paragraph
9(a) be
revised and brought in line with the regulations, does not address
this concern because it does not say clearly enough
what must happen
in relation to future planning. There is no obligation on the
state to ensure that in future these schools
are dealth with
appropriately and in accordance with the norms and standards.
[149]
BEFA also attacked the sub-regulation 4(1)(b)(i)(ii)(iii)(iv);
4(3)(a);(b):(c);(d) because of the time frames stipulated therein.
Sub-regulation 4(1)(b)(i) sets 28 November 2016 as the
deadline for the replacement of the schools built entirely of mud;
asbestos
and wood and for the supply of power; water and sanitation
at schools.
Sub-regulation
4(1)(b)(ii) sets 28 November 2020 as the deadline for the
provision of sufficient electricity; water; sanitation;
electric
connectivity and perimeter security in all schools.
Sub-regulation 4(1)(b)(iii) sets 28 November 2023 as the deadline
for
libraries and laboratories; technology and life sciences in all
schools. All the other aspects are to be provided by 31 December
2010.
[150]
Its criticisms was that these deadlines all depend on the proviso
to
regulation 4(5)(a)
therefore, if the Minister does not have
resources and does not secure the cooperation of the other state
organs all these will
come to naught.
[151]
Also any litigant seeking to enforce its right in terms of these
regulations will be saddled with the burden of having to show that
the respondent does have the requisite resources. This takes
away the rights the norms and standards seek to protect.
[152]
Furthermore, there is no provision for schools with urgent needs
which fall to be ignored if they do not fall into the category
identified in subreguation 4(3). The respondent does not explain why
such schools are excluded. It argued that nothing precludes
the
Minister from making provision for temporary emergency relief pending
the provision of permanent solution so that at least
immediate threat
is eliminated such as mobile class rooms and mobile toilets.
J
Sub-Regulation 4(6) and 4(7)
[153]
In assailing these sub-regulations, the applicant proceeded from
the premise that mproving transparency and accountability in the
provision of school infrastructure has always been at the heart of
the applicant’s campaign for minimum norms and standards.
The norms and standards ought to facilitate participatory democracy
and grassroots accountability by enabling communities, learners,
educators, civil society organisations and the public at large to
know what their rights are, and what they are entitled to require
of
government. This is a necessary element of a reasonable
programme.
[154]
The Minister and the MEC’s seem to take the view that they
are not obliged to make the plans publicly available. The
applicant pointed out, that the provincial plans which had to be
provided to the Minister by 29 November 2014 were (with the exception
of the Limpopo plan) made publicly available almost seven months
later, in June 2015. The Limpopo plan was made available
long
after that. The provincial plans were only made publicly
available after sustained requests and activism by the applicant.
[155]
To date, the provincial implementation reports and updated plans
have not been made available, despite request by the applicant.
[156]
Denying the public access to these plans and reports has the
result that school governing bodies, educators, parents and learners
are prevented from knowing what their rights are, knowing what
progress has been made and knowing what will be done in future and
when it will be done. They are unable to monitor whether the
state is complying with its commitments. They are prevented
from engaging effectively with the state in this regard.
[157]
The applicant also challenged the Minister’s response that
school’s governing bodies will have sight of the plans and
reports made in terms of these su-regulations. It pointed out even
historically these governing bodies were never furnished with
such
plans and reports.
[158]
For this reason and the reasons given above, the applicant sought
the following relief:
“
7
Declaring that
Regulations 4(6)(a)
and
4
(7) are unconstitutional and
invalid to the
extent that they do not provide
for the plans and
reports to be made available to the public
8.
Directing the Minister to amend the Regulations to provide that the
plans and
reports submitted in terms of
regulations 4(6)(a)
and
4
(7)
of the Regulations must be made publicly available within a
stipulated period of their having been submitted to the Minister,
which period must be reasonable;”
[159]
Mr Erasmus argued that these regulations are borne out of
sections 5A
and
58C
of SASA. The main rationale of 58C is that
any plans and reports prepared by the Members of Executive Councils
will be informed
by inputs from school governing bodies which consist
of the school principals; teachers; parents and members of the
community concerned.
The applicant ignores the pivotal role of the
school governing bodies in the public schools and that these bodies
are elected and
constituted in a democratic and participatory manner
to advance the legitimate interests of learners at a school.
[160]
To drive the point home about the significance of governing
bodies Mr Erasmus SC referred to
Rivonia Primary School and
Another v MEC for Education: Gauteng Province and Others
2013
(1) SA 632
(SCA) at paragraphs 28 to 29.In paragraph 29 of this case
the Supreme Court of Appeal had this to say about school governing
bodies:
“
[29]
A governing body
stands in a position of trust towards the school
.
It
promotes the school’s best interests and strives to ensure its
development by providing quality education to the learners
..
Implicit
in this model of governance is an acceptance on the lawmaker’s
part that the state cannot provide all the resources
for the proper
functioning of a high quality schooling system. So governing bodies
are enjoined to ‘take all reasonable measures
within [their]
means to supplement the resources supplied by the State in order to
improve the quality of education provided by
the school.
[161]
He thus argued that therefore, there is no basis for the
applicant’s argument that the regulations contain no mechanism
for
making plans and report available to the public.
THE
LAW APPLIED TO THE FACTS
[162]
It is
axiomatic that the exercise of all public power must comply with the
Constitution, which is the supreme law, and the doctrine
of legality,
which is part of the rule of law.
[13]
[163]
In the preamble of the Constitution, the people of South Africa
declare their recognition of the injustices of the past, and commit,
through their freely elected representatives, to adopt the
Constitution so as to heal the divisions of the past and establish
a society based on democratic values, social justice and fundamental
rights, improve the quality of life of all the citizens of the
Republic of South Africa. Section 1(a) enunciates the founding
principles of the democratic South Africa, namely, human dignity, the
achievement of equality and the advancement of human rights
and
freedoms.[
own underlining]. These values inform and give
substance to all the provisions of the Constitution–see
Minister of Home Affairs v National Institute for Crime Prevention
and the Integration of Offenders(Nicro) and Others 2005(3) SA
280
(CC)
paragraph 21.
[164]
Section
1(c) of the Constitution makes the rule of law one of the founding
values of the Constitution. The constitutional
requirement of
rationality is an incidence of the rule of law. The rule of law
requires that all public power must be sourced
in law
[14]
.
In
Law
Society of South Africa and Others v Minister of Transport and
Another
2011
(1) SA 400
(CC) Moseneke DCJ (as he then was) held that this means
that state action exercises public power within the formal bounds of
the
law. Thus, when making law, the legislature is constrained
to act rationally. It may not act capriciously or arbitrarily.
It must only act to achieve a legitimate government purpose.
Thus, there must be a rational nexus between the legislative
scheme
and the pursuit of a legitimate government purpose. The
requirement is meant to “
to
promote the need for governmental action to relate to a defensible
vision of the public good and to enhance the coherence and
integrity
of legislative measure.”
[165]
Section 7, first section in Chapter 2, the Bill of Rights
states: “(1)This Bill of Rights is a cornerstone of
democracy
in South Africa. It enshrines the rights of all
people in our country and affirms the democratic values of human
dignity,
equality and freedom. (2) The State must respect, protect,
promote and fulfil the rights in the Bill of Rights.
[166]
The rights entrenched in the Bill of Rights include equality,
dignity, and various other human rights and freedoms, one of which
is
that everyone has the right to a basic education – see section
29(1).
Section 28 deals with the rights
of children. Section 28(3) stipulates: “
A child’s
best interests are of paramount importance in every matter concering
the child.
”
[167]
In
Fedsure Life Assurance Ltd v Greater Johannesburg
Transitional Metroplitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) the
Constitutional Court held that a body exercising public power has to
act within the powers lawfully conferred upon it.
In
Pharmaceutical Manufacturers Association of SA: In re Ex
Parte President of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para
[20]
, that Court also held that the principle of legality also
requires that the exercise of public power should not be arbitrary or
irrational.
[168]
The National Government bears the overall responsibility of
ensuring the state’s compliance with the obligation in section
29 (1)(a). This right and the Constitution as the whole has
given birth to SASA. In its preamble, SASA reiterates
the
values in section 1 of the Constitution. It acknowledges the
need for a new natural system for schools which will redress
past
injustices in educational provision, uphold the rights of learners,
parents and educators and promote their acceptance of
responsibility
for the organisation, governance and funding of schools in
partnership with the state.
[169]
In
Government of the Republic of South Africa and Others v
Grootboom and Others
2001 (1) SA 46
the Constitutional
Court held that it is fundamental to an evaluation of the
reasonableness of state action that account be taken
of the inherent
dignity of human beings. The Constitution will be worth
infinitely less than the paper it is written on if
the reasonableness
of state action is determined without regard to the fundamental
constitutional value of human dignity.
Under the constitutional
order, the recognition and protection of human dignity is a
foundational value – see section 1 of
the Constitution.
In
Dawood and Others v Minister of Education and Others;
Shalabi and Another v Minister of Home Affairs and Others ; Thomas
and
Another v Minister of Home Affairs and Others 2000(3) SA 936 (CC
)
at paragraph 35 the following was held:“
The value of dignity
in our Constitutional framework cannot…..be doubted. The
Constitution asserts dignity to contradict
our past in which human
dignity for black South Africans was routinely and cruelly denied. It
asserts it too to inform the future.”
[170]
Of
course it is indisputable that basic school infrastructure plays a
significantly high role in the delivery of basic education.
The
right to basic education, is distinguishable from the other socio-
economic rights in the Constitution: the right
to the
have access to adequate housing;
[15]
health care services, including productive health care;
[16]
sufficient
water and food
[17]
and social
security.
[18]
These
rights, unlike the right to basic education, all contain internal
qualifiers which state that “the state must
take reasonable
legislative and other measures, within its available resources, to
achieve the progressive realisation of these
rights.
[19]
[171]
The
Constitutional Court had occasion to address itself to the purport of
the right to basic education in
Governing
Body of the Juma Musjid Primary School and Others
v
Essay N.O. and Others
2011
(8) BCLR 761
(CC)
.
In guiding its way to the correct answer, the Constitutional Court
considered, amongst others, international instruments.
It
quoted, with approval how the right to basic education is defined in
the International Covenant on Economic, Social and Cultural
Rights
(“the ICESCR) Nkabinde J then quoted what is contained in
General Comment 13 of this instrument where the following
is held:
“
Education
is both a human right in itself and an indispensable means of
realizing other human rights. As an empowerment right, education
is
the primary vehicle by which economically and socially marginalized
adults and children can lift themselves out of poverty and
obtain the
means to participate fully in their communities. Education has a
vital role in empowering women, safeguarding children
from
exploitation and hazardous labour and sexual exploitation, promoting
human rights and democracy, protecting the environment,
and
controlling population growth. Increasingly, education is recognised
as one of the best financial investments States can make.
But the
importance of education is not just practical: a well educated,
enlightened and active mind, able to wander freely and
widely, is one
of the joys and rewards of human existence.”
[172]
At paragraph 37,
it
Court held:“
It is important, for the purpose of this
judgment, to understand the nature of the right to ‘a basic
education’ under
section 29(1)(a). Unlike some of the other
socio- economic right, this right is immediately realisable. There is
no internal limitation
requiring that the right be ‘progressively
realised’ within ‘available resources’ subject to
‘reasonable
legisltive measures’. The right to
basic education in section 29(1)(a) may be limited only in terms of
the law of general
application, which is ‘reasonable and
justified in an open and democratic society based on human dignity,
equality and freedom’.
This right is therefore distinct from
the right to ‘further education’ provided for in section
29(1)(b).The state os,
in terms of that right, obliged, through
reasonable measures, to make further education ‘progressively
available and accessible’.
[173]
In
Juma
Musjid,
the Constitutional Court also took
cognisance of section 3(1) of SASA which makes school attendance
compulsory for learners between
the age of seven to 15 years or until
the learner reaches the ninth grade, which ever occurs first.
Section 3(3) further
enjoins the respondent to ensure that there are
enough school places so that every child in each province attends a
schooll as
required by section 3(1). The Constitutional Court
then stressed that these statutory provisions which make school
attendance
compulsory for learners from the age of seven to 15, read
with the entrenched right to basic education in the Constitution
signify
the importance of the right to basic education for the
transformation of our society. It further held that the
importance
of the right to basic education is also foreshadowed by
the fact that any failure by a parent to cause a child to attend
school
renders that parent guilty of an offence and liable, on
conviction, to a fine or imprisonment for a period not exceeding six
months.
Further more any person, who, without just cause, prevents
a learner who is subject to compulsory attendance from attending
school is also guilty of an offence and liable on conviction to a
fine for a period not exceeding six months.
[174]
This
dictum was also followed by the Supreme Court of Appeal in
Minister
of Basic Education and Others v Basic Education For All and
Others
2016 (4) SA 63
(SCA)
.
[20]
The Supreme Court of Appeal held:
“
[36]
In JumaMusjid
[6]
the
Constitutional court compared s 29(1)(a) to other socio-economic
rights, for example, the right to housing under
s 26 of the
Constitution. Section 26(2) provides that the State ‘must take
reasonable legislative and other measures, within
its available
resources, to achieve the progressive realisation of this right’.
Section 29(1)(a) has ‘no internal
limitation requiring
that the right be “progressively realised” within
“available resources” subject to
“reasonable
legislative measures”.’ The Constitutional Court stated
emphatically that the right to a basic education
entrenched in s
29(1)(a) is ‘immediately realisable’ and may only,
in terms of s 36(1) of the Constitution, be
limited in terms of a law
of general application that is ‘reasonable and justifiable in
an open and democratic society based
on human dignity, equality and
freedom’.
[37]
The right in s 29(1)(a) is distinct from the right to ‘further
education’ provided for in s 29(1)(b). In Juma
Musjid, the
Constitutional Court considered it important that the legislature, in
recognising the distinction between ‘basic’
and ‘further
education’, made attendance at school compulsory in terms of s
3 of SASA for learners from the age of
seven until the age of 15 or
until he or she reached the ninth grade, whichever occurred
first.
[8]
The
Constitutional Court took the view that the aforesaid statutory
provision, read with the entrenched right to basic education
in s
29(1)(a) of the Constitution, indicated ‘the importance of
the right to basic education for the transformation
of our
society’.
[9]
In Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
[2009]
ZACC 32
;
2010
(2) SA 415
(CC),
the Constitutional Court recognised the importance of education in
redressing the entrenched inequalities caused by
apartheid and its
significance in transforming our society. Moseneke DCJ said the
following: (paras 45-47)
‘
Apartheid
has left us with many scars. The worst of these must be the vast
discrepancy in access to public and private resources.
The cardinal
fault line of our past oppression ran along race, class and gender.
It authorised a hierarchy of privilege and disadvantage.
Unequal
access to opportunity prevailed in every domain. Access to private or
public education was no exception. While much remedial
work has been
done since the advent of constitutional democracy, sadly, deep social
disparities and resultant social inequity are
still with us.
It
is so that 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.’”
[21]
[footnotes
ommitted]
[175]
Similarly in
Madzodzo and Others v Minister of Basic
Education and Others 2004(3) SA 441 (ECM)
this Court followed
suitwhere the following was held:
”
19
Access to schools is, therefore a necessary
condition for the achievement of the right to education. So too is
the provision of
teaching and non-teaching staff (see Centre for
Child Law and Others v Minister of Basic Education and Others
(National Association
of School Governing Bodies as amicus curiae)
[2012] 4 All SA 35
(ECG) at para 32) and the provision of adequate
teaching resources. Our own history demonstrates the role that
education plays
in shaping social and economic development. Apartheid
education has left a profound legacy, not only in the unequal and
inadequate
distribution of resources but in the appalling levels of
literacy and numeracy still found in the general population as a
consequence
of decades of unequal and inadequate education. As noted
in JumaMusjid (at para 42):
“
The
inadequacy of schooling facilities, particularly for many blacks was
entrenched by the formal institution of apartheid, after
1948, when
segregation, even in education and schools in South Africa was
codified. Today, the lasting effects of the educational
segregation
of apartheid are discernible in the systemic problems of inadequate
facilities and the discrepancy in the level of
basic education for
the majority of learners.”
“
[20]
The state’s obligation to provide
basic education as guaranteed by the Constitution is not confined to
making places available
at schools. It necessarily requires the
provision of a range of educational resources: - schools, classrooms,
teachers, teaching
materials and appropriate facilities for learners.
It is clear from the evidence presented by the applicants that
inadequate resources
in the form of insufficient or inappropriate
desks and chairs in the classrooms in public schools across the
province profoundly
undermines the right of access to basic
education.”
[176]
Furthermore,
it is that case that, as acknowledged by the respondent, that
this right is multi-faceted, it includes the provision
of proper
facilities
[22]
. The
Constitutional Court has consistently rejected an approach that a
minimum core content could be read into a constitutional
right
[23]
.
[177]
The reliance of the respondent on the
Ermelo
case is
clearly wrong. The Ermelo case dealt with section 29(2) of the
Constitution which confers on the learners the right to receive
basic
education in the language of their choice “
where that
education is reasonably practicable”
. Its text is different
from that of section 29(1) which does not contain internal modifiers.
[178]
The stance of the Minister to simply rely on budgetary
constraints does not save her. In the
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another 2012 (2) SA 104 (CC)
paragraph 74 the Court had this
to say:
“…
.This
Court’s determination of the reasonableness of measures within
available resources cannot be restricted by budgetary
and other
decisions that may well have resulted from a mistaken understanding
of constitutional or statutory obligations. In other
words, it is not
good enough for the City to state that it has not budgeted for
something, if it should indeed have planned and
budgeted for it in
the fulfilment of its
obligations.”
[179]
This approach was followed in
Madzodzo
by this Court where
Goosen J held: “This court’s determination of the
reasonableness of measures within available resources
cannot be
restricted by budgetary and other decisions that may well have
resulted from a mistaken understanding of constitutional
or statutory
obligations. In other words, it is not good enough for the city
to state that it has not budgeted for something,
if it should indeed
have planned and budgeted for it in the fulfilment of its
obligations.”
[180]
In determining this issue I must therefore consider what is at
stake: the right to basic education which is a right that is
unarguably
immediately deliverable; the situation on the grounds as a
result of failure by the
M
inister to
deliver this right and the consequences of the delay.
[181]
In this case the respondent simply pleads: it does not have
access to money, money is with other state organs. Also it depends of
other state organs for the revision of what is need for the school
infrasture. Section 41 of the Constitution compels it
to
co-ordinate its efforts with other state organs and her ability to
deliver depends of the co-operation of those state organs
and
government departments. Put in another way, the
respondent is paralysed, its limbs are cut –it is helpless.
Therefore, because of this, the proviso in sub-regulation 4(5)(a)
must be retained. Equally, because of this restraint, the
MEC
cannot be required to make their plans for provision of basic school
infrastructure public. Also cannot be compelled to report
on those
plans, hence the terms of sub-regulation 4(6)(a) and 4(7). The
issues raised here are also found with regards to
her response to the
prioritisation of schools with no power; sanitation or water dealt
with in sub-regulation 4(3)(b) read with
4(1)(b)(i)
[182]
As I understand the argument put forward by the Minister, her
hands are tied. To me this means that she is at the mercy of
the other departments and organs of State. This simply
compromises the constitutional value of accountability. There
is no way that the Government can be held accountable for the
discharge of its duty to provide basic school infrastructure.
Therefore, because the provision of basic basic infrastructure
is indisputably integral component of the right to basic education,
it means Government cannot be held to account.
[183]
Section 195(3) of the Constitution expressly provides that
national legislation must ensure the promotion of accountability and
transparency. National legisltation includes subordinate
legislation in terms of the Act Parliament.
[184]
The natural consequence flowing from the stance of the Minister
is that Government can never be expected to account. Furthermore,
it
means that the public cannot ascertain whether, when and what school
infrastructure to expect. Members of the public can also
not assist
in drawing the attention of the Government to errors in the
implementation of the scheduled programmes. The public
is
hamstrung by this.
[185]
I cannot fathom a reason why, given the nature of the right in
question, and the abundant crisis, the respondent cannot develop a
plan and allocate resources in accordance with her obligations. In
the event that she alleges that she is unable to do so, it is
incumbent upon her to justify that failure under section 36 or
172(1)(a) of the Constitution. This she has not done.
[186]
I have also considered paragraph 35 in
Minister of Home
Affairs v Nicro
relied upon by the Minister in holding that it
would be irresponsible for her to promulgate norms and standard
without adding the
condition in 4(5). Relying on paragraph 35
to justify her stance that argued that she does not bear
responsibility to provide
any empirical evidence or proof to justify
that the proviso in regulation 4(5) is reasonable. This stance
loses sight of
the fact that these regulation
s
were born to give effect to the right of basic education.
Where they do not give life to that right surely the Minister bears
an
obligation to proffer some justification. The stance she has
adopted is a dismissive stance which cannot be countenanced. Even
worse, the facts upon which the minister will advance to justify
these regulation
s
are within her
knowledge. In
Moise v Greater Germiston Transitional Local
Council: Minister of Justice and Constitutional Development
Intervening (Women’s
Legal Centre as
amicus curiae)
2001(4) SA 491 (CC)
paragraph 19 the court held:
“
It
is also no longer doubted that, once a limitation has been found to
exist, the burden of justification under section 36(1) rests
on the
party asserting that the limitation is saved by the application of
the provisions of the section. The weighing
up exercise is
ultimately concerned with the proportional assessment of competing
interests but, to the extent that justification
rests on factual
and/or policy considerations, the party contending for justification
must put such material before the court. It
is for this
reason that the government functionary responsible for legislation
that is being challenged on constitutional grounds
must be cited as a
party. If the government wishes to defend the particular
enactment, it then has the opportunity —
indeed an obligation —
to do so. The obligation includes not only the submission
of legal argument but placing
before court the requisite factual
material and policy considerations. Therefore, although
the burden of justification
under section 36 is no ordinary onus,
failure by government to submit such data and argument may in
appropriate cases tip the scales
against it and result in the
invalidation of the challenged enactment.”
[187]
The stance of the Minister in this case, namely that the
government’s efforts are hamstrung by the lack of adequate
resources,
budget and reliance on other state organs was also relied
on in
Madzodzo
. In that case, the Court rejected
it on the basis of the norms and standards determined for the public
schools. In
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005(2) SA 359 (CC
) in confirming that accountability
of one of the founding principles binding on the state it the held:
“
[75]
The value of accountability is thus expressly mentioned in a range of
provisions in the Constitution. As importantly,
however, the
value is asserted within the scheme of the Bill of Rights. The
Bill of Rights requires that where an entrenched
right is limited,
that limitation may be constitutionally permissible if it is
“reasonable and justifiable in an open and
democratic society
based upon human dignity, equality and freedom”.Section 36(1),
therefore, requires the state, or any person
asserting that a
limitation of a right falls within the provisions of section 36(1),
to show that the limitation is reasonable
and justifiable. It
is one of the objects of the Bill of Rights to require those limiting
rights to account for the limitations.
The process of
justifying limitations, therefore, serves the value of accountability
in a direct way by requiring those who
defend limitations to explain
why they are defensible. The value of accountability,
therefore, is one which is relevant to
a consideration of the
“spirit, purport and objects of the Bill of Rights”.
[76]
The value of accountability is asserted not only for the state, but
also for all organs of state and public enterprises which
would
include all four respondents. The principle that government,
and organs of state, are accountable for their conduct
is an
important principle that bears on the construction of constitutional
and statutory obligations, as well as on the question
of the
development of delictual liability.
[188]
Regarding the proritisation she has given to schools that are
built entirely with mud; materials such as asbestos, metal and wood,
her stance is that this is within her discretion. In the exercise of
her discretion it is the schools in this category that are
priorities
for replacement of their structures with those that comply with the
National Building regulations, SANS 10-400 of the
Health and Safety
Act. So, the sub-regualtions 4(3)(a) read with sub-regulation
4(1)(b)(i) should be retained as they are.
[189]
The undisputed testimonies amassed by the appellant and BEFA show
that the dangerous and unsafe conditions are not only limited to
the
schools that the Minister has prioritised in her regulations.
These conditions are also found in those schools
that only have part
of the structure built of mud and these other materials. The
testimonies show that the learners and educators
who use these
structures daily confront the risk of injuries and death. That
most of the times no effective learning actually
takes place in these
structures. The Minister did not present any information to
counter these allegations.
[190]
From the information presented to Court, it is clear that these
schools are targetted because of they are built in structures that
constitute both health and safety and other environmental hazards for
their users. The Minister acknowledged the existence of the
risks in
those schools in the oter schools as well. Yet, her response is
that the Court must defer to the exercise of her
discretion.
[191]
The Minister’s response response does not assist the Court
in that this Court does not know what being “prioritised”.
[192]
The Minister’s response also does not assist because by her
reliance on the exercise of her discretion in response to this
challenge she has not explained why the other schools should also not
fall into the prioritised list in light of the impact of
their
conditions. The Minister did not put any rational basis
for the distinction she has drawn. The fact of
the matter is:
an unsafe structure poses the same risk to learners and teachers
whether there are also some safe structures at
the school.
[193]
The same criticism is found regarding the provisions of
sub-regulation 4(2)(b) which deals with new schools and improvements
to
existing schools. The effect of regulation 4(1)(a) read with 4(2)
is to exclude currently budgetted schools from the norms and
standards. This is glaring inconsistency that has also not been
explained by the Minister.
[194]
The crude and naked facts stairing us are that each day the
parents of these children send them to school as they are compelled
to, they expose these children to danger which could lead to certain
death. This is fate that also stares the educators and
other
caregivers in the schools in the face.
[195]
The obligation upon the respondent to provide basic education has
been in existence since 1996 when the Constitution was born, 22
years
ago. Thus the respondent has had adequate time to plan and
budget for all its duties in respect of the right to basic
education. Even accepting that apartheid left gaping
disparities and wide gap in education infrastructure, with the
proviso
in sub-regulation 4(5)(a) there is no hope that such a gap
will ever be closed or if so to a significant extent. The proviso
provides
the respondent with a lifetime indemnity against discharging
the duty she owes in terms of section 29(1)(a).
[196]
The natural consequence flowing from the stance assumed by the
Minister is that she cannot make any commitment regarding the basic
norms and standards for the infrastructure in public schools.
This is unpalatable given that the requirement here is for
a minimum
requirement for basic infrastructure nothing more nothing less. It is
also inconsistent with the Constitution.
[197]
In
Rail Commuters
supra,
the Court held that
the Constitution affirms accountability as a value and requires
reasonable steps be taken by the relevant organs
of state to comply
with their legislative and constitutional obligations. Our Courts
have always rejected the reliance on budget
contraints as a
justification for failure to provide essentials.
[198]
In response, whilst resisting the relief sought by the applicant,
the respondent offers absolutely nothing. This is untenable.
There is an incongruence manifested by the acceptance on the one hand
of the reality of the substandard public school infrastructure
and the inherent dangers created thereby on the other hand, not
offering anything. This open-ended approach is unreasonable and
thus
unacceptable.
[199]
The interpretation of section 40 and 41 of the Constitution that
the respondent contended for also cannot be sustained. It cannot
core
exist with the values enunciated in the Constitution. The
situation confronting the minister with regards to the need
for
resources to discharge its responsibility is not unique to her.
There is interdependence in government. The members
of the
public owed a duty by government must be secured in the knowledge
that government is driven by the values in the Constitution.
Every
section in the Constitution should be read against those values.
[200]
Over and above this, in the present case, the Court order of 2013
required that the Minister should consult with her stakeholders
prior
to the development of the regulations. The obvious puport of
that term in the order is that the regulation should provide
a final
document of commitments by the Minster against which she would be
held accountable. The respondent did not proffer
any
explanation in this regard. It was content with just arguing that the
judgment is no longer in issue. Even section 5C of SASA
requires her
to consult with the Minister of finance in coming up with the
regulations.
[201]
Regarding the relief that this court can give I have considered
section 172 of the Constitution. Section 172 gives the
Court power to adjudicate upon matters in which there is violation of
the Constitution. In
AllPay Consolidated Investment
Holdings (Pty) Ltd v CEO, South African Social Security Agency and
Otheres
2014 (4) SA 179
(CC)
at para [42], the court
held:
“
There
can be no doubt that the separation of powers attributes
responsibility to the courts for ensuring that unconstitutional
conduct is declared invalid and that constitutionally mandated
remedies are afforded for violations of the Constitution. This
means that the Court must provide effective relief for infringements
of constitutional rights. On this basis, there can be no question
that requiring SASSA to re-run the tender falls squarely within this
Court’s remit. What the public lost in the flawed
tender
process was the chance to secure a contract with the most competitive
and cost-effective tenderer, as the merits judgment
explained.”
[202]
Furthermore, in
Rail Commuters
at paragraph [108]
the Court regarded declaratory relief of particular value, in that it
allows the Court to declare the law, while
leaving the decision as to
how best to observe the law in the hands of the executive and
legislature. Therefore, this Court
can declare invalid any law
or conduct inconsistent with the Constitution to the extent of such
inconsistency. The relief
sought by the applicant is competent
under section 172 of the Constitution.
COSTS
[203]
This case is about the assertion of the right to basis education
stipulated in section 29 of the Constitution. In
Biowatch
Trust v Registrar Generic Resources and Others
2009 (6) SA 232
(CC) the Costittutional Court set out the applicable rule as follows:
“
the general rule for an award of costs in consitutional
litigation between a private party and the state if the private party
is
successful it should have its costs paid by the state and if it is
unsuccessful each party should pay its own costs.”
[204]
The applicant’s position is that the Court should follow
the lead of the Constitutional Court.
[205]
BEFA did not seek costs in respect of its application to
intervene. It sought costs associated with the answering
affidavit
and its supporting filed by the respondent in its late
answer to BEFA’s application for leave to intervene.
These affidavits
were filed just a week before the argument of this
matter, on 6 March 2018. In this affidavit they responded to
some of the
allegations contained in BEFA’s affidavit.
Then on the morning of the argument of this matter the Minister
sought the
condonation of the late filing of her answering affidavit.
[206]
BEFA had filed its affidavit accompanying its application to
intervene on 6 October 2016. The respondent consented to that
application. BEFA thus sought a punitive costs order against the
minister for the answering and supporting affidavit of the Minister.
[207]
The Minister challenged BEFA’s application for a costs
order against her. She argued that in the first place an
amicus
curiae
is not a litigant; secondly, BEFA was afforded an
opportunity to deal with the respondent’s affidavit subject to
the postponement
of this application. BEFA had rejected that
proposal.
[208]
Mr Erasmus SC then argued that as an
amicus curiae
BEFA is
not entitled to costs and had correctly not sought costs of its
application to intervene and it has no basis to seek the
costs of the
minister’s answering affidavits. Equally, they also have
not opposed the admission of these affidavits.
[209]
I do not agree that BEFA should not recover the costs occassioned
by its having to respond to the belated opposition of the respondent
to its intervention in this matter.
THE
ORDER
1.
In the circumstances I grant an order in the following terms:
“
1.
Sub-
Regulation 4(5)(a)
of the Regulations Relating
to Minimum Uniform Norms and Standards for Public School
Infrastructure, 2013 (No. R. 920 in Government
Gazette 37081 of 29
November 2013) (“the Regulations”) is inconsistent with
the Constitution, the
South African Schools Act 84 of 1996
(“SASA”)
and the order granted on 11 July 2013 by Dukada J in this Court under
case number 81/2012, and is accordingly
unlawful and invalid;
2.
Sub-Regulation 4(3)(a) read with
regulation 4(1)(b)(i)
of the
Regulations
should read that
all
schools and classroom
built substantially from mud as well as those built substantially
from materials such as asbestos, metal
and wood, must within a period
of three years from the date of publication of the Regulations, be
replaced by structures which
accord with the Regulations, the
National Building Regulations, SANS 10-400 and
Occupational Health
and Safety Act 85 of 1993
;
3.
Sub-Regulation 4(3)(a) read with
regulation 4(1)(b)(i)
of the
Regulations:
(I)
is inconsistent with the Constitution and invalid insofar as it omits
to deal with schools which are built partly from mud,
asbestos, metal
and wood, must within a period of three years from the date of
publication of the Regulations, be replaced by structures
which
accord with the Regulations, the National Building Regulations, SANS
10-400 and Occupational Health and Safety Act 85 of
1993 (“OHSA”);
and
(II)
the word “
entirely”
whenever it appears in
regulation 4(3)(a) is struck out alternatively, the phrase
“
Schools built entirely”
is struck out wherever it
appears in regulation 4(3)(a), and is replaced with the words
“
classrooms built entirely or substantially”;
4.
Sub-Regulation 4(3)(b) read with regulation 4(1)(b)(i)
of the
Regulations is to be read as requiring that all schools that do not
have access to any form of power supply, water supply
or sanitation,
must within a period of three years from the date of publication of
Regulations, comply with the norms and standards
described in
regulations 10, 11 and 12 of the Regulations;
5
Sub-Regulation 4(2)(b)
of the Regulations is inconsistent with
the Constitution and invalid insofar as new schools and additions,
alterations and improvements
which are the subject of the MTEF plans
are not subject to the norms and standards set out in the
Regulations; and
6
Sub-Regulation 4(2)(b)
of the Regulations is to be read as
requiring that all current plans in relation to the schools and
projects contemplated in paragraph
(a) must, as far as reasonably
practicable, be implemented in a manner which is consistent with the
Regulations, and that all future
planning and prioritisation in
respect of these schools must be consistent with the Regulations;
7.
Sub-Regulations 4(6)(a) and 4(7)
are unconstitutional and
invalid to the extent that they do not provide for the plans and
reports to be made
available to the public;
8.
The Minister is to amend the Regulations to provide that the plans
and reports
submitted in terms of regulations 4(6)(a) and 4(7) of the
Regulations must be made publicly available within a stipulated
period
of their having been submitted to the Minister, which period
must be reasonable;
10.
Directing the first respondent to pay applicant’s the costs of
this application and
BEFA’s costs in opposing the
Minister’sapplication to exclude BEFA’s submissions.
N
MSIZI
Acting Judge of the
High Court
Representation:
For
the Applicant: Equal Education Centre: Mr Budlender SC
assisted by A Du toit
C/O
Gordon MacCune Attorneys
King
Williams Town
For
the
Amicus Curiae:
BEFA: Adv Stein C/O Gordong
MacCune Attorneys
King
Williams Town
For
the respondent: Mr MC Erasmus SC Assisted by: EM
Baloyi-Mere and J Merabe
[1]
This is in reference to
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others
(Treatment Action Campaign & another as amici curiae)
2006
(2) SA 311
(CC)
[2]
See Amalgamated Engineering Union v Minister of Labour
1949 (3) SA
637
(A) at 657 and 659; Gordon v Department of Health,
KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) at para 9
[3]
2012 (2) BCLR 150
(CC) at paragraph 45.
[4]
This
is Head of Department, Mpumalanga Department of Education and
Another v Hoerskool Ermelo and Another 2010(2) SA 415 (CC)
paragraph
61
[5]
At
para 32
[6]
Writ
petition (civil) no 483 of 2004, (2009) 6 SCC 398
[7]
Referred
to in paragraph 12
supra
[8]
At
paragraph [26
[1]
The regulation reads: “
Design considerations for all
education areas:18. (14) In the planning and design of all
schools contemplated in regulation
(4)(1)(a), school design must
comply with all relevant laws, including the National Building
Regulations, SANS 10- 400 and the
Occupational Health and Safety
Act, 1993 (Act No 85 of 1993).
[2]
[10]
Section
8(1) provides: ‘every employer shall provide and maintain, as
far as is reasonably practicable, a working environment
that is safe
and without risk to the health of his employees’.
[11]
At
paragraph 22
[12]
Referring to paragraph 44
[13]
See
Ryan Albutt v Centre for the Study of Violence and Reconciliation
and Others 2010(3) SA 293(CC) para 49 and the authorities
referred to therein.
[14]
Ex Parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC at para
[32]
)
[15]
Section
26(1) of the Constitution
[16]
Section
27(1)(a) of the Constitution
[17]
Section
27(1)(b) of the Constitution
[18]
Section
27(1)(c) of the Constitution
[19]
Section
26(2) and 27(2) of the Constitution
[20]
See
paragraph 17
[21]
References
omitted
[22]
Madzodzo at para [20]
[23]
Grootboom
supra
at para [32]-[33]; Minister of health v Treatment Action
Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) at para
[34]
; Mazibuko
supra
at
paras [52]-56]