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[2014] ZAGPPHC 251
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Basic Education For All and Others v Minister of Basic Education and Others (23949/14) [2014] ZAGPPHC 251; 2014 (4) SA 274 (GP); [2014] 3 All SA 56 (GP); 2014 (9) BCLR 1039 (GP) (5 May 2014)
IN THE GAUTENG
DIVISION OF THE HIGH COURT PRETORIA,
REPUBLIC OF SOUTH
AFRICA
CASE NO: 23949/14
In the matter
between:
BASIC
EDUCATION FOR ALL
……………………….............................…………
First
Applicant
SCHOOL GOVERNING
BODIES OF 29 SCHOOLS
IN
THE PROVINCE OF LIMPOPO
………..............................
Second
to Twenty- third Applicants
And
MINISTER
OF BASIC EDUCATION
……………….............................…………
..
First
Respondent
DIRECTOR-GENERAL
OF BASIC EDUCATION
……............................……
Second
Respondent
MEC,
DEPT OF EDUCATION, LIMPOPO
………………............................……
Third
Respondent
ACTING
HOD, DEPT OF EDUCATION,
LIMPOPO
……..............................…
Fourth
Respondent
HEAD
OF INTERVENTION TEAM, DEPT OF
EDUCATION,
LIMPOPO
…………………………………............................……
..
Fifth
Respondent
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION
……............................…
.
Sixth
Respondent
JUDGMENT
Tuchten
J:
1
This
case was called early in April 2014 in the urgent court. It stood to
enable papers to be filed. The weight of the paper thus
generated
made it impossible to hear the case in the urgent court. By special
allocation, it was set down for hearing on 22 April
2014. I heard
argument over two days.
2
The
first applicant (“Befa”) is a voluntary organisation
based in Limpopo. Its some 50 members seek to promote and protect
the
right to basic education for learners in Limpopo. It has links with
another voluntary organisation, Section27, some of whose
members are
practising lawyers and whose aim similarly is to promote education.
Befa was formed in 2012 in response to what the
main deponent to the
applicants’ founding affidavit calls the education crisis in
Limpopo.
3
The
second to twenty-third applicants (“the school applicants”)
are school governing bodies of public schools
[1]
in Limpopo. The schools in question are ail no-fee schools. So they
rely entirely on the department of education within the provincial
government of Limpopo (“the LDoE”) for the procurement
and delivery of textbooks and, indeed, all their other teaching
materials. The interests of Befa and
the
school applicants are coextensive. They were represented throughout
by the same counsel and attorneys. The only issue raised
which
affects the school applicants separately from Befa is a challenge to
the standing of the school applicants. It is unnecessary
to name or
distinguish between the school applicants, for reasons which will
ultimately follow.
4
The applicants’
complaint is that by the time this application was launched, 27 March
2014, several schools (“the 39
schools”) had not received
all of
their
textbooks for the school year 2014. The 39 schools are listed in an
annexure to the notice of motion. The applicants explain
that the
difference between the number of school applicants and the number of
the 39 schools is to be attributed to some schools’
reluctance
to litigate against the authorities. It is unnecessary to come to any
conclusions on this allegation.
5
It
is similarly generally unnecessary to distinguish between the several
respondents within spheres of government. I shall generally
refer to
them collectively as the DBE.
[2]
These,
the first to fifth respondents, were represented by the same counsel
and attorneys. The sixth respondent (“the SAHRC”)
is the
state institution which strengthens democracy referred to in ss 181
(1 )(b) and 184 of the Constitution.
6
In
its notice of motion, the applicants seek orders directed at
declaring the failure by the DBE to ensure the complete delivery
of
textbooks to all schools in Limpopo a violation of the Chapter 2
constitutional rights to basic education, equality, dignity
and ss
165(4) and 195 of the Constitution. The references to these latter
sections are directed at condemning what the applicant
claims are
failures to comply with certain orders granted in this court by
Kollapen J in earlier litigation between Section27 and
others as
applicants and certain DBE respondents.
7
About
a week before the case came up for argument before me, I suggested
that the parties might usefully identify the issues in
relation to
each of the affected schools at what would be a pre-trial conference
if this were a trial action. On the morning that
argument was due to
start, the parties decided to hold a pre-trial conference. A minute
was prepared. It identified the shortages
as at 22 April 2014 in
relation to the 39 schools as contended for by the applicants and the
DBE's version in relation to each
such allegation. The DBE’s
version was expanded upon in a further affidavit which I allowed and
which was put up without
objection on 23 April 2014, the second day
of argument.
8
The version of the DBE was supplied in a lengthy
answering affidavit and several supplementary affidavits. The
applicants also delivered
supplementary affidavits. No criticism
attaches to any of the parties in this regard. The application was
brought urgently and
the evidence adduced from time to time justified
further explanation and still further evidence. The state of delivery
of books
was further not static; deliveries took place while the
proceedings were pending and perhaps even while the case was being
argued.
This is because the DBE committed itself to delivering all
outstanding textbooks.
9
The
pre-trial minute proceeds to recite that the DBE undertook to deliver
the shortages as identified in the annexure to the minute
by 8 May
2014 in relation to those required for grades 7-9 and 12 and by 6
June 2014 in relation to the other grades.
10
The reason for the different dates is to be found
in the historical background to the case. As counsel for the
applicants pointed
out, there does not appear to be any problem with
the delivery of textbooks to learners in any province but Limpopo.
That province,
it seems, has special needs.
11
Historically, the textbook problem in
Limpopo has two causes. Firstly, beginning in 2012, the DBE decided
to implement a new curriculum.
Previously,
each province formulated its own curriculum. The new policy developed
was to replace the previous policy, called the
Revised National
Curriculum Statement (“RNCS)
[3]
with
the Curriculum and Assessment Policy Statement (“CAPS).The DBE
decided to implement CAPS in grades 1 to 3 and 10 in the
2012
academic year, grades 4 to 6 and 11 in the 2013 academic year and
grades 7 to 9 and 12 in the 2014 academic year. For this
purpose the
DBE developed a national catalogue identifying the approved
textbooks.
12
The
policy was intended to standardise education throughout South Africa,
An implication of the policy was that all previous textbooks
had to
be replaced as and when CAPS was implemented in the various grades.
This transition placed a great strain on the available
resources of
the DBE. In an effort to meet these challenges, the DBE decided to
give priority to the procurement of textbooks for
the grades in which
CAPS was to be implemented for the first time. The result, on the
ground, was that the DBE ran out of money
and started to fall behind
in the provision of textbooks. It could, as a matter of
practicalities, only remedy the deficiencies
when additional money
became available to the DBE after 1 April each year. That was when
money voted by Parliament for the annual
budgets became available.
13
I interrupt this narrative to observe that
much of the debate before me related to the extent, if any, to which
budget constraints
justified a failure on the part of the state to
fulfil constitutional obligations. This is a matter to which I shall,
of course,
return.
14
The
other historical cause for the textbook delivery problem was the fact
that through widespread fraud, corruption, incompetence
and perhaps
other reasons as well, the provincial government of Limpopo was
unable to fulfil a substantial part of its executive
obligations.
Section 100 of the Constitution provides that in such circumstances
the national executive may, after following a
procedure laid down in
the section, assume responsibility for the obligations of the
delinquent province and intervene to maintain
essential national
standards or meet established minimum standards for the rendering of
a service, maintain economic unity, maintain
national security or
prevent that province from taking unreasonable action that is
prejudicial to the interests of another province
or to the country as
a whole.
15
I
n
January 2012, the national executive concluded that the situation in
Limpopo warranted intervention and the constitutional process
to this
end was implemented apparently without opposition from the Limpopo
provincial government. One of the areas of responsibility
in which
the national executive intervened was basic education in the
province,
heretofore administered or, more appropriately, maiadministered by
the LDoE. An intervention task team was formed.
[4]
A troubling state of affairs within the LDoE was disclosed: supply
chain management systems within the LDoE were improperly managed;
the
LDOE had failed to order
any
learner/teacher support material for the 2012 academic year; the LDoE
had accumulated unauthorised expenditure in the amount of
R2,2
billion; the LDoE had overdue debts of R100 million; it was projected
that the LDoE would, but for the intervention, have
overspent its
budget for the 2012/2013 fiscal year by R283 million; certain schools
had not received any subventions of funds during
2011, with
predictably dire consequences for their day to day administration.
16
The tasks of those charged with rescuing
basic education in Limpopo were made more difficult when certain
private entities, to which
the LDoE had outsourced its executive
obligations in the sphere of basic education, emerged from the
woodwork. These entities,
one of which was called Educare, claimed
exclusive rights to perform certain of these functions and took
proceedings to interdict
the authorities from dealing with any other
body in the sphere in which each claimed a monopoly, pending a
leisurely ventilation
of the issues involved at a
later date,
Sad to say, some of these entities actually obtained interim relief.
It took time to meet and deal with these litigious
challenges and
diverted resources from the reconstruction task at hand.
17
The
DBE developed what it called catch up plans to deal with this
lamentable situation. But by May 2012, civil society, which hitherto
had displayed great tolerance of or perhaps indifference towards the
venality and incompetence of its elected representatives in
Limpopo
and their delegates, had had enough. On 4 May 2012, under case no.
24565/2012, Section27, a school
[5]
and
a private individual approached this court as a matter of urgency for
orders compelling the present first and third respondents
to provide
full textbook delivery and implementation of a catch up plan for
grade 10 learners.
18
The
matter was heard on 15 May 2012 before Kollapen J and on 17 May 2012,
the learned judge handed down his judgment. The order
of court which
issued at the hand of the learned judge declared that the failure of
the LDoE and the DBE to provide textbooks to
schools in Limpopo was a
violation of the rights to a basic education, equality, dignity, the
South African Schools Act, 84 of 1996
, and s 195 of the
Constitution.
[6]
19
The
LDoE alternatively (sic)
the
national Department of Basic Education was directed to provide
textbooks for grades R, 1,2, 3 and 10, commencing on 31 May 2012
and
concluding by no later than 15 June 2012. These dates were apparently
forecasts provided by the respondents. These forecasts
proved
unattainable and the decisions of the respondents to commit
themselves to their attainment unwise.
[7]
20
The order of Kollapen J of 17 May 2012 further required the
LDoE alternatively the national Department of Basic Education
immediately
to develop a catch up/remedial plan for “at least
affected Grade 10 learners in Limpopo”, specified certain
minima
which the plan was to contain and directed the LDoE
alternatively the national Department of Basic Education, by 8 June
2012, to
serve a copy of the plan on the then applicants and file it
in court and to submit monthly reports with regard to the
implementation
of the plan until 30 September 2012.
21
15 June 2012 came and went. The then applicants
moved the court urgently once more. It seems that despite the
brightest hopes of
all concerned, full delivery by that date had been
impossible. The parties then settled the matter. The then respondents
committed
themselves to a fresh date for delivery of textbooks for
grades R, 1, 2, 3 and 10, ie 27 June 2012, and to provide additional
training
resources for teachers to enable them to bring themselves up
to date with their tardily delivered teaching materials. The
respondents
undertook to provide progress reports to the applicants.
22
But even this later date was unattainable. The
then applicants placed the case on the roll before Kollapen J. On 4
October 2012
the learned judge issued a fresh order. The date for
completion of the 2012 textbooks was extended to 12 October 2012. The
order
made it plain that there was no finding on the respondents’
justification for their non-compliance. Provision was made in
the
order for this aspect to be ventilated. The respondents were ordered
to deliver and did deliver affidavits. As far as I can
make out, the
issue of the 2012 textbooks was left where it lay on 4 October 2012,
until reference was made to the 2012 orders
in these proceedings.
23
The applicants’ case is that textbook delivery improved
in 2013 but was not completed. The DBE’s case is that there
were shortfalls in deliveries in relation to textbooks required for
the 2013 academic year but that these were rectified. No relief
is
sought in respect of textbooks required for the 2013 academic year
directly relating to books which should have been delivered
but
allegedly were not. This is hardly surprising as that year has
passed. Certainly there was no litigation in relation to these
books.
Nor is there any contemporaneous correspondence before me complaining
of failures to deliver the 2013 books.
24
But by email dated 15 January 2014, Ms Stein, the attorney for
the applicants, wrote to an official within the DBE to say that
We have received
reports from a number of schools of textbook shortages. I just wanted
to find out who I should forward these reports
to? The schools have
reported the shortages to the Department but have asked us to do the
same. I have compiled a list of shortages
at about 40 schools. Are
you still the point person on this issue?
25
It
seems that Ms Stein had acted for Section27 and the other applicants
in the litigation before Kollapen J. It is clear from the
correspondence that there was a cordial professional relationship
between Ms Stein and Mr Subban.
[8]
26
Mr
Subban responded the next day. The gist of his reply was that
shortages had been reported and were being attended to:
Where
stock was not available, orders have already been placed and
publishers are presently delivering to the warehouse.
27
Further
correspondence ensued. By 16 January 2014, 21 schools had reported
shortages to Section27. Ms Stein sent Mr Subban a list
of the schools
in question with the shortfalls report. In an email dated
25
January 2012, Ms Stein wrote to say that certain
of the schools reporting shortages did not receive their full quotas
of books in
2012 and 2013. By 17 January 2014 the number of schools
claiming short deliveries had grown to 24. Mr Subban wrote to say
that
he appreciated Ms Stein’s help. He asked for further
information to “expedite verification and remediation”.
28
By
31 January 2014, the number of schools on the list had grown to 26.
The list of that date identified, as had the lists that preceded
it,
the subjects in which there had been short delivery and the
quantities required by each school. Mr Subban continuously expressed
his appreciation for Ms Stein’s efforts and the information she
supplied. It was not suggested that Subban was insincere
in this
regard or that he did not reflect the attitude of the DBE.
29
By 11 February 2014, the
list had grown to 32 schools which claimed that they had not received
their books for 2014. By 25 February
2014, the list had in fact
shrunk to 30 schools but Ms Stein, understandably, expressed concern
in an email of that date to Mr
Subban that delays were being
experienced in addressing these shortages. On 31 January 2014, Mr
Subban responded to Ms Stein, thanking
her for her assistance and
promising to “investigate and remediate”.
30
By 10 March
2014, as appears from her email of that date, Ms Stein's and her
clients’ concern was growing. They were two months
into the
school term and the list of schools reporting shortages to Section27
had grown to 36. In addition, Ms Stein wrote, reports
from some of
the schools on the list indicated threats and intimidation by
officials of the DBE. Mr Subban once again promised
to investigate
and respond.
31
On 20 March
2014, Ms Stein wrote on Section27’s letterhead to the first
respondent, the Minister of Basic Education. She enclosed
a list of
schools reporting shortages, which had grown by that date to its
final figure, before me, of 39 schools. Ms Stein sought
in the letter
a formal undertaking that all outstanding learner teacher support
materials, which include textbooks, would be delivered
by 7 April
2014, in default of which there would be an urgent application. The
letter was copied to numerous officials. There was
no substantive
response to this letter and the present application was launched on
27 March 2014.
32
Against this
background, I must deal with the submission of counsel for the DBE
that the school applicants have no standing because
they have not
complied with the peremptory provisions of the intergovernmental
Relations Framework Act, 13 of 2005 (“IRFA”).
Section
45(1) reads:
No
government or organ of state may institute judicial proceedings in
order to settle an intergovernmental dispute unless the dispute
has
been declared a formal intergovernmental dispute in terms of section
41 and all efforts to settle the dispute in terms of this
Chapter
were unsuccessful.
33
In
my view, the definitions of "government” and
“intergovernmental dispute” in s 1 are dispositive of
this
issue. A government means the national, a provincial or a local
government. An intergovernmental dispute means a dispute between
different governments or between
organs
of state from different governments
arising from the sources identified in the definition. All the
parties accepted that a school governing body is an organ of state
as
defined in s 239 of the Constitution. But as defined in ÍRFA,
the expression
organ
of state
bears
the meaning ascribed to that expression in s 239 of the Constitution,
excluding
those listed in s 2(2) of IRFA.
One of the exceptions, listed in s 2(2)(g), to which iRFA is
expressly stated not to apply, is a public institution that does not
fall within the national, provincial or local sphere of government.
34
A
school governing body manifestly does not fali within the spheres of
any of those governments. As its preamble makes dear, IRFA
was
enacted to give effect to s 41 (2) of the Constitution, which calls
for an Act of Parliament to establish or provide structures
and
mechanisms to promote and facilitate intergovernmental relations and
to provide appropriate mechanisms and procedures to facilitate
the
settlement of intergovernmental disputes. Section 40(1) of the
Constitution says government in the Republic is constituted
as
national, provincial and local spheres of government. Sections 40 and
41 of the Constitution are thus directed at spheres of
government and
organs of state within each sphere. An intergovernmental dispute is
thus a dispute between parties that are part
of government in the
sense of being either a sphere of government or an organ of state
within a sphere of government.
[9]
35
I therefore hold
that IRFA is not applicable to a dispute between a school governing
body and any government or any other organ
of state. A dispute
between a school governing body and a government or another organ of
state is not an intergovernmental dispute.
A school governing body
such as each of the school applicants is not required to comply with
IRFA before instituting judicial proceedings
against a government or
an organ of state.
36
I have mentioned
that in the pre-trial minute the DBE committed itself to delivery
dates for the outstanding textbooks. The applicants
accepted these
dates despite their initial demand that the books be provided by 7
April 2014. The parties further identified the
disputes before me.
37
If
I find that there has been “conduct that is inconsistent with
the Constitution” (which translates in this case into
a
violation of the alleged rights of learners to receive their
textbooks on time), I must declare that conduct invalid to the extent
of its inconsistency. Then I must develop a remedy which would be
appropriate, just and equitable. The remedy may include a declaration
of rights.
[10]
38
The
disputes were identified in the pre-trial minute. The first dispute
was described as being whether the failure by the DBE to
ensure the
complete delivery of textbooks to all schools in Limpopo, including
the 39 schools identified in the annexure to the
notice of motion,
was a violation of those rights I mentioned in paragraph 6 above.
This formulation seems to me to conflate whether
there was a
violation with whether, if there has been a violation, the DBE is to
blame.
39
The remaining
disputes as identified in the pre-trial minute relate to remedy. The
applicants ask for supervisory orders, ie directing
the DBE by a
specified date to lodge an affidavit confirming full delivery,
directing the DBE to lodge a plan indicating how they
intend to
address textbook shortages in schools throughout Limpopo and
directing the SAHRC to monitor the full delivery of textbooks
and
compliance by the plan to address textbook shortages, There is a
dispute as to whether the undertaking I have described should
be made
an order of court. The applicants ask for leave to approach the court
again on the same papers, appropriately supplemented,
for further
relief if necessary. Finally, there is the question of costs.
40
I shall begin
with the question whether there has been a violation. That question
does not really seem to me to be controversial
any more. The case for
the DBE is that it has used every resource at its disposal to deliver
textbooks to the learners but that
through circumstances beyond its
control it has not as yet been able to do so completely. All counsel
were agreed that the Constitution
requires that every learner have
every textbook that he or she requires before the teacher begins with
that part of the curriculum
to which the textbook relates. That
usually, if not always, means that all the textbooks must be
available to all the learners
on the first day of the academic year.
41
Section29(1)(a)oftheConstitution
lays down that everyone is has the right to a basic education.
Counsel agreed that this right is
to be contrasted with the rights,
eg to access to housing under s 26(1), access to health care
resources, sufficient food and water
and social security under s 27
and further education under s 29(1 )(b), which are progressively to
be realised.
42
In
Governing
Body of the Juma Musjid Primary School & Others v Essay NO and
Others (Centre for Child Law and Another as Amici Curiae)
2011 8 BCLR 761
CC
the
court said the following about the nature of the basic education
guaranteed by s 29(1)(a):
[11]
[37]
It
is important... to understand the nature of the right to 'a basic
education’ under section 29(1 )(a). Unlike some of the
other
socio-economic rights, this right is immediately realisable. There is
no internal limitation requiring that the right be
‘progressively
realised' within ‘available resources’ subject to
‘reasonable legislative measures’.
The right to a basic
education in section 29(1 )(a) may be limited only in terms of a law
of general application which is ‘reasonable
and justifiable in
an open and democratic society based on human dignity, equality and
freedom’. This right is therefore
distinct from the right to
'further education’ provided for in section 29(1 }(b). The
state is, in terms of that right, obliged,
through reasonable
measures, to make further education ‘progressively available
and accessible.
1
[42]
The
significance of education, in particular basic education for
individual and societal development in our democratic dispensation
in
the light of the legacy of apartheid, cannot be overlooked. 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.
[43]
Indeed,
basic education is an important socioeconomic right directed,
among other things, at promoting and developing a child’s
personality, talents and mental and physical abilities to his or her
fullest potential. Basic education also provides a foundation
for a
chiteT’s lifetime learning and work opportunities. To this end,
access to school - an important component of the right
to a basic
education guaranteed to everyone by section 29(1 )(a) of the
Constitution
- is a necessary condition for the achievement of this right,
[44]
The
importance of the right to a 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. Furthermore, ‘[ajriy other 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 or to imprisonment for a period
not exceeding
six months.’....
[12]
43
Counsel
similarly agreed that the content of the right to basic education is
not unrelated to the resources available to the state.
The state must
manifestly budget for basic education as well as for all the other
resources which the state provides. Determining
the budget requires
political and policy choices. Although it was suggested in argument
that in theory Parliament could be compelled
to vote an objectively
adequate amount for basic education, it is very difficult to envisage
circumstances in which such an action
could succeed. Courts are
notoriously ill-equipped to decide such questions.
44
What is the
content of the right to a basic education? This, very big, question
is not before me in its entirety. But it was suggested
in the case
presented by the DBE in its affidavits that the failure to supply
textbooks did not constitute a violation of the right.
This was said
to be because most of the textbooks had been delivered (as at 21
April 2014 97,71 %), because the late deliveries
were caused by
budgetary constraints and the failures by the principals of certain
schools to submit returns identifying needs
not initially anticipated
and because the failure to provide each learner with a textbook did
no more than cause an inconvenience
to teachers and those learners
not in possession of their own textbooks. So the question whether the
provision of textbooks is
a component of basic education is squarely
before me.
45
In
the first textbook case,
[13]
Kollapen J found that the provision of textbooks was indeed a
component of basic education. The learned judge referred to the
policies of the national executive itself which, as recently
articulated by its head, require that each learner be timeously
provided
with a minimum set of textbooks and workbooks and concluded
that this demonstrated the proposition.
46
While I wish to
guard myself against the proposition that the content of a right may
be determined without more by reference to
the policies of the
executive, I agree with the conclusion reached by the learned judge.
I also agree that the policies of the
executive are relevant to the
determination of the content of a constitutional right, when that
content is in issue. I think that
the nature of books and the part
they play in the education process are highly relevant to the
enquiry.
47
Textbooks have
been part of the stock in trade of the educator for centuries. There
is something special about a book. It has a
very long life, far
longer than that of the individual reader. It is a low tech (nology)
device. It is accessible to anyone who
can read the language in which
it has been written. During the hours of daylight it can be read
(accessed) without any other supporting
technology at all. It needs
no maintenance except the occasional strip of adhesive tape. It can
accommodate the reader’s
own thoughts in the form of jottings
and emphases, it can accompany the reader wherever she goes, even to
prison, to war and into
exile. At night, it can be accessed with the
help of the simplest technology, like a candle. What is written on
one of its pages
can readily be compared with what is on other pages
by simply using bookmarks. It is always available, without mediation:
a book
in the hands of a reader cannot be censored or altered to
distort what is written in it by anyone trying to exercise power over
the reader. Books are the essential tools, even weapons, of free
people. That is why tyrants throughout the ages have sought to
restrict and even deny the access of their subjects to the written
word and to burn and otherwise destroy the books of those whose
cultures and ideas they seek to suppress.
48
We live in an
age in which access to information is often available electronically.
Of course many, if not all, the school applicants
and the
39
schools
operate under conditions in which electronic access to information is
not readily available, if it is available at all.
It is not suggested
that the need for books has, in this context been supplanted by
electronic access to information. But even
where electronic access is
available, books have not been rendered obsolete, in the present age,
the two sources if information
are complementary.
49
Contrast the
ready availability of information in a book with the complexities of
electronic access: electronic access requires
a source of
electricity, something that is not uniformly available in our
country, and sophisticated technology, usually a computing
device in
one form or another. If access is through a remote server, then that
remote server must be functioning and not overloaded
to achieve
access to the information. A malfunction at any point in the
technologically complex chain of connection between reader
and
information renders the information inaccessible.
50
It is argued by the DBE that the teacher can
fulfil the functions of a textbook. This is of course true up to a
point. But again
the resources are complementary. What a teacher
tells her class is ephemeral and subject to the perceptions,
preconceptions and
world view of the individual teacher. An
inattentive pupil may miss entirely what the teacher is saying, with
no way of retrieving
the information being imparted. Notes prepared
by teachers will vary in quality from one individual to another. The
absence of
textbooks places an additional workload on the teacher.
And there is evidence before me that in some schools in Limpopo,
there
are no copying facilities.
51
Perhaps one day,
books will be superseded by other stores of information. But that day
has, in my judgment, not yet arrived. The
dictum of Kollapen J to
which I have referred is binding on me unless I find it is clearly
wrong. No such argument was addressed
to me. I think, with respect,
that the learned judge was right. Textbooks are essential to all
forms of education. Textbooks are
therefore a component of basic
education.
52
The
delivery of textbooks to certain learners but not others cannot
constitute fulfilment of the right. Section 29(1)(a) confers
the
right of a basic education to everyone. If there is one learner who
is not timeously provided with her textbooks, her right
has been
infringed. It is of no moment at this level of the enquiry that all
the other learners have been given their books.
53
I shall say more later about the alleged failures
of school principals to render their returns to the DBE. In the
present context,
all that need be said is that whoever, if anyone, is
to blame for the non-deliveries, is irrelevant to the enquiry. It is
not suggested
that any of the learners is to blame. Whatever the
causes of the failure to deliver, the right has been infringed.
54
Counsel for the applicants submitted that the
right to education is a vehicle for the realisation of numerous other
rights, including
the rights to equality and dignity. In paragraph 3
of the judgment in the first textbook case, Kollapen J refers to
education as
being critical to freeing and unlocking the potential of
every person. I agree with both these propositions.
55
It follows then,
that because textbooks were not provided to all the learners in
Limpopo before the commencement of the curricula
for which they were
required, ie at the beginning of the academic year, the rights of
learners were violated. It is in my judgment
appropriate, just and
equitable that a declaration to this effect should issue.
56
The next
questions are whether the undertaking of the DBE should be made an
order of court and whether some form of supervisory
(structural)
relief should issue. The nature of the relief which a court can grant
in a constitutional case was authoritatively
described in
Hoffmann
v South African Airways
2001 1 SA 1
CC as follows:
[42]
Section
38 of the Constitution provides that where a right contained in the
Bili of Rights has been infringed, 'the Court may grant
appropriate
relief. In the context of our Constitution 'appropriate relief must
be construed purposively, and in the light of s
172(1 )(b), which
empowers the Court, in constitutional matters, to make 'any order
that is just and equitable'. Thus construed,
appropriate relief must
be fair and just in the circumstances of the particular case. Indeed,
it can hardly be said that relief
that is unfair or unjust is
appropriate. As Ackermann J remarked in the context of a comparable
provision in the interim Constitution,
‘[i]t can hardly be
argued, in my view, that relief which was unjust to others could,
where other available relief meeting
the complainant's needs did not
suffer from this defect, be classified as appropriate*.
Appropriateness, therefore, in the context
of our Constitution,
imports the elements of justice and fairness.
[43]
Fairness
requires a consideration of the interests of all those who might be
affected by the order,... .
[44]
...
[45]
The
determination of appropriate relief, therefore, calls for the
balancing of the various interests that might be affected by the
remedy. The balancing process must at least be guided by the
objective, first, to address the wrong occasioned by the infringement
of the constitutional right; second, to deter future violations;
third, to make an order that can be complied with; and fourth,
of
fairness to all those who might be affected by the relief.
Invariably, the nature of the right infringed and the nature of the
infringement will provide guidance as to the appropriate relief in
the particular case. Therefore, in determining appropriate relief,
'we must carefully analyse the nature of [the] constitutional
infringement, and strike effectively at its source'.
57
The case for
structural relief was based on the following:
57.1
The
applicants say that the DBE has failed to respond to
numerous
requests, all detailed in the founding affidavit, by school
principals for textbooks additional to those previously ordered.
This
is however denied by the DBE. They claim that they only learnt of
these shortages when they were reported to the DBE by Section27.
57.2
The
applicants point out that the DBE previously had to be ordered to
fulfil its constitutional obligations and then failed to comply
with
the orders so made. I have referred to the orders made effectively on
undertakings by the DBE as to the dates upon which textbooks
delivery
would be completed. Counsel pointed out that there is clear authority
that a mandamus against any public official including
the political
head of the department in question is competent.
[14]
On the applicants’ case, the DBE was in breach of these orders
when the present application was launched. The DBE, on the
other
hand, asserts that there was ultimately compliance with the previous
orders before the present proceedings were instituted.
57.3
The
applicants argue that the DBE has undermined the basic principles and
values governing public administration through what the
applicants
describe as the DBE’s failure to provide information as to what
plans and processes are in place to ensure the
full delivery of
textbooks. The DBE’s answer is that its affidavits in the
present case, read with the affidavits in the
previous textbook
cases, contain complete information on the applicable policies, plans
and processes of the DBE.
57.4
The
applicants point to the fact that when the present case was
heard in court,
the DBE had still not completed the delivery of the 2014 textbooks
and are thus in breach of their constitutional
obligation to ensure
that their constitutional obligations in relation to textbooks
required for the 2014 academic year are performed
diligently and
without delay as required under s 237 of the Constitution. The
applicants point to the correspondence which demonstrates
their
efforts to secure delivery and the substantive silence of the
political head of the DBE in response to the letter addressed
to her.
The DBE’s case is that it has set out in its affidavits that
its tardy delivery of textbooks is explained on two
grounds: firstly,
the DBE says, initial deliveries of books in numbers calculated to
meet the anticipated needs of individual schools
took place in good
time. But school principals, on whom the DBE relies for information
on supplementary deliveries did not sometimes
timeously, sometimes at
all, forward the necessary requests for supplementary deliveries. The
problems associated with supplementary
deliveries, according to the
DBE, were exacerbated by the failures of teachers to make sure that
learners handed in their textbooks
at the end of 2013. Secondly, the
DBE says, budgetary constraints forced them to delay supplementary
deliveries until fresh funds
became available after 1 April 2014.
57.5
The applicants
point to the denial by the DBE that the content
of
the right to a basic education requires that every learner be
provided with all necessary textbooks before teaching on the relevant
curriculum commences, in this context, the DBE has contended that
budgetary constraints prevented the DBE from completing the 2014
deliveries until additional funds, were made available to the DBE
pursuant to the budget approved by Parliament.
58
There
are disputes of fact in relation to the propositions upon which the
applicants base their case for structural relief. Because
this is an
application for final relief, I must apply the procedural rule in
Plascon-
Evans
:
[15]
In
such a case the general rule was stated ... to be:
"...
where there is a dispute as to the facts a final interdict should
only be granted in notice of motion proceedings if the
facts as
stated by the respondents together with the admitted facts in the
applicant’s affidavits justify such an order ...
Where it is
clear that facts, though not formally admitted, cannot be dented,
they must be regarded as admitted."
...
It seems to me, however, that this formulation of the general rule,
and particularly the second sentence thereof, requires some
clarification and, perhaps, qualification. It is correct that, where
in proceedings on notice of motion disputes of fact have arisen
on
the affidavits, a final order, whether it be an interdict or some
other form of relief, may be granted if those facts averred
in the
applicant's affidavits which have been admitted by the respondent,
together with the facts I alleged by the respondent,
justify such an
order. The power of the Court to give such final relief on the papers
before it is, however, not confined to such
a situation. In certain
instances the denial by respondent of a fact alleged by the applicant
may not be such as to raise a real,
genuine or bona fide dispute of
fact...
If
in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for cross-examination
under Rule 6 (5) (g)... and the Court is satisfied as to the inherent
credibility of the applicant's factual averment, it may proceed
on
the basis of the correctness thereof and include this fact among
those upon which it determines whether the applicant is entitled
to
the final relief which he seeks ... . Moreover, there may be
exceptions to this general rule, as, for example, where the
allegations
or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the
papers.
59
Counsel for the
applicants ultimately accepted that the DBE's evidentiary material
could not be rejected on the papers. Counsel
declined, when I raised
the matter with her, to apply for evidence. The disputes must
therefore be resolved on the DBE’s
version. In what follows, I
shall analyse the DBE’s version in relation to the provision of
textbooks for the 2014 academic
year.
60
I
have previously mentioned the decision to replace RNCS with CAPS. As
I said earlier, the policy was to implement CAPS as follows:
grades
1-3 and 10 in 2012; 4-6 and 11 in 2013; 7-9 and 12 in 2014.
[16]
The DBE developed a national catalogue which identified the approved
textbooks to be used nationally. Previously, each province
had had
its own catalogue and procured its own works so identified. The idea
of CAPS was to standardise education throughout South
Africa. But the
changeover placed an apparently unanticipated strain on resources
because its consequence was that all previous
text books had to be
replaced as CAPS was implemented.
61
The
DBE then made an operational decision in an attempt to deal with this
problem: in each of the years from 2012 to 2014, priority
would be
given to the procurement of those textbooks for the grades in respect
of which CAPS was to be implemented for the first
time. But this
caused another problem: the DBE ran out of money to procure
additional textbooks for grades in respect of which
CAPS had already
been implemented in previous years. The DBE had estimated and applied
for the amount required that for all learner
teacher support material
(“LTSM”) throughout the country for 2014. But when the
budget was approved by Parliament and
implemented in 2013, they found
that they were short of what they needed.
[17]
The solution the DBE devised for this problem in consultation with
the fiscal authorities was to use money budgeted for other purposes
in respect of schools. In addition, the DBE used what commercial
muscle it could bring to bear on its suppliers to get discounts.
But
there was still not enough money. So the BDE decided to delay the
procurement of additionally needed textbooks until after
further
subventions became available under the budget passed in 2014.
62
I
must say that given the situation in which the DBE found themselves,
it is difficult to think what else they could have done.
Whether the
root cause of the problem, the lack of funds made available for the
procurement of LTSM in Limpopo, reflected a failure
by Parliament to
meet its constitutional obligation to fund basic education is
entirely another question.
63
Experience
had taught the DBE that one delivery of textbooks per school would
very often be inadequate. Initial deliveries took
place until about
October 2013. Under the DBE’s policies, each principal of a
school in which additional textbooks were needed
for 2014 had to
report shortages before the schools closed in 2013. Wide publicity
was given to this policy and the ways in which
it was to be
implemented.
64
But
on the DBE’s case, which I emphasise I must accept for the
purposes of this application, numerous principals neglected
to inform
the DBE of shortages anticipated or experienced in their schools
until after December 2013. Those shortages reported
(albeit late) in
January 2014 were remedied. But some of the shortages reported after
the end of January 2014 have still not been
remedied. Additionally,
at the end of the school year, teachers are supposed to collect the
returned textbooks from the learners
before the school breaks up but
quite substantially neglected to do so. The 2013 targets for returned
textbooks were thus not met.
The DBE says that a textbook should have
a life of five years. It is essentially those causes, say the DBE,
which have resulted
in the inability to complete deliveries before
the date presently anticipated for completion, 6 June 2014.
65
I
have already concluded that an appropriate declaration in relation to
the denial,
pro
tanto,
of the right to basic education must issue. What remains for
consideration are the prayers for supervisory relief. At this level,
the broad question is whether the court ought to supervise the
performance and fulfilment by the DBE of its constitutional
obligations
in relation to the timeous delivery of textbooks to
learners in Limpopo. As I see it, fundamental to the task of
determining an
appropriate order is the resolution in the present
context of the problem created by budgetary constraints.
66
In
Minister of Health and Others
v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 5 SA 721
CC
the
Constitutional Court held:
[36]
The
State is obliged to take reasonable measures progressively to
eliminate or reduce the large areas of severe deprivation that
afflict our society. The Courts will guarantee that the democratic
processes are protected so as to ensure accountability,
responsiveness
and openness, as the Constitution requires in s 1. As
the Bill of Rights indicates, their function in respect of
socio-economic
rights is directed towards ensuring that legislative
and other measures taken by the State are reasonable. As this Court
said ...
’(i)t is necessary to recognise that a wide range of
possible measures could be adopted by the State to meet its
obligations’.
[37]
It
should be borne in mind that in dealing with such matters the Courts
are not institutionally equipped to make the wide-ranging
factual and
political enquiries necessary for determining what the minimum-core
standards called for by the first and second amici
should be, nor for
deciding how public revenues should most effectively be spent. There
are many pressing demands on the public
purse
[38]
Courts
are ill-suited to adjudicate upon issues where Court orders could
have multiple social and economic consequences for the
community. The
Constitution contemplates rather a restrained and focussed role for
the Courts, namely, to require the State to
take measures to meet its
constitutional obligations and to subject the reasonableness of these
measures to evaluation. Such determinations
of reasonableness may in
fact have budgetary implications, but are not in themselves directed
at rearranging budgets. In this way
the judicial, legislative and
executive functions achieve appropriate constitutional balance.
67
Of
course the
TAC
case dealt with constitutional rights, access to which the state is
required to achieve progressively through reasonable legislative
and
other measures within its available resources. The right to a basic
education, on the other hand, is subject to no such limitations.
[18]
And yet, the content of the right to a basic education, like all
other constitutional rights which require the participation of
the
state for their realisation, must depend to some extent on the
availability of state resources, particularly fiscal resources.
One
just cannot get blood out of a stone.
68
And
the point made, authoritatively, in LAC which I think is relevant for
present purposes is firstly that the duty, and therefore
the power,
to determine what resources are available and should be applied to a
particular area of social development has been
vested in the state
and secondly that courts are not well equipped to make such
determinations.
69
In
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
2009 4 SA 222
CC, in relation to what was described in the judgment
as mandatory relief, the court was called upon to deal with a
submission
that the relief decreed by the High Court had
impermissibly crossed the boundary imposed by the doctrine of the
separation of powers.
The Constitutional Court held:
[181]
The importance of the principle of the separation of powers in
our constitutional democracy cannot be gainsaid. It is
required by
the very structure of our Constitution. While there are no bright
lines that separate the role of the courts from those
of other
branches of government, 'there are certain matters that are
pre-eminently within the domain of one or other of the arms
of
government and not the others.
All arms of
government should be sensitive to and respect this separation.'... .
Courts too must observe the constitutional limits
of their
authority...:
‘
The
constitutional principle of separation of powers requires that other
branches of government refrain from interfering in parliamentary
proceedings. This principle is not simply an abstract notion; it is
reflected in the very structure of our government. The structure
of
the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept
of
separation of powers. The principle has important consequences for
the way in which and the institutions by which power can
be
exercised. Courts must be conscious of the vital limits on judicial
authority and the Constitution's design to leave certain
matters to
other branches of government. They too must observe the
constitutional limits of their authority. This means that the
Judiciary should not interfere in the processes of other branches of
government unless to do so is mandated by the Constitution.’
[182]
It
is unquestionably the constitutional province of the executive to
develop and implement policy. ...
[183]
Under our constitutional democracy, courts have no
power to supervise or interfere with the exercise by the executive or
legislature
of its functions unless the circumstances amount to a
clear disregard by the executive of the powers and duties conferred
upon
it by the Constitution. Where there is such a disregard, courts
are not only entitled but obliged to intervene. But judicial review
under our constitutional democracy does not give courts the power to
exercise executive or legislative functions. It permits courts
to
call upon the executive and legislature to observe the limits of
t
heir powers but does not permit
courts to exercise those powers themselves. Courts therefore have the
duty to patrol the constitutional
borders defined by the
Constitution. They cannot, therefore, cross those borders.
70
In
Rail
Commuters Action Group and Others v Transnet Ltd T/a Metroraii and
Others
[2004] ZACC 20
;
2005 2 SA 359
CC the question arose whether structural relief should
be granted. The court held:
[109]
In this case, Metroraii and the Commuter Corporation denied, in
error, that they bore obligations to protect the security
of raii
commuters. Given the importance of that obligation in the context of
public rail commuter services, it is important that
this court issue
a declaratory order to that effect. The applicants also sought an
order in which this Court would put Metroraii
and the Commuter
Corporation on terms to take steps to implement that order. While
such an order is no doubt competent, I am not
persuaded that it is an
appropriate order in the circumstances of this case.
There is
nothing to suggest on the papers that Metroraii and the Commuter
Corporation will not take steps to comply with the terms
of the order
[my emphasis]
71
In
the same case, the court evaluated a defence that budgetary
constraints precluded Metrorail from fulfilling its constitutional
obligations, holding as follows:
[88]
What constitutes reasonable measures [by the state to meet its
constitutional obligations] will depend on the circumstances
of each
case. Factors that would ordinarily be relevant would include the
nature of the duty, the social and economic context in
which it
arises, the range of factors that are relevant to the performance of
the duty, the extent to which the duty is closely
related to the core
activities of the duty- bearer - the closer they are, the greater the
obligation on the duty-bearer, and the
extent of any threat to
fundamental rights should the duty not be met as well as the
intensity of any harm that may result. The
more grave is the threat
to fundamental rights, the greater is the responsibility on the
duty-bearer. Thus, an obligation to take
measures to discourage
pickpocketing may not be as intense as an obligation to take measures
to provide protection against serious
threats to life and limb. A
final consideration will be the relevant human and financial resource
constraints that may hamper the
organ of State in meeting its
obligation. This last criterion will require careful consideration
when raised. In particular, an
organ of State will not be held to
have reasonably performed a duty simply on the basis of a bald
assertion of resource constraints.
Details of the precise character
of the resource constraints, whether human or financial, in the
context of the overall resourcing
of the organ of State will need to
be provided. The standard of reasonableness so understood conforms to
the constitutional principles
of accountability, on the one hand, in
that it requires decision-makers to disclose their reasons for their
conduct, and the principle
of effectiveness on the other, for it does
not unduly hamper the decision-maker's authority to determine what
are reasonable and
appropriate measures in the overall context of
their activities.
72
I
think it is important to place the DBE’s reference to budgetary
constraints into context: despite the assertion that it
was not
obliged to provide textbooks and took what it claims are all
reasonable steps to deliver them to the learners before the
commencement of the academic year, it is clear on the approach I must
take to the papers that the DBE went to great lengths to
do just that
The issue of budgetary constraints is therefore partly of
retrospective interest ( who is to blame for the iate deliveries
of
books required for 2014?) and partly of prospective interest (what is
likely to happen in subsequent years, particularly 2015?).
73
In
my view it cannot be said that there has been a bald assertion by the
DBE of budgetary constraints. Much information in this
regard was
placed before the court. The case for the DBE reduces to this: they
asked the fiscal authorities for the money they
calculated was
necessary to enable them to meet their textbook requirements but they
were given a lesser sum; they then negotiated
with the same fiscal
authorities to find alternate ways of raising the necessary money but
were only partially successful. I think
that these facts answer the
argument of counsel for the applicants that the DBE ought to have had
recourse to the emergency funding
potential available under
s 25
of
the
Public Finance Management Act, 2 of 1999
. The DBE did, in effect
seek emergency funding. They got some, but not all for which they
asked.
74
The,
once again very big, question whether Parliament failed in its
constitutional obligations by not making enough money available
to
the DBE to fund the textbooks required for 2014 is not directly
before me.
[19]
The fiscal authorities in particular have not been cited. I cannot
think of an issue which is more policy laden and polycentric
than the
compilation of the national budget I need not burden this judgment
with a recitation of additional authority which cautions
against the
intrusion of the court into this terrain.
75
I think this is
a case which bears similarities to
Metrorail.
Although the responsible authority in the present case has, in error,
denied the existence of its obligation, there is no reason
to believe
that it will not honour its constitutional obligation to provide
textbooks to learners in Limpopo in accordance with
its undertakings.
I do not think that this is a case where the court should enter the
terrain demarcated for the exercise of public
power by another arm of
government by directing the DBE to report to the court on their
progress with the deliveries which they
have undertaken to make, The
date by which the DBE has promised to complete deliveries will follow
very shortly, a month or so,
after this judgment is handed down. If
the undertaking is not adhered to, the applicants will have their
remedy in approaching
the court again, 1 appreciate that the
applicants are not wealthy but there is every likelihood that if the
applicants are forced
for this reason to come to court again, they
will get their costs. The applicants clearly have the confidence of
their members
and colleagues and of parents. If the DBE is remiss in
days to come, the necessary information will be given to Ms Stein and
her
colleagues and action will be taken. I appreciate too that the
DBE was previously in default of compliance with court orders. I
think that this non-compliance has been explained. I think that the
papers filed by the DBE show that lessons have been learnt
and that,
subject to one qualification with which I shall deal later, it is
unlikely that the DBE will again err in this regard.
76
One of the
grounds upon which the applicants ask for supervisory relief is that
they have in the past struggled to obtain necessary
information to
enable them to take steps to protect learners’ rights. With the
one qualification to which I have just adverted,
I think that is not
appropriate that the court lend its muscle in the present
circumstances to the procurement in the future by
the applicants of
such information. In addition to the factors I have mentioned
generally in regard to supervisory relief, I would
add that the
applicants have other, in my view more appropriate, sources of
information. For example, they can approach the relevant
organs
within Parliament through its members. Because the issues raised
involve polycentric policy considerations, they are, at
least in
part, political issues. Political issues require political solutions.
Parliament is a more appropriate forum for the ventilation
of
political considerations than the courts. A further source of
information is the machinery created by the Promotion of Access
to
Information Act, 2 of 2002. And I have mentioned the good
relationship that exists between the DBE and the representatives of
the applicants. I think it likely that if the applicants ask for
information and it is available, the DBE will provide it. If I
am
wrong, the applicants can approach the court again.
77
For much the
same reasons, Í do not think that the DBE’s undertakings
should be translated into orders of court. There
however is an
additional reason. The orders of court directing delivery by specific
dates have in each instance been made on the
predictions of the DBE
as to their capacity to deliver. Counsel for the applicants frankly
acknowledged during argument that although
the applicants had pointed
in their founding papers to the importance of deliveries by 7 April
2014, they could do no more than
accept the assertions of the DBE as
to their delivery capacity. While I can appreciate the frustration
of the applicants and parents generally with what
they must see as broken promises and slow deliveries which prejudice
their children
in their education, Í do not think that orders
of court made on capacity predictions have advanced the applicants’
cause. With the advantage of hindsight, I doubt whether those orders,
which were effectively unenforceable and were simply varied
each time
they were breached, advanced the interests of justice. I express,
however, no opinion on what the position might be in
this regard if
the DBE’s present undertakings are not achieved.
78
These
conclusions dispose, against the applicants, of their request that
the SAHRC be ordered to monitor the DBE’s progress.
The SAHRC
itself says that it does not have the capacity to do what the
applicants ask of it. But I think there is a deeper reason
why such
an order should not be granted against the opposition of the SAHRC:
it is empowered under s 184(1)(c) to monitor the observance
of human
rights in the Republic. The way it does so is for the SAHRC to
determine. There is no suggestion that the SAHRC has been
remiss in
its Constitutional duties in this regard. On the authorities to which
I have referred, I do not think that there is any
justification for
this court to order the SAHRC to do its work.
79
The applicants
ask for an order which would allow them to approach this court again
on the same papers, appropriately amplified.
Of course the applicants
do not need the leave of the court to approach it again if they feel
aggrieved. I think that this question
should be determined on purely
pragmatic considerations. The record has become quite unwieldy and
now consists of some 1 430 pages.
If another judge has to consider a
fresh approach by the applicants to this court, it would be better if
the record before that
judge were focussed specifically on the issues
then raised by the applicants. The judge would then not have to find
her way through
paper which is merely historical and does not bear on
the issues before her. I shall therefore decline the request.
80
I have said
there was one qualification to the proposition that the court should
not grant supervisory relief. The main obstacle
to timeous deliveries
of textbooks in the future seems, on what is before me, to be that
Parliament will not vote enough money
for this to be achieved. I
think that it is arguable that a case could be made out to compel
Parliament to vote enough money to
meet the needs of Limpopo learners
in relation to textbooks despite the very difficult nature of the
case which would have to be
made. Given the fact that Parliament has,
on the DBE’s case, denied the DBE the funds they needed in this
regard in the past,
it is reasonable to predict that it may do so
again. I think it would be appropriate if the applicants and the
SAHRC were told
by the DBE, at a relatively early stage, if a similar
situation is likely to recur. I shall therefore direct the political
heads
of the relevant national and provincial departments to inform
the applicants and the SAHRC of the amounts sought in relation to
the
provision of textbooks to learners in Limpopo and the amounts
actually awarded in this regard.
81
As to costs: the
applicants have been substantially successful; they have also
contributed positively toward the realisation of
learners’
rights in Limpopo timeously to get their textbooks. They must have
their costs. They ask for punitive costs orders.
But the basis laid
by the applicants for punitive orders cannot survive the application
of the procedural rule in
Plascon-Evans
.
82
I therefore make
the following order:
1.
It is
declared that the content of the right to basic education in s 29(1
)(a) of the Constitution includes:
1.1.
the right
of every learner at a public school as
contemplated
in the Schools Act, 84 of 1996, in Limpopo to be provided with every
textbook prescribed for that learner’s grade;
1.2.
the right
of every such learner to be provided with every
such
textbook before the teaching of the curriculum for which such
textbook is prescribed is due to commence.
2.
It is
declared that the non-delivery to certain of such learners of certain
textbooks prescribed for such learners’ grades
in the 2014
academic year before the teaching of the curricula for which such
textbooks were prescribed was due to commence was
at violation of
such learners' rights to a basic education in s 29(1 )(a) of the
Constitution and of their rights to equality and
dignity in ss 9 and
10 respectively of the Constitution.
3.
It is
noted that the first to fifth respondents have undertaken to ensure
that delivery to all such learners of all the textbooks
required for
the 2014 academic year will be completed as follows:
3.1.
those
textbooks required for grades 7-9 and 12 by 8 May 2014; and
3.2.
those
textbooks required by the other grades by 6 June 2014;
4.
The first
and third respondents are both ordered, to the extent that each of
them is able to do so, to provide the applicants, through
the
applicants’ attorney of record, and the sixth respondent with
an affidavit setting out:
4.1
the
submissions, with vouchers where reasonably possible, to the fiscal
authorities of the national Department of Basic Education
and the
department of education within the provincial government of Limpopo
in support of these departments’ requests for
funds for
textbooks for learners at public schools in Limpopo for the academic
year 2015; and
4.2
particulars
of the funds so to be made available for that purpose (“the
Limpopo textbook budget allocation”), similarly
with vouchers
where reasonably possible.
5.
The affidavit referred to in paragraph 4 of
this order must be provided to the applicants by no later than one
month after the last
of such respondents has been informed of the
Limpopo textbook budget allocation.
6.
The first respondent must pay the
applicants’ costs in this application.
NB Tuchten
Judge of the High
Court
5
May
2014
For
the applicants:
Adv A Hassim
Instructed by Section27 Johannesburg
For
the first to fifth respondents:
Adv
MC Erasmus SC and Adv EM Mere
Instructed
by
The
State Attorney
Pretoria
For
the sixth respondent:
Adv
T Ngcukaitobi
Instructed
by Pandelis Gregoriou
Johannesburg
[1]
References
to schools in this judgment are to public scho
ols
in Limpopo as identified in
chapter
3 of the
South African Schools Act, 84 of 1996
. Other types of
schools and schools in provinces other than Limpopo are outside the
scope of this judgment.
[2]
Where
I refer specifically to one of the respondents, I shall use that
respondent’s full name and not an acronym.
[3]
Which
was preceded by an earlier National Curriculum Statement (“NCS”).
[4]
The
head of the intervention task team dealing with basic education is
the fifth respondent.
[5]
Not
one of the present applicants.
[6]
Section
195
provides that public administration must be governed by the
democratic values and principles enshrined in the Constitution.
[7]
Counsel
for the government respondents used an even stronger term in
argument
in
relation to his own clients’ predictions of the delivery
capabilities of their departments. It seems that these respondents
had overlooked that the conduct of litigation, like politics, is the
art of the possible.
[8]
Counsel
for the DBE told me during argument, without contradiction from
their opponents that the good relationship continues,
i mention this
because it is relevant to the order which I shall make.
[9]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 3 SA 925
CC paras
20-21
[10]
Sections
172(1) and 38 of the Constitution;
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and
Others
2014
1 SA 604
CC para 25
[11]
Where
I quote from decided cases in this judgment, I generally omit
footnotes.
[12]
See
also Madzodzo and Others v Minister of Basic Education and Others
(unreported) ECLD (Mthatha) case no 2144/2012, judgment
delivered 20
February 2014 paras 17 and 20
[13]
Section27
and Others f Minister of Basic Education and Another
2013 2 SA 40
GNP paras 23-25
[14]
MEC,
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 4 SA 478
SCA para 30
[15]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
3 SA 623
A 34E- 35C
[16]
References
to years are to academic years.
[17]
The
DBE had asked for R768 million for grades 7-9 an
d
12 alone. But they were given
only
R480 million for
all
grades
within Limpopo.
[18]
Governing
Body of the Juma Musjid Primary Schooi & Others v Essay NO and
Others (Centre for Child Law and Another as Amici
Curiae)
2011 8
BCLR 761
para 37
[19]
Whether
the various statutes which were enacted to give effect to the
budgetary decisions of Parliament are laws of general application
which justifiably limited constitutional rights under s 36 of the
Constitution is similarly not before me.