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2024
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[2024] ZAECMHC 62
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Concerned Parents of Learners at Atwell Madala Senior Secondary School and Others v Government of the Eastern Cape and Others (3969/2018) [2024] ZAECMHC 62 (13 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE NO: 3969/2018
In the matter between:
CONCERNED PARENTS
OF LEARNERS AT
ATWELL MADALA
SENIOR SECONDARY SCHOOL
1
st
Applicant
CONCERNED PARENTS
OF LEARNERS AT
ENDUKU JUNIOR
SECONDARY SCHOOL
2
nd
Applicant
CONCERNED PARENTS
OF LEARNERS AT
DUDUMAYO
SENIOR SECONDARY SCHOOL
3
rd
Applicant
CONCERNED PARENTS
OF LEARNERS AT
MNCEBA
SENIOR SECONDARY SCHOOL
4
th
Applicant
and
GOVERNMENT OF THE
EASTERN CAPE
1
st
Respondent
MEMBER OF THE
EXECUTIVE COUNCIL
DEPARTMENT
OF BASIC EDUCATION
EASTERN CAPE
PROVINCE
2
nd
Respondent
SUPERINTENDENT
GENERAL DEPARTMENT OF
BASIC
EDUCATION, EASTERN CAPE PROVINCE
3
rd
Respondent
MINISTER OF BASIC
EDUCATION
4
th
Respondent
DIRECTOR GENERAL
NATIONAL DEPARTMENT
OF
EDUCATION
5
th
Respondent
JUDGMENT
RUSI J
[1] The applicants call
themselves the Concerned Parents of Learners at four different public
schools in the rural Mthatha, Mqanduli,
eNgcobo and Mount Fere areas
of the Eastern Cape Province. The schools which each of the four
applicants represents are Atwell
Madala Senior Secondary School,
Enduku Junior Secondary School, Dudumayo Senior Secondary School and
Mnceba Senior Secondary School,
respectively. These schools are
either no-fee or low-fee schools that rely on the state for the
provision of school infrastructure
and other services.
[2] In the interests of
brevity and convenience, the applicants shall be referred to as the
“applicant schools”, the
second respondent individually
as “the MEC”, and the second and third respondents
collectively as “the ECDOE”
(Eastern Cape Department of
Education). Reference to the “Provincial Government” will
be to the first respondent.
[3] In this application
the applicants seek to vindicate the right of the learners of the
four mentioned schools to basic education
in a safe and appropriate
learning environment. They allege that the ECDOE has failed to
address the pervading problem of overcrowding
in classrooms utilizing
its Infrastructure Norms and Plans and by proving adequate
infrastructure, thus making the learning environment
at the applicant
schools inconducive.
[4] The applicants also
allege that they represent other schools in the OR Tambo Inland,
Chris Hani East and Alfred Nzo education
districts in the Eastern
Cape Province, which similarly experience classroom overcrowding.
[5] As a form of redress,
the applicants seek, in their amended notice of motion, review and
systemic relief against the second
and third respondents. No relief
is sought against the first, fourth and fifth respondents and the
applicants indicate that they
cited them as parties who may have an
interest in these proceedings.
[6]
As at the time of hearing of this application, the provision of
temporary infrastructure sought by the applicants had become
limited
to Mnceba Senior Secondary School (otherwise conveniently referred to
herein as “Mnceba”) pursuant to an order
of this Court
[1]
dated 18 February 2020, in which the respondents were ordered to
provide 65 emergency classrooms to the applicant schools. More
about
this aspect of the application later on.
[7] Before the review
relief and a portion of the systemic relief claimed by the applicants
fell away on the date of hearing of
this application as I will
elaborate below, the applicants had sought, as immediate relief,
(a)
an order declaring the respondents’ failure to address and
provide safe and adequate temporary classrooms at Mnceba Senior
Secondary School unconstitutional and unlawful; and
(b)
directing the respondents to provide Mnceba Senior Secondary School,
which the fourth applicant represents, with 24 temporary classrooms
within 90 days of the court order, and other ancillary relief.
[8] Concerning the
systemic relief, the applicants initially sought an order directing
that the respondents provide within 30 days
of the granting of the
order by this Court, a list of public schools in the OR Tambo Inland,
Chris Hani East and Alfred Nzo districts
of the Eastern Cape Province
(“the education districts”) that have on average 60
learners or more per classroom. This
relief fell away too when, on
the date of hearing of this application, the ECDOE provided the
applicants with the list of public
schools dated 06 November 2023 of
schools in the OR Tambo Inland, Chris Hani East and Alfred Nzo
education districts in the Eastern
Cape Province, which have more
than 60 learners per classroom (“the list”).
[9] In the remaining
portion of the systemic relief, the applicants further seek an order
directing that where any of the public
schools in the list provided
are not included in the ECDO’s Plan in Terms of the Department
of Education’s Infrastructure
Norms, the MEC must provide an
explanation on affidavit within 90 days of this Court’s order
explaining any failure to include
any of those schools in the said
Plan. The applicants also seek an order granting them an opportunity
to respond to the affidavit
and list filed by the ECDOE.
[10] As further systemic
relief, the applicants seek an order that this Court retain
supervisory jurisdiction over this matter until
it is satisfied that
the overcrowding in the schools appearing in the list provided by the
ECDOE has been remedied, or the MEC
has provided a satisfactory
explanation for any failure to remedy such overcrowding. The
applicants further ask that leave of court
be granted to any of the
parties to re-enroll the matter for hearing at any stage on duly
supplemented papers for the re-consideration
of any of the orders
sought.
[11] The remaining
portion of the systemic relief is opposed by the second and third
respondents who contend that the applicants
are asking this Court to
exercise supervisory jurisdiction over the functions otherwise vested
in the ECDOE. They further contend
that the lines of separation of
powers would be blurred in such a case.
[12] To aid ease of
comprehension, I set out first hereunder a brief background of the
events and litigation that culminated in
the present application.
A factual and
litigation background
[13] The applicants’
initial engagements with the respondents regarding the alleged
failure to address and remedy the overcrowding
and dilapidated state
of infrastructure at the applicant schools was in 2012. A series of
correspondence was exchanged, and meetings
were held between the
applicants and the ECDOE – this included a delegation of
departmental officials sent by the ECDOE to
inspect the state of the
schools.
[14] When there was no
resolution of the problem in sight, the applicants approached this
Court first in 2018 to seek redress. On
18 February 2020 they
obtained an order (“the court order”) in terms of which
the respondents were ordered to provide
65 emergency classrooms to
the four applicant schools. This court order was obtained by
agreement between the applicant schools
and the ECDOE.
[15] After the granting
of the court order, the ECDOE began the process of delivering
temporary classrooms to three of the schools
save Mnceba Senior
Secondary School. Meanwhile, there was an exchange of affidavits
between the parties in which the ECDOE placed
on record facts
regarding the progress it had achieved in remedying its failure to
fully comply with the court order. When the
application was enrolled
for hearing almost 2 years later, Mnceba Senior Secondary School had
not received any temporary classrooms
despite the court order to
which the ECDOE consented on 18 February 2020.
[16] The ECDOE’s
explanation of its failure to provide Mnceba Senior Secondary School
with temporary infrastructure is that
the provision of temporary
infrastructure at this school was sanctioned in February 2018 and the
envisaged date of the handing
over of the prefabricated classrooms at
this school was 28 May 2021. The process entailed a dismantling and
relocation of 25 prefabricated
classrooms that were originally
intended for another school, Arthur Ngunga Senior Secondary School.
[17] The ECDOE went on to
explain that at the time at which the relocation of the prefabricated
classrooms was scheduled to take
place, it emerged from a report
submitted by its project implementing agent, the Development Bank of
Southern Africa (DBSA), that
the 25 prefabricated classrooms were
vandalized during previous occupancy and were in bad condition.
Having secured assessment
services from the relevant contractors, it
came to light that additional services of refurbishment and
earthworks would be required
at an additional cost. This process was
brought to a halt when the ECDOE could not timeously secure
specialist suppliers who would
refurbish the vandalized prefabricated
structures.
[18] As regards the
review component of the relief that the applicants initially sought,
it had become common cause between the
parties that the impugned User
Asset and Infrastructure Programme Management Plans no longer existed
when the applicants brought
the instant application. They had been
superseded by the 2020/2021 Infrastructure Plan which was inclusive
of three of the applicant
schools except Mnceba Senior Secondary
School at the time.
[19] On the date of
hearing of the application the ECDOE sought and was granted leave of
court to file a further supplementary affidavit
the purpose of which
was to place before me further facts pertaining to the progress it
made in relation to the procurement and
provision of temporary
classrooms in Mnceba. In this further supplementary affidavit, the
ECDOE’s Chief Director: Infrastructure
Directorate, Mr
Melikhaya Mduba (“Mr Mduba”), states the project of
delivery of 28 new prefabricated classrooms in
Mnceba had been set in
motion.
[20] Mr Mduba further
states that at the time he deposed to the affidavit in November 2023,
the manufacturing of these temporary
classrooms had commenced, and it
was estimated that their delivery would begin in December 2023. He
goes on to state that there
is also a project schedule which the
ECDOE’s implementing agent, DBSA would review, in terms of
which the entire project
of delivery of classrooms in Mnceba would be
completed during July 2024.
[21] As regards the list
of schools in the already named education districts which still have
classrooms with an average of 60 learners
per classroom, Mr Mduba
further states that the list that the ECDO provided to the applicants
contains some 4248 schools. He came
to understand that this number of
schools denotes an additional 2109 schools which were not in the list
that was previously produced
in March 2023, as well as schools which
are located in education districts which do not form part of these
proceedings.
[22] I was handed the
list which spans about 300 or so pages. It was indicated to me that
Ms Renalelona Goodness Maumo, an officer
designated by the applicant
schools’ legal representatives, undertook an analysis of this
list. Her evidence of the results
of her analysis of the list is
contained in a further supplementary affidavit filed on behalf of the
applicant schools dated 09
October 2023. The list was provided to her
by the ECDOE electronically. There has been no dispute regarding the
result of her analysis
which I will deal with in this judgment once
it becomes opportune for me to do so.
[23] In essence, the
ECDOE’s further supplementary affidavit rendered the immediate
relief entirely moot. Mr
Watson
and Mr
Quinn
who
represented the applicants and the ECDOE, respectively, indicated
that I would no longer need to pronounce on the immediate
relief with
Mr
Watson
accepting the ECDOE’s plan regarding the
provision of temporary classrooms in Mnceba as being ‘a
concrete one’.
The central issue for
determination
[24] What therefore
remains for this Court’s determination is whether the remainder
of the systemic relief which the applicants
seek is warranted in the
circumstances of the present case. Even though the immediate relief
that the applicant schools initially
sought fell away on the date of
hearing of this application, the facts on which the applicants relied
in support of that relief
remain relevant as the contextual basis for
the portion of the systemic relief which now remains as the only live
issue for this
Court’s determination. With this said I turn to
deal with the cases put forward by each of the parties in support of
their
respective cases.
The applicants’
case
[25]
The applicants allege that the applicant schools and others in the
aforementioned education districts have for years been plagued
by
overcrowding and dilapidated infrastructure which the ECDOE has
failed to address and remedy. It is the applicants’ version,
which the ECDOE admits, that the maximum number of learners allowed
in a classroom in terms of the Regulations Relating to Minimum
Norms
and Standards for Public School Infrastructure (the Norms)
promulgated in 2013
[2]
, is
forty.
[26] To illustrate the
overcrowding complained of, the applicants provided tables which
tabulate the number of classrooms and learners
per classroom in each
of the four schools at the time of launching these proceedings. The
applicants lament the ECDOE’s poor
planning as the reason for
its failure to comply with its constitutional obligations.
[27] The first applicant
school is situated in the Northcrest Suburb and falls under the OR
Tambo district. It had a total of 27
classrooms with an enrolment of
1716 learners. Only one of these classrooms had less than 40
learners. The lowest number of learners
in the remaining classes
ranged between 43 and 54 learners with the highest number of leaners
between 54 and 93 in other classrooms.
In one instance, 80 learners
were accommodated in a wooden classroom.
[28] The pattern of
overcrowding was common to all the four applicant schools and in the
second applicant school which is a full-service
school in the sense
of accommodating learners with learning difficulties and situated 10
km south of eNgcobo Town, there were classrooms
made of mud. The
second applicant school had 24 classrooms for the 1367 learners
enrolled thereat. The lowest number of learners
in these classrooms
was 37 while 84 is the highest.
[29] The third applicant
school is situated 25 km southeast of Mqanduli Town and enrolls 1319
learners. It had 15 classrooms and
the lowest number of learners in
the classrooms is 50. The numbers of learners in the five severely
overcrowded classrooms were,
respectively, 101, 109, 113, 128 and 140
in each classroom.
[30] The fourth applicant
school is situated in the rural village of Mnceba in Ntabankulu under
the Alfred Nzo district. At the
time of hearing of this application
1752 learners were enrolled in Mnceba Senior Secondary School and
were still accommodated in
19 classrooms. None of these classrooms
had less than 40 learners. The highest number of learners
accommodated in one of the classrooms
was 105.
[31] The admittedly
dreadful experiences of both the educators and learners of the
applicant schools, which the ECDOE has acknowledged,
are well
documented in the confirmatory affidavits filed in this application
and the photographs annexed to them. The applicants
further state
that the dire conditions of teaching and learning caused by the
overcrowding are a threat to the best interests of
children and
inconsistent with the rights of the learners and teachers to dignity
and equality. They further constitute a violation
of the learners’
right to basic education in a safe and conducive environment.
[32] According to the
applicants, the results of their interactions with the ECDOE over the
period commencing in 2012 up to the
time of this application have
been less than satisfactory. The undertakings that the ECDOE
previously made have not been met satisfactorily
and it failed to
provide them with progress reports on the status of their demand for
adequate infrastructure. In a desperate attempt
to alleviate the
overcrowding in the first applicant’s classrooms, the School
Governing Body at some point applied its own
financial resources to
defray the costs of building six temporary structures, and despite
having done so, classrooms remained overcrowded.
[33] It is the
applicants’ contention that over a period of seven years of its
implementation of its Infrastructure Norms
the ECDOE has attained the
minimum level of infrastructure provision which in their view is
unsatisfactory. School infrastructure
is either poorly built or not
properly maintained. Regarding the instant matter and the ECDOE’s
failure to fully comply with
the court order, the applicant schools
insist that the steps that the ECDOE has taken in trying to remedy
its failure are insufficient.
[34] The applicants
further state that the failure of the ECDOE constitutes a violation
of the obligations imposed on it by the
Norms and Standards for basic
infrastructure in public schools. It further violates the right to
basic education which is constitutionally
guaranteed and immediately
realizable. The applicants gave short shrift to the budgetary
concerns that the ECDOE has repeatedly
raised in its Infrastructure
Plan as a relevant factor in the fulfilment of its obligation to
provide adequate school infrastructure.
According to the applicants,
compliance with the Infrastructure Norms is not subject to available
budget.
[35] Against this
background and in substantiating the systemic relief that they seek,
the applicants state that the problem of
overcrowding is not limited
to the applicant schools. They make reference to four other schools
in the rural areas of the OR Tambo
district, further stating that the
attempts of these schools to obtain redress from the ECDOE were
brought to naught. These other
schools are Mpondombini Senior
Secondary School in the Alfred Nzo East district, Phuthuma Junior
secondary School and Mhlahlane
Senior Primary School which are both
in the Zithulele rural town falling under the OR Tambo education
district.
[36]
The applicant schools state that
there
are likely more schools in the four education districts which have
also been excluded from the ECDOE’s Infrastructure
Provision
and Delivery Plan
.
[3]
Reference is further made by the applicants to a further two schools
which previously had to have recourse to the court in order
to seek
redress against the ECDOE in similar circumstances.
[37] According to the
applicants, the annual tours of the National and Provincial
Government officials around the Eastern Cape Province
do not provide
an efficient, systemic and effective way of identifying schools that
are in critical need of infrastructural intervention.
They allege
that this is so because the said tours only cover less than one
percent of the schools in the Eastern Cape Province.
It is the
applicants’ contention that the systemic relief that they seek
will allow the Court to satisfy itself that other
schools and
learners experiencing a similar problem of overcrowding obtain
adequate redress.
The case for the
respondents
[38] While admitting the
overcrowding of classrooms at not only the schools identified by the
applicants but many other schools
across the Eastern Cape Province
together with their appalling effects, the ECDOE opposes the grant of
the systemic relief.
[39] The ECDOE states
that the infrastructure provision and delivery in the Eastern Cape
Province is governed by its Infrastructure
Programme Management Plan
which includes a project list (the project list) for the relevant
financial year’s Medium Term
Expenditure Framework.
[40] According to the
ECDOE, the determination of schools that ought to be included in its
project list as requiring infrastructure
is guided by a polycentric
process which entails a constant needs evaluation of each school in
each district against fluctuating
student numbers. In this regard the
ECDOE states that even though there are still overcrowded schools in
the already mention education
districts, there are a thousand others
situated in the remaining education districts and which are also in
need of urgent provision
of infrastructure.
[41]
The ECDOE goes on to state that the rationalization and realignment
of schools that it undertook in the Eastern Cape Province
also
impacted the determination of schools that ought to be listed in its
project list as requiring infrastructure. It further
cites the
migration of learners from the rural areas to the urban centres
resulting in overcrowding at the receiving schools. It
also cites the
legislative framework governing the procurement and delivery of
infrastructure.
[4]
The ECDOE
goes on to set out its procurement process which, for the present
purposes I do not consider necessary to repeat nor
cite as it is
common cause between the parties.
[42] It is the ECDOE’s
contention further, that its obligation to provide infrastructure to
the applicants and other schools
does not supersede the obligation it
has to uphold the rule of law in terms of which it is enjoined to
comply with the legislative
framework applicable to the procurement
and delivery of infrastructure.
[43] Regarding its
previous failure to provide and deliver infrastructure to the fourth
applicant school, Mnceba, in full compliance
with the court order,
the ECDOE also cited challenges with the cumbersome procurement
process, and budgetary constraints which
took the form of reduction
of the ECDOE’s Infrastructure Grant from National Government in
order to defray the costs occasioned
by the Covid-19 response
programmes during 2020. The ECDOE goes on to state that the
disruptive effects of the Covid-19 pandemic
negatively impacted its
operations and recruitment of new and/or additional staff,
contractors and/or subcontractors.
[44] It further alleges
that infrastructural damage to various schools which was caused by
destructive storms during December 2021
and January 2022 further
hampered its efforts to remedy its failure to deliver emergency
infrastructure at Mnceba. This, the ECDOE
says, entailed budgetary
reallocation in order to prioritize the repair of the storm-damaged
infrastructure in those affected schools.
[45] It is the ECDOE’s
contention further that its rationalization and realignment, which is
an ongoing process entailing
closure of several small and non-viable
schools across the Eastern Cape Province, serves to improve school
efficiency. The new
Service Delivery Model which merged 23 previous
education districts into 12, has improved the distribution of
resources across
the education districts in the Eastern Cape
Province.
[46] In resisting the
supervisory jurisdiction of this Court which the applicants contend
for, the ECDOE further states that this
will threaten the separation
of powers as this Court is effectively called upon to undertake
functions that aptly reside within
its competence. According to the
ECDOE, this Court’s supervisory role over this matter would be
undesirable and disruptive
to the core functions of the court owing
to the immense work that the implementation of Infrastructure
Delivery Plan entails.
[47] In reply, the
applicant schools contend that in as much as the ECDOE has indeed
provided the list of schools that still experience
classroom
overcrowding, this Court’s supervisory jurisdiction over this
matter is necessary in the light of the ECDOE’s
previous
persistent breach of the Infrastructure Norms and the learners’
right to basic education.
[48] As set out in the
applicants’ supplementary affidavit deposed to by Ms Maumo on
09 October 2023 in which she gives an
analysis of the list of schools
which the applicants received from the ECDOE, the problem of
overcrowding of classrooms persists
in four education districts (OR
Tambo Inland, Chris Hani East and Alfred Nzo East and West
districts).
[49] According to Ms
Maumo, between 21 and 31 per cent of a total of 3353 schools in the
four education districts have overcrowded
classrooms. She further
explains that this translates to 2107 classrooms in the 424 of the
schools. In turn, each of the 424 schools
has five overcrowded
classrooms where they accommodate more than 60 learners per
classroom, and there are 92 of those schools which
have extremely
overcrowded classrooms.
[50] The applicant
schools persist with the contention that the ECDOE’s failure to
comply with its constitutional obligations
pertaining to the
provision and delivery of infrastructure to these affected schools is
as a result of its failure to plan adequately
and effectively.
According to the applicants, this, coupled with the ECDOE’s
previous long-standing failure to comply with
the court order of 18
February 2020, renders the systemic relief that they seek necessary.
The parties’
submissions
[51] On behalf of the
applicant schools Mr
Watson
submitted that the remainder of
the systemic relief will afford redress to the other schools in whose
interest the applicants act,
notwithstanding the fact that the review
relief and the immediate relief which entailed the delivery of
temporary infrastructure
at Mnceba have fallen away.
[52] Principally, Mr
Watson
submitted that in the light of the ECDOE’s
previous breach of the court order and its persistent failure to meet
the undertakings
it made since the applicants commenced engagements
with it regarding overcrowding in the applicants and other schools in
2012,
it is evident that it can no longer be left to the ECDOE to
comply with its constitutional obligation of ensuring that the
learners’
right to basic education is given effect to.
[53]
Relying on the decision of this Division in
Madzodzo
[5]
where
GOOSEN J granted systemic relief in relation to the provision of
adequate and age-appropriate furniture to schools in the
entire
Eastern Cape Province, Mr
Watson
contended
that a similar order in the instant matter will effectively hold the
ECDOE to its constitutional obligation rather than
threaten the
separation of powers. He further submitted that in as much as the
ECDOE maintains best intentions of fulfilling its
constitutional
obligations, there still remains endemic breaches of the learners’
right to basic education in the already
mentioned four education
districts.
[54] Mr
Quinn
submitted on behalf of the ECDOE that in the light of the fact that
the review and immediate relief have fallen away in respect
of the
applicant schools, the issue of persistent breaches by the EDCOE does
not arise. He further submitted that it would be inapposite
for any
further affidavits to be filed by any of the parties in the absence
of any proceedings before court in which the schools
contained in the
recently provided list are litigants.
[55] The list required by
the applicants, of schools which are not included in the MEC’s
Infrastructure Delivery Plan, so
Mr
Quinn
’s submission
went, could in any event, be sought by way of a request to have
access to information. According to Mr
Quinn
such a request to
access information would not intrinsically require that this court
exercise supervisory powers over the instant
matter especially since
the immediate relief concerning the four schools has fallen away.
[56] Mr
Quinn
further submitted that since the schools which the ECDOE has not
included in the Infrastructure Delivery Plan have not been identified
from the list, it is open to the applicants to institute fresh
proceedings and seek an appropriate order to vindicate the rights
of
those schools as may be identified. According to Mr
Quinn
, the
remaining systemic relief is impractical in the light of the fact
that there are no affected schools who seek relief in this
Court.
[57] These submissions
notwithstanding,
Mr Quinn
indicated that the ECDOE is amenable
to providing a report to the applicants’ attorneys of record,
the Legal Resources Centre,
within 90 days of the granting of the
order, regarding schools which do not form part of the ECDOE’s
Infrastructure Delivery
Plan and an explanation why such schools do
not form part of the list; as well as the steps it intends to take to
address the overcrowding.
The Law
[58]
The country’s transformative constitutional order enables the
courts to grant appropriate relief that will protect and
enforce the
rights enshrined in the Constitution where an infringement of such
rights has occurred.
[6]
Among
such relief are structural interdicts and the retention of
supervisory jurisdiction by the courts in a given matter in order
to
provide effective and meaningful constitutional remedies.
[58]
It is trite that the right to basic education that section 29(1)
(a)
of
the Constitution guarantees is an unqualified right which, unlike
other socio-economic rights, is immediately realizable.
[7]
[60]
As the court observed in
Madzozo
,
[8]
the state’s obligation to provide basic education
perforce
requires
the provision of a range of educational resources such as schools,
classrooms, teachers and teaching materials and appropriate
facilities for learning.
[61] In as much as the
Court’s exercise of supervisory jurisdiction over the roles of
other arms of government implicates
judicial overreach, this does not
mean that the Courts cannot grant appropriate relief to compel an
organ of state to act reasonably
and comply with its constitutional
obligations.
[62]
The legitimacy of structural interdicts and retention of supervisory
jurisdiction by the courts was affirmed by the Constitutional
Court
in
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[9]
when it said that the supervisory powers should in appropriate cases
be exercised if it is necessary to secure compliance with
a court
order.
[10]
This would be the
case where the consequences of non-compliance with the constitutional
obligations imposed on the state cannot
be remedied by mere mandatory
interdicts and other relief directing the government actors to take
certain positive steps in complying
with their constitutional
obligations.
[63]
The exercise of supervisory jurisdiction has been found to be
necessary where there has been persistent breach of constitutional
rights and a breach of previous undertakings by government actors to
remedy constitutional violations.
[11]
[64] To sum these legal
principles up, far from impinging upon the separation of powers,
structural interdicts which also confer
upon the court supervisory
jurisdiction over a particular matter, serve to ensure that the
government retains its autonomy in policy
making as a means of
compliance with its constitutional obligations while simultaneously
being caused to act reasonably in striving
for compliance with those
obligations.
[65] I turn to deal with
the question whether the systemic relief in which the applicants seek
this Court’s supervisory jurisdiction
over the instant matter
is necessary.
Discussion
[66] It is necessary to
state that the application papers filed of record in this matter have
undergone several permutations since
the launching of the
application. In the various further affidavits filed of record after
the court order of 18 February 2020,
the ECDOE provides an outline of
the progress it had made in addressing and providing appropriate
infrastructure at the applicant
schools.
[67] Throughout its
several affidavits, the EDCOE acknowledges the problem of
overcrowding not only at the four applicant schools
but in other
schools across the Eastern Cape Province. It makes this concession
concomitantly with what seems to have been trickling
provision,
construction and delivery of classrooms initially at the first to
third applicant schools and later in Mnceba being
the last of the
four schools to receive temporary classrooms.
[68] It is evident from
the common cause facts of this application that while the ECDOE had
in previous years implemented its policy
on infrastructure provision
and delivery at schools in various education districts of the Eastern
Cape Province, as of November
2023, there still exists a total of
2107 overcrowded classrooms in the 424 schools in the four education
districts mentioned above.
[69] As already
mentioned, the court order was obtained on 18 February 2020 by
agreement between the applicants and the ECDOE. This
must have been
the ECDOE’s acknowledgement of its failure to fulfil its
constitutional obligation of providing the applicants
and other
schools with adequate infrastructure in order for the learners in
those schools to have meaningful access to basic education.
That it
took the ECDOE too long a period of time to finally provide the
applicant schools with adequate infrastructure to alleviate
the
overcrowding cannot be gainsaid either.
[70] In keeping with its
acknowledgment of the fact that the problem of overcrowding in the
already mentioned schools across the
four education districts still
persists, Mr
Quinn
submitted that the ECDOE is amenable to
submitting to the Legal Resources Centre, a report on schools that do
not form part of
the ECDOE’s Infrastructural Delivery Plan and
the steps the ECDOE intends taking in addressing the overcrowding at
the schools
contained in the list is provided.
[71] According to Mr
Watson
, this offer by the ECDOE’s is not sufficient when
regard is had to its previous breaches of the undertaking it made of
remedying
the overcrowding in the applicants and other schools, and
this makes the systemic relief that the applicants persist with
necessary.
[72] Mr
Watson’
s
argument overlooks the fact that the review relief which would have
entailed a determination of the reasonableness of the ECDOE’s
conduct in delaying to provide the affected schools with
infrastructure has fallen away. Not only that, the argument flies in
the face of Mr
Watson
’s acceptance on behalf of the
applicants, of the ECDOE’s intended plan in delivering
temporary infrastructure at Mnceba.
This is the same plan that Mr
Watson
described as being ‘concrete’.
[73] I hold the view that
the ECDOE’s plan as accepted by Mr
Watson
served to
remedy its previous breaches of the undertakings it made with regards
to the delivery of infrastructure at Mnceba. I
agree with the
submission made on behalf of the ECDOE that its previous breaches do
not arise in the determination of the live
issue before me.
[74] Significantly,
regard must also be had to the ECDOE’s assertion that it has
begun embarking on the rationalization and
realignment of schools in
the Eastern Cape Province which entails the closure of smaller and
non-viable schools with the learners
from those schools admitted at
the schools which it identifies as the receiving schools. The ECDOE
further alleges that an extensive
needs assessment of each school
must be undertaken in order to determine which schools must be
included in the project list as
requiring additional infrastructure.
The applicants have not disputed this assertion.
[75] The applicants have
not disputed nor admitted that the ECDOE has established a Service
Delivery Mode which has merged 23 previous
education districts in the
Eastern Cape Province into 12 in order to improve efficiency in its
provision and delivery of infrastructure.
This allegation must be
taken as being uncontroverted.
[76] These observations
are relevant to the question whether this Court is institutionally
equipped to make the factual and policy
related determinations
necessary to supervise the execution by the ECDOE of its
Infrastructure Delivery Plan.
[77] While I accept the
need for this Court to deter future violations of constitutional
obligations by the state, it behoves me
to guard against interfering
with the functions of the ECDOE unless on the papers before me a
factual basis has been established,
after the provision of the list,
that there has been a breach by the ECDOE, of its constitutional
obligation towards the 2107 schools
that still appear in the list as
having overcrowded classrooms. As far as I understood the version of
the applicants, they state
that “
there are likely more
schools in the four education districts which have also been excluded
from the ECDOE’s Infrastructure
Delivery Plan.”
The
applicants also acknowledge the need for a systemic and effective way
of identifying schools that are in critical need of infrastructure.
[78] From the ECDOE’s
uncontroverted evidence that it requires to undertake a needs
assessment at each school before including
schools in its
Infrastructure Delivery Plan, the issue that arises is the
appropriateness of the order that this Court would grant
as a remedy
in the absence of the ECDOE’s needs assessment report.
[79] It may indeed be so
that the ECDOE has taken too long a period of time to remedy the
problem of overcrowding in the applicant
schools in particular,
however, the applicants have not established a factual basis for a
constitutional breach in respect of the
schools that appear in the
list dated 06 November 2023 which the ECDOE provided them with. The
applicants have not justified this
Court’s supervisory
jurisdiction that they contend for. This is what distinguishes
Madzodzo
from the present case on the facts.
[80] The ECDOE must be
afforded the opportunity to conduct the required needs assessment at
the schools contained in the list dated
06 November 2023 in order to
determine which of them must be included in its Infrastructure
Delivery Plan. This is all the more
necessary when regard is had to
the ECDOE’s contention which the applicants have not
pertinently traversed, that there are
schools falling in districts
other than the four that this application relates to, which also
require urgent assistance with the
provision of infrastructure. This
Court is not institutionally equipped to make the factual and policy
related determinations necessary
to supervise the implementation by
the ECDOE of its Infrastructure Delivery Plan.
Conclusion
[81]
That the right to basic education is immediately realizable with no
internal limitation requiring its progressive realization
is
incontrovertible. It has been described as an important
socio-economic right directed,
inter
alia
,
at promoting and developing a child’s personality, talents,
mental and physical abilities to his/her fullest potential.
[12]
It is indeed undesirable that in the country’s hard-earned
constitutional democracy, the realization of this right receives
the
least urgent attention from the state.
[82] I readily accept
that there needs to be more deliberateness on the part of the
government actors who are entrusted with the
task of ensuring that
this and other constitutionally enshrined rights are not rendered
illusory. That being so, the concessions
that the ECDOE has made
throughout the papers filed in this application indicate that there
is no misconception on the part of
its responsible actors pertaining
to what the society of the schools in the Eastern Cape Province
requires of the ECDOE.
[83] The list of schools
that still experience overcrowding makes it abundantly clear that
there is no longer room for the ECDOE
to drag its feet in
implementing its already existing policy on the procurement and
delivery of infrastructure at the schools that
still appear in the
list.
[84] With that being
said, to my mind, the ECDOE would, through the report that it offered
to provide to the applicants’ legal
representatives, make known
to the affected public which the applicant schools represent, its
ongoing plans in implementing its
Infrastructure Delivery Plan
pertaining to the schools contained in the list dated 06 November
2023 which are still overcrowded.
The applicant schools and those
other schools in whose interest they act will, in turn, be able to
raise their concerns with the
ECDOE’s report, when provided, at
the government level and, if necessary, assert their rights through
litigation.
[85] I am not persuaded
that it is necessary in the circumstances of the present case for
this Court to retain supervisory jurisdiction
over the matter as
contemplated by the applicants in the remaining portion of the
systemic relief.
[86] There are a few
matters that require remarking regarding how litigation in this
matter was handled.
[87] The work that the
applicants’ legal representatives undertake in promoting and
protecting the right to basic education
can never be discounted.
However, as the ones under whose supervision litigation in this
matter took place, they, alongside with
those representing the ECDOE,
could have done better in facilitating an efficient pre-hearing
management of this matter concomitantly
with the curtailment of the
issues that I have alluded to elsewhere in this judgment which
unfolded since the granting of the court
order dated 18 February
2020.
[88] By way of example,
the papers and documents filed of record in this application span a
few pages shy of one thousand (1000).
The application was set down
for hearing on 09 November 2023 by notice of set down dated 19 June
2023. It was only on 07 November
2023 that I was provided by the
applicant schools’ legal representatives with the chronology of
relevant portions of the
record for which I am grateful.
[89] I note that among
the supplementary affidavits filed by the applicants is that of Mr
Mzukisi Budaza titled “
founding affidavit regarding
respondents’ breach of 18 February 2020 order and replying
affidavit
”. In the same affidavit, the applicants
ostensibly set out facts regarding ‘the respondents’
breach of the already
mentioned court order’, and also replying
to the ECDOE’s answering affidavit. This was inappropriate and
a flouting
of procedure.
[90] At the risk of
stating the obvious, the efficient disposal of litigation would be
best served when those representing litigants
in court proceedings
diligently play their role of supervising litigation.
Costs
[91]
The legal principle regarding costs in cases such as the present,
where the failure of the state functionaries to fulfill their
constitutional and statutory responsibilities provoked the
litigation, was laid down in
Biowatch
[13]
,
when SACHS J said:
‘
I
conclude, then, that the general point of departure in a matter where
the state is shown to have failed to fulfill its constitutional
and
statutory obligations, and where different private parties are
affected, should be as follows: the state should bear the costs
of
litigants who have been successful against it, and ordinarily there
should be no costs orders against any private litigants
who have
become involved. This approach locates the risk for costs at the
correct door - at the end of the day, it was the state
that had
control over its conduct.’
[92] The above quoted
principle finds application in the instant matter, and a no-cost
order is fair and just between the parties.
Order
[93] In the result, I
make the following order:
1. This Court’s
supervisory jurisdiction over the Eastern Cape Department of
Education’s implementation of its Infrastructure
Delivery Plan
in respect of the schools contained in the list dated 06 November
2023 of overcrowded public schools in the OR Tambo
Inland, Chris Hani
East and Alfred Nzo education districts of the Eastern Cape Province,
is refused.
2. There shall be no
order as to costs.
L. RUSI
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the applicants
:
Adv. D Watson
Adv
N Soeke
Instructed
by
:
LEGAL RESOURCES CENTRE
C/o
Potelwa & Co
43
Wesley Street
MTHATHA
Counsel
for the respondents
:
Adv.
RP Quinn SC
CHANGFOOT
VAN BREDA INC.
C/o
Jojo Incorporated
30
Wesley Street
MTHATHA
Date
heard
:
09 November 2023
Date
delivered
:
13 August 2024
[1]
Per
Mnqandi AJ.
[2]
GN
R920 GG 37081 of 29 November 2013, promulgated as envisaged in
section 5A
of the
South African Schools Act 84 of 1996
.
[3]
Emphasis
intended.
[4]
The
ECDOE specifically cites these legislative instruments:
infrastructure Public Finance Management Act 1 of 2000; the National
Treasury Instruction No. 4 of 2015/2016: Standard for Infrastructure
Procurement and Delivery Management and the Framework for
Infrastructure Delivery and Procurement Management and the Treasury
Regulations as the applicable legislative framework governing
the
procurement and delivery of infrastructure.
[5]
Madzodzo
and Others v Minister of Basic Education and Others
(2144/2012)
[2014] ZAECMHC 5;
[2014] 2 All SA 339
(ECM);
2014 (3) SA 441
(ECM)
(20 February 2014).
[6]
Fose
v Minister of Safety and Security
1997(3)
SA 786 (CC) para 19 and 69.
[7]
Governing
Body of the Juma Musjid Primary School and Others v Essay N.O and
Others
2011(8)
BCLR 761 (CC), para 37.
[8]
Ibid
para
20; see also
AB
and Another v Pridwin Preparatory School and Others
(CCT294/18)
[2020] ZACC 12
;
2020 (9) BCLR 1029
(CC);
2020 (5) SA 327
(CC) (17
June 2020), Judgement of THERON J at para 166.
[9]
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
(CCT8/02)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) (5
July 2002) (to be conveniently referred to as “
TAC2”
).
[10]
TAC2
at
para 12.;
Pretoria
City Council v Walker
[1998] ZACC 1
;
1998
(2) SA 363
(CC);
1998 (3) BCLR 257
(CC) para 96.
[11]
Madzodzo,
supra,
fn 4.
[12]
Madzodzo
,
fn 4 supra, para 19, GOOSEN J quoting from
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, para 32.
[13]
Biowatch
Trust v Registrar Genetic Resources and Others
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC) ;
2009 (10) BCLR 1014
(CC) (3 June 2009), at para 56.