South African Judge Lays Down the Law on the Right to a Basic Education
In previous posts, Chris McConnachie has documented the rise and the successes of South Africa’s emerging education adequacy movement. In this post he analyses the movement’s most recent victory in the battle for adequate school furniture.
One of the most visible manifestations of the ongoing crisis in South African education is the severe shortage of desks and chairs in schools. Children in the Eastern Cape, South Africa’s poorest province, are among the worst affected. A government audit in 2011 found that 1,300 of the province’s 5,700 state schools lack adequate furniture, affecting over 605,000 children. Many sit on the floor, stand, or squeeze into desks shared with others, making basic reading and writing tasks virtually impossible. In Madzodzo v Department of Basic Education, handed down on Thursday last week, Judge Glenn Goosen of the South African High Court declared that the government’s failure to address this problem is a violation of the section 29(1)(a) constitutional right to a basic education. He further ordered the government to deliver sufficient desks and chairs to all Eastern Cape schools by 31 May 2014.
Madzodzo is arguably the most significant judgment yet on the right to a basic education. At this stage, any judgment on this right is significant given the paucity of case law (discussed in a previous post). What makes Madzodzo so significant is that Goosen J has offered one of the clearest accounts of the nature and content of this right, and the most convincing demonstration yet of how to translate this right into appropriate remedies.
This judgment marks the end of three rounds of litigation over school furniture in the Eastern Cape. The first round resulted in a detailed consent order, handed down in November 2012, recording the government’s undertaking to complete a full audit of Eastern Cape schools’ furniture needs, to develop a comprehensive plan to address the shortage, and to deliver furniture to all schools in need by June 2013. The audit was completed three months late, its coverage was patchy, and there was no sign of the comprehensive plan or province-wide delivery. This non-compliance resulted in a second round of litigation in August 2013 and another consent order recording further promises of an independent audit and a comprehensive plan. The sticking point was whether the government should be bound to deliver furniture by a fixed deadline. This led to the third round of litigation heard by Goosen J in mid-February 2014.
In this round, the government readily conceded that its failure to provide sufficient desks and chairs was a violation of the right to a basic education. However, it argued that budgetary and logistical constraints meant that it would take an indefinite time to provide adequate furniture, requiring an open-ended court order. A complication was that the Eastern Cape budgeted a mere R30 million (£1.6 million) for school furniture in the 2013/2014 financial year, a tiny portion of the estimated R360 million (£20 million) needed to address the shortage.
Goosen J rejected the government’s arguments for an open-ended order. This was motivated, in part, by the government’s consistent non-compliance with the previous court orders which necessitated more stringent judicial control. Furthermore, Goosen J emphasised that an open-ended order would fail to vindicate the right to a basic education. In setting out this argument, Goosen J provided one of the clearest accounts yet of the nature and content of this right. First, he emphasised that the right to a basic education is distinct from other socio-economic rights in the South African Constitution as it is ‘immediately realisable’ (Madzodzo  citing Juma Musjid , discussed further here). Second, Goosen J stressed that right to a basic education ‘requires the provision of a range of educational resources’, including desks and chairs, and is not merely a right to a place in a school (Madzodzo ). This makes explicit a point that has long been implicit in other judgments. Goosen J concluded that an open ended order with no deadline for delivery would fail to provide effective relief .
Underpinning Goosen J’s judgment and order is the important point that the immediately realisable right to a basic education cannot always translate into immediate relief (explained further here ). Resource and capacity constraints are always important considerations in determining the appropriate remedy. Nevertheless, immediate realisability does require, at minimum, that remedies must offer a clear timetable for relief. Furthermore, Goosen J emphasised that mere assertions of budgetary incapacity cannot justify watering down remedies. Citing the Constitutional Court’s judgment in Blue Moonlight , he emphasised that ‘it is not good enough for [government] to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its [constitutional] obligations’. Goosen J held that the government had been fully aware of the furniture crisis at least since 2011 and its budgeting decisions ought to have responded to this crisis (Madzodzo ).
The resulting order demonstrates how to balance the need for effective relief with the need for some flexibility to accommodate legitimate budgetary and capacity constraints. The government was ordered to provide furniture to all schools by 31 May 2014, but it may apply for an extension by giving ‘full disclosure’ of the steps it has taken, a full set of reasons for the delay, and a clear timeline for delivery (Madzodzo ).
The significance of Goosen J’s judgment is not its finality. The government will undoubtedly request an extension, leading to further rounds of litigation. Instead, its significance is that it injects greater urgency, transparency and accountability into the delivery of adequate school furniture. All Eastern Cape children may not have a desk and a chair of their own by 31 May, but Goosen J’s order ensures that the government will not escape its constitutional obligations lightly.