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 [17] citing Juma Musjid [37], 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 [20]). 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 [36].

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 [74], 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 [35]).

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 [41]).

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.

]]> https://ohrh.law.ox.ac.uk/south-african-judge-lays-down-the-law-on-the-right-to-a-basic-education/feed/ 0 4701 https://ohrh.law.ox.ac.uk/ready-to-learn/ https://ohrh.law.ox.ac.uk/ready-to-learn/#respond Wed, 06 Nov 2013 16:37:57 +0000 http://humanrights.dev3.oneltd.eu/?p=3125 South Africa’s Legal Resources Centre (LRC) launched a new book—Ready to Learn? A Legal Resource for Realising the Right to Education—on 25 October at the Open Society Foundations in New York City (see press release here). Chris McConnachie explains the significance of this publication.

Followers of South Africa’s socio-economic rights case law will be familiar with the hard-fought legal campaigns over the rights to housing, healthcare, social assistance, water, and other goods.  The Constitutional Court’s judgments on these rights are studied around the world and the underlying legal strategies have been carefully dissected for lessons on how to litigate socio-economic rights effectively.

In contrast, the recent wave of education rights litigation has received limited attention outside of South Africa.  Most of these cases have settled before going to court.  Others have resulted in High Court judgments that have not been widely circulated.  Some cases have reached the Constitutional Court, but none has resulted in an authoritative judgment on the right to a basic education.  Education in South Africa still awaits its Grootboom—the path-breaking judgment on housing rights that cleared the way for further litigation.

The Legal Resources Centre (LRC), South Africa’s oldest and largest public interest law organisation, has been at the forefront of these efforts to secure the right to a basic education.  In a series of cases, the LRC has achieved settlement agreements and court orders requiring the national and provincial governments to:

• Commit R8.2 billion to the eradication of ‘mud schools’ and the improvement of school infrastructure across South Africa;

• Fill 7,000 vacant teaching posts in the Eastern Cape Province;

• Complete a comprehensive audit of Eastern Cape schools’ furniture needs and explain how each student will be provided with a desk and a chair;

• Publish binding norms and standards on school infrastructure – including adequate classrooms, electricity, water, sanitation, libraries, laboratories, sports and recreational facilities, and perimeter security – for all South African schools by November 2013.

Until now, information on these cases has not been easily accessible.  In Ready to Learn? A Resource for Realising the Right to Education, a new book available for free download, the LRC offers the first consolidated account of its work, including summaries of the key cases; extracts from court documents, judgments, and orders; and candid discussions of the strategies informing past and future cases.

This is an important resource for understanding the development of education rights litigation in South Africa.  It also offers lessons for lawyers and campaigners around the world in how to use courts to secure education rights.  The LRC’s work shows that litigation can achieve a great deal when it is properly planned and executed.  It is also a reminder of courts’ limitations in the face of government incapacity and intransigence.  As this book details, South Africa’s national and provincial governments have routinely failed to comply with court orders and settlement agreements, requiring the LRC and its partners to engage in patient negotiations, media campaigns, and further litigation to secure compliance.

In his foreword to the book, Dr Kishore Singh, UN Special Rapporteur on the Right to Education, emphasises the need for lawyers and academics around the world to share their ideas and experiences in enforcing education rights. The LRC has benefited greatly from this shared knowledge in formulating its legal arguments and strategies. Ready to Learn more than returns the favour.

Ready to Learn? A Legal Resource for Realising the Right to Education is available for download here.

Chris is a South African DPhil candidate at Lincoln College, Oxford.

While lawyers outside the US have followed the case closely, the truth is that this decision and the decisions to come will have no real impact on discrimination law in other countries.  The US Supreme Court’s approach to race-based affirmative action, and discrimination law more broadly, is already so far outside the international mainstream that few courts or legislators ever look to it as a source of inspiration.  In this post I will explore the three features of the US approach, clearly revealed in Fisher, that separate it from this mainstream.

1) Race-blindness

The first is the US courts’ obsession with the appearance of race-blindness and the belief, endorsed by the majority in Fisher, that all racially-based distinctions are inherently wrongful, requiring meticulous justification. In his concurring judgment, Justice Thomas went so far as to suggest that there was no meaningful difference between the University of Texas’ admission programme and 1950s-style school segregation.

These views are not widely shared by courts and law-makers outside the US.  The International Convention on the Elimination of Racial Discrimination (CERD) provides that measures to advance disadvantaged racial groups are not discriminatory. In a similar vein, the South African, Indian (primarily in the context of caste) and Canadian constitutions, among others, expressly authorise affirmative action measures, recognising that equality requires concerted efforts to address existing patterns of racial disadvantage.

2) Strict scrutiny

The US Supreme Court subjects all racially-based distinctions to ‘strict scrutiny’, an intense form of judicial review, as a result of its belief that all of these distinctions are inherently wrongful. Only those racial distinctions that serve a ‘compelling’ purpose and are ‘narrowly tailored’ to this purpose are allowed.  This is in contrast with jurisdictions such as Canada, South Africa, and India where courts have adopted far more deferential standards of review.  For example, in Canada, racially-based distinctions are permissible so long as they are rationally connected to an ameliorative purpose and are targeted at disadvantaged groups (R v Kapp [41]).  These deferential approaches are often based on the express constitutional authorisation of affirmative action, combined with courts’ aversion to interfering with such complex issues of social policy—an aversion that the US Supreme Court does not share.

3) Diversity as the be-all and end-all

Finally, the US Supreme Court has significantly narrowed the legal debate over racially based affirmative action by entrenching the ‘educational benefits of diversity’ as one of the only ‘compelling interests’ that can justify these measures.  Many weighty reasons for affirmative action recognised by courts and law-makers around the world are banished from the legal debate in the US. The need to compensate for racial discrimination in society is, according to the majority in Grutter and Fisher, not a good reason, as are the needs to address existing racial inequalities, to promote role models, or to make state institutions representative of the communities they serve, among others.  As one commentator describes it, ‘[t]he diversity rationale kept affirmative action afloat [in the US], but it sank any chance of an honest exploration of the reasons we might need it.’

As comparative law scholars will be quick to remind us, the mere fact that the US approach is outside the mainstream is not itself a reason to reject it.  Nonetheless, the gulf between these approaches and their underlying assumptions means that, in reality, few lawyers, courts, or law-makers outside the US will seriously look to Fisher and the associated case law for guidance, apart from using it as a distancing device, showing that ‘this is not us’.

Given this lack of legal relevance, what accounts for non-US lawyers’ fascination with Fisher?  One explanation is that the US Supreme Court’s warring factions of conservatives and liberals always provide good judicial drama, particularly on an issue as charged as affirmative action.  Perhaps a deeper explanation is that we are all nostalgic for a time when US discrimination law actually had something to teach the rest of the world.

Chris McConnachie is a South African DPhil candidate at Lincoln College, University of Oxford.  He is also an editor of the OxHRH Blog.

Justice Verma Committee on Indian sexual violence laws

The Justice Verma Committee submitted its report on the reform of India’s sexual violence laws last month in response to the horrific gang rape and murder of a student. We featured extensive commentary on the report’s content and its reception.  Follow this link to read more.

Religious rights in the ECtHR

Julie Maher and Claire Overman analysed the European Court of Human Rights’ long-awaited judgment in Eweida v United Kingdom. Follow this link to read more.

Same-sex marriage

Karl Laird has provided extensive commentary on the legal and legislative wrangles over gay marriage in the UK and the US. His posts are available here.

Wadham Human Rights Forum

The Wadham College Human Rights Forum kicked off last week, featuring some of the biggest names in international human rights law.  Ben Emmerson QC, UN Special Rapporteur on Counter-Terrorism and Human Rights, presented the first lecture in the series , as reported by Luke Rostill in ‘The “War Against Terrorism” and the Decade of Exceptionalism‘.  In the build-up to his talk earlier this week, Clive Stafford Smith provided a hard-hitting comparison between the death penalty and the detention of ‘enemy combatants’ in ‘Political Betrayal‘.

This book, by a retired Justice of the first South African Constitutional Court, provides an in-depth analysis of human dignity and its relationship to equality in South African law.  While concentrating on the South African law, it is also a comparative study, seeking guidance from Canadian and German jurisprudence (widely defined).

A lack of proper linguistic and logical analysis on the part of lawyers has rendered the legal discussion of equality and non-discrimination confused (and confusing), unnecessarily sceptical, and needlessly complex. The main contention in this regard is that, in a special logico-grammatical sense the noun equality and the adjective equal, cannot be used substantively, but only in an attributive sense.  Put more simply, intelligible meaning can only be given to equality, as applied to humans, if the antecedent question “Equality of what?” is first asked, or, more expansively, “In respect of what are all human beings equal and in respect of what may no-one be discriminated against?”  The author argues that human dignity is the attributive key that unlocks the constitutional meaning of equality and unfair discrimination.  The work, in different fields, of Peter Geach, Philippa Foot, and Amartya Sen is invoked in this context.

The philosophical and Abrahamic religious roots of these constitutional concepts of dignity and equality are investigated.  No higher constitutional claim is made for the theological perspectives than for the secular philosophical, but are presented in an attempt to establish as broad as possible an “overlapping consensus” (in the Rawlsian sense) as possible.  These concepts are then further explored and illustrated in the comparative context of South African, German and Canadian constitutional jurisprudence.

Clashes and tensions between rights inevitably occur when the equality and non-discrimination rights of a Bill of Rights are applied horizontally, that is between subjects of the state themselves. The most obvious examples are clashes between the constitutional rights of equality and non-discrimination of one subject, and those of the freedom, privacy and property rights of another. This can arise, by way of example, when a white seller of immoveable property seeks in the deed of sale to prohibit the seller from in turn re-selling the property to a black purchaser. The human dignity of the contestants plays a vital role in resolving such tensions and conflicts.  Reliance is in this regard placed on the pioneering work of the late Louis Henkin of Columbia University; and the role of human dignity in resolving clashes between the competing horizontal rights of subjects is defended as “a neutral principle of constitutional adjudication” in the sense that this concept has been developed by Herbert Wechsler and Kent Greenawalt.

Constitutionally mandated restitutionary (compensatory) equality is examined and it is argued that it should be seen as a public law manifestation of unjustified enrichment, but with its own unique remedies. It is contended that seeing the remedy as a restitutionary one will help to dispel the negative and often hostile perceptions of those who are called upon to make restitution.  Human dignity has a determining function when applying constitutionally mandated restitutionary (compensatory) equality and when determining what the legitimate extent and duration of such restitution is. The dangers of simplistically importing the concept of “affirmative action” from the USA are highlighted.  A distinction has to be drawn between a political majority applying restitutionary or compensatory remedial equality against its own interest and a political majority applying it in its own favour. When it is a political majority applying restitutionary equality in its own favour, it behoves such majority to take particular care not to infringe the human dignity of those called upon to make restitution. Wherever possible provision should be made for “special cases.”  These issues are also considered in a comparative constitutional context.

It is incumbent on those who are sceptical of the human dignity concept and its use in constitutional law to play closer attention to the more than sixty years of rich and thought-provoking German jurisprudence.  This book endeavours to convey some of this richness.

South Africa is a pioneer in the recognition and enforcement of socio-economic rights.  While there has been extensive litigation over housing, healthcare, social security and a range of other socio-economic rights, the right to ‘a basic education’ under section 29(1)(a) of the Constitution has been largely neglected.  This is not for a lack of need.

South Africa’s education system is in a terrible state.  The World Economic Forum’s recent global competitiveness report ranks South Africa 129th out of 139 countries in primary education.  This reflects the poor conditions in South African schools.  According to government statistics, thousands of schools lack basic amenities, eighty per cent of schools lack sufficient text books, only seven per cent have stocked and functioning libraries, and ten per cent have working computer facilities.  Teaching standards also remain weak, compounded by the state’s failure to fill vacant teaching posts. These conditions are the product of apartheid policies which produced vast disparities in the education system.  Since the end of apartheid little progress has been made in improving these conditions and, in many areas, conditions have worsened.

It is only in the last three years that civil society groups, school governing bodies and parents have begun to use the right to a basic education to compel the state to take action.  This started with test litigation in 2010 over inadequate school facilities in the Eastern Cape Province. This focus on school facilities has since expanded into ongoing litigation to force the Minister for Basic Education to produce national norms and standards for school infrastructure.  There has also been headline-grabbing litigation over the state’s failure to provide textbooks to schools in the Limpopo Province, resulting in a far-reaching court order requiring the government to take immediate action to provide textbooks and to implement a catch-up plan.  Most recently, Eastern Cape schools have succeeded in obtaining a court order requiring the state to fill vacant teacher posts in the province after a decade of inaction.

This demonstrates the rise of an ‘education adequacy’ movement in South Africa, akin to the movement that emerged in the United States in the late 1980s and early 1990s.  The South African movement is still in its infancy, but this early litigation has revealed two key trends.

The first is that litigants have sought to capitalise on the ‘unqualified’ nature of the right to a basic education. Unlike many of the other socio-economic rights in the South African Constitution, the right to a basic education is not qualified by the requirements that the state must take ‘reasonable’ steps to implement the right ‘progressively ‘ within its ‘available resources’.  The Constitutional Court interprets these qualifications to mean that individuals do not have a positive right to socio-economic goods on demand but merely have a right to have the state implement reasonable programmes to provide access to these goods over time.  This imposes an onerous burden on litigants, as they must establish that the state’s programmes are unreasonable. In Governing Body of the Juma Musjid Primary School & Others v Essay NO & Others [37] the Constitutional Court affirmed that the right to a basic education is different.  It is a right to receive a basic education; anything less is a limitation of the right requiring the state to justify the limitation.  The implications are yet to be fully worked out, but it is clear that the unqualified right eases the burden of proof on litigants and focuses attention on the poor conditions at their schools.  The education adequacy movement has made good use of these advantages.

The second important trend is that litigation has not been treated as an end itself but as one element of a broader range of strategies to secure improvements in education.  This is evident in the current litigation over norms and standards for school infrastructure which has been accompanied by protest marches, pickets, fasting and petitions.  The litigation over textbooks in Limpopo has also been used as a tool to focus media and political attention on this issue.  This is a clear example how litigation can be used to complement rather than to replace structured political engagement, as Dennis Davis emphasised in his recent post.

Many challenges lie ahead.  Uncertainty remains over the proper interpretation of the right to a basic education, there have been real problems in enforcing court orders, and there are difficult questions over the appropriate role of the courts in addressing systemic problems in the education system.  The movement will soon need to address these challenges.

Chris is a MPhil Candidate at Lincoln College, Oxford and is the administrator of the Oxford Human Rights Hub.  He is the co-author of ‘Concretising the Right to a Basic Education‘ (2012) 129 South African Law Journal 554, an article documenting recent litigation over school facilities in South Africa.