In the precedent-setting decision of Tripartite Steering Committee and Another, the Eastern Cape High Court held that the constitutional right to a basic education is ‘meaningless’ unless students have access to transport to and from school, at Government’s expense, in appropriate cases. Last week, the Government determined to provide transport to all 172 named learners. The decision underscores that concrete relief can be obtained through education litigation in South Africa, even if courts do not grant the full extent of supervisory orders sought against the state.

The Legal Resources Centre (LRC) brought proceedings on behalf of four schools whose applications for scholar transport had been rejected by the Provincial Government without explanation or, in one case, approved but not implemented. The LRC argued that eligibility for scholar transport should not be determined by an arbitrary distance requirement (that students walk at least 5 kilometres to school), but should consider the impact of the lack of transport on a student’s constitutional right to a basic education (section 29(1)(a) of South Africa’s Constitution). Evidence was filed to show that even students who walked between 4 – 5 kilometres to school were forced to miss school during bad weather and had been victims of violent incidents while walking there.

The Government made a number of significant concessions in evidence including that: the provision of scholar transport in appropriate circumstances is part of the right to a basic education; it had not assessed the students’ eligibility for transport prior to refusing the applications; and ‘the existing policies are confused and confusing in a number of important respects’. The Government requested an opportunity to ‘get their house in order’ and opposed the orders on the basis that the 5 kilometre distance criterion must be strictly applied.

In his judgment, Judge Plasket did not grant the full scope of relief sought by the LRC. Nonetheless, the judgment contains significant rulings regarding the right to a basic education. Plasket J held that the right includes access to transport to and from school, at Government’s expense, in appropriate cases. LRC’s submissions were accepted regarding the arbitrariness of the distance requirement and the need for any distance criterion to be ‘applied flexibly in order to achieve the ultimate purpose of providing scholar transport to all of those who need it’. Plasket J emphasised that, ‘the [scholar transport] policy is not an end in itself but a means to the department’s end of meeting its obligations in terms of s 29 of the Constitution.’

The Judge ordered that the decisions to refuse scholar transport be set aside on the basis that they were arbitrary, having been taken without considering the individual students’ circumstances, and ordered that new decisions be made by 31 July 2015. Plasket J declined to substitute his own decision regarding the eligibility of the students because such a decision would depend on an individual assessment of each learner’s circumstances. In the case of the school whose application had been approved but not implemented, the Judge ordered that the Government provide scholar transport immediately.

Plasket J accepted the need to monitor the implementation of a new scholar transport policy and set a timeline by which the Department must report to the Court on its progress. He did not, however, order the Government to implement a public database of eligible learners, as sought by the LRC, as such an order would amount to ‘dictating the content of the policy that is currently being formulated’.

This decision adds to the expanding jurisprudence on the right to a basic education in South Africa’s Constitution. Over the past five years, public interest litigation has resulted in judicial rulings that the right requires the provision of sufficient numbers of teachers, textbooks, desks and chairs, and, now, transport to school (as well as out-of-court settlements on the eradication of mud schools and norms and standards for school infrastructure.) One reason for this success may be the formulation of the right, which differs from other socio-economic rights in South Africa’s Constitution. It is immediately realisable, not subject to an obligation that the State take ‘reasonable measures’ within its ‘available resources’ to progressively realise it.

While the 172 learners began receiving scholar transport two weeks ago (and are thrilled with the outcome), more litigation on the issue of scholar transport is likely if the state fails to address the underlying issues of maladministration and corruption in the scholar transport program that results in thousands of deserving learners being left to walk long, dangerous routes to school.