On 24 November 2015, the South African Supreme Court of Appeal will hear the appeal in what is widely referred to as the ‘Limpopo textbooks case’. The case will, in all likelihood, be heard sometime in 2016 by the Constitutional Court as the final court of appeal on constitutional matters.
The core issue that will be determined is the appropriate standard of review for assessing whether or not the state has complied with its obligations to provide a basic education in terms of the South African Constitution, which guarantees every learner the right to a basic education. As discussed previously on the Blog (here and here), there has been a growing education adequacy movement in South Africa, which is increasingly using litigation in an attempt to improve conditions in schools.
In 2012, SECTION27, a public interest organisation, initiated the first textbook case because of the failure of the state to deliver textbooks in the new curriculum to schools throughout the Limpopo province of South Africa. The court held that textbooks were an “essential component of the right to basic education” and the failure to deliver textbooks to Limpopo schools violated the rights of learners to a basic education. The Department of Basic Education was therefore ordered to urgently deliver the textbooks to all schools in Limpopo. SECTION27, however, had to approach the court on two further occasions that year to ensure that government complied with this initial court order.
In 2014, SECTION27 launched a new application on behalf its clients, Basic Education for All (BEFA), because of shortages in the delivery of textbooks at certain schools in Limpopo that year. The court delivering judgment in this case confirmed the earlier judgment and elaborated on the state’s obligations by stating that it is the right of every learner to be provided with a textbook in each of his or her school subjects, before the commencement of the academic year. The court noted further that:
“The delivery of textbooks to certain learners but not others cannot constitute fulfillment 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 enquiry that all other pupils have been given textbooks.”
The Department of Basic Education has appealed this decision on the basis that a full complement of textbooks is not necessary to provide a basic education. It argues that this requirement is tantamount to a standard of “perfection” that should not be employed to determine whether or not there has been a breach of the right. Instead, the Department argues the requisite standard ought to be whether or not government has adopted reasonable measures to fulfill the right.
“Reasonableness review” has been adopted by the South Africa Constitutional Court in respect of the socio-economic rights such as health, housing, food, water and social security. These rights are qualified by the terms “reasonable legislative and other measures,” within the state’s available resources and “progressive realisation”. On this basis, courts adjudicating cases in respect of these rights merely have to determine whether or not the Government has put in place reasonable programmes to progressively realise the right under review over time. This is in contrast to determining whether or not an individual has a direct claim in respect of the right.
In countering the appeal, SECTION27 has adopted a more substantive approach to interpreting the right to basic education. It notes that in previous education cases, the Constitutional Court has already acknowledged the status of the right as one which is unqualified and distinguishable from other socio-economic rights, and has described the right as “immediately realisable”.
SECTION27 argues that this requires the Government to urgently take steps to do everything within its power to provide, to each and every learner, the components that are necessary for, and which are “inextricably” linked to, the realisation of the right.
In recent years there have been several cases in the South African high courts aimed at improving basic education provisioning. These cases have resulted in settlement agreements and court orders requiring that Government improve school infrastructure, educator and furniture provisioning in schools, as well as arrangements to transport learners to and from school. This appeal will therefore have implications for all current and future cases relating to basic education provision.
SECTION27’s head of arguments in the appeal are available at: http://section27.org.za/2015/11/textbooks-heads-of-argument/