On 24 November 2015 the Department of Basic Education (“DBE”) will argue before the Supreme Court of Appeal that delivery of textbooks to each learner in South Africa for each of their subjects before the beginning of the school year is an “impossible standard of perfection”.
The appeal comes more than three years and four court orders after the first case calling for urgent delivery was brought by SECTION27 in May 2012. At the time, a new curriculum was being rolled out to learners in grades R – 3 and 10, with the intention that grade 12 learners would write their final school exams in the new curriculum in 2014. Textbooks, workbooks and teaching guides would be provided to all learners and teachers over a three-year period and only top-ups would be needed for the following five years. What was required was a big push to provide all schools with textbooks between 2012 and 2014.
By the end of 2013, the then spokesperson of the DBE, now MEC for education in Gauteng Province, Panyaza Lesufi, declared 99% of all textbooks to have been delivered for 2014. SECTION27 welcomed this and applauded the DBE for its success.
But from the beginning of January 2014, Basic Education for All (“BEFA”), a community based organisation in Limpopo, began reporting hundreds of outstanding shortages. BEFA and SECTION27 notified the DBE of the shortages and asked that all books be delivered urgently. By the end of March, 39 schools were still without their textbooks, and it was clear that the shortages were not isolated to these schools. By the DBE’s own admission, shortages as at March 2014 totaled at least 793 560 and the DBE has yet to provide one braille textbook for visually impaired learners.
The right to a basic education is an unqualified right owed to each individual separately. The right creates a corresponding duty on the state to ensure that each person has what is necessary for a basic education. This obligation means more than simply removing barriers to accessing schools. It means removing structural and systemic barriers to education. It requires positive steps to rectify past inequalities and special attention to the poorest people. And now, 21 years into our democracy, it requires a sense of urgency.
Unlike other socioeconomic rights in the Constitution, the right to education is not subject to progressive realisation. The Constitutional Court says this means the right is immediately realisable. This does not mean that the drafters of the Constitution envisaged a perfect education being available to each person in South Africa immediately from the Constitution’s inception, but the right must require something more than progressive realisation. At the least, the necessary conditions for a basic education must be continually present for each person.
So far, the courts in South Africa have decided that these necessary conditions include furniture and textbooks. The DBE has prioritised similar content to the right through its policies and regulations. However, it is not enough to prioritise on paper. When these are the basic conditions of an unqualified right, it does not make sense that money is diverted from textbooks and infrastructure, or that new textbooks are prescribed without sufficient money being in place to pay for them. We cannot be in a position where the state’s continued failure to manage their own systems is an excuse for non-delivery of the things that are essential for people to live and to make lives for themselves.
In this case, BEFA is not asking for a standard of perfection. A perfect school requires more than walls and furniture and textbooks. But it is concerning that these conditions of the right to a basic education are in many cases not being met. These are the so-called “low hanging fruit” of the education system. These are the easy things to get right. If complete textbook delivery is impossible, we need to accept that schools will not be building libraries or science labs, will not accommodate learners with disabilities and will not be the catalysts of a more equal society. We will not and cannot accept that.
Join the activist discussion, taking place on 30th November, in Soweto. Panelists include: Panyaza Lesufi, Gauteng MEC for Education, Faranaaz Veriava, SECTION27 lawyer, Tebogo Sephakgamela, BEFA activist, and a special performance by Maishe Maponya
For further information, see our previous blog: #TextbooksMatter: Why Textbooks are a Crucial Part of Every Child's Learning Journey
Join the social media campaign using the hashtag #TextbooksMatter
Read more about the campaign, here
Read more about the case, here
Kate Paterson holds a BA (Hons) from Rhodes University and an LLB from the University of the Witwatersrand. She is an attorney working on the right to a basic education at SECTION27, a public interest law centre in South Africa.