The South African Constitution guarantees everyone the right to a basic education, but the Department of Basic Education estimates that 597,000 children with disabilities (out of 829,000) are out of school. Many of these children are not in school because there is, quite simply, no transport that they can use to get to school.
The mother of a child with a physical disability explains how the absence of transport is experienced:
'When my child started in primary school, we did not have transport to take her to school. We live very close to the school and so I carried her on my back to school and back every day. I never asked for assistance from the school because I thought it was my duty to ensure that my child gets to school every day. Other children used to laugh at my child because they said she is too old to be carried on my back. This used to make her feel bad but she accepted it and ignored the other children when they teased her. In high school, I arranged private transport for her because she was too big for me to carry on my back. This became unaffordable and she dropped out of school. She still sits at home now.'
This mother is part of a case for scholar transport in KwaZulu-Natal, which will be heard in the Pietermaritzburg High Court on Tuesday 7 November. There are other, rarer, cases where children with disabilities are provided with transport by the state. However, in many of these cases, the vehicle is inappropriate in terms of its design, resulting in children in wheelchairs being uncomfortably hoisted up steps as wear-and-tear to their chairs is increased, or the vehicle leaves children at central drop-off points, essentially abandoning learners with physical or intellectual disabilities halfway through their journeys home. This transport may be state-sanctioned, or it may be informal transport provided without the drivers having operating licences.
Siphilisa Isizwe, a disabled people’s organisation representing the interests of learners with disabilities, will present a case outlining the intolerable levels of hardship faced by learners with disabilities. It will also address the questions which arise from this hardship existing: Is this an acceptable state of affairs? Who is responsible for these learners’ transport to and from school? Are they meeting their responsibilities?
It is clear that a situation where learners are barred from accessing schools is unacceptable. The Eastern Cape High Court found as much when it held that '[t]he right to education is meaningless without teachers to teach, administrators to keep schools running, desks and other furniture to allow scholars to do their work, text books from which to learn and transport to and from school at state expense in appropriate cases.'
It is also constitutionally insupportable to have situations where almost fully-grown learners are carried on their mothers’ backs to school, or where parents, dependent on social grants, must choose between sending their children to school or feeding their families. This is at odds not only with the right to basic education, but personal rights including dignity, equality and physical integrity.
Where constitutional rights are threatened or infringed, as they are in the cases mentioned, section 7(2) of the constitution gives rise to an obligation on the state to take specific positive measures to prevent the infringement of the right. Therefore, where a child’s distance from school combined with their parents’ inability to fund their trip to school threaten the child’s ability to attend school, the state must step in. It must even step in where other rights are impacted, and so its duty extends to cases where children face other forms of harm or even indignity.
Scholar transport falls within the purview of both the education and transport portfolios, and both education and transport services are provincial government responsibilities. For this reason, representatives for the KwaZulu-Natal MEC for Education and MEC for Transport, Community Safety and Liaison will appear in court on Tuesday.
The problem is not simply the state of affairs reflected in the testimonies of learners and parents, as this does not necessarily result in a legal or constitutional breach on the part of the state. The breach, in this instance, arises from the failure by the state to act in a manner that is 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'. This standard of conduct required of the state under the constitution means that the unsubstantiated allegation that it has no money is not a good enough reason to justify the current state of scholar transport in the province. More must be put forward, and what is put forward must meet the standards set by the constitutional values of dignity, equality and freedom.
On its own version, KwaZulu-Natal has a learner transport policy. However, this policy makes absolutely no provision for learners with disabilities. This is not only discriminatory and therefore a violation of the rights of learners with disabilities to equality, it is also at odds with national policy on learner transport which caters for and requires provinces to cater for learners with disabilities.
Also on its version, the KwaZulu-Natal provincial government, particularly the education department, does not have sufficient funds to cater for learners with disabilities. It has never proved that its funds are insufficient, nor has it revealed the manner in which its funds were spent for purposes of determining if the spending was justifiable. This is becoming increasingly important in a time rife with instances of unjustifiable spending.
The South African education system faces rolling crises relating to textbook provisioning, curriculum changes, teacher shortages and infrastructural degradation. The provision of access to schools is, by comparison, one of the simpler and more mundane things we have got wrong in South Africa. Arguably, it is relatively easy then, to put this right. The problem is that the provincial government is not doing the best that it can do.
More information on SECTION27 and their work on the right to education of learners with disabilities can be found on their website issue page here. You can also read their report Too many children left behind: Exclusion in the South African education system, here.
This blog was written by Bahvna Ramji, a lawyer with the organisation SECTION27 in South Africa who has worked in the area of Education work since September, 2016. Bahvna conducts litigation on behalf of interest groups, learners and school governing bodies on cases aimed at achieving equality in the public education system. She works on cases involving learners with disabilities, and on school funding and resources. Bahvna works with SECTION27 because she believes in strengthening the State while making it more accountable and effective. Bahvna has worked both in private practice and in the non-profit sector. Before joining SECTION27, she worked primarily on litigating housing and property cases, representing protestors, and working on behalf of Western Cape farmworkers.