Picture source: Getty/iStock
By Lebo Collins Manzini
Since the beginning of time, education has always been a way in which society conveys knowledge from generation to generation. Education today is considered a basic human right and one of the most important rights worldwide. Education is regarded as the most valuable prerequisite to advancement and progress. Not only that it provides the necessary skills and knowledge, but it is also used to convey the fundamental tone of human rights. The opportunity to learn enhances people’s self-respect and dignity thus making it important in the realisation of other rights.
The Constitution provides strong protection for educational rights. Furthermore, the state is required to uphold, advance, and fulfil the right to education as stated in s 7(2) of the Constitution. This can only be accomplished by the government passing laws and regulations that are effective and making sure they are implemented. However, despite the interventions introduced to ensure that the right to quality education is realised, the government and the officials that have been given the responsibility to properly implement the laws and policies have dismally failed, particularly in the rural areas and informal settlements.
I submit that the South African school system is crippled by a great number of challenges that should not have existed had the implementation of laws and policies been a priority. These challenges, inter alia, include lack of proper infrastructure and inadequate buildings, quality education in a safe environment, insufficient funds for the realisation of education, and inequalities in school environment, to name a few. The lack of these facilities in rural schools is a serious violation to the right to quality education, dignity, safety, and the right to life.
The significance of having a secure and functional school infrastructure is acknowledged by several international conventions. One of the first international instruments to express the right to education is the Universal Declaration of Human Rights (UDHR). It provides everyone with educational rights under Article 26. It also stipulates that education is mandatory and free, at least for the basic and elementary levels. Similarly, the Convention on the Rights of the Child (CRC) also protects the right to free basic education.
South Africa (SA) became a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 2015, and Article 13 affirms the right to education. In the ratification of the ICESCR, SA pledged to uphold the right to education as stipulated in Articles 13(2)(a) and 14, subject to the constraints of its National Education Policy and available funding. This declaration went against a ruling made by the Constitutional Court in Governing Body of the Juma Musjid Primary School and Others v Essay NO and Others (Centre for Child Law and Another as Amici Curiae) 2011 (8) BCLR 761 (CC), wherein the court held that, in contrast to certain other socio-economic rights, the right to education is immediately attainable.
It is, therefore, acknowledged that to realise adequate education, a safe school infrastructure is a necessity. It is submitted that the state has failed in its duty to uphold the international law obligations. Although some improvements have been made, they are nowhere enough to fully realise this right. It is trite that school infrastructure in informal settlements is at a poor state, therefore, making it difficult to fully realise the right to education.
Section 29 of Constitution recognises education as a fundamental human right that the state must actively work to advance and uphold. As opposed to other socio-economic rights, the right to education is realised immediately. This indicates that the Constitution underlines how vital it is for the government to give every learner an education. Despite not being specifically stated in the Constitution, courts have determined that school infrastructure is essential to the fulfilment and more comprehensive right to education.
It is important to note that when s 29 comes into question, other constitutional rights become implicated. Some of these rights include, ss 9, 24, 28 and importantly s 10 which protects a person’s dignity. This right becomes infringed when learners are forced to attend schools with unsafe and inadequate infrastructures. In Komape and Others v Minister of Basic Education (LP) (unreported case no 1416/2015, 23-4-2018) (Muller J), the court held that failing to take proactive measures to provide safe and sufficient toilets for schools in rural areas, as well as continuing to permit inadequate sanitation to exist in schools, constitute systematic practices that violate learner’s right to human dignity.
It cannot be disputed that the government has enacted and put into practice a number of legislation and initiatives aimed at increasing access and enhancing educational standards. In addition to the Constitution, a number of significant educational legislation and regulations have been put in place to regulate education in SA. The two main laws implementing the right to education are the South African Schools Act 84 of 1996 (SASA) and the National Education Policy Act 27 of 1996. SASA lays out a standardised framework for school’s administration, financing, and organisation. It also safeguards student’s access to high-quality education.
It is evident that these government policies have significantly improved and expanded access to education, guaranteeing that every child can attend school. While increasing educational access is undoubtedly vital, access is not the only aspect of the right to education. Quality education is the most vital component of the right to education. The right to high-quality education is, therefore, part of the right to education. Inter alia, a high-quality education consists of appropriate school infrastructure, a safe and healthy learning environment, and effective teaching and learning methods. Therefore, poor school infrastructure violates the right to quality education.
Internationally, research has shown that inadequate school infrastructure affects academic achievement. The resources and facilities that are available have a major impact on how education develops. Academic achievement is said to be influenced by school infrastructure. Research has shown that lack of basic school infrastructures such as adequate buildings and safe environment is a core contributor to academic performance.
Poor conditions in school buildings continue to be a major problem in SA. There are still many outdated school facilities, particularly in the more rural provinces like Mpumalanga and Limpopo, which has a detrimental effect on the standard of learning. Some schools suffer from serious neglect and lack the basic facilities to support learning. Lower academic performance is the result of the inadequate school infrastructure, and teachers and learners must bear the weight of such. Moreover, safe and efficient school infrastructure impacts learning positively. Quality infrastructure is equally as important as quantity. Poor infrastructure has an immediate impact on school’s ability to operate as intended, hence it needs to be addressed.
The Department of Basic Education (DBE) bears the responsibility for failing to supply rural schools with the necessary facilities and resources, which are essential for fostering a positive learning environment and delivering high-quality education. South African rural school infrastructure is in danger of collapsing because of the growing demands and poor maintenance, despite evidence of the importance of good infrastructure. The government has since put in place policies like the School Infrastructure Backlogs Grant, the Minimum Uniform Norms and Standards for Public School Infrastructure, and other guidelines in an effort to alleviate the infrastructure problems that rural schools face. The objectives of these policies were to address the inadequacies of school infrastructure.
In light of this, these initiatives were unable to adequately address the problems caused by inadequate school infrastructure. The absence of sufficient support in the form of school infrastructure provisions is causing the DBE to scale back its efforts to ensure a safe school environment. Studies have shown that, a large number of students in rural areas continue to attend classes in muddy classrooms, and occasionally two grades are in one classroom. The absence of suitable school infrastructure in rural areas continues to have a negative impact on performance and if not properly addressed, children will continue to suffer thus violating their right to learn.
International research revealed that inadequate school infrastructure was a partially predictive factor of students’ academic performance. This was demonstrated in dilapidated schools with low attendance rates, where building neglect and poor maintenance were among the factors contributing to the deterioration of school infrastructures. Rural schools in SA are in the same position due to insufficient maintenance of infrastructure.
The Members of Executive Council ‘must provide public schools for the education of learners out of funds appropriated for this purpose by the provincial legislature,’ according to s 12(1) of the SASA. In order to implement this clause, the National Treasury gives provincial ministries a set amount of money known as the ‘equitable share,’ which is used, inter alia, for maintenance and improvements of school facilities. Remarkably, the DBE reaffirmed that ensuring quality education is a primary concern and that it is something it takes extremely seriously. Research on school safety in rural areas shows that infrastructure safety in schools is still a major concern, even in the face of such affirmations and suggestions.
The entire execution of the right to education is hampered by the state’s lack of financial resources, which means that quality education will not be fully realised. This suggests that in order to achieve full implementation, the state must continuously take action to fulfil different degrees of realisation. Prioritising basic education is explicitly stated in the CRC and ICESCR. State budgets must thus include funds intended for the implementation of education as already confirmed in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) where it was stated that the state is required to plan and budget for anything to fulfil its duties.
A number of laws govern public procurement procedures, such as the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA), which governs municipal procurement procedures. Each municipality is required by s 111 of the MFMA to create its own Supply Chain Management Policy (SCM), which should outline the guidelines for the municipality’s goods and services. A flexible public procurement framework that allows for multiple distinct procurement processes to meet a variety of needs is what the MFMA envisions. One may further argue that this strategy anticipates the incorporation of procurement procedures that guarantee adequate school facilities.
Most municipalities have provisions in their SCM, which enable expedited procurement processes in emergency situations. For example, para 21 of the City of Johannesburg’s SCM provides for deviations from the normal procedures in certain exceptional circumstances. Many municipalities have SCM in relation to school infrastructures. Exercising such deviations for catering school infrastructure would be in the public interest. This means that municipalities can frequently use these kinds of accelerated procurement processes, but they have not always done so. Therefore, Limpopo and Mpumalanga municipalities are advised to exercise this process for the purposes of school infrastructures in their respective rural areas.
It is undisputed that the international society has set the standard for school infrastructure which state countries have to oblige. Further, the Constitution has enshrined the right to education and the courts even went as far as saying it is immediately realisable. However, despite implementation of laws it is still a challenge as majority of rural schools are still lacking adequate infrastructures. Teaching and learning are negatively impacted by the continued availability of subpar infrastructures. As highlighted, significant work and funding for the building of school infrastructure is needed to improve the quality of learning. Good school facilities need to be carefully planned and implemented in a coordinated manner. The underlying assumption is that many rural schools across the nation lack adequate infrastructure, which violates learner’s rights to education because schools are the immediate context in which learning take place. Thus, it is advised that the South African government step up its efforts to enhance and efficiently overseeing school infrastructures.
Lebo Collins Manzini LLB (UL) is a candidate legal practitioner at Finger Attorneys in Centurion.
This article was first published in De Rebus in 2024 (December) DR 33.
