DBE to appeal #FixTheNorms order

In the week that President Cyril Ramaphosa launched his initiative to provide schools with safe sanitation, it has emerged that the department of basic education is appealing a high court order that sets deadlines for them to fix school infrastructure, including toilets.

The president’s Sanitation Appropriate for Education (Safe) initiative “will save lives and restore the dignity of tens of thousands of our nation’s children” by deploying new off-the-grid toilet systems, Ramaphosa said at the launch on Tuesday.

The launch follows a national outcry in the wake of the tragic deaths of five-year-olds Michael Komape and Lumka Mketwa — who both drowned in pit latrines while at school in 2014 and 2018 respectively — and calls from civil society organisations to address the perceived failures of the basic education department in addressing school safety.

Though the president lauded the initiative as “a catalyst for a new revolution in sanitation”, education lobby group Equal Education said it is difficult to reconcile Ramaphosa’s promises with government’s failure to engage with the organisation on the delivery of sanitation infrastructure.

 In a statement released on the day of the Safe launch, the organisation said that — in light of the education department’s intentions to appeal what has become known as the #FixTheNorms judgment — the irony of the president’s undertaking “cannot be overstated”.

In July, the Bhisho high court sided with Equal Education when it ordered Basic Education Minister Angie Motshekga to meet the infrastructure targets that the state had set itself to fix public schools.

The judgment pertains to the norms and standards regulations, which sets out deadlines for fixing schools infrastructure. The regulations say that by November 2016, schools must have been provided with access to water, electricity and decent sanitation.

Equal Education had argued in the high court in March that the regulations had “unconstitutional loopholes and gaps” that allowed the department to indefinitely delay fulfilling this obligation.The organisation initially took Motshekga to court in 2012 to compel her to establish the norms. She published the first draft in January 2013, but the lobby group lambasted it and went back to court to have it amended. This led her to publish the current regulations in November 2013.

But Equal Education was still not entirely happy with these final regulations as the organisation said they contain material problems. In the high court, acting judge Nomawabo Msizi ruled that certain sub-regulations were constitutionally invalid.

Last week, the department sent Equal Education its application to the Constitutional Court for leave to appeal the judgment. The department is joined in its application by the nine provincial education MECs.

The department’s appeal deals with the scope of Section 29 of the Constitution, which affords everyone the right to basic education.

In a supporting affidavit to the court, the department’s acting chief director of legal and legislative services, Christopher Leukes, contends that leave to appeal should be granted on the basis that the high court’s judgment “misdirected itself” in reading section 29 by attaching to it the provision of school infrastructure, water, sanitation, electricity, roads and other infrastructure.

The high court failed to give a proper interpretation to the right of basic education and exactly what that entails, the affidavit reads.

Leukes argues that the minister of education should not be held liable to deal with fields of competence resting within the departments of public works, transport, water and sanitation and energy.

“The court erred in holding that because the department of basic education relies on the co-operation of other state entities … that it renders the department ‘paralysed’ and ‘helpless’,” the affidavit reads.

Leukes also contends that the high court erred in not suspending its finding of constitutional invalidity to allow the minister time to amend the regulations.

In its statement on Tuesday Equal Education accused the department — and by extension Ramaphosa’s government — of “wasting desperately needed state resources and time to appeal the judgment”.

Basic education spokesperson Elijah Mhlanga said, on the contrary, that the department has never stopped fixing schools. “The issue is of a legal nature and needs to be ventilated in court and we should allow such processes to unfold while the various school building programme also continue,” he told the Mail & Guardian.