Madzodzo et al v.

Minister of Basic Education et al

Country:
South Africa
Thematic Focus:
Children's Rights
Education Rights
Forum and Date of Decision:
High Court of South Africa, Eastern Cape Local Division, Mthatha
2014-02-20
Nature of the Case:

Claim presented to South African courts for the protection of childrens right to
basic education (art. 28, South African Constitution). Provision of essential school
furniture to public schools in Eastern Cape.

Summary:

This 2014 decision was handed down after three rounds of litigation. In 2012
applicants sought a court order directing the delivery of school furniture to three
rural schools in dire need of furniture; a declaration that the State had violated
childrens right to education by failing to provide adequate, age and grade
appropriate furniture at Eastern Cape schools; and an order that the state complete
a comprehensive audit of school furniture needs in the province. The order was
granted by agreement between the parties in November 2012, but the government
did not comply as it failed to complete a comprehensive audit. In August 2013 the
applicants again approached the court setting out the extent of the non-compliance,
and seeking the production of a comprehensive plan detailing the delivery of
furniture within a specific timeframe. An agreement was reached regarding how
the independent audit would be conducted, and argument over the date for delivery
of all furniture needed was delayed until February 2014. This was also made an
order of court by agreement between the parties. Argument over the deadline for
delivery of furniture was heard on 13 February with the applicants asking that
delivery should take place within 90 days of the audit being completed. The
department submitted that they should not be directed to deliver within a specific
timeframe and that they need only show that they were making progress and that
they had a plan. They also argued that there was insufficient budget to meet all of
the furniture needs immediately.

On February 20, 2014, the High Court declared that it was not in dispute that
schools were affected by a failure to provide furniture and that such fact was a
serious impediment for children attempting to access the right to basic education
in the province. Citing the decision of Juma Musjid v. Essay NO (2011), the Court
highlighted that the right to basic education provided for in section 29 (1) (a) of
the Constitution is an unqualified right which is immediately realizable and is not
subject to the limitation of progressive realization. The right to basic education is
also an empowerment right. In order to comply with its obligation to respect the
right to basic education, the government is required to take all reasonable
measures to realize the right with immediate effect. The High Court ordered
that the government ensures that on or before 31 May 2014 [] all schools
identified in [an] audit as having furniture shortages shall receive adequate age and
grade appropriate furniture which shall enable each child at the identified schools
to have his or her own reading and writing space(Excerpts from the High Court
decision).

Enforcement of the Decision and Outcomes:

The Legal Resource Centre is monitoring the implementation of the decision. The
comprehensive audit was completed by 28 February, but the omission of numerous
schools requiring furniture is apparent. Another delay is likely due to a tender
dispute between the state and furniture manufacturers over irregular tender
procedures in the award of R90 million worth of furniture orders. The Legal
Resources Centre has intervened on behalf of the Centre for Child Law in this
matter in an attempt to prevent the granting of an interdict which would delay the
delivery of furniture, but supporting a declaration that the tender was unlawful.
Judgment has not been handed down in that dispute (LRC, April 2014).

Significance of the Case:

First, the High Court reaffirmed the understanding that the right to basic education
is immediately realizable, in particular with regard to schools infrastructure.
Second, the High Court issued orders that will have a broad impact, benefiting
more than 600,000 learners who are currently without adequate (or any) furniture.