Constitutional Law

“There are three ingredients in the good life: learning, earning and yearning.” – Christopher Morley (1890 – 1957)

Judge Plasket sitting in the Eastern Cape High Court in Grahamstown has given an important judgment concerning the fundamental right of children attending public schools to a basic education. This is enshrined, without qualification, in Section 29(1)(a) of the Constitution, which states that everyone has the right “to a basic education, including adult basic education.”

Asked to compel the South African Minister of Basic education, her director-General, the MeC for Basic education and the head of his department in the Eastern Cape Province not only to declare that posts had been established for both teaching staff and non-teaching staff for public schools in the province, but to fill those posts, Judge Plasket pointed out:

“At the heart of the problem lies the long-standing failure of the Provincial Department of Basic Education to attend to post provisioning. This failure has endured for over a decade. The result is that some schools have more teachers than necessary, while others have too few teachers, with consequent prejudicial effects on teaching and learning. As the Provincial Department failed to take steps to transfer surplus teachers to where they were required, the budget spiralled out of control because teachers at under-resourced schools were appointed to fill vacant posts on a temporary basis.

“This created its own set of problems when, in order to cut costs, the Provincial Department dismissed some 4000 temporary teachers, only to be compelled by the court to reinstate them. Other casualties of this abject lack of management were the school nutrition programme, which provided a meal a day for schoolchildren, and the school transport scheme, which allowed for scholars to be conveyed to and from school instead of having to walk long distances.”

The judge said that it was no exaggeration to say that this was “a crisis of immense and worrying proportions.” 

If the administration and support functions of a school cannot perform properly because of staff shortages, it has a knock-on effect threatening the right to basic education enshrined in Section 29(1)(a) of the Constitution. The judge referred to the Public Service Act of 1994 which governs the appointment of non-teaching staff and to the Employment of Educators Act of 1998, as well as the South African Schools Act of 1996. The result of this legislation is that the Provincial MeC is empowered and obliged to determine the establishment requirements for both teaching staff and non-teaching staff at public schools in the province. The judge ordered that those posts be declared and be filled by specified dates.

Centre for Child Law & Others v. Minister of Basic Education & Others 2013 (3) SA 183 (ECG).