Public interest law centre SECTION27 on Thursday welcomed judgment delivered in the Bhisho High Court, in the case of Equal Education vs Minister of Basic Education, which found that sections of regulations relating to minimum norms and standards for public school infrastructure are inconsistent with the Constitution.

The court declared the sections unlawful and invalid as well as inconsistent with the South African Schools Act and a 2013 court order mandating the promulgation of the regulations.

“The judgment affirmed that government has an unequivocal obligation to provide safe and adequate school infrastructure as a component of the right to basic education in terms of Section 29(1)(a) of the Constitution. It also affirms that this obligation is immediately realisable and any failure to meet the obligation must be justified in full by the government,” said SECTION27.

In March, SECTION27 represented Limpopo-based organisation, Basic Education For All (BEFA), which was admitted as an amicus curiae (“Friend of the Court”) in the case in the Bhisho High Court.  

The intervention sought to support Equal Education’s (EE’s) bid to declare invalid certain sections of the regulations. While EE challenged the constitutional validity of several sections in the regulations, BEFA and SECTION27’s submissions focused primarily on challenging sub-regulation 4(5)(a) of the regulations.

BEFA also introduced evidence of several Limpopo schools in a dire state of disrepair, which the Department of Basic Education agreed posed threats to learners’ health and safety.

Both SECTION27 and EE argued that because the provision of basic infrastructure is a component of the right to basic education, sub-regulation 4(5)(a) in its current frame undermined the right to basic education as an immediately realizable right.

SECTION27 said that although the requirement of full and immediate realisation may not always be possible in practice, it should not be a justification for diluting the constitutional entitlement.

“Where the government is not able to provide all components of the right to basic education in full and immediately, it bears the responsibility to explain why it cannot do so,” it said.

The DBE’s basic argument is that the provision was necessary because its efforts are hamstrung by lack of adequate resources, budget and other organs of state. It did not, however, elaborate on these arguments.

SECTION27 said while the judgment in this matter was a victory for civil society efforts to have in place effective minimum standards for safe and decent infrastructure, the victory will remain hollow unless and to the extent that government takes seriously the rebuke and the principles underlying this judgment and court order.

Government must also keep its promise to roll out safe sanitation, SECTION27 said.

Judgment is attached.