Judge Elizabeth Baartman
Western Cape High Court Judge Elizabeth Baartman has slammed the provincial education authorities and MEC Debbie Schäfer for failing to comply over six years with a court order they consult poor farmworker parents over the proposed eviction of their children and their relocation.

Judge Baartman said in a judgment on Tuesday: “To date the MEC has engaged the matter in a haphazard manner, not even sure who the property’s owners were, conflating relocation and merger, and more worrying apparently, with no permanent solution in mind.

“I am not prepared to consider evicting Grootkraal (Primary in Oudtshoorn) learners in the hope that the MEC will comply with her/his constitutional obligation to ensure that their right to basic education is not compromised.”

Some 202 pupils are facing eviction by property owners from their school situated in an old church, built in the 1800s to serve coloured farmworkers.

In 2010, a private trust bought the farm and instituted eviction proceedings, and during May 2011, the school governing body was advised the new owners did not want to extend the lease.

The owners, the Kobot Besigheids Trust, intend to develop the land into a game farm for commercial purposes.

The SGB approached the Western Cape High Court, which interdicted then education MEC Donald Grant and the head of department in 2011 from taking steps to close the school without consultation with residents.

Lawyers for the school had argued that the department had failed to engage with the governing body, and, as a result, it had to approach the high court for urgent relief that year.

Handing down her judgment on Tuesday, Judge Baartman postponed the eviction application and directed all parties implicated in the 2011 order, including the MEC, to comply with its obligation and file a report indicating the extent to which each had complied with its obligation in terms of that 2011 order. The parties had until October 2, 2017, to file reports.

“Extraordinary as it may seem, the July 2011 order has not been compiled with. Instead the Education Department, minister and head of the Western Cape Education Department decided to wait for this litigation; by which it has decided to abide. It was therefore necessary to finalise the community’s claim to regulate the implementation of the July 2011 order,” she said.

The only proposal made was to place the children 17km away, but many of them do not have transport, charged lawyers for the pupils.

“To be fair, the department had (made) an attempt to accommodate the relocation of Grootkraal to Voorbedag. Sadly, the department did not see the need to consult those most affected by such a move,” she said.

The court had conducted an inspection in loco to both Grootkraal and Voorbedag in May this year. Judge Baartman said she was embarrassed when the principal of Voorbedag came to investigate the identity of the group in its premises as pupil and staff were unaware of the visit.

“Apparently, the intention was to ‘prevent a staged performance’. That was ill- advised. The department’s enthusiasm for displaying the mobile unit in use reflects its misunderstanding of the real need for a permanent solution conducive to learning - a school with a hostel.

“The papers are replete with examples of learners having to rise at 5am and travel through difficult farm roads to get to pick up points.

‘‘Sadly the department’s response to these circumstance was that it was not responsible for the roads.

‘‘That attitude misses the point: the department must not add to the already perilous circumstances that most learners have to negotiate to get a basic education,” she said.

The Child Law Centre, for the pupils, said: “We remain hopeful that the Department of Education will be able to negotiate for the school to remain on the property and therefore protect and support the learners’ right to education.”

Asked for its reaction, the department and MEC indicated they would comment only once they had studied the contents of the judgment.

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