Picture: MATTHEW JORDAAN, INLSA
Durban - Parts of a law that permitted the government to indefinitely delay fixing unsafe and inadequate school infrastructure have been declared unconstitutional and invalid.

Acting Judge Nomawabo Msizi found that the regulations relating to Minimum Uniform Norms and Standards for Public School ­Infrastructure were fraught with unconstitutional loopholes and vagueness, in a matter heard in the Eastern Cape High Court in Bhisho.

The norms and standards stipulate infrastructure requirements that all public schools must meet, and deadlines by when various kinds of infrastructure must be provided to schools.

The matter was brought before the court by Equal Education (EE), which said the judgment was a victory not only for the organisation, but for the pupils of South Africa.

“The court gave a constitutionally sound interpretation of the state’s duties to properly address the crisis conditions at South African schools. In doing so, Judge Msizi reinforced the nature of the right to basic education, and to honour for Michael Komape and Lumka Mkhethwa.”

Michael and Lumka drowned in pit latrines at their respective schools.

EE had asked the court to rule on several issues regarding norms and standards.

The court agreed with them on all counts, declaring the challenged sections invalid and unlawful, including an “escape clause” that said infrastructure standards needed only be met if co-operation and resources were forthcoming from other government agencies and entities responsible for school infrastructure; as well as the phrasing of certain words in the regulations.

Another matter successfully challenged was that the norms stated that the department only had to fix schools made “entirely” of inappropriate ­materials, such as mud, wood, zinc and asbestos.

The court ordered that the regulations be changed to reflect that all “classrooms built entirely or substantially” of inappropriate materials needed to be given attention, meaning that the department will no longer be able to disregard schools that have one or two brick buildings, with the rest of the classrooms made of inappropriate materials.

EE had argued that there was a lack of an accountability mechanism, requesting that the norms and standards, plans and progress reports be made public.

“It was only after years of campaigning by EE members and a court order that Minister (Angie) Motshekga finally published South Africa’s first legal framework for school ­infrastructure on November29, 2013.

“While the adoption of the norms and standards has yielded progress, dangerous and inadequate learning conditions persist,” read EE’s statement.

They said they had tried to engage the minister on the problem for two years.

“Our request was simple, for government to commit to meeting its own infrastructure targets. During this time Minister Motshekga failed to respond substantively to the problems that we identified in the law.”

While they were waiting, the November 2016 deadline for the minister to ensure that no schools were without water, electricity or sanitation, passed with schools around the country still lacking basic infrastructure.

“The Court has now made very clear that this is entirely unlawful.

“This momentous victory has strengthened the ability of pupils, teachers, parents, communities and civil society organisations to hold the state to its duty of protecting pupils’ right to dignity, equality and education.”

Section 27 welcomed the judgment, but cautioned that “the victory will remain hollow unless, and to the extent that, the government takes seriously the rebuke and the principles underlying this judgment and court order. The government must also keep its promise to roll out safe sanitation.”

The national Education Department said in a statement issued that the judgment came at a time when it was in the final stages of concluding amendments to the regulation on the norms and standards.

“We will study the judgment with a view to incorporating the court ruling into the changes under way. It is important to report that progress has been made in the provision of school infrastructure.

“The Minister of Basic Education will share the judgment of the High Court with all MECs who were cited in the court matter to discuss a way forward,” the department said.

The Mercury