Five years after Cabinet took the decision to intervene as service delivery on Eastern Cape schools had disintegrated, no real progress has been made, write Lisa Draga and Daniel Sher.
Carlisle Bridge Primary School is a smattering of windowless rondavels near Grahamstown in the Eastern Cape. Pupils and teachers are without electricity, the school is supplied with water by harvesting rainwater and the only decent toilets were funded by a local taxi owner.
For a school like this, the Minimum Norms and Standards for School Infrastructure regulations hold the promise of a liberating education system as enshrined in the Bill of Rights.
Under the deadlines prescribed by the Norms and Standards law, Carlisle must be replaced by a new school, built of appropriate materials and supplied with the necessary basic services by November 29. But it’s clear that this will not happen.
In fact, of the 24 schools the Eastern Cape Department of Education (ECDoE) planned to build in the 2015/16 financial year, only three were actually built.
Service delivery is happening at a grindingly slow pace.
Underlying the failures of service delivery is a weak administration, short of skilled technical staff and permanent, principled leadership, suffering from highly inefficient budgeting and expenditure processes and besieged by corruption.
The long-standing education crisis in the Eastern Cape has not abated.
In 2011, the total collapse of the education system saw pupils left stranded without transport and many of those able to reach schools were forced to go hungry once there.
These transport and nutrition services were stopped after the department had massively overspent, leaving the province’s pockets empty.
Rotting roofs, collapsing classrooms and other dire school infrastructure made learning difficult and often dangerous.
In March 2011, the cabinet made the decision to intervene in the administration of the province in terms of Section 100 of the constitution.
Section 100 allows the national executive, as an extreme measure, to temporarily assume the functions of a province if service delivery has disintegrated. This is intended to return the province to proper functioning.
But the department’s track record on school infrastructure delivery highlights the abysmal failure of this intervention.
It has never formally been withdrawn, and five years later, there is no real progress of which to speak.
Schools like Carlisle remain rondavels, many essential departmental posts stay empty and thousands of pupils who must receive transport do not. The intervention has not worked.
Almost two years ago, the Eastern Cape’s school infrastructure delivery plan was released.
The plan repeatedly states that complying with the Norms and Standards for School Infrastructure is impossible for lack of money, yet an astounding R530 million from the Eastern Cape’s Education Infrastructure Grant went unspent last year and has since been reallocated to other provinces.
The department has acknowledged that a lack of accurate data on schools’ infrastructure needs in the province has made it impossible to plan properly, but even good planning in the absence of effective, long-term leadership makes delivering basic infrastructure unrealistic.
Since 1994, the ECDoE has had 15 HODs and six MECs. In his budget address in April, MEC for Education Mandla Makupula blamed the department’s underperformance in infrastructure delivery mostly on a lack of capacity. For instance, the top three positions in the infrastructure directorate stood vacant for most of last year.
The Section 100 takeover by the national executive was meant to help remedy all of these failings. However, Section 100 itself needs an overhaul if it is to be effective. If a Section 100 intervention is to have a chance at succeeding, it needs to be spelt out more clearly in law.
When the intervention was enacted in 2011, it met with confusion, resistance and a resulting loss of accountability at a provincial level.
There was no legal guidance on how this process should take place. Greater regulation would help to avoid confusion and misunderstandings by national and provincial officials on the lines of authority and division of responsibility.
This clarity will help foster mutual support and better co-operation.
Section 100 is a politically sensitive issue and its application opens up the danger for abuse of national authority over a province. To protect our democracy, the process must be tightly controlled. Through regulation clear parameters can be set for when an intervention is justified and when it could be considered concluded.
The current status of the intervention is unclear. Multiple provincial and national officials have indicated that the Eastern Cape intervention has undergone a quiet downgrade or withdrawal - despite Basic Education Minister Angie Motshekga publicly confirming otherwise. If a downgrade or withdrawal were done openly, it could be challenged given the intervention’s failure.
The unclear status of the intervention continues to hinder the administration of the province. The ECDoE recently brought a court case against the SA Democratic Teachers Union (Sadtu). Sadtu argued that the ECDoE did not have legal standing to bring the case because of the Section 100 intervention, meaning that this was something only the national department could do.
Remarkably, given the minister’s public statements this year that the intervention was still in place (including in her 2015/16 budget speech), the high court in Grahamstown ruled that it had in fact lapsed. Section 100 itself contains no guidance on how an intervention may be withdrawn or on what grounds this may happen.
Section 100 allows for further regulation to be made, but the government has broken numerous promises to do so, even though parliamentary committees and presidential task teams have called for this.
Equal Education and the Equal Education Law Centre, in their submission to Parliament, propose that the constitution be amended to compel the government to make a law regulating Section 100.
This would go some way towards improving interventions of this nature and better protecting pupils’ rights.
Under Section 100, the national executive must report to the National Council of Provinces (NCOP) on implementation. But this last happened three years ago. The NCOP has given up its constitutional duty to regularly review the national executive’s actions and abandoned the Eastern Cape in the process.
While a three-year gap in reviewing can't count as regular, the constitution would still benefit from greater specificity. Requiring a minimum quarterly review would pin the NCOP down to its role. A complementary obligation on the national executive to report to the NCOP will help bring much-needed transparency and accountability and equip the public with the information needed to properly assess the impact of an intervention.
Despite the failed Section 100 in the Eastern Cape, the fact remains that the province is still in need of an intervention, but an intervention done right. The first step towards this is amending Section 100 itself.
The future of this country is on trial. The stakes are far too high for us to leave the intervention as an unregulated and unaccountable process. Failing means schools like Carlisle Bridge Primary will remain as they are, serving those who await the promise of democracy.
* Lisa Draga is an attorney with the Equal Education Law Centre. Daniel Sher is deputy head of policy and training at Equal Education.
** The views expressed here are not necessarily those of Independent Media.