The Eastern Cape is a province in South Africa which is at the centre of much publicised litigation concerning the right to basic education set out in Section 29(1)(a) of the Constitution, and what fulfillment of that right entails.
In a precedent-setting case in the Grahamstown High Court in 2015, the Legal Resources Centre (LRC), representing SK Mahlangu Senior Secondary School, Sakhisizwe Senior Secondary School, Mizamo High School and Masivuyiswe Secondary School, sought to compel the Eastern Cape Department of Education to provide a number of eligible learners with adequate scholar transport (to schools in which they were enrolled), formally adopt, publish and report on a new scholar transport policy and publish a detailed database of learners qualifying for scholar transport.
It was argued that, in order to fully realise their right to basic education, learners from low-income families should be able to access transport to and from school at the State’s expense. The provision of scholar transport should be considered as a fundamental component in realising the right to basic education, and not merely an ancillary matter.
Judge Plasket confirmed this view in his judgment holding that:
“…in instances where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its obligations, in terms of s 7(2) of the Constitution, to promote and fulfil the right to basic education.”
Accordingly, the right to basic education under S29(1)(a) of the Constitution has been expanded to include a right to transportation for eligible learners.
Events Leading to Litigation
This piece of litigation stemmed from the Eastern Cape Department of Education’s original approval of applications for scholar transport by learners attending Masivuviswe Secondary School. However, the transportation was never provided. Learners from the other three schools, who met the criteria for scholar transportation, were refused transport on what Judge Plasket described as an ‘’arbitrary’’ basis, with no regard given to the merits of individual applications.
In respect of Masivuviswe Secondary School learners, the Judge directed, unconditionally, that qualifying learners be provided with transport to and from school within the time specified. In the case of the SK Mahlangu Secondary, Sakhisizwe Senior Secondary and Mizamo High School learners, Judge Plasket permitted the State a five-week period to make a new decision in respect of transport provision. He stopped short of setting aside the decision and directing that transport be provided, as proposed by the applicants. The Judge’s reasoning was that in order for a fair, reasonable decision to be reached, further investigation would have to be undertaken to accurately determine the financial position and distance travelled by potential applicant learners.
On the second point of the adoption of a concrete transport policy, Judge Plasket ordered the Department detail and report back on the progress made on the adoption and publication of the new policy. Specifically, and most importantly, the Judge stressed that the adopted policy must be interpreted and applied in a flexible manner to allow all entitled learners access to scholar transport. He further highlighted that the new policy should serve as a means for the Department to fulfil its duties under section 29 of the Constitution, and was ‘’…not an end in itself’’.
The LRC also requested an order compelling the Department to put together, publish and regularly update a database of eligible learners. Failing that, an individual from the Department should be tasked with handling public submissions dealing with learners who may have been unfairly excluded.
Unfortunately, the Judge rejected this request. However, the LRC has indicated that submissions have been made to the Department to urge them to create a database containing learners’ names and schools and relevant routes and distances for the purpose of weeding out corruption.
The physical and psychological burden borne by learners who walk excessively long distances to reach school are evident in reports of poor academic performance, poor attendance statistics and, ultimately, a high dropout rate among such learners.
It is certain that until a concrete, but flexible scholar transport policy is created and adopted by the Executive, learners in the Eastern Cape will continue to have their Constitutional right to basic education infringed upon.
By Zah’Rah Kahn