Twenty-one years into democracy, the state has failed to effect the “radical transformation” of public education as demanded by the Constitution. Across the country, the quality of basic education provided to learners still largely depends on whether a child, and his or her parents are middle class or not, live in the city or in a rural area, are black or white, male or female, or are lucky enough to live close to a school not rendered catastrophically dysfunctional because of weak leadership.

It seems unthinkable that a post apartheid government would – through wilful neglect, callousness or incompetence – perpetuate and further entrench the educational apartheid so lovingly championed by Hendrik Verwoerd and his National Party regime. Yet, as a recent Supreme Court of Appeal (SCA) judgment on the non-delivery of textbooks to some schools illustrates, this is exactly what has happened over the past three years in Limpopo province.

As the SCA pointed out this week in its judgment in Minister of Basic Education and Others v Basic Education for All (BEFA) and Others, “basic education should be seen as a primary driver of transformation in South Africa”.

This suggest that any state committed to transformation would, at the very least, make every human effort to ensure the provision of basic education is equitable and gives every child a fair shot at succeeding. In short, one would have expected that the state would do everything it humanly could to ensure that poor, rural or black children were not discriminated against in the provision of basic education on the basis of their race, class, gender or other relevant characteristic. As the Constitutional Court noted in Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another:

“The cardinal fault line of our past oppression ran along race, class and gender. It authorised a hierarchy of privilege and disadvantage. Unequal access to opportunity prevailed in every domain. Access to private or public education was no exception…. It is so that white public schools were hugely better resourced than black schools. They were lavishly treated by the apartheid government. It is also true that they served and were shored up by relatively affluent white communities. On the other hand, formerly black public schools have been and by and large remain scantily resourced. They were deliberately funded stingily by the apartheid government. Also, they served in the main and were supported by relatively deprived black communities. That is why perhaps the most abiding and debilitating legacy of our past is an unequal distribution of skills and competencies acquired through education. In an unconcealed design, the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular.”

Yet, while some changes for the better have occurred in the education field over the past 21 years, the state has not managed to effect the “radical transformation” of public education as demanded by the Constitution. Twenty-one years after the end of apartheid the quality of basic education provided to learners still largely depends on whether a child and his or her parents are middle class or not, live in the city or in a rural area, are black or white, male or female, or are lucky enough to live close to a school not rendered catastrophically dysfunctional because of weak leadership.

This means that many learners are provided with a second-class education because of no fault of their own. While some learners receive a relative high standard of basic education (albeit one that prises rote learning above reflection and critical thinking) others drop out of school or complete their “education” without gaining much benefit from it.

The state probably does not have the institutional capacity and human resources immediately and effectively to address all of the problems associated with the discriminatory provision of basic education. Yet, one would have thought that at the very least it would have managed to provide every learner – regardless of race or class – with access to the relevant textbooks.

This is so because, as one of the Department of Basic Education’s (DBE) own policy documents recognises: “We cannot expect proper learning and teaching to take place where learners do not have access to textbooks, workbooks, exercise books and stationary during and after school hours.”

In the Minister of Basic Education and Others v Basic Education for All (BEFA) and Others case, the SCA had to decide whether every learner at public schools has a right to be provided with a textbook for each subject in time for the commencement of the teaching of the curriculum at the beginning of the school academic year.

The case landed up in the SCA because the DBE had failed timeously to provide all learners in Limpopo with textbooks as they had planned to do. The affected learners were all from poor communities, mostly located in rural areas. They were also overwhelmingly, if not exclusively, black learners. The schools in question were all “no fee” schools and did not have permission to purchase textbooks themselves. They were reliant on the Department to deliver such textbooks.

The problems started when the DBE introduced the new CAPS curriculum at a time when the Limpopo Provincial Government became dysfunctional and the National Executive had intervened and took over its functions. This was in 2012 when the new CAPS curriculum was being phased in and new textbooks had to be procured and delivered to meet the requirements of the new curriculum.

In Limpopo the procurement appears it have been “chaotic”. In 2012, with half of the academic year completed delivery of textbooks for the new CAPS curriculum had not yet started in Limpopo. It only began after High court made an order forcing the DBE to act and to deliver textbook s by 15 June 2012. This deadline was not met, rendering the Department in contempt of court.

After further litigation the deadline for the delivery of all textbooks was extended to 27 June. Despite an independent assessor determining that by 11 July 22% of schools still did not have textbooks as required by the court order, the Department misled the public (in other words, it lied) by claiming there were no textbook shortages. The DBE also failed to implement recommendations for improvements in delivery of textbooks made by the independent assessor.

The High Court then had to make a further order requiring the DBE to comply with the order to deliver textbooks. Although there was an improvement in the delivery of textbooks in 2013, some schools had not received textbooks when classes started.

One of the biggest problems was that the DBE lacked the ability “to monitor the delivery of textbooks in the provinces”. The failure was exacerbated by the failure of the Department to maintain an accurate database. It did not have (and apparently still does not have) accurate details concerning learner numbers and a complete schedule of textbook procurement and delivery.

In the following year (2014) textbook delivery remained incomplete by end of March, after a full term of classes had been completed. The applicants then again approached the court to get the DBE to deliver textbooks to all students – regardless of their race, class or rural status. The court again ordered the DBE to fulfil its basic constitutional obligations to provide basic education to all and not to discriminate against some learners on the basis of their race. But the DBE was not happy with having to comply with its constitutional duty. It wanted to reserve for itself the right to discriminate against learners on the basis of their race. The DBE thus appealed the 2014 judgment of the High Court to the SCA.

In the SCA the DBE blamed shortages which occurred in 2014 on all and sundry – just not on itself. The Department blamed the schools, arguing some might have failed to order textbooks on time (although its lack of an accurate database and its inability to keep track of orders apparently made it impossible to say for certain). The DBE also blamed the dysfunctional provincial education department.

The SCA was sceptical about these claims as correspondence shows that the applicants had communicated with the DBE at least 7 times during 2014 alerting it – to no avail – to specific problems with the delivery of textbooks at certain schools. Instead of responding to the information (which the applicants received from some of the affected schools before relaying it to the Department), the DBE threatened to take disciplinary action against the schools for seeking help from the applicants. In other words, it threatened to punish schools for using the only effective channel of communication to try to alert the Department of the problem.

Apart from blaming and threatening others, the Department also blamed “budgetary constraints” for its failures. In effect, it argued that it had to discriminate against black learners because its money had run out. It argued that if court ordered provision of textbooks to all schools it would intrude on separation of powers as it would interfere with the running of the Department by a court. Lastly, when confronted during the SCA hearings with new evidence of its failure to provide textbooks to some schools, the DBE’s lawyers blamed the publishers. In short it blamed everyone but itself.

The SCA rejected all these excuses. It noted that section 29(1)(a) of the Constitution very clearly states that: “Everyone has the right to a basic education, including adult basic education”.

The SCA pointed out, referring to Con Court jurisprudence, that section 29(1)(a) differed from other social and economic rights (specifically section 26 and 27) in that it contains no internal limitation requiring that the rights should be “progressively realised” within “available resources” subject to “reasonable legislative measures”.

Unlike these other social and economic rights, section 29(1)(a) is “immediately realisable” and may only be limited in terms of section 36. In other words, in the absence of legislation that limits the rights of everyone to basic education, the state has a duty to provide it to everyone immediately.

The SCA conceded that the content of basic education is not spelt out in section 29 and that it might not be clear what the exact scope and content of such a basic education might entail. But this could not assist the Department as it has – in its various policies, practices, and statements – has committed itself to providing textbooks to all learners as part of its obligation to realise the right to basic education. The litigation was therefore merely trying to hold the government to a standard of basic education set by itself.

It could not be said that the court was intruding on the policy making powers of the executive or in budget allocations when it was merely requiring the DBE to comply with the minimum standard for the provision of a constitutional right which the Department had long ago committed itself to. In doing so, the SCA had harsh word for the Department:

“The truth is that the DBE’s management plan was inadequate and its logistical ability woeful. One would have expected proper planning before the implementation of the new curriculum. This does not appear to have occurred.”

It should have perfected its database, done budgetary planning, and ensured accurate procurement and efficient delivery. “It achieved exactly the opposite and blamed all and sundry. It lacked introspection and diligence.”

The SCA also found that the failure to provide textbooks indirectly and unfairly discriminated against learners in contravention of s 9(3) of the Constitution. Learners who do not receive textbook (the DBE claims it was 3% – although the figure is contested by the litigants) are adversely affected.

“Why should they suffer the indignity of having to borrow from neighbouring schools or copy from a blackboard which cannot, in any event, be used to write the totality of the content of the relevant part of the textbook? Why should poverty stricken schools and learners have to be put to the expense of having to photocopy from the books of the other schools? Why should some learners be able to work from textbooks at home and others not?”

It is for this reasons that those without textbooks are being unfairly discriminated against. On the facts it is clear that this unfair discrimination was based on the race of the affected learners. Moreover, as the SCA pointed out, this discrimination was especially egregious as research showed that learners from rural areas benefitted the most from textbooks.

It is unclear whether the DBE will comply with the SCA order. On 702 on Thursday, its spokesperson indicated that it would not, because it would not know how many learners attended each school and would therefore not be able to deliver the accurate amount of textbooks to each school. It seemingly had never occurred to the spokesperson (or the Department officials) that one could easily check these numbers. You could either phone each school, or if a school had no phone, you could, say, get into a government car (taxpayers will pay for the petrol) to check for yourself. But, hey, these are “only” poor black children, so why bother? DM