Going to court

But still there were no regulations. So on August 3, 2011, Equal Education sent a letter to Minister Motshekga threatening legal action if she didn’t issue a draft for public comment of norms and standards “without further delay.” [28] On October 10, the minister replied in a letter that she would not issue binding norms and standards but rather nonbinding guidelines. She wrote:

As you may be aware, the South African Schools Act (SASA) does not compel me to promulgate Minimum Norms and Standards for School Infrastructure... Section 5A of the SASA gives me discretion on whether or not to promulgate such Norm and Standards. [29] The section further gives me discretion on the manner in which to promulgate such Norms and Standards: I can do so by means of regulations, or by any other means. Section 5A does, however, compel me to consult with the Council of Education Ministers (CEM). As proof of the Department's commitment to improving education, we have compiled proposals on how to improve the provision of school infrastructure in all nine provinces… The CEM agreed to adopt the proposals as guidelines on school infrastructure. [30]

After numerous assurances that she intended to deliver binding norms and standards, the minister had changed course. This confronted Equal Education with a decision: had the time come to file suit? “We exhausted our ability to press them to adopt the norms and standards without going to court, which was always going to be the last resort,” says Brockman. “We had marched, we had petitioned, we had met with them, we had drafted letters, we had slept outside parliament,and wehad been very vocal in the media [and] social media.”

Brockman on filing suit.


Geoff Budlender

Litigation is like a weapon and sometimes the threat of using it is as important as the weapon itself, says Geoff Budlender , a prominent South African human rights senior counsel who led Equal Education’s legal team. But once you’ve used the weapon, the threat is gone. “The question really became, had the moment arrived to fire this weapon or was it better to keep it as a threat?” he says. “They felt, and I felt, that the threat had lost its potency, that there’s only a certain number of times you can threaten and not act, and they needed to show their teeth.” [31]

Equal Education’s demonstrations and informational activities had laid a solid foundation for legal action, thanks mostly to media coverage. News reports helped the public understand EE’s position, maintained political pressure on the minister, and ensured that the judge was familiar with the case. “The buildup was also important for the litigation itself, because it was important to be able to show the judge that this was not people running to court at the first opportunity without making other efforts to resolve the problem, that every other effort had been made,” says Budlender.

Budlender on the buildup to the case.

In combining activism with litigation, Equal Education was taking a page out of the Treatment Action Campaign’s playbook. TAC had built a strong grassroots movement supporting antiretroviral treatment for people living with HIV and AIDS. “They were also able to marshal public opinion and support behind that campaign so that by the time they went to court and demanded Nevirapine for expectant mothers, the whole country was behind them,” says Brockman. “That is what we sought to do.”

May or Must? All the EE preparations did not guarantee a legal victory, however. Minister Motshekga’s October letter went straight to the weak point of the case. Section 5A begins: “The Minister may… prescribe minimum uniform norms and standards.” That was a problem for EE. “The critical provision in the statute says that the minister ‘may’ make norms and standards. It doesn’t say she shall,” clarifies Budlender. “Usually, the use of the word ‘may’ involves discretionary power rather than an obligation. So we had to try to build a case to get around that difficulty.”

Equal Education’s approach was to place the provision in context, making it clear that the word “may” indicated an obligation. The preamble to the act said that norms and standards were necessary for effective education. [32] “We said that the word ‘may’ must be read in the context of the preamble, which says ‘this is what must be done’,” says Budlender. “Sometimes ‘may’ confers a power coupled with a duty to act.” Second, EE invoked the constitutional right to basic education, which in its view included the right to a decent infrastructure. EE aimed to demonstrate, using the government’s own data, that school infrastructure was in a bad state, that infrastructure had a material impact on school performance, and that improving infrastructure would improve the quality of education. “All of that leads to an argument that improving the infrastructure is a necessary part of giving effect to the constitutional right to a basic education,” says Budlender.

Finally, EE planned to invoke racial inequality. It would argue that the school system was perpetuating and deepening inequality, and that the inequality was principally racial in character. Racial inequality was prohibited by the constitution, and EE held that there was an equality right to decent school infrastructure in order to get a decent education. “That won’t happen unless there are binding obligations on government,” says Budlender. Equal Education’s leadership, nervous about taking legal action, brought in retired Constitutional Court judges for advice. ”We knew that ultimately the case might come down to this legal technicality [how to interpret ‘may’], but we wanted to put the government on trial with overwhelming evidence,” says Isaacs.

In the final months of 2011 and early 2012, Equal Education prepared the court case. It gathered dozens of affidavits from students, teachers, principals and parents, and marshaled academic evidence on the connection between school conditions and educational outcomes. “We wanted to drown the court in true stories of what it actually means for these schools that have no infrastructure,” says Isaacs. He explains:

It’s often difficult to convince people to make a sworn statement, because then their name is involved and they can be targeted. People are worried about losing their jobs. There were about 40 who did [provide  statements]. Just unbelievable stories. Not only stories of the situation in school, but also all of the efforts over all of the years to try to change things.

On March 2, 2012, Equal Education filed suit in the Eastern Cape High Court to compel Minister Motshekga to issue binding norms and standards for school infrastructure. A trial was scheduled for late November. On March 21, the organization staged protests around the country, including a march in Khayelitsha.

A March 20, 2013 video from EE on Minister Motshekga's draft.

Re-org . Equal Education was still growing and, from July 8-11, held its first National Congress. Delegates from every branch in the countrygathered in the Johannesburg-area township of Tembisaand at the University of Johannesburg. The leadership had decided to reorganize. EE eliminated its board of directors and instead elected a national council. The time had come for final authority to rest with people elected by and from the membership, says Isaacs. Members elected Brockman as the organization’s general secretary, Dwane as chair and Isaacs as deputy general secretary. "One of the things that we agreed upon in the Congress… was to involve our members in each and every decision that this movement is taking," says Bayanda Mazwi, a high school student who was elected deputy chair representing students. [33]

EE didn’t forget its campaign, however. On July 12, it held a protest march for norms and standards in Tembisa.


[29] Provisions 1 through 2a of Section 5A of the South African Schools Act of 1996 were: 1) The Minister may, after consultation with the Minister of Finance and the Council of Education Ministers, by regulation prescribe minimum uniform norms and standards for a) school infrastructure; b) capacity of a school in respect of the number of learners a school can admit; and c) the provision of learning and teaching support material; 2) The norms and standards contemplated in subsection (1) must provide for, but not be limited to, the following:

a) In respect of school infrastructure, the availability of i) classrooms; ii) electricity; iii) water; iv) sanitation; v) a library; vi) laboratories for science, technology, mathematics and life sciences; vii) sport and recreational facilities; viii) electronic connectivity at a school; and ix) perimeter security.

[31] Author's interview with Geoff Budlender in Cape Town, South Africa on January 18, 2014. All subsequent quotes from Budlender, unless otherwise attributed, are from this interview.

[32] WHEREAS it is necessary [emphasis added] to set uniform norms and standards for the education of learners at schools and the organisation, governance and funding of schools throughout the Republic of South Africa etc.

[33] Author's interview with Bayanda Mazwi in Khayelitsha, South Africa on January 20, 2014. All further quotes from Mazwi, unless otherwise attributed, are from this interview.