Rushing into a quandary

Still, EE hoped that the final regulations, due by mutual agreement on May 15, would be complete. However, on Thursday, May 9, 2013, Minister Motshekga wrote a letter informing Equal Education that she would not make the deadline. She asked for more time, but didn’t specify how much. In a quasi-admission of its inadequacy, she did admit that she would have to substantially rewrite the January draft. Nonetheless, Equal Education saw the letter as a delaying tactic. “We were angry,” says Brockman. He explains:

She had left it until less than a week before the 15th of May to write the letter. She had committed herself to finalizing these norms and standards by the 15th of May and she had reneged on that promise. We felt insulted that she wasn’t taking us seriously, and we also felt a degree of regret that we hadn’t insisted that the agreement be a court order, because then she would be in contempt of court.

Equal Education had to decide, grant the minister an extension or go back to court? Equal Education felt strongly that it needed to maintain the moral high ground. It wanted to be perceived as the aggrieved party, the one “getting messed around,” says Isaacs. At the same time, it didn’t want to appear weak. It also had to be strategic about the legal case itself. There was little time for deliberation. It was less than a week until the deadline, and Equal Education knew that every newspaper in South Africa was going to call for comment. “The events that took place then were very much influenced by the shortness of time,” says Isaacs.

Grassroots. The next day, May 10, Brockman, Dwane and Isaacs decided to bring the membership into the decision-making process. The members were already scheduled to meet on Tuesday, May 14 at their schools. The leadership decided to convert the regular meetings to mass meetings at fewer locations where e quali s ers could gather in larger numbers to discuss what to do. They also decided to schedule a vote on whether to grant the minister an extension. “There was disagreement amongst the staff as to whether an extension should be granted,” says Isaacs. He explains:

Yoliswa and I had doubled down into the no-extension position. We probably wanted there to be a vote so that there would be a mandate from the membership.

Legal. On Saturday, May 11, the leadership had an e-mail exchange with the legal team. Budlender laid out the likely scenario if EE said no to an extension and went back to court. The court was unlikely to sanction the minister. Even in a case of noncompliance, the most likely consequence would be a further extension. When a government minister explains that an action will take a certain amount of time, courts are unlikely to second-guess them. "The court doesn’t really have that knowledge and the courts will be very reluctant to get too involved," says Budlender. He amplifies:

They will think that they are exceeding their mandate. Separation of power issues start to be raised at a certain point. Who really can decide how long it’s going to take the government to make decent norms and standards?

On the other hand, granting the minister a short extension had benefits. If Equal Education took the minister back to court and the judge granted her an extension anyway, the consequences could be serious. “It will be reported on as that she’s won and we’ve lost,” says Isaacs. “They’ll... portray us as having been unreasonable. And this little procedural issue will come to overshadow the substantive issues. And none of that appealed to us.” The legal team recommended granting a one-month extension. As Isaacs recalls:

They basically said, ‘Look, a one month extension is not really an extension. I mean, what’s a month? But it lets you keep the moral high ground. What do you really lose by giving them a month? She hasn’t asked for a specific time. So, you get to write back and say, yes you can have an extension. You can have one month. Here is your new deadline. Why would you not do that?’ It was very compelling.

Isaacs talks about the extension discussion.

The vote. On Monday, Brockman briefed the Youth Organizers, young adults who mentored and organized students at the local level, on how to run the mass meetings where the equalisers were to vote on an extension. “I had explained to the Youth Organizers that in the meetings they should explain to the equalisers that this was not a vote the result of which would determine our course of action, but that it was to give the National Council, which is the body entrusted with making this decision, a clear sense of how the equalisers felt about this particular issue,” he says.

On Tuesday, May 14, the Equal Education Youth Groups met to vote on the extension. As expected, the equalisers and Youth Organizers voted overwhelmingly to deny the request. “The equalisers wanted to go to court,” says Luyolo Mazwembe, an Equal Education community leader. “They were ready for court.” [35]

Deadline . On Wednesday—deadline day—the National Council, which included equalisers , held a teleconference to decide what to do. The council members respected the advice from the legal team to grant a one-month extension. At the same time, they shared the membership’s anger at the minister. The idea of giving her any extension went against the grain after several years of struggle and the frustration of watching the settlement victory fizzle into business as usual. Should EE take its lawyers’ advice? An extension seemed to offer a good chance of winning in the long run.

Or should they honor the vote? Ignoring it could alienate core members. Equal Education was a grassroots movement, after all. Was the risk of a disaffected membership greater than the risk of losing the case? If they said no to the minister and lost the case in court, would the equalisers lose faith in the leadership anyway? Was holding a hard line with the minister the right thing to do regardless of the outcome of the case?


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