The state of school infrastructure is a national crisis, and the government ought to treat it as such, writes Mila Harding of SECTION27

Despite significant progress by the government in the provision of basic education since 1994, it is clear that there is still a crisis of inadequate school infrastructure in South Africa. According to the National Education Infrastructure Management System (NIEMS) report published on 12 April 2021, 69% of ordinary public schools do not have libraries, while 80% do not have laboratories. Further, out of 23 276 ordinary schools, 5 167 still have unlawful pit toilets, 5 836 do not have a reliable water supply, and 3 343 do not have reliable electricity. The prevalence of schools with inadequate infrastructure is spread unevenly amongst the provinces. Schools that are located in poorer provinces and in rural areas are more likely to have inadequate infrastructure. This reflects and acts to perpetuate historical inequalities in South Africa, rooted in colonialism and apartheid.

Having to attend schools with poor infrastructure is degrading to students. Many learners in South Africa are forced to attend schools with dilapidated buildings, often fearing that these buildings will collapse and injure or kill them. Learners often have no other choice but to use unsafe sanitation facilities, such as plain pit toilets, or to relieve themselves in fields. A number of students, such as Michael Komape, lost their lives because of the unsafe infrastructure and sanitation at their schools.

The presence of unsafe infrastructure at schools is a violation of the rights of learners to life, dignity, equality, a safe environment, and basic education. Unlike many other economic and social rights in the Constitution (such as the right to housing or healthcare), the right to basic education is not subject to “progressive realisation” through “reasonable measures” within “available resources”. The right is also an expansive right. The courts have ruled that the right has multiple components, including the provision of textbooks, school furniture, the school feeding scheme, and safe infrastructure and sanitation facilities.

However, despite the strong framing of the right to basic education in the Constitution, the government has been slow in adequately addressing school infrastructure issues. Civil society organisations and education rights activists have had to continue to fight for safe and dignified infrastructure for schools in South Africa. This has culminated in numerous campaigns and at several points, the initiation of litigation to compel the government to fix schools. The current Norms and Standards on Public School Infrastructure (Norms and Standards) emanated from sustained advocacy campaigns as well as litigation launched by Equal Education (EE), represented by the Legal Resources Centre. Before 2013, the Department of Basic Education (DBE) had not published any national minimum norms and standards regarding public school infrastructure, meaning there were no specific binding obligations on the state regarding the standard of infrastructure for public schools. There was also no timeframe set by the DBE as to when adequate school infrastructure needed to be achieved. The 2013 Minimum Norms and Standards only came into fruition after years of campaigning by education rights activists and the initiation of legal proceedings by EE against the DBE in 2012.

The publishing of the Norms and Standards was an important step towards adequate infrastructure for public schools in South Africa. It set out specific obligations for the different spheres of government, obliged the provincial departments of education to report on progress, and provided timeframes for when different aspects of adequate infrastructure needed to be in place. In 2018, EE again approached the court in order to fix certain aspects of the Norms and Standards that potentially provided for loopholes for provinces, and thus undermined the realisation of the right to basic education. SECTION27 supported this litigation by representing the organisation Better Education For All (BEFA) as an amicus (a friend of the court) in the case. The court ruled in favour of EE and affirmed that the right to basic education included safe and decent infrastructure.

However, despite the sustained campaigns and recourse to litigation, the government has failed to meet its own deadlines and in a number of instances, have failed to abide by court orders. For example, according to the Norms and Standards, plain pit toilets in schools were meant to be fully eradicated by November 2020. However, there are still thousands of schools across the country with plain pit toilets. In the 2018 case of Komape v Minister of Basic Education, the High Court (Limpopo division) ordered the government to create and implement a plan to ensure the eradication of unsafe pit toilets and installation of dignified sanitation facilities in schools in Limpopo.

The Komape case was initiated because of the death of Michael Komape in 2014. At five years old, Michael fell through a dilapidated pit toilet and drowned in human waste at his primary school in Limpopo. His family successfully sought compensation from the government for their failure to eradicate such toilets at schools. The court was conscious of the fact that unsafe pit toilets were widespread and that as long as this situation prevailed, the rights of learners were being violated. Therefore, the court also granted systemic relief—ordering the government to create and implement a plan to eradicate pit toilets in Limpopo as soon as possible.

The government filed a plan and later filed a progress report with the court. However, the plan and progress report that was filed by the government with the court was unlawful, unconstitutional, and not compliant with the court order. For instance, the plan proposed to eliminate pit toilets and equip schools with appropriate sanitation facilities by 2030. This would have been a violation of the government’s obligations according to the Norms and Standards, which state that schools with improper sanitation facilities must be fully equipped with decent sanitation facilities by November 2020. SECTION27 was thus forced to return to court in 2021 to compel the government to create a constitutional plan that was capable of urgently eliminating pit toilets in schools in Limpopo. The High Court ruled against the government, noting that the lack of adequate sanitation facilities in schools in Limpopo constituted a “national emergency”, and ordered the government to develop and implement a new comprehensive plan and to provide the court with progress reports every six months until the plan was completed.

While the order in Komape v Minister of Basic Education is an important victory for the rights of learners in Limpopo, the fight will not be over until every school in South Africa has safe, decent, and dignified sanitation facilities and infrastructure. In this regard, it can be difficult to understand what has led to the government’s failure to provide safe and decent infrastructure for all schools in South Africa. There are likely multiple causes, including low political will, inadequate planning, conflicting data-sets regarding the extent of the problem, as well as issues with third-parties hired by the government to actually build and repair schools. Further, a significant obstacle to fixing South African schools has been inadequate funding.

School infrastructure is funded through the Equitable Share and a number of other grants created by the government. The equitable share is allocated to provinces by the National Treasury and is meant to be used for a number of things, including school infrastructure. The National Treasury has also created a number of grants that are given to provinces to supplement school infrastructure spending and accelerate the realisation of adequate school infrastructure. However, relying on the additional grants, provinces have progressively tended to decrease the funding allocation to school infrastructure from their Equitable Share allocations. At the same time, the additional grants created by the national government to supplement school infrastructure spending have been receiving less funding. Further, in real-terms, government spending on basic education generally has been decreasing. Simultaneously, there have been multiple instances of documented fruitless and wasteful expenditure, and underspending by provincial education departments, indicative of low political will on the part of the government.

The onset of the COVID-19 pandemic intensified the funding crisis for school infrastructure. In 2020, due to COVID-19-related expenses, R2.2-billion was cut from the Education Infrastructure Grant (EIG). An additional R4.4-billion of this grant was reprioritised to provide for amenities such as temporary water tanks, sanitisers, daily classroom cleaning, and additional temporary mobile classrooms necessary to maintain social distancing and curb the spread of the virus. While in 2021 money was restored to the EIG, the cut led to 1 938 infrastructure projects that were budgeted for being postponed or cancelled, severely disrupting potential school infrastructure improvement across South Africa. Access to basic education, which includes adequate school infrastructure, is a constitutional right and an issue of justice. And as the legal maxim goes, “justice delayed is justice denied”.

It is also urgent that the government puts in place measures to adapt school infrastructure to the effects of climate change. Schools are already feeling the effects of climate change, with more extreme and unpredictable weather patterns intensifying already existing issues. For example, when temperatures are extremely high, poor insulation and ventilation in classrooms make studying impossible. Water insecurity is another issue that many schools already face, which will likely worsen due to climate change. Schools in Limpopo with unsound infrastructure are already regularly battered by heavy rainstorms—the roofs are regularly blown off of classrooms in some schools in Limpopo. Climate change may worsen these storms, destroying already dilapidated infrastructure.

Basic education is a right that is also a precondition to the rights to equality, dignity, and, ultimately, life. It is therefore incumbent that this right is fulfilled for all people in South Africa urgently. The upgrading or replacement of dilapidated infrastructure needs to be adequately funded in order for the right to basic education to be realised and at least one aspect of the legacy of apartheid in education ended. Further, because of the current and future effects of climate change, immediate changes need to be made in order for schools to be able to provide a basic education. However, the government has been slow to build schools and upgrade school infrastructure. Because of this, it has often been necessary for civil society organisations to use legal interventions to push the government to take action. The effectiveness of such legal interventions is still, however, ultimately dependent on the political will of the government. In this regard, the state of school infrastructure is a national crisis, and the government ought to treat it as such.