Minister of Basic Education v Basic Education for All (20793/2014) [2015] ZASCA 198 (2 December 2015) per Navsa JA (Lewis, Cachalia, Petse and Dambuza JJA concurring):

The Supreme Court of Appeal disallowed the appeal and allowed the cross-appeal and substituted the following orders for the orders of the High Court:

‘1.        It is declared that s 29(1)(a) of the Constitution entitles every learner at public schools in Limpopo to be provided with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

2          It is declared that it is the duty of the State, in terms of s 7(2) of the Constitution, to fulfil the s 29(1)(a) right of every learner by providing him or her with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

3          It is declared that the National Department of Basic Education and the Limpopo Department of Education violated the s 29(1)(a), s 9 (equality) and s 10 (dignity) right of learners in Limpopo in 2014 by failing to provide all of them with every prescribed textbook before commencement of the teaching of the courses for which they were prescribed.

4          It is declared that the National Department of Basic Education and the Limpopo Department of Education failed to comply with paragraph 6 of the order made by Kollapen J on 4 October 2012 that they “deliver all textbooks to schools for grades 4, 5, 6 and 11 for the 2013 year by 15 December 2012”.

5          The respondents are ordered to pay the applicants’ costs including the costs of two counsel.’

SCA summary:                

Constitutional law – right to education in terms of s 29(1)(a) of the Constitution – content of right discussed – Department of Basic Education adopting clear national policy that each learner must be provided with a textbook for each subject before commencement of the academic year – Department failing to do so in respect of some learners in Limpopo – held that the Department had given content to s 29(1)(a) – right immediately realisable – held accordingly that the Department’s failure to provide textbooks to each learner infringes their right to basic education – held further that failure to provide textbooks to a small number of students in Limpopo amounted to unfair discrimination against them – order of court a quo requiring Department to deliver textbooks and report to respondents accordingly confirmed and appeal dismissed – in addition, cross-appeal upheld and declaration made that Department in breach of previous court orders concerning delivery of textbooks.

Excerpts

[48]      The State is prohibited from unfairly discriminating against any person whether on listed grounds or not.  SASA and NEPA envisage equality of opportunity for learners.  SASA’s preamble recognises that historically, our education system was based on racial inequality and segregation and those past injustices have to be remedied.  Before us the DBE conceded that presently, textbook shortages in other provinces is not a problem.  On the DBE’s version, approximately 97 per cent of student across the province have textbooks.  This means that the approximately three per cent of the learners who did not receive textbooks were treated differentially.  They were being discriminated against.  There is no justification for such discrimination.  BEFA is litigating on behalf of all the learners in the affected schools in Limpopo.

[49]      Clearly, learners who do not have textbooks 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 other schools? Why should some learners be able to work from textbooks at home and others not? There can be no doubt that those without textbooks are being unlawfully discriminated against. 

[50]      The DBE did not take issue with international publications cited by BEFA and the SAHRC[1] which indicate that, particularly in respect of rural communities, research has shown that they benefit the most from the use of textbooks.  The DBE’s attitude was that in the developing countries in which the research was conducted (which included Uganda, Malaysia, Chile and Brazil) there was a ratio between the number of textbooks and learners and that not every learner was provided with a textbook.  The countries involved are different from ours.  Their constitutional and statutory schemes in relation to education are different.  In this country the Minister, acting in terms of the Constitution and legislation, took a decision that textbooks were essential to promote and protect the right to a basic education and devised a plan towards providing a textbook for every learner.  The plan was flawed.  The law is clear.  In the circumstances referred to above, the DBE is obliged to provide a textbook to every learner to ensure compliance with  s 29(1)(a) of the Constitution.  We must guard against failing those who are most vulnerable.  In this case we are dealing with the rural poor and with children.  They are deserving of Constitutional protection.

[1] We were referred to the following publications: Fuller, B (1986) ‘Raising School Quality in Developing Countries: What Investments Boost Learning?’ World Bank Discussion Papers (1985), available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/1985/09/01/000009265_3980623151915/Rendered/PDF/multi_page.pdf, accessed 26 November 2015; Paul Glewwe, Michael Kremer and Sylvie Moulin ‘Many Children Left Behind? Textbooks and Test Scores in Kenya’ (2009) 1(1) American Economic Journal: Applied Economics 112, available at http://www.povertyactionlab.org/sites/default/files/publications/33%20Textbooks%20Kenya%20Jan%202009.pdf, accessed 26 November 2015.