http://www.businessday.co.za/articles/Content.aspx?id=122748

2010 10 05 Schools sue state over lack of resources

SEVEN schools in the Eastern Cape's poverty-stricken OR Tambo district, near Mthatha, are taking the national, provincial and local governments to court over their failure to provide adequate resources, arguing their right to basic education has been violated.

A ruling would be precedent-setting, whichever court - high, Supreme Court of Appeal or constitutional - ruled on this case, constitutional law expert Pierre de Vos said yesterday. No South African court had yet had this opportunity, said Prof de Vos, who teaches at the University of Cape Town.

Despite 16 years of democracy there is a generally accepted crisis in school education.

Papers have been filed in the Bhisho High Court and the government has filed papers giving notification to oppose the action and has until October 20 to file an answering affidavit, said Legal Resources Centre attorney Cameron McConnachie. No court date was yet set.

"If it goes to the Constitutional Court it will be the first time that court deals with the question of what the requirements, and the state's obligations, are to fulfil the right to basic education (in the constitution's bill of rights)," Prof de Vos said.

Because the right to basic education was not qualified, as were many other rights, the courts could jettison their usual reluctance to be prescriptive and might "actually welcome" an opportunity to set out the state's obligations in realising this right, Prof de Vos said.

The schools want the court to declare the failure by both national and provincial government to provide proper facilities unconstitutional. They have also taken the OR Tambo municipality to task for failing to provide water at the schools.

Six of the seven schools have classrooms built from mud, while one has classrooms made of cinder blocks. All seven schools face shortages of water, desks and chairs, the Legal Resources Centre said on its website.

Department of Basic Education spokesman Granville Whittle said the national department had "noted" the pending legal action.

"All learners have the right to be schooled in conditions of dignity and with the necessary resources. The (department) is working closely with all provinces to address all infrastructural backlogs as a matter of urgency," he said.

Eastern Cape education department spokesman Mali Mthima referred comment to the premier's office, which said it could not comment without the go-ahead from the education department.

Prof de Vos agreed with Democratic Alliance basic education spokesman Wilmot James's opinion that the court case could be a "watershed" for SA. Mr Wilmot said that the case "represents a chance for the poorest of the poor, and those people whose future depends on the state's performance in this regard, to gauge what the government of the day has delivered".

SUE BLAINE