Section 100 Intervention

The Court Confirms the Ministers Responsibility

Please note that this is an extract from the Legal Resource Centre’s 2012 Annual Report

In March 2011, the National Executive intervened and took over the administration of the Eastern Cape Department of Education. This intervention was effected in terms of section 100(1)(b) of the Constitution*.

The national and provincial government departments signed a Memorandum of Understanding (MOU) regarding the intervention, agreeing that the National Minister of Education bore the responsibility for implementing all statutory and constitutional obligations relating to the delivery of education in the Eastern Cape. Despite the MOU, significant concerns arose regarding the respective responsibilities of each department. To clarify matters, in January 2012 the LRC Grahamstown Regional Director, Sarah Sephton, launched an urgent application on behalf of the clients, Save our School and Community (SOSAC) and the Catholic Institute for Education (CIE).

This case was important for practical and strategic reasons. On a practical level, the case sought to bring clarity to the implementation of the section 100 intervention. Previously, the lack of guidelines or regulations regarding the intervention meant that both the Eastern Cape Department of Education and the National Executive could claim that it did not have the authority to deal with core education-related issues. As strategic litigation, this case sought to clarify the law on section 100 interventions and lay the groundwork for subsequent successful education cases by the LRC.

At the commencement of the litigation, the parties held widely differing positions. The provincial government asserted that the MOU was ‘nugatory in most practical respects’, ‘gravely flawed’ and ‘not of force and effect’. In contrast, the national government asserted that the MOU was valid and that the intervention was ‘being fully implemented’. SOSAC and CIE argued that the National Executive had failed to fulfil a constitutional obligation because it had ‘not given effect to [its] decision to assume [executive] responsibility for the obligations of the Eastern Cape Education Department’.

Owing to its practical and strategic importance, the matter received national press coverage. On 20 March 2012, the date of the court hearing, the parties reached a settlement agreement.  The national and provincial governments confirmed that there was a section 100 intervention in place and that the National Minister of Education was responsible for education in the Eastern Cape Province. The settlement affirms that the Minister is obliged to act and intervene to ensure the constitutional right to basic education is fulfilled.

*Section 100(1)(b) of the South African Constitution states that:

“[w]hen a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including … assuming responsibility for the relevant obligation in that province to the extent necessary to

  1. maintain essential national standards or meet established minimum standards for the rendering of a service;
  2. maintain economic unity;
  3. maintain national security; or
  4. prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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