Update: European Court to consider right to education

During the course of today, 20 October 2016, the European Court of Human Rights will receive submissions drafted by the Legal Resources Centre, acting as an intervening third party in the case of KOSA v Hungary.

In this case, Amanda Kosa, the applicant who is part of a minority group, is arguing that the Hungarian government has breached her right under the European Convention on Human Rights, to an education free from discrimination. The bus service to her previous school was cancelled and children from her community are now attending a school closer to their settlement, forcing the children to be separated from their fellow Hungarian learners.

The European Court will be asking three questions:

  • Have Hungarian domestic remedies been exhausted?
  • Has there been a breach of the applicant’s right to an education free from discrimination?
  • Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

In our submissions, we argue that –

  • Our High Court has, drawing on international law (including article 13 of the International Covenant on Economic, Social and Cultural Rights, and General Comment 13 of the Committee on Economic, Social and Cultural Rights) held that in appropriate cases, upholding the right to basic education in section 29 of the Constitution requires the provision State-funded transportation for learners.
  • The evidence of the importance of this finding is stark in the Eastern Cape, where much of our work takes place. The need for learners to walk very long distances to school often leads to students missing days of school, dropping out of school, as well as being victims of criminal acts during their daily commute on foot.
  • It is our submission that the provision of State-funded scholar transportation, in appropriate cases, is a necessary aspect of the fulfilment of any right to education.
  • This is especially true when those requiring the fulfilment of their right to education have faced historical unfair discrimination, such as minority groups, and a denial of access to education would perpetuate this discrimination.

The submissions are attached: kosa-v-hungary-lrc-written-submissions-final-draft

Amid state of crisis, schools demand scholar transport

Thousands of learners in the Eastern Cape continue to walk long distances each day to attend school; sometimes for more than 12 kilometres and for over four hours, through bushes, next to busy roads, and over flooded streams. Their routes are often unsafe, with armed threats and thefts a common occurrence, making it a feat to get an education.

Walking for so far to attend school means learners have less time to study at home. Some have to miss final exams and repeat grades. Sihle*, a learner at Mizamo High School, reaches home at 20:00 and has no time left to study before getting up at 4:30 to walk to school in the morning. He has had to repeat a grade and keeps getting lower marks. Many learners cannot attend school on rainy days and have to stop going to school altogether during the winter months, when it is too dark to walk to and from school. Pumza*, also from Mizamo, walks two hours each way. She had to miss her final exam last year, when a dam flooded the path, making it impossible to cross. Lini* has also failed a grade. She was recently threatened with a knife by two men, who took her money, phone, and books. She has now stopped attending school in the winter because it is too dangerous when it is dark.

Some children prefer not to risk taking their textbooks to school, in case these are stolen, along with their money and phones. Anna*, of Solomon Mahlangu Senior Secondary School, has had her watch and school bag stolen on the way to school and has been approached and threatened several times. Out of precaution and fear of losing her books again, she now leaves them at home. School shoes are not off limits for thieves; when Zama* of Mizamo High School tried to stop some thieves from stealing his school shoes and his school bag, they hit him and threatened to kill him.

Female learners are also afraid of being raped on the journey.  Walking to school one day, Siya*, a learner at Mizamo HS, was the unfortunate witness of an event no child should ever experience. Three men approached a little girl walking in front of her and asked her for money and her cell phone. Since the little girl had neither, they proceeded to rape her and threatened to kill her. Afraid for her own life, Siya ran away, leaving the other girl alone. “My heart felt so heavy because I couldn’t help her,” she says, “It killed me inside.” Afterwards, Siya was afraid she would suffer the same fate and thought about dropping out. If it had not been for her sick mother and difficult situation at home, and her desire to improve her life, she might have. Three men attempted to rape Yolisa*, of Solomon Mahlangu HS, but she screamed enough to make them run away. Yolisa walks for four hours each day to attend school and is now afraid to keep up her education.

Current Policy

The current scholar transport programme is not implemented equitably. Thousands of applications from learners every year receive no response from the National Department of Basic Education. Meanwhile, even the policy recommended by the Minister of Basic Education, the Department, the MEC for Education and the Eastern Cape Department of Education, provides transport only to learners who live more than 5 kilometres from school, denying transport to anyone below that cut-off or who can access public transport or a closer school. The Department has transported the same number of learners (56 000) annually for the last four years.  And yet, in that same period, the scholar transport budget has more than doubled; from R210 million in 2011 to R430 million in 2015.

This policy continues to fail thousands of children. The proposed policy does not consider other challenges learners face that factor into their journey; including weather and safety. It does not give families and learners the opportunity to choose between different programmes at schools, limiting them to the closest school. Moreover, though public transportation may be available at some locations, it is often a costly additional burden on already limited family resources.

Mandira from the Grahamstown office walks with learners as they make their way to school. Thousands of learners walk far distances and for many hours in order to get an education.
Mandira from the Grahamstown office walks with learners as they make their way to school. Thousands of learners walk far distances and for many hours in order to get an education.


Mr Bathini Dyantyi, who represents the Tripartite Steering Committee of three schools, and more than 150 learners, represented by the Legal Resources Centre, are approaching the Grahamstown High Court on Thursday, 11 June 2015, seeking an order that will give them scholar transport.  If they are successful, it will also set in motion a process that will provide transport for thousands of learners who qualify for scholar transport but don’t receive it. They seek transportation within 30 days, a comprehensive database of qualifying learners within 30 days, and transport for all of those children within 90 days.

As reasons for their failure to provide scholar transport, the government cites the lack of infrastructure in rural areas, poor coordination between different departments, corruption, ineffective compensation, poor monitoring of the system and limited funding. The government has asked for the application to be dismissed or, at least, postponed in order to give them an opportunity “to get their house in order” and finalise a scholar transport policy.

But while we wait for the government to get their house in order, thousands of learners continue to face serious dangers on the way to school and are deprived of their constitutional right to education. These learners do not have the means to provide transport for themselves – it is the government’s responsibility to do so.

By: Patricia Alejandro

*Not their real names

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

The Mud Schools of the Eastern Cape

Talita Mshweshwe is a law student from East London doing an internship at the Legal Resources Centre (LRC). She interviewed a young girl named Siyabonga, a grade 7 pupil at Ncincinikwe Senior Primary School in Votini in the Eastern Cape. Ncincinikwe Senior Primary School is one of approximately 300 mud schools in the province. This is Siyabonga’s story.

My name is Siyabonga, I am in grade seven at Ncincinikwe Senior Primary School. The Department of Basic Education (DBE) says that my school is a quintile one school, which apparently is the poorest. We come from a rural community in the Butterworth area. There are 167 of us in the school. We really want to learn but it is very difficult for us to pay attention to our teachers because the school building is not in a good condition. But we try to come to school every day. It is hard for the girls in my school because we can’t come to school when we are menstruating. We stay at home because it is very embarrassing to go to school when there are no toilets for us to use. My school does not have any toilets and the building is collapsing. We are scared because it looks like the roof is going to fall. When it rains we have to run to save our books because the roof leaks very badly.

Ncincinikwe Senior Primary School
Ncincinikwe Senior Primary School

Visiting the mud schools

In 2011, the LRC reached an out-of-court settlement agreement with the DBE to eradicate all mud schools in the province. This was good news for about 50 schools whose structures were replaced by new school buildings. However, the benefits did not reach Siyabonga’s school because the DBE did not have proper plans in place to identify the needy schools and replace them, even though the Department had sufficient funds. They did not communicate their plans for rolling out the programme. Some schools were left off the list completely and those that are on the list are not aware of the dates on which their school would be upgraded. Because of the poor planning, money dedicated to replacing mud schools is being taken away from this programme and reallocated to other provinces. This is a tragedy for schools like Siyabonga’s.

On 28th October 2013, the LRC team from the Grahamstown office visited our school. They took pictures of our school and the toilets. They told us about the Accelerated Schools Infrastructure Delivery (ASIDI) programme and how the government had set aside more than R6 billion to fix the mud schools in the Eastern Cape. The teachers told us that DBE had made promises to the school since 2003, so they did not believe that any change would come. The teachers and the principal had never heard of the ASIDI programme and did not know how it would work. There are over 300 mud schools in the area. I heard them say that these are not new promises, but they were interested because the LRC explained what kind of work it did.

The LRC told my school principal that it would ask the courts to force the DBE to produce the plan so that schools like mine would know whether not they were going to be fixed and when. Then our community can plan properly. We still go to school. It’s the law. But the DBE seems to think its fine for us not to have toilets and classrooms that are crumbling. We don’t know if our school will be fixed, but we will continue to attend as much as possible.

The inside of the classrooms
The inside of the classrooms

What makes a good school? Is it good teachers, textbooks? Does the actual building of a school matter? Does Siyabonga have the right to expect a strong, steady and safe building as part of her right to basic education? While the challenges of learning in a mud school do not affect the majority of leaners in South Africa, a large number of children in the distant corners of the Eastern Cape struggle to get an adequate education. The LRC will continue to monitor the situation and take action when necessary.

By: Talita Mshweshwe

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

From an Eastern Cape teacher

Eastern Cape teacher shows his appreciation for the work that the LRC has been doing in advancing the right to education
Mr Mweli, from the Eastern Cape, has recently been appointed as a permanent teacher.

On Thursday 6 January, the Eastern Cape High Court ordered the Department of Basic Education (DBE) to employ 108 temporary teachers on a permanent basis and remunerate them from the day they assumed duty. The DBE was given until 30 June to do this.

The teachers are from 17 Eastern Cape schools and were represented by the Legal Resources Centre. We caught up with one of the teachers whose life will be affected by this court decision.

My name is Lazola Mweli and I am a grade two teacher at Alfonso Arries Primary School in Port Elizabeth. I am one of the many teachers who, until this week, have been working without formal appointment and I am very happy now that I have been appointed on a permanent basis.

Being a temporary teacher has a number of challenges; you can get victimised for having a different opinion with someone who is in a more senior position. Instead of focusing on your job, you have to please those in authority. It also comes with a lot of uncertainty; you are not sure what will happen tomorrow. Things change everyday. This uncertainty and negativity can affect the learners too because you are constantly worrying about your future instead of focusing on teaching.

There are a lot of learners who don’t have father figures at home. As a male teacher, they get to love and trust you and unfortunately it’s a bit difficult to be a good role model when you are distracted about rent, transport and food money. Now that this issue has been resolved, I can start planning my life and, most importantly, I will be able to focus on my work because I am really passionate about teaching.

My message to the government is that in order for us to improve the standard of education in our country, the DBE has to take care of both us (teachers) and learners. Even if they provide all the textbooks and required learning materials, it won’t make much of a difference if the teachers are treated badly and are not paid.

To the LRC, thank you guys for upholding the law in our country, you are doing a great job. My colleagues and I appreciate what you have done for us. We promise to repay you by teaching the learners and by being dedicated teachers. Thank you very much.