analysisBy Greg Nicolson
Johannesburg — Somewhere in the bruising war over Limpopo's textbooks is a lesson for all government departments. The season of textbook drama is coming to a close with a resounding victory for activists, but the accusations, court dates and disgrace will come again and government needs to learn from the books.
Overshadowed by the Marikana massacre and mine strikes, the importance of the court hearing between Section27 and the Department of Basic Education (DBE) might have been lost this week. It was the third court battle in a war that started in March. We've seen the courts rule the right to education includes study materials. Section27 has proved that neither civil society nor the public are willing to let the government skip past its constitutional mandate.
But up to 70,000 books still have not been delivered to Limpopo schools.
In the North Gauteng High Court this week, Section27 and its co-applicants wanted yet another delivery deadline and for DBE to revise its catch-up plan to meet earlier court orders. A sticking point was making sure next year's books would be delivered on time.
It looked like we'd have a battle royal on our hands. Basic Education has been accusing Section27 of exaggerating the problem and dragging it to court to help it raise money. In the background, the department switched up its legal team and seems to have decided to take whatever necessary measures not to be embarrassed this time (it managed to convince an applicant who had sided with Section27 since March to deny a statement of intimidation). For its part, Section27 was continuing to prod the angry bear through relentless court action. This time, it was telling South Africa that the textbooks still haven't been delivered and Minister Angie Motshekga's team is intimidating those brave enough to speak out.
But the High Court meeting wasn't quite the fight we expected. The public is still outraged over the failure to provide the learning materials, but now the school year is coming to an end it seems some of the sting's been taken out of the case. Basic Education has delivered the majority of books and has a catch-up plan ready. Those actions don't meet the requirements of the court order, but they are likely to placate a public accustomed to below-par delivery and distracted by the mines and Mangaung.
Judge Jody Kollapen agreed the textbooks have not been delivered to all Grade 1-3 and Grade 10 students in Limpopo. He also declared that a suitable catch-up plan hadn't been instituted, but because Section27 didn't institute contempt of court proceedings Kollapen wasn't forced to judge the department's explanation for the failure. The parties agreed the final 2012 books would be delivered by 12 October and the 2013 books must reach schools by 15 December.
"We may not be able to accurately quantify the effect this will have, but children certainly deserved better," said Kollapen. "What was required in terms of the Constitution was that public administration had to be open and respond to the needs of the people."
It was a win to Section27, but only just. Kollapen ordered Basic Education to pay half of the rights group's legal costs, a sign of their half-win. Section27's push for independent analysts to verify the state of the 2012 textbook delivery was ignored and the measures to ensure an improved catch-up plan and 2013 delivery look worryingly similar to those that have already failed. The department is required to identify the gaps in its catch-up plan. It also needs to tell Section27 and the court how it will deliver 2013's books by December. It puts responsibility to change in government hands. From what we've seen they will lie or tell half-truths.
The Limpopo textbook court battles have been one of the most important moves by civil society since 1994, but it didn't need to come this far.
Judge Kollapen noted how important it is for both civil society and government to approach the issue in good faith. Section27 continually tried to discuss the matter with the DBE in recent months, but was forced back to court after the department failed inform it about attempts to solve the issue.
The whole saga has confirmed the idea that the judicial system remains the last defender of democracy and will cause more groups to challenge the government in court. When those cases come, the ministers, lawyers and spokesmen would do well to realise that civil society is on the side of the constitution. Effective engagement can marshal wider resources to boost service delivery; attacking rhetoric can distract from the main aim and tie an issue up in the courts.
Part of the reason Motshekga's department stopped trying to work with Section27 is that it was hamstrung. Textbooks were just the tip the disaster in the province. Motshekga's response has been limited by a web of corruption in Limpopo and feuds between the state and provincial departments. But the department is attacking Section27 and claiming it has "Angie-phobia" simply because it has caused her embarrassment.
In the future, government departments that face similar cases would do well to start engaging civil society (outside of tripartite alliance affiliates). It will save them time in court, will be good for publicity, and might just help improve service delivery.