Equal Education and Another v Minister of Basic Education and Others (276/2016) [2018] ZAECBHC 6; [2018] 3 All SA 705 (ECB); 2018 (9) BCLR 1130 (ECB); 2019 (1) SA 421 (ECB) (19 July 2018)

Equal Education and Another v Minister of Basic Education and Others (276/2016) [2018] ZAECBHC 6; [2018] 3 All SA 705 (ECB); 2018 (9) BCLR 1130 (ECB); 2019 (1) SA 421 (ECB) (19 July 2018)

The Court held that regulation 4(5)(a) of the Regulations unlawfully limits the right to basic education by making the implementation of minimum norms and standards subject to the resources and cooperation of other government agencies. This qualification undermines the immediacy and enforceability of the right, renders government unaccountable, and is inconsistent with the Constitution, SASA, and the 2013 court order. The Minister failed to justify the limitation under section 36 of the Constitution and did not provide a rational basis for the prioritisation and exclusion mechanisms in the regulations. The Court found that the regulations must provide binding, uniform standards and...

Citation
[2018] ZAECBHC 6
Parties
Applicant: Equal Education; Applicant: Amatolaville Primary School; Respondent: Minister of Basic Education; Respondent: MEC for Education: Limpopo; Respondent: MEC for Education: Eastern Cape; Respondent: MEC for Education: Freestate; Respondent: MEC for Education: Gauteng; Respondent: MEC for Education: KwaZulu Natal; Respondent: MEC for Education: Mpumalanga; Respondent: MEC for Education: Northern Cape; Respondent: MEC for Education: North West; Respondent: MEC for Education: Western Cape; Applicant: Basic Education for All (BEFA)
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
19 July 2018
Case Number
276/2016
Procedural Posture
Review Application / Final Judgment After Hearing on Merits
Outcome
Application granted. The impugned regulations were declared inconsistent with the Constitution, SASA, and the 2013 court order, and were set aside to the extent of their inconsistency.
Judges
N Msizi
Legal Topics
Right to Basic Education, School Infrastructure, Judicial Review of Regulations, Constitutional Accountability, Cooperative Governance, Limitation of Rights
Constitutional Law Administrative Law Civil Procedure Right to Basic Education School Infrastructure Judicial Review of Regulations Constitutional Accountability Cooperative Governance +1 more

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Parties

Equal Education

Applicant

Amatolaville Primary School

Applicant

Minister of Basic Education

Respondent

MEC for Education: Limpopo

Respondent

MEC for Education: Eastern Cape

Respondent

MEC for Education: Freestate

Respondent

MEC for Education: Gauteng

Respondent

MEC for Education: KwaZulu Natal

Respondent

MEC for Education: Mpumalanga

Respondent

MEC for Education: Northern Cape

Respondent

MEC for Education: North West

Respondent

MEC for Education: Western Cape

Respondent

Basic Education for All (BEFA)

Applicant

Procedural Posture

Review Application / Final Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether regulation 4(5)(a) of the 2013 Regulations unlawfully limits the right to basic education under section 29(1)(a) of the Constitution.
  2. 2 Whether the impugned regulations are inconsistent with the Constitution, SASA, and the 2013 court order.
  3. 3 Whether the prioritisation and exclusion mechanisms in the regulations are arbitrary, irrational, or unconstitutional.

Ratio Decidendi

The Court held that regulation 4(5)(a) of the Regulations unlawfully limits the right to basic education by making the implementation of minimum norms and standards subject to the resources and cooperation of other government agencies. This qualification undermines the immediacy and enforceability of the right, renders government unaccountable, and is inconsistent with the Constitution, SASA, and the 2013 court order. The Minister failed to justify the limitation under section 36 of the Constitution and did not provide a rational basis for the prioritisation and exclusion mechanisms in the regulations. The Court found that the regulations must provide binding, uniform standards and...

Court Disposition

Application granted. The impugned regulations were declared inconsistent with the Constitution, SASA, and the 2013 court order, and were set aside to the extent of their inconsistency.

Orders

  • Regulation 4(5)(a) is declared unlawful and invalid for inconsistency with the Constitution, SASA, and the 2013 court order.
  • Regulation 4(3)(a) read with 4(1)(b)(i) must be interpreted to require replacement of all schools and classrooms built substantially from mud, asbestos, metal, or wood within three years, in accordance with the Regulations, National Building Regulations, SANS 10-400, and OHSA.