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Blog: South Africa

December 18, 2013

Winning on School Infrastructure, Honoring Mandela

Posted by Susan Farbstein

As South Africa and the world remember Nelson Mandela, there is perhaps no greater way to honor his legacy than to continue the struggle for social justice.  A quality education for all children must be at the core of such efforts, as Mandela himself recognized.  “Education is the most powerful weapon which you can use to change the world,” he said.  In the week before his death, real progress was made on the education front in South Africa.

Excited children protest in South Africa holding a yellow banner.
Members of Equal Education march to the Department of Education in Pretoria to demand norms and standards. (Photo courtesy of Equal Education)

After three years of sustained campaigning by our South African partners, Equal Education (EE) and Equal Education Law Centre (EELC), Minister of Basic Education Angie Motshekga finally released binding norms and standards for school infrastructure on November 29th.  The norms represent a significant victory for future generations of South African students, and for South Africa itself. 

The norms—which are legally binding—mandate substantial changes to public schools across the country, many of which must be realized on a relatively short time horizon.  Mud schools must be replaced within three years; schools that currently lack water, power, and toilets must be provided such facilities within three years; all schools must have classrooms, electric connectivity, and security measures within seven years; and all schools must have libraries and laboratories within ten years.  As a first step, provincial ministers will be required to develop school infrastructure plans within a year, and then report annually on their progress towards implementing the norms. 

There are still serious concerns.  The norms do not require provincial ministers to make either their plans, or their progress reports, available to the public.  The norms also contain a potentially worrisome legal loophole, in the form of language stating that they must only be implemented “as far as reasonably practicable.”  Equally troubling are some of the specific provisions, such as the proposed minimum number of toilets per student, which falls well short of international standards recommended by UNICEF and the WHO.  

Nevertheless, the norms carry the promise of tangibly improving the education, and therefore the lives, of millions of South African schoolchildren.  Our partners have fought long and hard to secure decent school infrastructure for all of South Africa’s students.  The norms victory would never have been possible without the advocacy work of EE student and parent members, who joined voices to ensure that their demands could not be ignored.  Their collaborative and creative efforts demonstrate that—as Mandela teaches us—while justice and equality may be a long time coming, a group of dedicated and committed people can transform a society.  Our Clinic is proud to support their work.

For more information, read Equal Education’s statement on the win, along with its statement after the death of Nelson Mandela.

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November 22, 2013

A Step Closer to Basic School Infrastructure for South African Students

Posted by Melissa Shube, JD '15

After soliciting feedback from hundreds of South African students and parents, Equal Education (EE) and Equal Education Law Centre (EELC) have submitted comments on the South African Minister of Basic Education’s second draft of minimum regulations for public school infrastructure. While the submission recognizes that the Minister’s draft represents important progress, EE and EELC raise significant concerns with respect to the draft’s long timeline for implementation. As Moto Singulakka, a Grade 10 learner at Oscar Mpetha High School in the Western Cape, asked, “What about now? Where are the learners going to learn?”

A child stands in a school room in South Africa. The room is bare, with scaffolding exposed and wood paneling falling apart behind him.
Photo courtesy of Equal Education Law Centre

The legacy of Apartheid is still palpable in South Africa’s education system, where many rural and township schools lack basic infrastructure to provide students with a safe environment conducive to learning. Binding norms and standards will help promote equality in education for South Africa’s historically disadvantaged students by requiring all public schools to meet minimum thresholds in relation to physical facilities.

Recognizing that adequate norms and standards are desperately needed, EE has been campaigning for over three years for the development, release, and improvement of these norms. We at the International Human Rights Clinic have for the past year provided legal support to this campaign, which is based on student concerns about a range of infrastructure challenges, including overcrowded and collapsing classrooms, unsanitary toilets that make students sick, inadequate water supply, insufficient electricity, and a painful dearth of science labs, libraries, computer access, and sports fields. Mbali Cezula, a student from iQonce High School in the Eastern Cape, explained that there is a “lack of proper classrooms in my school. There are few buildings [and] some look like township slums. They are not safe as they could fall anytime.”

The regulations for school infrastructure are long overdue. A 2007 amendment to the South African Schools Act of 1996 empowered the Minister to implement binding norms and standards for public school infrastructure. However, such regulations were never released, despite the department’s 2010 proclamation that “[e]quity in the provision of an enabling physical teaching and learning environment is therefore a constitutional right and not just a desirable state.” After a sustained public advocacy effort, EE, assisted by the Legal Resources Centre, filed suit to compel the Minister to act. A year ago, in November 2012, Minister Angie Motshekga agreed to settle the case and to release norms as part of the settlement. Her first set of draft regulations, made available for public comment in January 2013, were “disappointingly vague on substance.”

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September 20, 2013

Plaintiffs File Petition in Second Circuit Court of Appeals to Review Panel’s Decision in Apartheid Case

Posted by Tyler Giannini and Susan Farbstein

This week, the International Human Rights Clinic, along with co-counsel, filed a petition on behalf of plaintiffs for panel rehearing or rehearing en banc to review the U.S. Second Circuit Court of Appeal’s decision in Balintulo v. Daimler AG, which is also known as the In Re South African Apartheid Litigation. The petition stated that, “The panel opinion in Balintulo v. Daimler AG  would eviscerate more than thirty years of this Court’s Alien Tort Statute (‘ATS’) jurisprudence and should be reviewed en banc because it conflicts with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. as well as decisions in this Circuit.”

The petition comes more than 10 years after cases were first filed in the United States in 2002. Three defendant corporations—Ford Motor Company, Daimler AG, and International Business Machines Corporation (IBM)—remain from the original cases and are charged with complicity in the perpetration of apartheid-era crimes and human rights violations.

The petition seeks review of an August 21 decision by a three-judge panel of the Second Circuit that lifted a stay and sent the matter back to district court Judge Shira Scheindlin to consider the plaintiffs’ claims in light of the Supreme Court’s April decision in Kiobel. In the wake of the Kiobel ruling, which found that ATS claims must “touch and concern” the United States, the Second Circuit had requested letter briefs from both the plaintiffs and defendants. The briefs were submitted in late May, and in August, the Second Circuit stated that in light of Kiobel, “the Alien Tort Statute does not reach the extraterritorial conduct in this case.”

The U.S.-based lawyers representing the plaintiffs in the cases include Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP, Michael Hausfeld of Hausfeld, LLP, Diane Sammons and Jay Rice of Nagel Rice LLP, and Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky. The South African-based legal team includes Dumisa Ntsebeza, John Ngcebetsha, Charles Abrahams, Medi Mokuena, and Michael Osborne.

November 27, 2012

Important Victory for the Right to Education in South Africa

Posted by Susan Farbstein

In the not-so-distant past, denial of basic education to non-white citizens was a pillar of South Africa’s apartheid state.  The goal of “Bantu education” was to isolate and subjugate the black population, prevent the spread of “subversive” ideas, and prepare black students to provide labor for a white-run economy and society.  Recognizing that this system had to be eradicated if South Africa was to truly transform itself, the right to education was enshrined in the country’s new constitution during the transition to majority rule.  Basic education for all South Africans would be an immediately realizable right, essential to overcome decades of legalized discrimination and to ensure meaningful participation in a democratic society.

But absent clear standards and specific guidance about what a quality education means, the country has struggled to provide such education to most of its citizens.

Chairs are scattered and turned over everywhere in a school in South Africa.
A school in the Eastern Cape of South Africa. Photo courtesy of Equal Education

According to the Department of Basic Education, as of 2011, of the 24,793 public schools in South Africa: 14% have no electricity; 10% have no water supply; 46% use pit-latrine toilets; 90% have no computer centers; 93% have no libraries; and 95% have no science laboratories.  We’re learning about these challenges through our partnership with Equal Education Law Centre (EELC), a law clinic set up to address what it describes as the ailing education system in South Africa.  Part of the problem is that while the South African Schools Act of 1996 empowered the Minister of Basic Education to set minimum norms and standards for all schools, such norms and standards were never established.

But last week, our partner in South Africa made measurable progress.  EELC and its sister organization, Equal Education (EE), along with the Legal Resources Centre (LRC), secured a major victory on the path to education reform in South Africa.  In an out-of-court settlement, the Minister of Basic Education agreed to promulgate binding minimum norms and standards for infrastructure of the country’s public schools.

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May 2, 2012

Renewed Threat to Freedom of Expression in South Africa

Posted by Susan Farbstein

In the forthcoming issue of the New York Review of Books, Nadine Gordimer writes about two disturbing pieces of legislation under consideration by the South African parliament: the Media Tribunal and the Protection of State Information Bill (or so-called “Secrecy Bill”). Both would significantly curtail freedom of expression and access to information.  Nearly twenty years after the end of apartheid, the acts are eerily reminiscent of the legal architecture that upheld the apartheid system itself—laws banning political parties, newspapers and books, and advocacy of political, economic, and social change.

Five protestors in South Africa hold a sign that says, "The only thing needed for evil to triumph is for good people to be silent or silenced!!" The protest appears to be a candlelight vigil.
Protesters show their opposition to the so-called “Secrecy Bill” at a candlelight vigil in Johannesburg, September 2011. Photo: Heather Mason at www.2summers.net.

If the Media Tribunal is established, journalists will be required to inform it about topics that they plan to investigate or write about; the Tribunal will then have the power to determine whether these subjects pose a threat to state security.  However, under a new plan recently proposed by the Press Freedom Commission, a compromise seems more likely.  The Commission has recommended a system of “independent co-regulation” between the public and press, without involvement of political parties or state officials, which may mitigate some concerns raised by critics of the Tribunal.

The Secrecy Bill may be the greater threat.  It has received heavy criticism from South African civil society and media, and would impose significant prison sentences on those who expose corruption in government and industry.   It lacks a public interest defense, meaning that journalists or whistle-blowers could be imprisoned for up to 25 years for sharing information deemed classified by the government, even in the face of a compelling public interest such as exposing corruption or malfeasance.  In addition, the Bill will insulate various intelligence agencies from public scrutiny, ensuring that ordinary constitutional checks and balances will not apply to the intelligence services.

The powerful Congress of South African Trade Unions (COSATU), a traditional ANC ally, is strongly opposed to the Bill, as is Archbishop Desmond Tutu, who has said that it “makes the state answerable only to the state.”  The final hearing on the Bill is set for May 17th.  If passed into law, expect to see a Constitutional Court case challenging the Bill in the near future.

In many ways, this legislation contradicts the founding ideals that the ANC promised to a new South Africa.  Should the Secrecy Bill be enacted into law, former Constitutional Court Justice Albie Sachs’ warning may prove disturbingly prescient: “There is no guarantee that somebody who is a freedom fighter, who is willing to sacrifice his life for freedom, will not violate the rights of others when he takes over power.”