Legal action against the Western Cape Education Department follows numerous failed attempts to engage on the placement of learners in the Metro East District
For immediate release
18/05/2022
The Equal Education Law Centre (EELC) has instituted litigation alongside six parents and caregivers against the Western Cape’s MEC of Education (MEC), the Head of the Education Department (HOD) and the Director of the Metro East Education District due to their failure to place learners in schools. The court application seeks to address the ongoing failure within the Metro East Education District to fulfil their statutory and constitutional obligation to ensure that all learners are appropriately accommodated in schools.
The children of the six parents and caregivers are yet to see the inside of a classroom despite the second term being well underway and after numerous cries for assistance to the Metro East Education District officials and HOD by both the parents and the EELC. Since as early as January 2022, the parents have gone to numerous schools in the Khayelitsha and Kraaifontein areas where they were informed by schools that the schools were oversubscribed and could not take any more learners. Despite the obligation placed on Districts by the South African Schools Act to assist parents with learner placement, when approached, Metro East Education District officials failed to assist parents and, in many instances, have told them to apply for 2023 instead. Seeking to assist the parents, the EELC has tried- on several occasions- to engage with the Metro East Education District and the HOD but were simply ignored.
Despite the District Director and HOD’s statutory and policy obligations to ensure that all eligible learners are appropriately accommodated in schools, they have either refused to or failed to meet these obligations and assist the applicants. We have therefore been forced to approach the Western Cape High Court because without appropriate intervention, the affected learners will continue to suffer the ongoing deprivation of their constitutional right to basic education, human dignity, equality, and to have their best interests considered.
Expert evidence placed before the court shows that for the learners who have been unable to attend school this year, the loss of teaching time and school attendance is occurring in addition to the profound disruptions in schooling that have occurred over the past two years as a result of the pandemic, when conventional schooling did not take place. This learning loss exacerbate existing inequalities in the education system and disproportionately affected disadvantaged learners who suffer the greatest loss.
To address the severe and ongoing violation of the individual learners’ right to education, the urgent part of the application seeks their placement within five days of a favourable judgement. Due to the crucial learning time which these seven learners have lost, the application also seeks an order that remedial steps be put in place within seven days of a favourable order with the aim of providing support to the learners to assist them in meeting the academic requirements for the 2022 school year.
Through the work of the EELC law clinic over the years and based on the experiences of the parents and caregivers, we are aware that the issues which have been faced by the six parents and caregivers are not only confined to them and that there may be hundreds of other learners who are similarly placed within the Metro East District. The experiences of the parents and caregivers are, therefore, not merely applicable to seven individual learners but demonstrate a pattern of conduct and systemic maladministration, which exacerbate the exclusion experienced by vulnerable learners seeking to attend school and fulfil their right to basic education. The urgent application also seeks an order that instructs the HOD and the Director of the Metro East Education District to conduct an audit within two weeks of a favourable order to determine the number of unplaced learners within the Metro East Education District and to provide their parents and caregivers with an opportunity to attend at the Metro East District and be placed on the district’s data base.
Over the past two years, we have seen a marked increase in admission matters coming to the EELC law clinic. In January 2021, the Western Cape reported 5537 unplaced grade 1 learners and 10 450 unplaced grade 8 learners. This has increased our yearly intake numbers. This is a prevalent systemic issue despite the existence of a national framework for the admission of learners. Acknowledging that the issues impacting learner placements are complex, the EELC has endeavoured- over the years- to engage with the WCED with the hopes of being constructive and to assist parents. In the EELC’s experience, the existing issues and barriers lead to some learners dropping out and others missing an entire year of school. Whilst this is an issue which affects all districts, it has been particularly striking in the Metro East district.
There continues to be a number of schools that are simply oversubscribed and already overcrowded in the Metro East District. So, what is the department doing to solve this problem?
The EELC has never litigated against the WCED regarding admissions in the past. Our main approach has always been to try and engage meaningfully with the Department. Litigation is always the last tool, after all other channels have been exhausted. However, in circumstances where the rights of learners are continuously violated, we are left no option but to litigate. The seven learners and other similarly placed learners, who are of school going age, are out of school and cannot be expected to wait until next year for school placement and such an undertaking would be nothing but a travesty of justice.
The WCED has filed a notice of intention to defend the application and we await their answering affidavit. The urgent application is set to be heard in the Western Cape High Court on Monday, 23 May 2022.
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The Equal Education Law Centre EELC is a public interest litigation organisation which seeks to address systemic inequalities in the South African education system through coordinated strategies, advocacy and action to bring about sustained change. The EELC provides a daily walk-in clinic, which offers free legal support to individuals and communities. The lawyers employed by the EELC provide legal support, litigation where necessary, and on the ground interventions to assist marginalised learners and community members in realising their rights to equality, dignity and education.
