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Newsletter: From Evidence to Action

Press Release: Mixed reaction to judgment in scholar transport matter

Legal Resources Centre press release on judgment in scholar transport matter - the right to education is 'meaningless unless scholars had accesss to transport to and from school.

In a precedent-setting deci­sion handed down on 26 June 2015 in the Gra­ham­stown High Court, Judge Plas­ket held that the right to basic edu­ca­tion is “mean­ing­less” unless learn­ers had access to trans­port to and from school, at government’s expense, in appro­pri­ate cases. Plas­ket J held that:

 “…in instances where schol­ars’ access to schools is hin­dered by dis­tance and an inabil­ity to afford the costs of trans­port, the State is obliged to pro­vide trans­port to them in order to meet its oblig­a­tions, in terms of s 7(2) of the Con­sti­tu­tion, to pro­mote and ful­fil the right to basic edu­ca­tion.”

On 11 June 2015, the Legal Resources Cen­tre (LRC), act­ing on behalf of the Tri­par­tite Steer­ing Com­mit­tee and Masivuy­iswe Sec­ondary School, approached the Gra­ham­stown High Court seek­ing an order grant­ing scholar trans­port to 170 learn­ers named in the found­ing papers.

In addi­tion to this, we sought an order com­pelling the provin­cial gov­ern­ment to com­plete the process of adopt­ing a revised scholar trans­port pol­icy. The revised pol­icy would clearly out­line the cri­te­ria used to deter­mine which learn­ers qual­ify for the learner trans­port pro­gramme.

In Jan­u­ary 2015, Masivuy­iswe Sec­ondary School had been informed that their learn­ers’ appli­ca­tions for scholar trans­port had been approved; how­ever, the Depart­ment of Basic Edu­ca­tion failed to imple­ment this deci­sion. Judge Plas­ket directed that the qual­i­fy­ing learn­ers attend­ing Masivuy­iswe Sec­ondary School be pro­vided with scholar trans­port by 20 July 2015.

The Judge also directed that the deci­sions to refuse scholar trans­port to the schol­ars who attended SK Mahlangu Senior Sec­ondary School, Sakhi­sizwe Senior Sec­ondary School and Mizamo High School be set aside and new deci­sions be taken and imple­mented by 31 July 2015.

The Judge declared that the deci­sion to deny scholar trans­port to the three Tri­par­tite Com­mit­tee schools was an arbi­trary one, as no ver­i­fi­ca­tion of infor­ma­tion had taken place and the mer­its of each appli­ca­tion for trans­port had not been con­sid­ered.

This order was con­trary to the one sought by the appli­cants schools who had prayed, not only for an order set­ting aside the deci­sion, but that the court sub­sti­tute its own deci­sion and direct that trans­port be pro­vided.

Plas­ket J held that he was not in a posi­tion to take the deci­sion, as it may require fur­ther inves­ti­ga­tion into the finan­cial means of each learner and the dis­tance of each learner from their respec­tive schools. The LRC wel­comes the judge’s deci­sion to give the state a dead­line of five weeks to take a new deci­sion and imple­ment it. The LRC will make sub­mis­sions to the Depart­ment regard­ing the deci­sions to be taken.

Regard­ing the adop­tion of a revised scholar trans­port pol­icy, Plas­ket J held that the Depart­ment had to report to the court by 14 August 2015 on their progress in adopt­ing a new pol­icy, as well as how and when it would be pub­lished.

 An impor­tant find­ing by Plas­ket J was that what­ever dis­tance require­ment was adopted in the new pol­icy, it must be viewed as:

 “…a guide­line which has to be applied flex­i­bly in order to achieve the ulti­mate pur­pose of pro­vid­ing scholar trans­port to all of those who need it…. The pol­icy is not an end in itself but a means to the department’s end of meet­ing its oblig­a­tions in terms of s20 of the Con­sti­tu­tion.”  

Dis­ap­point­ingly, how­ever, Plas­ket J refused to grant an order com­pelling the Depart­ment to com­pile, pub­lish and main­tain a data­base of schol­ars in the East­ern Cape who qual­ify for scholar trans­port or to direct the Depart­ment to appoint an indi­vid­ual to accept sub­mis­sions from the pub­lic regard­ing learn­ers who had been omit­ted from the data­base.

How­ever, the LRC will make sub­mis­sions directly to the Depart­ment sug­gest­ing that a data­base of scholar trans­port recip­i­ents be cre­ated which records, inter alia, the learn­ers name, the school attended, the route they are trans­ported on and the dis­tance they are trans­ported. The LRC believes this will be an impor­tant mech­a­nism for ensur­ing cor­rup­tion is rooted out of the sys­tem and that deserv­ing learn­ers receive the trans­port they are enti­tled to.

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