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Press Release: Mixed reaction to judgment in scholar transport matter
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.