Contempt and execution in vindicating the right to education

• Author: Aravind Ganesh
• DOI: 10.10520/EJC162998
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 19-36

LLB (King’s College London), JD (Columbia), BCL (Oxon). Volunteer, Legal Resources Centre

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(Grahamstown Office), February-May 2013. I would like to thank Dr. Rosaan Kruger for her invaluable

suggestions, Sarah Sephton for keeping me informed about developments in the litigation discussed in

this note, as well as Fiona Lee and Scott Whitelaw for their kind help in editing the note. While the note

was written under the auspices of the Legal Resources Centre (Grahamstown), all errors remain mine

alone.

Judges in South Africa, and indeed anywhere in the British Commonwealth, have never used gavels.

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To my knowledge, they feature only in American courtrooms.

See, eg, Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC); Democratic

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Alliance v Acting NDPP 2012 6 BCLR 613 (SCA); Gibson and Caldeira ‘Defenders of democracy?

Legitimacy, popular acceptance, and the South African Constitutional Court’ (2003) 65 Journal of Politics

1; Booysen ‘Twenty years of South African democracy: Citizen views of human rights, governance and

the political system’ (2014) Freedom House available at http://www.freedomhouse.org/report/special-

reports/twenty-years-south-african-democracy (accessed 2014-02-10). Despite having won a resounding

victory in her claim based on her right to housing in the celebrated case of Grootboom, Irene Grootboom

was still living in a shack when she died eight years later. See Joubert ‘Grootboom dies homeless and

penniless’ Mail and Guardian (2008-08-08) available at http://www.mg.co.za/article/2008-08-08-

grootboom-dies-homeless-and-penniless (accessed 2014-02-10). In Democratic Alliance, the Supreme

Court of Appeal ordered the Acting NDPP to produce a record of a decision to discontinue the

prosecution of President Jacob Zuma. This order has been consistently ignored. Gibson and Caldeira

presented evidence (now dated) that the Constitutional Court enjoys less popularity than even the

Russian Constitutional Court. The recent study of citizen views conducted by Freedom House finds, at

37 and 40, that while the Constitutional Court now enjoys a ‘generally favourable impression’, the

judiciary on the whole is perceived as ‘inept and incapable of dealing with crime and justice’.

See, eg, MEC for the Department of Welfare v Kate 2006 4 SA 478 (SCA) para 4, which stated that ‘the

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result (of the provincial government’s non-compliance) has been a plethora of litigation in the High Court

between the poor of that province and the provincial administration ... At times it lies even in disregard

of court orders for the payment of moneys that are due’; Magidimisi v Premier of the Eastern Cape [2006]

ZAECHC 20 (ECB) para 3, observed that ‘this court has given a number of judgments ordering the

Contempt and execution in vindicating the

right to education

Aravind Ganesh*

1 Introduction

In other jurisdictions, the judge almost seems to have magic powers – a solemn

utterance, a bang of the gavel – and her orders solidify into reality. In South Africa,

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however, one is disabused of this illusion rather quick ly and nowhere so swiftly as in

the Eastern Cape, where the courts have on numerous occasions lamented their

vanishing influence on public officials. Vindicating the constitutional right to an

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20 (2014) 29 SAPL

provincial government … to pay certain sums of money to the individuals involved. The province has thus

far failed to do so in most instances’; Nkabinde J (dissenting) in Nyathi v MEC for the Department of

Health Gauteng 2008 5 SA 94 (CC) para 124, observed the ‘endemic non-compliance with court orders

by state officials, more particularly in the Eastern Cape Province ...’.

The Minister was cited as a respondent because of her decision to place the Department under the

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administration of the national government in terms of s 100(1)(b) of the Constitution.

Case no 1749/2012 Centre for Child Law v Minister for Basic Education, Certificate of Urgency (26

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February 2013), para 12.1 available at http://lrc.org.za/images/stories/CourtPapers/2013%2002%2025%

20Certificate%20of%2 0Urgency%20Post% 20provisioning%2 0v2%20(CLEAN)%20JB%20CHANGES.pdf

education requires going beyond the mere establishment of a violation of section 29

of the Constitution. The post provisioning litigation carried out by the Legal Resources

Centre (LRC) in the Eastern Cape in 2013 demonstrated that the next and crucial step

is to devise ways to ensure g overnment compliance wit h the court or ders that follow.

In such cases, the choices facing litigants and counsel ultimately boil down to sending

recalcitrant officials to prison or executing on government property, access to which

is governed by the law of contempt of court and the State Liability Act 20 of 1957

respectively. It is hoped that the insights gained from the experience of the LRC case

will prove useful to lawyers and litigants seeking effective and meaningful

enforcement of court orders concerning the right to education.

From the broader point of view, the episode throws into relief both the potential

and the limits of what the judiciary can do to render socio-economic justice, bring

about tran sformative change, and uphold the rule of law.

2 The 2013 post provisioning litigation

The public ed ucation sector in t he Eastern Cape Provin ce has been in a st ate of slow-

motion collapse for over a decade, with problems running the gamut from insufficient

educators and inadequate building infrastructure to a shortage of basic furniture. In

May 2012, the Centre for Child Law and the governing bodies of a number of schools

– all represented by the LRC – decided to address the first of these problems: teacher

shortages.

After numerous fruitless attempts to contact the Minister for Education and

officials at the national and provincial levels, an application was brought against the

national Minister of Basic Education (the ‘Minister’) and the Eastern Cape

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Department of Education (the ‘Department’), demanding that all teaching and non-

teaching posts be filled in accordance with the ‘2012 educator post establishment’,

that is, the plan according to which schools throughout the province have their

teaching needs assessed and their teacher allocations determined. The plan had

already been ‘declared’ by the Department so it was simply a matter of carrying it out.

This, however, the Department had consistently failed to do.

As a result of the teacher shortage, thousands of learners across the province

suffered and continue to suffer. Some schools ceased instruction in certain basic

subjects; in other schools, learners were taught by educators accustomed to teaching

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