Tripartite Steering Committee and Another v Minister of Basic Education and Others

• Jurisdiction: South Africa

Tripartite Steering Committee and Another v Minister of Basic Education and Others
2015 (5) SA 107 (ECG)

2015 (5) SA p107

Citation	2015 (5) SA 107 (ECG)
Case No	1830/2015
Court	Eastern Cape Division, Grahamstown
Judge	Plasket J
Heard	June 11, 2015
Judgment	June 15, 2015
Counsel	J Brickhill (with E Webber) for the applicants.; R Buchanan SC (with TM Ntsaluba) for the respondents.

Flynote : Sleutelwoorde B

Education — Right to education — Duties of state — Provision of transport — Right to basic education including transport to and from school, at state expense, where appropriate — Constitution, s 29(1)(a). C

Headnote : Kopnota

The right to basic education is meaningless without transport to and from school, at state expense, in appropriate cases. 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 fulfil its constitutional obligations. (Paragraphs [18] – [19] at 114C – E.) D

Cases Considered

Annotations

Case law

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [25] applied E

Centre for Child Law and Others v Minister of Basic Education and Others 2013 (3) SA 183 (ECG) ([2012] 4 All SA 35): referred to

Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) (1996 (4) BCLR 537; [1996] ZACC 4): considered

Federation of Governing Bodies of South African Schools and Others v MEC for the Department of Basic Education and Another F (ECB case No 60/11, 2 March 2011): referred to

Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA): referred to

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): dictum in para [67] applied G

Governing Body of Juma Musjid Primary School and Others v Essay NO and Others (Centre for Child Law and Another as Amici Curiae) 2011 (8) BCLR 761 (CC) ([2011] ZACC 13): considered

Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC) ([2014] ZACC 32): dictum in para [75] applied H

Hira and Another v Booysen and Another 1992 (4) SA 69 (A) ([1992] ZASCA 112): referred to

Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape and Another 2007 (6) SA 442 (Ck) ([2008] 1 All SA 142): referred to

Johannesburg Liquor Licensing Board v Kuhn 1963 (4) SA 666 (A): I dictum at 671C – D applied

Kemp NO v Van Wyk 2005 (6) SA 519 (SCA): dictum in para [1] applied

Linkside and Others v Minister of Basic Education and Others (ECG case No 3844/13, 26 January 2015): referred to

Madzodzo and Others v Minister of Basic Education and Others 2014 (3) SA 441 (ECM): referred to J

2015 (5) SA p108

Mahlaela v De Beer NO 1986 (4) SA 782 (T): referred to A

Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (2010 (3) BCLR 239; [2009] ZACC 28): referred to

MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006 (5) SA 483 (SCA) ([2006] 2 All SA 17): referred to

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Laser Institute 2014 (3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6): referred to B

MEC for Health, Eastern Cape, and Another v Kirland Investments (Pty) Ltd t/a Eye and Laser Institute 2014 (3) SA 219 (SCA): referred to

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; C Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616; [2003] ZASCA 46): referred to

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1; [2005] ZACC 14): dictum in para [73] applied

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15): dictum in paras [98] – [99] applied D

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (2001 (7) BCLR 652; [2001] ZACC 19): referred to

Mlokoti v Amathole District Municipality and Another 2009 (6) SA 354 (E): referred to E

National Lotteries Board and Others v South African Education and Environment Project 2012 (4) SA 504 (SCA): referred to

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) F ([2004] 3 All SA 1; [2004] ZASCA 48): referred to

Pillay v Licensing Officer, Umkomaas and Another 1930 NPD 111: referred to

RHI Joint Venture v Minister of Roads and Public Works and Others 2003 (5) BCLR 544 (Ck): referred to

Section 27 and Others v Minister of Education and Another 2013 (2) SA 40 (GNP) ([2012] 3 All SA 579): approved

Similela and Others v Member of the Executive Council for Education, Province of the Eastern Cape and Another (2001) 22 ILJ 1688 (LC) ([2001] 9 BLLR 1085): referred to G

The Free Press of Namibia (Pty) Ltd v Cabinet of the Interim Government of South West Africa 1987 (1) SA 614 (SWA): referred to

Trackstar Trading 256 (Pty) Ltd t/a Mtha-Wethemba v Head of the Department of Transport, Province of the Eastern Cape and Others H (ECG case No 3611/13, 4 December 2014): approved

Traube v Administrator, Transvaal and Others 1989 (2) SA 396 (T): referred to

Welkom Village Management Board v Leteno 1958 (1) SA 490 (A): referred to.

Statutes Considered

Statutes I

The Constitution of the Republic of South Africa, 1996, s 29(1)(a): see Juta's Statutes of South Africa 2014/15 vol 5 at 1-29.

Case Information

J Brickhill (with E Webber) for the applicants.

R Buchanan SC (with TM Ntsaluba) for the respondents. J

2015 (5) SA p109

An application for the provision of scholar transport at state expense and A ancillary relief.

Order

1.

The respondents are directed to provide scholar transport, by 20 July 2015, to the scholars who attend Masivuyiswe B Secondary School and whose names appear in annexures A1, A2 and A3 to the notice of motion.

2.

The decision to refuse scholar transport to the scholars who attend SK Mahlangu Senior Secondary School, Sakhisizwe Senior Secondary School and Mizamo High School in Mdantsane and whose names are listed in annexures A1, A2 and A3 to the notice of motion C is set aside.

3.

The decisions whether to provide scholar transport to the scholars mentioned in para 2 above are remitted to the seventh respondent, who is directed to take and implement new decisions by 31 July 2015 in accordance with this judgment. D

4.

The respondents are directed to report to this court, on affidavit, by 14 August 2015 on their progress in adopting a new policy on scholar transport and how and when it either has been or will be published.

5.

The respondents are directed, jointly and severally, to pay the applicants' costs, including the costs of two counsel. E

Judgment

Plasket J:

[1] Section 29(1)(a) of the Constitution provides to everyone a fundamental right to basic education. This right has been the subject of much litigation in the Eastern Cape Province over the last few years. This case F concerns a discrete aspect of education policy that none of the other cases has, to my knowledge, dealt with.

[2] This case concerns, in the first instance, whether the right to basic education includes as part of it a right to be provided with transport to G and from school at state expense for those scholars who live a distance from their schools and who cannot afford the cost of that transport. It also concerns the validity of decisions taken by officials of the Eastern Cape Department of Education (the department) to refuse a number of scholars transport to and from school, a failure to provide others with transport after undertaking to do so and whether mandatory relief should H be granted in connection with a process currently under way to formulate a new scholar transport policy.

Introduction

[3] The first applicant, the Tripartite Steering Committee, is a body I formed by the school governing bodies of three Mdantsane schools, SK Mahlangu Senior Secondary School, Sakhisizwe Senior Secondary School and Mizamo High School. Its main object is to uphold and promote the right to education. The second applicant is the school governing body of Masivuyiswe Secondary School, a school in the Alice area. J

2015 (5) SA p110

Plasket J

A [4] The first applicant litigates in its own interest and in the interest of children who attend the three schools; on behalf of schoolchildren in the Eastern Cape who do not have access to scholar transport and who cannot act in their own name; in the interest of scholars in the Eastern Cape who qualify for scholar transport but who are not included in the B scholar transport programme; and in the public interest. In other words, it claims standing to vindicate the right to basic education in terms of ss 38(a), (b), (c) and (d) of the Constitution. [1]

[5] The second applicant brings its application in its own interest and in C the public interest. It claims standing, in other words, in terms of ss 38(a) and (d) of the Constitution.

[6] The respondents are part of two spheres of government. The first respondent is the Minister of Basic Education in the national sphere of government and the second respondent is the Government of the D Republic of South Africa. They are cited as respondents because, in March 2011, the national government intervened in the administration of...