School Infrastructure Norms and Standards: no legal obligation on provinces to act

This weekend, Basic Education Minister Angie Motshekga promulgated the long-awaited and much-contested final version of the regulations relating to Minimum Uniform Norms and Standards for Public School Infrastructure. 

The DA welcomes the improvement that has been achieved over both sets of draft School Infrastructure Norms and Standards regulations published this year.

We are, in particular, pleased to see that a number of the comments made in our submission have been taken into account.

However, we remain concerned that the regulations read something like a placation of those insisting on these norms and standards, and contain so many escape clauses that there could almost always be an uncontestable reason for non-compliance.

The implementation of all norms and standards is subject to reasonable practicability. This we understand. However, the existence of reasonable impracticability is subject to discretion. No indication is given as to who will exercise this discretion. 

The DA made an impassioned plea for a definition, in the form of a hierarchy of decision-making, to be included, and for the level of discretion with respect to impracticability to be clearly stipulated. The budget should be the very last level of the decision-making hierarchy. Both requests were ignored. 

Linked to this is the implementation being subject to cooperation from other government agencies. Provincial Education Departments are responsible. This conditional clause allows responsibility for non-compliance to be shifted. It should have been removed. 

Everything will ultimately hinge on the manner in which the Minister requires the reporting to be done. Is she, for example, going to require the report to include every detail of non-compliance, and reasons therefor? Will she require detail of every avenue pursued to ensure compliance before a decision was made that compliance with any aspect was reasonably impracticable?

The Minister has no authority to reject a plan submitted by a province. 

We assume she can ask for changes to be made, but she cannot instruct a province to comply with her view of reasonableness, practicability or any other aspect. All interaction would have to be done cooperatively and in terms of the Intergovernmental Relations Framework Act 13 of 2005. 

Very concerning, then, is the fact that provinces with no budget to upgrade schools are not obliged to upgrade schools by these regulations. 

The detail of the regulations is also concerning. For example, a time frame of three years is allowed to achieve access to water and sanitation. Lack of such access is an affront to the dignity of learners. Why was our suggestion of immediate access to temporary measures not included?

We hope that Minister Motshekga proves our doubts misplaced.

Statement issued by Annette Lovemore MP, DA Shadow Minister of Basic Education, December 2 2013

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