Eastern Cape government receives strict orders to provide scholar transport as excuses run out of road

Primary school children walk kilometres daily to get to school and back. (Photo: Hoseya Jubase)

19 Dec 2024

There was no reprieve for the Eastern Cape Departments of Transport and Education as a Makhanda High Court judge handed down a detailed court order on Thursday compelling them to take comprehensive steps to provide scholar transport to qualifying learners in the province within days and provide a catch-up plan for those who missed school in 2024.

The Eastern Cape Government’s often-used excuse that it doesn’t have money to provide all qualifying learners in the province with scholar transport has been dismissed by the Makhanda High Court.

Acting Judge Nicola Molony on Thursday, 19 December 2024, described this as unacceptable and in a detailed court order compelled the government to provide scholar transport to all qualifying learners in 2025 and decide on all applications by the end of January 2025.

eastern cape mbube Shukuma Senior Secondary School learner Thulani Mbube carries a fellow learner across the Qebeni River after classes in Bizana, Eastern Cape on 31 January 2024. (Photo: Hoseya Jubase)

It is estimated that 50,000 learners were left without transport in 2024. The Education Department was ordered to develop a catch-up plan for these learners and report back to the court.

The court ordered that progress affidavits were also to be filed at court to explain what was being done to address the problem for the following seven months.

Molony handed down her ruling in an application by several schools and the Khula Community Development Project to compel the Eastern Cape departments of education and transport to provide scholar transport to all qualifying learners in the province.

Read more: Pupils describe the long walk to school, amid fight for scholar transport in rural Eastern Cape

“It is not in dispute that the right to basic education is immediately realisable,” Molony said.

“This means it is excluded from the defence, often used by the government, that there are no available resources.”

Molony highlighted in her ruling that the South African Human Rights Commission (SAHRC) produced a report in 2014 highlighting that for the 2013/2014 financial year, only about a quarter of qualifying learners received scholar transport.

An explanation advanced by the Eastern Cape Government was that they had “insufficient financial resources”.

But when the SAHRC demanded answers, the provincial government ignored the commission, Molony said.

She said court papers portrayed a desperate, often dangerous and inequitable situation in the province.

“Reference is made to children being required to walk for hours to reach school, arriving late and exhausted, with the same pattern being repeated when going home. Many have to cross rivers (which cannot be crossed at all when overflowing) and walk in isolated areas or areas with terrain that is difficult to navigate.

eastern cape school Primary school children walk kilometres daily to get to school and back. (Photo: Hoseya Jubase)

“It appears that learners’ parents attempt to pay for transport on their own periodically, or send the learners to live with family or friends closer to the relevant schools, but this is not sustainable financially and comes with the hardship to the child of being away from home for extended periods,” Molony said.

“Some children, understandably, simply stop going to school because it is too difficult to get there.”

Significant step

The case was brought by the Legal Resources Centre (LRC) representing several schools and the Khula Community Development Project, which took the government departments to task.

Cameron McConnachie of the LRC said the schools and the Khula Community Development Project, however, were under no illusion about the challenges ahead.

“An estimated 40,000 more learners still require transport,” he said.

But, he said, the ruling was a significant step.

Petros Majola of the Khula Development Project said he would use all possible avenues to ensure that no child needed to walk long distances to school “and that no child walks dangerous roads to access education”.

Referring to the numerous court cases about scholar transport that preceded this one, Majola said: “It is quite embarrassing that every year we have to take our own government to court. After so many years of democracy, it is disappointing that we have to fight in order for the government to do what they are supposed to be doing.”

Read more: Through thick bush, up hills and across rivers – Eastern Cape learners’ long trek to school

Dr Eileen Carter from the SAHRC said the judgment affirmed that the provision of scholar transport was a mandatory and integral component of the right to education.

“The court ruled that the government of South Africa is obligated to provide scholar transport to learners in the Eastern Cape, emphasising the immediate realisation of the right to basic education as enshrined in the Constitution,” she said.

Eastern Cape Department of Education spokesperson Mali Mtima said they were studying the ruling.

Eastern Cape Department of Transport spokesperson Unathi Binqose said they too were consulting on the ruling.

“We have received the ruling. The MEC and other officials are taking a closer look at it. But we want to emphasise that we care about scholar transport,” Binqose said.

Read more: Eastern Cape considers excluding more learners from scholar transport service, court told

Find the money

In her order, Molony ruled that any failure to provide scholar transport to “all learners in the Eastern Cape who qualify” would be regarded as unconstitutional.

Her order includes that all applications for scholar transport must be considered by the end of January; decisions must be communicated to requesting schools in writing within a few days of the order, as must reasons for refusal.

Reasons must be provided when a transport request is refused. All appeals must be decided within 10 days.

The court also ordered that the Education Department provide an affidavit within 35 days setting out all the schools in the Eastern Cape that indicated a need for scholar transport for the school year; the number of learners that each of these schools indicated needed transport and the status of their application, the number of learners whose applications were denied or left undecided and the status of any appeals.

In her judgment, Molony dismantled the longstanding reasoning by the government departments that they just did not have the money. She said when a department embarked on its school rationalisation programme it had to envision that there would be an increased need for scholar transport.

She said that on 5 February 2024, a media statement was issued on behalf of the Eastern Cape Executive Council, stating that interim budget relief had been approved in the amount of R90.37-million, to assist in the provision of scholar transport in the Eastern Cape.

“It is unclear what the impact has been of the additional funding,” Molony said.

She said the Department of Transport, in papers before court, said that due to financial constraints, it would not be able to provide and meet the increasing demands for scholar transport under the existing model.

“But they admitted that budgetary constraints are not regarded as a defence to the provision of constitutional rights, when those rights require immediate fulfilment.

“The grounds of opposition raised by the [government departments] are clearly not sustainable,” Molony said.

“Even if such a defence were valid, the broad overview, absent any real detail, provided by the [government respondents] in regard to how the necessary budget is calculated, what enquiries have been made in regard to additional funds from Provincial Treasury and when they were made, are insufficient.

“No information is provided in regard to any further attempts to obtain funding from other sources, such as National Treasury, and little detail is provided in regard to how and based on what information the budgeted amounts were determined,” she said. DM

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