Eastern Cape concedes billions in school underfunding was unlawful

The Eastern Cape Department of Education admitted in the Makhanda High Court on Wednesday that it unlawfully withheld money from public schools for six years. About R6 billion has been held since 2020, according to calculations. But schools will not get the money back, and the withholding of funds continues until next year.

MAKHANDA: The Eastern Cape Department of Education (ECDoE) conceded in the Makhanda High Court on Wednesday that its decisions to fund public schools below the national per-learner target, and to retain a share of every school’s allocation, were unconstitutional, unlawful and invalid.

The concession came on the morning of a hearing set down for a full day, almost three years after the case was launched in October 2023. The matter was disposed of by an order made by agreement between the parties rather than by argument.

It is not us who have suffered. It is the children who, for the last three years, have not had the benefit of the full financial support they were due. It is a slap in the face of every single child in this province.

The case was brought by the Makhanda Circle of Unity together with the governing bodies of Ntsika Secondary School, Hoërskool PJ Olivier and Tantyi Primary School, represented by the Legal Resources Centre (LRC). SECTION27 was admitted as amicus curiae.

Under the order, the ECDoE must give every Eastern Cape school its full, unretained allocation for the 2027/2028 financial year, calculated at least on the prevailing minimum per-learner target for the school’s quintile, multiplied by enrolment. 

The decisions to withhold 33.75% of each school’s budget in 2023/2024 and 2024/2025 are declared unconstitutional, as are the 2020/21 and 2021/22 decisions to cut per-learner allocations without the joint planning process the funding norms require. 

The department must report on compliance, on affidavit, at intervals running to September 2027. Costs were awarded against the respondents, including the costs of two counsel.

About R6 billion

The ECDoE has withheld roughly R6 billion from no-fee schools between 2020 and 2026, according to calculations. The figure – which was estimated at R5billion last year – has kept growing while the case waited to be heard. 

The Minister of Basic Education has gazetted a target of R1,835 per learner for 2026 for no-fee schools in quintiles 1 to 3. The Eastern Cape department is transferring R1,101, a retention of 40%. Across roughly 1.58 million no-fee learners in the province, about R1.16 billion has been withheld in the current financial year alone, bringing the total since 2020 past R6 billion.

None of it will be repaid. The applicants had asked the court to direct the department to return funds previously withheld from schools. The order does not provide for that — the department conceded that its conduct was unlawful and kept the money.

Toilet paper and disconnected water

In a statement issued on the eve of the hearing, the LRC set out what the shortfall looks like inside schools. Parents already surviving on child support grants have been asked to supply toilet paper, cleaning products and copying paper. Teachers and principals have bought stationery and textbooks out of their own pockets. Some schools have had their water and electricity disconnected because they could not pay their municipal accounts.

The department’s own court papers close that circle. Among the itemised purposes of the money it retained from schools (R834.177 million in 2023/2024), its heads of argument list bailing out schools that had defaulted on municipal services. The ECDoE, in other words, held back a third of every school’s operating budget in part to rescue schools that could not pay their bills.

‘A slap in the face of every child in this province’

Speaking outside court, Cecile van Schalkwyk of the LRC described a resounding victory undermined by the time it had taken to achieve it.

“To come to court on the day of the hearing and say sorry, now we accept that the argument you have made all these years is true and correct, while schools have been losing out for a very, very long time. I think it is just a disgrace,” she said.

Van Schalkwyk said the case concerned two distinct categories of unlawful conduct. The first was the decision to cut the per-learner allocation in 2020/21 and 2021/22 without the joint planning process paragraph 114(b) of the National Norms and Standards for School Funding requires, a plan that the department was obliged to devise with National Treasury and the national education department to bring funding back to target.

The second was the continuing practice of funding schools at the target rate on paper while retaining a share under the heading “provincial norms and standards”, a line item that appears nowhere in the funding norms, and which the ECDoE has never explained in its court papers.

She placed the blame for the absence of financial redress on what she described as the department’s delays in filing its record and answering affidavit, a three-year process of attrition that she said ran out the clock.

“It is not us who have suffered. It is the children who, for the last three years, have not had the benefit of the full financial support they were due,” she said. “It is a slap in the face of every single child in this province.”

‘Two pens for the whole year’

For Priscilla Glover, former principal of Tantyi Primary School, one of the applicant schools, the order gave legal form to a reality that teachers and principals have been living with for years.

“The stationery funding was kept as cheap as possible. They would only provide two pens for the year. A child needs four pens, one for every term. So either the teachers are buying the pens, or the principals are buying the pens, or the parents are buying the pens, or the child is not getting a pen,” Glover said.

She described an allocation that was already insufficient before the retentions began, with basic operating costs such as banking and audit fees not accounted for in the funding formula, yet legally required for a school to function.

“They are so strict about schools following financial guidelines, yet they cannot follow their own ring-fencing structures,” she said. “And the way it is put in the budget is in very complicated jargon. Each person does not even understand why.”

Years of delay, years of loss

The delay weighed on both women. Glover put its cost in plain terms.

“If this decision had been made in 2023, schools would have benefited in 2024, 2025 and 2026. Now they are only going to benefit from 2027 going forward,” she said.

The respondents include the Minister of Basic Education, the national Minister of Finance and the Eastern Cape MEC for Finance, Economic Development and Environmental Affairs. 

SECTION27, admitted as a friend of the court, argued that the funding norms allow the state to go backwards on education provisioning without justification, and discriminate indirectly against poor learners in rural provinces.

This article by The Education Desk was also published by GroundUp.