The start of the 2019 academic year should have marked the beginning of a promising journey for all young schoolchildren.
Yet for many with disabilities, access to a meaningful education remains a daily struggle.
Themba Dlamini is a 14-year-old with an intellectual and physical disability.
He lives in KwaLulwane Village in northern KwaZulu-Natal and travels 60km every day to the nearest special school.
His mother Evelyn Dlamini is dependent on Themba’s child care grant to support her family of five. And R250 of this grant goes toward paying for private transport to take Themba to school.
This taxi is often overcrowded with children with disabilities. Although the special school has a bus, Dlamini was told that their home was too far out of the main route for it to pick up Themba. Many special schools have reported that when their buses break down, there are no alternatives provided by the provincial departments of education, and that it can take up to a few months to repair. During this time, for parents who cannot afford to pay for private transport, their children do not attend school.
A 2015 department of basic education report estimated that 138 000 children with disabilities in KwaZulu-Natal are not at school. Research conducted by public interest law centre Section27 has documented the systemic exclusion that children with disabilities face in accessing education. This exclusion is sustained by an absence of proper planning and chronic underfunding of state-subsidised transport services for schoolchildren.
On November 7 2017 a court order declared that the KwaZulu-Natal departments of education and of transport must provide transportation to 12 schools from the district of Nquthu by April 1 2018, following a three-year campaign led by the nongovernmental organisation Equal Education for greater access to scholar transport in KwaZulu-Natal.
Section27 represented Siphilisa Isizwe, an organisation representing people living with disabilities, as amicus curiae in the case to advocate for the right to scholar transport for children with disabilities. Learners with disabilities are often left without access to an education as a result of either nonexistent or inadequate transport.
Poor access to education for special needs children is reflected in the class of #Matric2018. Sixty-four percent of the candidates with special needs were from one province: the Western Cape. Although this shows that all provinces except the Western Cape are grossly underperforming in this regard, access to school for special needs schoolchildren in KwaZulu-Natal is particularly poor: despite having 22% of the country’s learners, only 7% of special needs candidates were from KwaZulu-Natal.
The court order also required the KwaZulu-Natal department of education to report its plans to address the need for scholar transport in the province, including a plan for children with disabilities. In March 2018, the department filed a report in which it stated that it was still in the process of revising its 2013 learner transport policy to bring it in line with the national policy, published by the department of basic education in 2015.
The national learner transport policy acknowledges that the current system of transport does not make sufficient provision for children with disabilities. It places the obligation on provincial departments of education to select learners who should benefit from subsidised transport, with priority given to children with disabilities. The current KwaZulu-Natal learner transport policy contravenes these stipulations, because it makes no provision for the transportation needs of schoolchildren with disabilities.
A recent evaluation commissioned by the department of planning, monitoring and evaluation on the implementation of the national learner transport policy states that most children with disabilities are not covered by provincial learner transport programmes.
In our response to the report, we detailed parents’ experience that where transport is provided, it is often on an ad hoc basis, unreliable and not designed to cater to the needs of learners with disabilities.
The department cites budget constraints as a reason for failing to provide transport to all schoolchildren who need it. It says that a longstanding disagreement between itself and the department of transport over who is responsible for funding an expansion to the scholar transport programme has resulted in delays, and commits to taking “full responsibility” for this henceforth.
But new analysis by the department found that its previous estimate of 90 000 additional learners requiring transport must be revised upwards to 370 000 schoolchildren. No indication is provided as to what criteria the department used to produce this estimate and whether children with disabilities are included.
The department also revealed that it already has a R91-million shortfall for the transport services that it is providing to 58 501 learners. It concludes that it will not be able to transport more schoolchildren unless additional funds are provided for this purpose.
A simple excuse of inadequate funds fails to meet constitutional muster. The Constitution requires that government use the maximum of its available resources towards the fulfilment of socioeconomic rights, including basic education as a priority. When government is unable to fund urgent needs, it must produce evidence to justify its budgetary choices and describe the efforts it has made to secure the necessary funds.
In its court papers, the department does not demonstrate any effort to reprioritise resources towards this urgent need. Analysis by Section27 finds that no provision seems to have been made in the recently established conditional grant for schoolchildren with profound intellectual disabilities for scholar transport, for example.
Instead, our analysis of the budget documents found that money has in fact been taken out of the education budget in recent years for other priorities. For example, R284-million has been reprioritised from the education budget to pay izinduna (headmen and women) over the next three years.
Similarly, no commitment is made to deal with corruption and mismanagement of funds by the department. In its most recent report, the auditor general found that at the end of March 2018, the KwaZulu-Natal department of education had incurred fruitless and wasteful expenditure totalling R170-million and irregular expenditure of R4.7-billion, yet no disciplinary action had been taken or officials held responsible.
Budgets will always be limited, but corruption and mismanagement are depleting available resources and thus contribute to the lack of transport to school for those who need it.
Further confusion and delays
In a follow-up report to the court, the department states that the responsibility for raising funds for scholar transport has been shifted back to the department of transport. This was confirmed by the KwaZulu-Natal MEC for finance in her November 2018 budget adjustments speech.
The MEC did not explain why this function was shifted for the third time in three years, or what implications this would have for the implementation of the scholar transport programme. She did, however, announce a much-needed additional R125-million allocation to transport to ensure the programme could meets its commitments in the current year.
There are many options available to government at a national and provincial level to fund transport for all schoolchildren who qualify. Section27 has laid out in a recent submission to the United Nations how a constitutional approach to economic and fiscal policy could be implemented through tax reform, reprioritisation, dealing decisively with public and private sector corruption and reducing tax evasion and profit shifting. Treasury and the department of basic education have been considering the introduction of a conditional grant for this purpose for some time. This would be a welcome — if long overdue — announcement in the February 2019 budget.
Section 7(2) of the Constitution places a duty on the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”. This means the government has a duty to take positive measures to ensure that the right to basic education is fulfilled where it is not already enjoyed. This applies equally to learners with disabilities as a particularly vulnerable category.
KwaZulu-Natal should explore all possible avenues for funding enhanced access to scholar transport. It should consider re-prioritising funds from its equitable share to this urgent need while taking steps to eradicate fruitless, wasteful and irregular expenditure from its books. The provincial government should deal with corruption in its departments and build capacity for better financial management. The provincial department of education should also publish its business plan for schoolchildren with profound intellectual disabilities grant, so that there can be transparency and monitoring to ensure that the grant is used for its intended purpose.
In its court papers the department undertook to have drafted a revised learner transport policy by December 2018, which would include provision for learners with disabilities. To date, this draft has not been provided. In the meantime, parents such as Dlamini continue to bear the brunt of an exclusionary education system that is leaving them behind. The department must not and cannot continue to tread on the rights of children with disabilities by leaving them to languish indefinitely on the periphery of the education system.
Ektaa Deochand is a Section27 attorney and Daniel McLaren is a budget analyst for the organisation