Centre for Child Law and others v The MEC for Education and others Case No. 19559/06 (T)

The applicants in this case were the Centre for Child Law at the University of Pretoria and pupils at JW Luckhoff High School, a school of industry in Gauteng. The respondents were the MEC for Education in Gauteng and JW Luckhoff High School.

The Centre for Child Law lodged an application with the Pretoria High Court (Transvaal Provincial Division) alleging that the physical conditions at the hostels where the pupils were housed, the lack of access control and the absence of proper psychological support and therapeutic services at the school infringe the pupils’ rights under section 28 of the Constitution as well as the pupils’ right to dignity (section 10) and their right not to be subjected to cruel, inhuman or degrading treatment (section 12).  The pupils were sent to the school of industry in terms of section 15 of the Child Care Act of 1983 (the Act), which makes provision for a children’s court to send a child to a school of industry if satisfied, after holding an enquiry in terms of section 13, that the child is in need of care.

The applicants sought the following relief:

1. The authorities be compelled to provide each child with a sleeping bag and to put in place proper access control and psychological support structures.
2. The MEC for Education be directed to make immediate arrangements for the school to be subjected to a developmental quality assurance process – a recognised means of assessment aimed at the production and implementation of an organisational development plan.
3. Though the MEC for Education admitted the existence of the problems and indicated a willingness to take remedial action, the respondent put up defences such as: that it would be expensive to furnish sleeping bags and that budgets are stretched; and besides the cost, the provision of sleeping bags at the school would amount to inequality, by favouring those children above others in similar schools. The respondent further proposed that efforts will be undertaken to raise funds from the Red Cross and the non-governmental sector to solve the problems.

The Decision

1. Section 195(1) of the Constitution requires the public administration to respond to public needs quickly and effectively.
2. Regulations to the Child Care Act specifically provide for the maintenance of appropriate standards in such schools in order to ensure the well being of children in such schools.  The Regulations also give children in such schools certain rights that give effect to and are a concrete embodiment of the rights in section 28 of the Constitution – the right of every child to appropriate alternative care when removed from the family and to be protected from maltreatment, neglect, abuse or degradation.
3. Unlike other socio-economic rights, section 28 contains no internal limitation subjecting children’s rights to the availability of resources and legislative measures for their progressive realisation. The absence of any internal limitation entrenches the rights as unqualified and immediate. However, like all rights, they remain subject to reasonable and proportional limitation.
4. Particularly in relation to children’s rights and the right to a fair trial, the Constitution recognises that budgetary implications ought not to compromise the justiciability of the rights. The minimal costs or budgetary allocation problems in this case are far outweighed by the urgent need to advance the children’s interests in accordance with the Constitution.
5. The equality argument – that the remedy should not be granted for fear that others similarly denied would seek the same remedy at significant cost to the state - can never be a defence to a violation of constitutional rights.
6. The Constitution places a duty on everyone to aim for the highest standard in treating children and not to avoid the responsibility. The duty to provide care and social services to children from the family environment rests on upon the state. Hence, proposal that efforts will be undertaken to raise funds from the Red Cross and the non-governmental sector reflects the respondent’s misunderstanding of is constitutional duty.
7. Children are sent to schools of industry for the purpose of care and rehabilitation, and psychological and social support is a critical ingredient of state care in the absence of parental support.

The Court found in favour of the applicants and directed the MEC for Education to:

1. Immediately supply each pupil with a sleeping bag with a temperature rating of at least five degrees Celsius; devise plans to put perimeter and access control at the school and provide the Court with written information regarding such plans within one month from the judgment date.
2. Make immediate arrangements for the school to be subjected to a developmental quality assurance process; and the MEC for Education to report back to the Court within five weeks on its plan to implement the recommendations of the team performing the developmental quality assurance process.
3. Put in place, on an urgent basis and as an interim measure, listed support structures in order to properly provide for the psychological and therapeutic needs of children at the school.