Makhanda High Court: Eastern Cape Department's Unlawful Withholding from Public Schools

• The Eastern Cape Department of Education (ECDOE) admitted in court that it unlawfully and unconstitutionally withheld billions from public schools.
• The ECDOE deviated from the per-learner school allocation target since 2020, resulting in a staggering R6-billion being held back from no-fee schools.
• The court order declares the decision to withhold part of the schools' budget unconstitutional, but the schools will not receive any of the withheld funds back.
• The ECDOE has been ordered to report on its compliance at intervals until September 2027.

A landmark court ruling in Makhanda High Court has exposed the Eastern Cape Department of Education's (ECDOE) unlawful and unconstitutional practice of withholding billions from public schools. The case, brought by the Makhanda Circle of Unity and other school governing bodies, revealed that the ECDOE had deviated from the per-learner school allocation target since 2020, resulting in a staggering R6-billion being held back from no-fee schools. This decision was made without the joint planning process required by the National Norms and Standards for School Funding, which obliges the department to devise a plan with National Treasury and the national education department to bring funding back to target. The ECDOE's actions have had severe consequences, including disconnections of water and electricity, and parents being asked to supply basic necessities like toilet paper and cleaning products. The court order has now been made an agreement between the parties, declaring the decision to withhold part of the schools' budget unconstitutional.

The National Norms and Standards for School Funding require a joint planning process between the ECDOE, National Treasury, and the national education department to bring funding back to target. However, the ECDOE has consistently deviated from this requirement, instead retaining a share of the schools' budget under the heading 'provincial norms and standards'. This practice has resulted in a significant shortfall for schools, with an estimated R1.16-billion being withheld in the current financial year alone. 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, but the ECDOE has been transferring only R1,101, retaining 40% of the allocated funds. This discrepancy has led to a total of over R6-billion being withheld from public schools since 2020.

The court ruling sets a crucial precedent for similar claims against other provincial education departments in South Africa. The ECDOE's actions have been described as 'a slap in the face of every child in this province' by Cecile van Schalkwyk of the Legal Resources Centre. The case highlights the need for transparency and accountability in school funding practices, and compliance officers should review their clients' policies to ensure they are not withholding funds from schools without proper justification. The ECDOE has been ordered to report on its compliance at intervals until September 2027, but the schools will not receive any of the withheld funds back.

Lawyers should watch for the precedent set by this case, which may lead to similar claims against other provincial education departments in South Africa. Compliance officers should review their clients' school funding practices to ensure they are not withholding funds from schools without proper justification.

Source: Original reporting via AllAfrica SA