Teaching Open Distance Learning undergraduates in Theology to become effective change agents
13 Aug. 2013

Erna Oliver email@example.com
Department of Christian Spirituality, Church History and Missiology
University of South Africa
South Africa

PO Box 3920003PretoriaSouth Africa

Teaching Open Distance Learning undergraduates in Theology to become effective change agents
13 Aug. 20133AD9D33DE2C39B8B7DC4A0ACD8C93DA910.4102/ve.v34i1.845Received: 01 Mar. 2013 Accepted: 12 June 2013
Teaching Theology in the African context presents unique challenges.In general, living conditions in South Africa did not improve much since the first democratic elections were held in 1994.Students have to cope with extreme living conditions whilst also focusing on their distance learning activities.Reflexive research that started in 2010 showed that opportunities could be created to make a greater impact on the students' lives through innovative and interactive study material and teaching methods.The second year course 'World Christianity and ecumenism' provided ample opportunity to be used in an experiment to interact with students during the course of the semester in such a way that they could be challenged to act as change agents in their congregations and communities.By helping students to practise the values and skills learned and to transfer the knowledge gained from the course, they could be motivated to see themselves not only as learners, but also as teachers and educators.This motivated students to take greater responsibility for their own learning and also help to create a more favourable learning environment for others by acting as educators and leaders in their respective communities.By advocating, planning and implementing actions to promote positive change, students could become actively involved in ecumenical activities, upliftment projects and environmental awareness programmes.The positive impact of this study could be expanded into the wider B.Th. programme at University of South Africa through the current process of re-curriculating.

Introduction

Change is a metaphor for life and it seems to become more and more so in the global, digital, post-modern world we are living in.

Nearly 20 years after the first democratic government came into power in South Africa, the country is still unstable due to ongoing changes, adjustments and transformation processes on political, economical and social levels, aiming to bring better living conditions and fair opportunities to all South Africans.However, South Africans in general are upset about the (unnecessary) suffering caused by crime, corruption, unstable growth, inadequate infrastructure, unemployment, substandard education, marginalisation, and the ever deteriorating public health system (Leader.co.za 2011).'Like in the 1980s, the poor are still angry and the government is still out of touch' (Makhanya 2012).

A need for change in South Africa

Although political change came to South Africa in 1994, it seems as if the political affirmation did not have a measurable positive influence on the day-to-day lives of the majority of the people living in the country.This is confirmed by the position of the country on some annual index lists.It seems as if South Africa tends to make it high only on negative index lists, whilst the scores on positive indexes are low and deteriorating.Our South Africa ranks amongst the top 10 countries in the world regarding murder and the total number of crimes committed (United Nations Office on Drugs and Crime [UNODC] 2012).The country is also listed as one of the 10 most dangerous countries in the world (Hardy 2012).The number of recorded road deaths proportional to the country's population is close to the highest in the world (Scherer 2013).South Africa has the highest number of people living with HIV in the world (KFF 2012:1).Students have to cope with these issues on a day-to-day basis whilst also focusing on shaping their future through education.South Africa also suffers ongoing high-level skills shortages, which inhibit development and growth, and educators have a moral obligation to try to stop the revolving door syndrome (Subotzky & Prinsloo 2011:177).

All of this is in stark contrast to the fact that nearly 80% (Statistics South Africa 2004) of the population claim to be Christians, who are supposed to adhere to such high values, morals and standards that their behaviour is supposed to have a measurable, positive and stabilising influence on the society in general.Christian behaviour has managed, for more than 2000 years, to change the world (cf.Hill 2005;Schmidt 2004) -sometimes for the better (sanctification of human life, morality and health care), but often also for worse (religious wars and intolerance).The gap between the general belief system and day-to-day actions of the South African population is currently widening, and it is signalling an urgent warning to the education structures of the country in general, and more specifically to the Christian educators.

A need for change in higher education

In the higher education environment, there is a general need to identify and address challenges and opportunities that arise through change.Society needs active and responsible citizens who are able to live in a world that is constantly changing -socially, economically, politically and educationally (Johnston et al. 2011:8).Curriculum designers and lecturers in theology at University of South Africa (Unisa) are committed to facilitate education that will help to address the abovementioned problems.The aim is to train students to become responsible and active citizens (Oyler 2012:8), with a sound moral vision (Oyler ibid:70) and who are actively involved in community upliftment projects and actions.

In line with Unisa's policy on student-centredness, curriculum designers in theology have the opportunity to both improve the quality of the study material, as well as make a positive impact on the lives of the students.Lecturers embrace the opportunity to educate students, not only to pursue diplomas and degrees, but also to become constructive change agents in their respective communities.A change agent is someone whose presence and/or thought processes cause an alteration from the traditional or conventional way of handling of a problem or thinking about an issue.By integrating faith and religious experiences with education, students are motivated to not only pursue knowledge gain, but also to instigate positive change through their studies (Cafferky 2012:5).Christian leaders should be able to reach out to and facilitate change for the poor, the marginalised, the victimised and the isolated communities that are in desperate need of help and betterment, but whom the government is seemingly unable to help (cf.Jackson 2007).

A curriculum focused to address some of these needs should include the following aspects (Oyler 2012):

• Acknowledgement that the world (and South Africa in particular) has serious problems.• Understanding that these problems have roots.

• Analysing some of the current problems and its courses.• Joining others to create possible solutions.

• Solve problems that affect students and their communities.

Students need to learn how to reflect critically on their place in society and to practice skills and abilities that underlie good citizenship (UNESCO 1997:24).Social change only happens when people take it upon themselves to get involved and make a difference (eds.Astin & Astin 2000:iv).

Problem statement

Apart from the political, economical and social problems that South Africans face, teaching theology in an African context presents its own unique challenges.Teaching at a distance also provides the opportunity to bring knowledge and change to the lives of people living in remote or isolated places and communities.

Both government and employer policy statements on higher education are increasingly focused on the development of skills amongst graduates that will equip them for careers in a globalised and post-industrial environment (Johnston et al. 2011:97).What is needed is a world-class higher education system that creates new knowledge, contributes to economic prosperity and global competitiveness, and empowers citizens (Johnston et al. ibid:98).

Most students are under-prepared for higher education as a consequence of the predominately substandard schooling system (Subotzky & Prinsloo 2011:177).This is worsened by the students' disadvantaged backgrounds and socioeconomic challenges (Subotzky & Prinsloo ibid).Most students also find it difficult to change from face-to-face teaching (at school level) to distance education.The majority of lecturers also come from a background (school and university) of face-to-face education.Although this is not really part of the focus of the research, the different learning theories also have an influence on the difficulty students experience in the process of adapting to higher education (the change from focus on behaviourism and cognitivism to cognitivism and constructivism -Ertmar & Newby 1993).

There seems to be consensus amongst academics that theological education finds itself in a crisis (Banks 1999:1-13;Cannell 2006:35-43;Kelsey 1993;Stackhouse 1988:135).This crisis has a long history as it started already in the last quarter of the previous century.One of the problems listed by Cannell (ibid:36) states that theory and practice are in continuous tension and education is not sufficiently concerned with learning.There are also other, more practical problems that these students have to cope with.Due to low student numbers, theology students have to cope without the help of tutors (supplied by the university in courses with large student numbers).The only contact most students have with their lecturers is the general tutorial letters and personal feedback on their assignments.

These problems can partly be addressed by focusing on and reworking the curriculum.Oyler (2012:1) says that the curriculum should be the place where students can encounter the world, its histories and people, analyse current conditions and prepare to act in moral and responsible ways.Students need to understand the ideas well enough to explain it to others, but they should also be able to represent it in a new or different way and connect it to their own lives.Therefore the curriculum has to provide opportunities to practice and not only force students to recall concepts learned in an abstract form (Colby et al. 2003:138).

Background to the study

This article focuses on the results achieved by a small, ongoing research project teaching undergraduate theology students in the distance learning environment to become effective change agents in their local communities.Reflexive research, which started in 2010, showed that it is possible to use the modules in the B.Th. programme to improve the quality of learning and make a greater impact on the lives of students through innovative and interactive study material.

The second year course 'World Christianity and ecumenism' provides ample opportunity to be used in an experiment to interact with students during the course of the semester in such a way that they could be challenged to act as agents of change in their own unique circumstances and living conditions.In the introduction to the module, the aim is set out as (Botha & Oliver 2010):

… to deepen and broaden your understanding of the concept of ecumenism and the current situation regarding Christianity as a world religion in order to assist you in the development of networking skills and the enhancement of values such as commitment to liberation, justice, reconciliation and care for the environment.(p.4)

Students are motivated to control their own mindsets and to develop a line of sight (cf.Taylor 2009) on specific issues that influence their lives (such as social and environmental issues and ecumenism).They are encouraged to see themselves as both learners and teachers who take responsibility for their own learning and are also encouraged to help create a more favourable learning environment for others (eds.Astin & Astin 2000:19).

The goal is to improve the content of the study material and the quality of the learning experience for students, and to have an impact on the lives of students in such a way that they become positive change agents.This can serve as an example that can be incorporated into other theology courses at Unisa, as well as an example for theological teaching at other South African universities.

Not all changes could be implemented into the curriculum at once.Full online teaching at an undergraduate level is still to be phased in.Therefore, the study and research done should not be seen as complete or comprehensive, but rather as an ongoing process that provides opportunity for improvement and alteration towards a module that will satisfied the needs of all stakeholders, including government, academics, students and the communities of a developing country.

The research question: is it possible to teach undergraduate theology students in the distance learning environment to become effective change agents?

The aim of the study was to test if it is possible to achieve change in students' attitudes and behaviour through the creative use of the R2D2 model, enthusiastic, engaged guiding by the lecturer, and stimulating course content.Is it possible to do more than just provide academic knowledge and content through a semester-long theology course?

Methodology

Illuminative evaluation, developed by Parlett and Hamilton (1972), is used for the evaluation of educational programs.It recognises that students respond to the total learning milieu and not to its individual components or the presented content and tasks.Data was collected through a variety of methods, such as observations, interviews, questionnaires, as well as documentary and background sources.This method of research focuses on the actual learning situation (eds.Parlett & Dearden 1977).Different techniques are combined to shed light on a common problem (Parlett & Hamilton ibid:18).

The process is conducted in three overlapping stages of observation, inquiring and seeking explanations (eds.Parlett & Dearden ibid:17).At the start of the course, students were informed that the course was restructured and that obtrusive observation (observations done with the prior knowledge of the participants) would be done to assess the success of the R2D2 teaching and learning model (see Figure 1) in changing students' attitudes and behaviour.Students were also asked to complete questionnaires on their learning experience.The questionnaire was constructed and approved in accordance with the Unisa policy on research ethics and it was included with the course material that was sent to all enrolled students for this course.This activity was done anonymously and voluntary.It provided firsthand information from the students -our key stakeholders.A semi-structured approach ensured that students were able to provide feedback by disclosing what they want to, in their own way.Data was also collected from compulsory and voluntary assignment submissions, as well as voluntary written reports that were sent to the lector.Members of the B.Th. task team, with the help of staff from the Department of Information and Strategic Analysis, analysed the information, categorised the findings and compiled a comprehensive summary in the form of a report with the intention to be used for further curriculum development and course revision.

The R2D2 model was originally developed as a tool to 'integrate various learning activities with appropriate technologies for effective online learning' (Bonk & Zhang 2006:250).It is also useful for distance education (which could be online as well).The R2D2 model was chosen because of its ability to address the diverse needs of more than one stakeholder.

Firstly, this model is intended as a problem-solving wheel that represents the phases of learning (Kolb 1984) and that can guide all types of students (McCarthy 1987), as well as the four types of learning styles (Fleming & Mills 1992; Kolb ibid) through the process, from reading and exploring (gaining knowledge) to reflexive writing (interacting), visualisation and attempts to try out the things learned (practical implementation; Bonk 2010:20).

Secondly, it is also a tool that helps instructors to focus on the diverse needs of learners and the large range of opportunities that can be explored to present material and get students to perform tasks, and even to evaluate progress and outcomes.

Thirdly, the model can be used by academics to reflect on their teaching practices (Bonk 2010:20).

The phases shown in the diagram of the R2D2 model (Figure 1) do not need to follow one after the other.Normally they overlap and spark back and forward referrals, interaction and multi-tasking.

Phase one: Explore

More than 10 years ago, the discipline of Church History decided that the study material that would be prescribed for students must be comprehensive and wide-ranging.Students should not be burdened with the problems of having to buy expensive books that they would probably not use again, or that are difficult to get hold of, or that need to be requested from libraries, often with limited resources.Therefore, the study guides are written in such a way that all the material the student needs to be able to successfully complete and pass the module is included.However, in the technological world we live it, it is important that students must be aware that there is a world of knowledge available to them outside the confinements of the study guides, should they be interested to explore the topics further.Therefore, the study guide contains lists of resources for enrichment.Students are encouraged to read as widely as possible, to explore the internet with the help of keywords, to use the wide range of information supplied by libraries, and to search through open access sources.

Exploring is not limited to reading and accumulating knowledge from a wide variety of sources.Students are required to interact with the knowledge they are gaining by participating in discussions, debating issues, juxtapositioning opinions, connecting dots and lines, comparing or contrasting different viewpoints or methods, and even turning information into something new or different, for example, converting information given in text format into graphs or charts (Bonk 2010:21).All of this is done by using the learning management system (MyUnisa) and through the submission of compulsory assignments.Although the students were in general aware of social problems, a number of them were surprised to find environmental issues in the course content.

Phase two: Reflect

The study guide is used as a workbook in which students are asked to reflect on important issues.Students are asked to reflect on cases and scenarios that are linked to the study material.Students need to become aware of and interact with the fact that the Christian religion really changed the world during the past two millennia, and that our faith is suppose to empower us to make a difference in the world.This phase is used to help the students to realise that this course does not only entail academic and abstract activity, but also a positive attitude and their active participation.Although lecturers provide extensive guidelines and feedback within the study guides to help and direct the line of thought by the students, there are numerous ways that this activity can be expanded and put into use for the benefit of the students in the online environment.Blogging seems to be a natural way for students to reflect on the readings and the discoveries they make.Students can be instructed to follow the blogs of experts, or to listen to or read keynote speeches from conferences to enable them to gain a wider perspective on the key issues at stake.Discussion forums and annotated reviews can also be used with great success to stimulate this process.Feedback from fellow students, lecturers and even visiting experts are great stimulators and facilitate understanding and deep learning.

Phase three: Display

With the help of technology, it became easy to include graphical content to enhance the impact of study material.Keeping in mind that the younger generations are used to learning through visible media, this is a powerful teaching resource.Part of the prescribed material focuses on Christianity and the environment.Using technology, it is possible to present real-life proof to sustain facts and information contained in the study guides.Displaying does not only include video material and pictures, but also timelines, flow charts, diagrams and other graphical sources.Student activities could include creating mind maps, photo collages and posters (all of which can be done either electronically or in hard copy).Students had to display their ability to put the knowledge gained through the course into use by identifying a problem that has an ecumenical dimension in their communities.A written assignment was done on how the problem was identified and a proposal on how it could be addressed by activating ecumenical networks and action groups in the community.This was done towards the end of the course and changing attitudes were starting to become visible through the submitted work.

Phase four: Do

For lecturers at a distance education institution, this aspect is often challenging.It is not easy to ensure that students can practice what they learned through traditional assessment methods, such as written assignments, tests and exams.During the course of the semester, students are encouraged to participate in practising their knowledge and skills.Within the study guide, scenarios are given as tasks for the students to complete.Full feedback is provided in order to guide the students on the correct procedures, ethical issues involved and actions that are needed to successfully deal with these issues.Small projects are used to stimulate the practice of skills and test the ability to use knowledge and insight.These assignment projects help students to gain experience, confidence and skills.Examples of tasks given are observations, interviews, group discussions, questionnaires, project proposals and report writing.Students' competencies can also be assessed through controlled environment real-world scenarios and problem-solving through online simulations, as well as by allowing students to demonstrate their knowledge and skills though the creation and reworking of knowledge by composing their own books or stories, creating wikis or glossaries, or contribute to existing research projects.Although these tasks and assignments were not compulsory and students were not asked to submit any of it to the lecturer, a surprising number of reports on the work done were sent to the lecturer or posted on MyUnisa.

Results

The outer circle of the diagram that explains the R2D2 model was used to focus on the academic side and content of the course.The study guide was developed to include all these elements and to encourage students to participate in all four stages to ensure that they acquire the knowledge and skills needed to have a positive learning experience and to be able to pass the course.Assessment was done through both formative assignments and summative exams in accordance with university policies.Since the course content was reworked in this way (combined with engaged teaching) an average pass rate of 75% was recorded -where the course pass rate was 66% previously.

Reworking the module to be more student-centred and supplying additional resources, feedback, interaction and guidelines, had a positive influence on the throughput rate for this course: dropout rates declined and interest in the subject already resulted in one student enrolling for postgraduate studies.

The inner circle of the R2D2 diagram was used to focus on the lives and actions of the students.All students contributed with regard to their experiences through submission of assignments.Additionally, questionnaires, assignments and reports were used to test the students' ability to link the issues that were identified and addressed in the study guide with real life situations and problems that students are facing within the communities where they live.Students were encouraged to identify social, religious and environmental problems in their communities.After reflecting on it and consulting with other stakeholders, possible solutions were identified and students were asked to report on the results of their proposals, actions, and projects, as well as the impact of their transfer of knowledge to other people.This part of the course (the feedback) was not compulsory and did not contribute to the final marks.Therefore, the response was low and not all students participated.It could be that only students who had something positive to report participated in the feedback process.It should also be kept in mind that theology students, in general, are involved in upliftment projects instigated or run by their congregations.However, a deliberate attempt to change attitudes and perceptions regarding issues that theological students normally do not engage in, such as environmental issues and the lack of ecumenism in our country, are included in the course and students are encouraged to also take a fresh look at these problems.A total of 30.77% of students contributed through questionnaires and reports.

The majority of students (75%) found the R2D2 model of teaching the study material stimulating.Not only did they find the teaching method different in comparison with other Unisa courses, 85% claimed that they did not only gain knowledge and skills from taking this course, but also experienced a change in their personal perspectives and their attitudes towards the issues that were on the table (ecumenism and social and environmental issues).Students reflected on the change in their personal lives regarding their values, attitude, and behaviour.All students reported that they engaged with other people regarding these topics and that they (the students) were involved in a process of educating these people on these subjects.Again, the students' affiliation with churches and congregations helped to provide opportunities to reach out to other people and to put these issues on the table for discussion and action.Six months after they completed the course, 75% of the former students were still committed to activate and enhance positive change projects and actions within their communities and environment.

Students saw themselves as active, positive agents of change.Most of the students (80%) reported on these actions.They were involved in upliftment work and indicated their commitment by service to:

• correctional services • drug rehabilitation • care for the aged • counselling • HIV and AIDS care • orphan shelters • nursery schools • and home-based care for terminally ill patients.

Ecumenical projects did not increase significantly.Only 2% of the students reported that they were involved in an ongoing ecumenical project and 6% stated that new ecumenical projects were in the initiating stages.This is surprising as one of the major focus points of the course is on understanding and implementing ecumenism in our diverse religious society.It seems as if the students understand the principle that underlines ecumenism, but that it is difficult to put this into practice in the real world where denominational lines and traditional tagging of others are still in place.

Although a huge portion of the study material focused on the care for and responsibility towards the environment, only a small percentage of the students reported on environmental projects or initiatives.Less than 10% of the students reported any change in their perceptions regarding this matter and only 2% said that they were actively involved in environmental projects, which leads us to conclude that the human need is either much greater at the moment, or that the importance of environmental issues has not been communicated sufficiently -neither through the course material nor the media in general.

Conclusion

Although nearly two decades have passed since the first democratic elections were held in South Africa, the country is still unstable and in desperate need of change for the better.With nearly 80% of the population claiming to be Christians, Christian educators should take up the challenge to provide education and training that produce change agents who are able to influence their societies and make a positive impact on the environment, which is in line with the Christian tradition of changing the world.

Theological education at Unisa is undergoing a process of recurriculation.Although not fully online in the undergraduate modules yet, work towards this is going forward in leaps and bounds.One of the second year modules, 'World Christianity and ecumenism', was used as a pilot model to test if students could be helped to become positive, active agents of change in their communities.By practising the values and skills promoted in the course, students were motivated to see themselves as both learners and teachers.They were urged to take greater responsibility for their own learning and personal development.They were also advised to transfer the knowledge and skills acquired through the course to others in their communities and congregations.They were encouraged to practise the knowledge gained regarding world Christianity and ecumenism in their own communities by participating in or instigating ecumenical activities and actions.

The overall results provide interesting and diverse conclusions that urge for ongoing investigation and research.It seems as if the human needs overshadow environmental and ecumenical issues.Further study could determine whether this is the case or if these issues are simply not emphasised enough through campaigns, the media and study material to alert students to the fact that caring for the environment and unity in the church are important issues that all Christians should focus on.

Overall, the study produced positive results.The feedback from students confirmed that the creative use of the R2D2 model in combination with engaged teaching and constructive use of online tools, as well as stimulating course content could indeed succeed in changing some attitudes and behaviour.Students were encouraged to see themselves as both learners and teachers who reflect critically on their place in society and the role they could play in constructing change and transferring knowledge and skills to others.Engagement in a number of upliftment actions, as well as a few ecumenical cooperation initiatives were recorded.

It seems as if the changed curriculum and teaching and learning model implemented in this module created positive outcomes that can be used to build on and that can be expanded on in the near future.It seems as if the existing gap between the Christian belief system and day-to-day practices can be addressed within an academic environment through a curriculum that is focused on positive outcomes and change.Students in theology can become positive agents of change by which whole communities can be reached through the transfer and application of knowledge and skills.Academic qualifications should be more than just a piece of paper to show that the student gained sufficient knowledge.It should also convey the graduate's competency and skills to use this knowledge to the advancement of other people and to activate positive change in local communities.

country ranked number 123 (medium low) on the Human Development Report of the United Nations in 2011 (United Nations Development Programme [UNDP] 2011), and number 128 (low and declining) on the environmental development index of 2011 (Yale & Colombia Universities 2012).

The course questionnaires stimulated reflection.The questionnaires helped to identify perceptions, opinions and beliefs, but it also succeeded in disclosing to some of the students that what they think and what they actually do are not always in line with each other.The line of sight (cf.Taylor 2009) is often not clear and open.

Yale & Colombia Universities, 2012, 'Environmental Performance Index', in Yale University, viewed 11 April 2012, from http://epi.yale.edu/epi2012/ countryprofiles
AcknowledgementsCompeting interestsThe author declares that she has no financial or personal relationship(s) that may have inappropriately influenced her in writing this article.
Leadership reconsidered: Engaging higher education in social change, W.K. Kellogg Foundation. A W Astin, H S Astin, Battle Creek2000

Revisioning theological education: Exploring a missional alternative to current models. R Banks, 1999Eerdmans, Grand Rapids

R2D2: An ed-tech model that computes. C J Bonk, 2010. 01 November 2012

Introducing the R2D2 model: Online learning for the diverse learners of this world. C J Bonk, K Zhang, 10.1080/01587910600789670Distance Education. 2722006

N A Botha, E Oliver, World Christianity and Ecumenism: Study guide for TIC2604. Unisa, Johannesburg2010

Management: A faith-based perspective. M E Cafferky, 2012Pearson22961317New Jersey. PMid

Theological education matters: Leadership education for the church. L Cannell, 2006EdcotNewburgh

Educating citizens: Preparing America's undergraduates for lives of moral and civic responsibility. A Colby, T Ehrlich, E Beaumont, J Stephens, Jossey-Bass. 2003

Behaviourism, Cognitivism, Constructivism: Comparing critical features from an instructional design perspective. P A Ertmar, T J Newby, 10.1111/j.1937-8327.1993.tb00605.x/pdfPerformance Improvement Quarterly. 641993. 25 February 2013

Helping students understand how they learn. N D Fleming, C Mills, The Teaching Professor. 19927

Top 10 most dangerous countries in 2012. M Hardy, GetTopTens.com. 2012. 14 April 2012

What has Christianity ever done for us?. J Hill, 2005Hudson, Oxford

N Jackson, Staat gee geld vir armes in pakt met godsdiensgroepe. Beeld2007. 25 July, bl. 4

Developing student criticality in higher education: Undergraduate learning in the arts and social sciences. B Johnston, R Mitchell, F Myles, P Ford, 2011Continuum, London

Between Athens and Berlin: The theological education debate. D H Kelsey, 1993Eerdmans, Grand Rapids

The global HIV/AIDS epidemic. 2012. 29 January 2012KFF

Experiential learning: Experience as the source of learning and development. D A Kolb, 1984Prentice HallEnglewood Cliffs, N.J.

9 major problems facing South Africa -and how to fix them. 2011. 04 April 2012Leader.co.za

The actors have changed, but the plot stays the same. M Makhanya, 2012. 04 April 2012

The 4MAT system: Teaching to learning styles with right/left mode techniques. B Mccarthy, 1987Excel IncBarrington, I.L

Actions speak louder than words: Community activism as curriculum. C Oyler, 2012RoutledgeNew York

Evaluation as illumination: A new approach to the study of innovatory programs. M Parlett, D Hamilton, 1972EdinburghUniversity of Edinburgh

Introduction to illuminative evaluation: Studies in higher education. Parlett, M. & Dearden, G.1977Pacific Soundings PressCalifornia

Policy options for reducing road accidents in South Africa. F Scherer, Political Analysis South Africa. 2013. 28 January 2013

. A J Schmidt, How Christianity changed the world. 2004

Apologia: Contextualisation, globalisation and mission in theological education. M Stackhouse, 1988Eerdmans, Grand Rapids

. Statistics South Africa. 2004Primary tables

Turning the tide: A socio-critical model and framework for improving student success in open distance learning at the University of South Africa. G Subotzky, P Prinsloo, 10.1080/01587919.2011.584846Distance Education. 3222011

The 10 questions every change agent must answer. B Taylor, Harvard Business Review. 2009. 01 December 2012

Declaration of Thessaloniki, International conference on environment and society: Education and public awareness for sustainability, UNESCO and the government of Greece. 1997

United Nations Development Programme (UNDP). 2011. 11 April 2012

United Nations Office on Drugs and Crime (UNODC), 2012, Homicide statistics. 1995-2011, viewed 29 January 2013


Some aspects of education litigation since 1994: Of hope, concern and despair

Johan Beckmann email@example.com
Office of the Dean
Faculty of Education
University of Pretoria
Groenkloof CampusSouth Africa

Justus Prinsloo
Office of the Dean
Faculty of Education
University of Pretoria
Groenkloof CampusSouth Africa

Some aspects of education litigation since 1994: Of hope, concern and despair
99805DA00BFA1D00DA68887C030F6F69concerncostdespairhopehuman resource practiceshuman rights issuesimagined powerimpactlack of professionalismlitigationunions
In this article we report on qualitative research in which we probed the opinions and views of a purposive sample of highprofile and influential role players in education about aspects of education litigation in South Africa since 1994.This year marked the transition to a democratic government in South Africa, and resulted in a new education system, which has led to a great deal of litigation, as was to be expected.Our participants were personally involved in litigation in various capacities.Their responses to our questions reflected hope, but also concern, and even despair.In their opinions almost all of the disputes were between the state and its citizens, and that the state lost virtually all cases.State officials often ignored legal advice and acted on "imagined powers", causing embarrassment to the state where they seemed insensitive to the needs of the people, and sometimes deliberately transgressed prescripts and provisions, abandoning its mandate to children and the country more broadly.There is extreme concern about the tendency of officials to ignore court orders.No lessons seem to have been learned from judgments and infractions of the same kind occur repeatedly -even if litigation seems to have consumed between 4-6% of the education budget.There was surprise that cases dealt almost exclusively with disputes about stake-holders" powers, and that few human rights and social issues have been litigated.Furthermore, individual officials that seemed to suffer no consequences from their unlawful actions and showed an apparent lack of professionalism to acquaint themselves with the legal prescripts that govern their professional work, caused concern for our respondents, as did the destructive role that unions and politicians seemed to play in education.However, litigation has nonetheless led to the clarification of some issues.

Introduction

This paper reports on research done on education litigation since 1994.This watershed year marked the transition to a new democratic order and to a constitutional democracy in South Africa.This transition was accompanied by the establishment of a new education dispensation to redress the malaise of the past, and make provision for the recognition of the human rights of all role players in education, and to uphold the protection of these rights.

The new national education system focused on redressing past injustices and providing every child with quality education.As a result of apartheid, the entire education system had to be reorganised and restructured.These restructuring processes had real potential for litigation (WM1:5) i .A participant (DL:1) pointed out that the fact that there are "26 000 schools, more than 350 000 educators and millions of learners carries a high potential for litigation in and of itself."

However, it seems that the new education system has not succeeded in completely eradicating the legacy of apartheid, and that there are residual differences and polarisation on various grounds, such as race, funding, gender and governance.Grounds for disputes, differences, divisions and conflicts that may lead to litigation in one form or another still seem to exist.

Since 1994, a compelling need to survey and assess litigation has arisen.It has become necessary to record and retain the collective memory of important role players in education litigation from 1994 to the present, as some of these role players have already retired, or are now very close to retirement.

A thorough examination of litigation since 1994 may yield important and significant benefits for education policy and lawmakers, as well as for the users of education, including learners, parents and society at large.Such benefits might include:



Greater clarity on problematic issues about the understanding and implementation of policy and law. Markers that can be "laid down" and used in the future implementation and adjudication of disputes.In the KwaZulu-Natal Joint Liaison Committee v. [Member of the Executive Council for Education] MEC for Education, KwaZulu-Natal and Others case, for instance, the court found that subsidies that had been announced had to be paid on the due dates even if cutbacks had to be made in budgets.



A better education service for children.



Greater impetus to the promotion of constitutional rights, values and responsibilities.



More justiciable disputes could be resolved without having to resort to litigation.

Our research questions related to the participants" involvement in litigation, and their views on selected aspects of the dynamics of litigation in the period under review.In our paper, we will consider the dynamics of education litigation (including its role in the education system), the effects of litigation, the responses to it and the costs of litigation.In other words, we plan to provide a snapshot of education litigation over 20 years as viewed by our participants.We did not analyse cases or law critically, nor did we attempt to assess the functioning or performance of the judiciary.

Although some failings of the system were revealed, the order of the words in the title "hope, concern, despair" does not suggest a timeline of progression or regression.These words merely suggest that the participants" experiences and views of the role of litigation in education varied.

The Research carried out

Through semi-structured individual interviews, we collected information from 13 respondents who have played or continue to play vital and decisive roles in education in general and education policy and litigation in particular.We knew that we would have to approach people "in high places" who have played or play decisive and guiding roles in education, in general, and in education policy and litigation in particular.We also considered their knowledge of education and the education system in particular, their experience in various capacities in education, their tangible influence on the education system, their interest in the role of education and education law, and their interest or participation in education litigation.

We were worried that some of them would not be available to be interviewed.However, most of the people that we approached were willing to be interviewed.

We take a broad view of litigation in this paper, and use it to refer to both litigation in courts and to dispute resolution in labour issues.

We used purposive sampling methods and also made use of snowball sampling when we interviewed participants to increase our sample.

The interviews lasted between three and five hours, and were tape-recorded.All the participants were willing to scrutinise our capturing of the essence of their interviews (member checking) and we sent electronic copies of our transcriptions to all participants (after reading the texts and listening to the recordings a number of times).Some of the participants made suggestions to help us reflect their opinions more accurately, while others were satisfied with the way in which we had captured their opinions and beliefs.

Education departments and some statutory and other organisations declined to participate in the research.Some of these agencies were hard to reach and some simply did not respond to our approaches.Only two departments were represented in the sample.There were also instances where agencies nominated people to participate in the interviews, but we were never able to reach these nominated persons.

We are nevertheless satisfied with the quality and the diversity of the participants in our research.All 13 of them can be described as senior, esteemed, influential role players and leaders in the field of law and/or education, and they have all been influential with regard to the education litigation that has taken place since 1994.The participants included the senior management of education departments, role players in parents" and teachers" organisations, directors of centres of excellence, activists, academics and judicial officers.Participants could be classified as either educationists or jurists.

The participants came from five provinces and there was only one female participant.One of the criteria for inclusion in the sample was participation in litigation and, unfortunately, women do not seem to be well represented in that regard.The picture might, of course, be very different if the sample size were to be increased.

Research Questions

Our main aim was to get the participants" views of various aspects of education litigation since 1994.

In order to get the information that we needed to construct the participants" views on the litigation, we posed the following questions in the semistructured interviews conducted with participants:

1)

Please tell us about your involvement in litigation in education since 1994.

2)

Please tell us about your impressions of the dynamics of education litigation.

3)

What are your opinions on the contribution or value of litigation to the quality of education provision in South Africa?4)

In your opinion, what has been the reaction of litigants to judgments?5)

Please comment on the cost of litigation.

6)

What changes in litigation patterns do you anticipate, if any?

When necessary, we asked further probing questions.

The involvement of participants in litigation

All the participants have been involved in litigation for a significant period of time.Two participants only became involved in litigation after 1994.The capacities in which the participants had been involved proved conclusively that they were all well qualified to provide the information that we were looking for and that they could be regarded as "information-rich" participants.The capacities in which they were involved in education litigation included the following:  They initiated litigation. They participated in or led public hearings to obtain the input of the public at large on policy and law in various phases of development. They made inputs into and managed the litigation and legislative processes (WM1:2). They were litigants. They served as "junior counsel" to more senior legal colleagues and assisted other functionaries in the preparation of cases. They were members of the judiciary and adjudicated cases and/or other disputes. They acted as amici curiae (friends of the court). They provided funds to enable people to participate in litigation or were part of "activist groups."

The dynamics of litigation

Almost all of the participants thought that provincial education departments and/or their substructures "almost invariably" acted as defendants (TC:1, 2; TH:3; NB:4, 5).The national department was seldom involved according to DL:1, even if the cases in which the Minister was cited ex officio were taken into account.Minister of Education v.

Harris is an example of one of the relatively small number of cases in which the Minister was directly involved and was found to have acted ultra vires regarding the setting of admission ages of independent schools.

In the vast majority of cases, school governing bodies (SGBs), schools, individuals or other agencies, such as non-governmental organisations (NGOs), were the plaintiffs.Employers and employees were often locked in dispute.

One participant pointed out that "the state loses virtually all the cases" (EG:7).In the paragraphs that follow, we will consider why this appears to be the case.

Some of the participants commented that the number of cases between the departments of education and the plaintiffs has raised concerns that the state seems to be in a constant state of conflict with its own citizens."A government department should not be litigating endlessly with its own people.State departments should keep out of the courts" (NB; TC:5).

Participants' opinions on education litigation Blame

Although most of the participants seemed to blame education departments and their officials for most of the litigation, some are reluctant to place the blame squarely on the shoulders of the departments of education.One of the participants (WM:1) pointed out that the MEC for Education in Gauteng Province and Other v. Governing Body of Rivonia Primary School and Others case was an example of the fact that "education legislation and policy can be technical and complicated" and can contribute to misunderstandings and misinterpretations of law and policy.Because the judgment gives departments the right to place learners in close consultation with the school, the very wording of the judgment and the complicated nature of its interpretation would suggest that the dust has not settled on this issue.

Another participant (FGD:2) expressed unease about the word "blame" in this regard, and adduced that problems could be linked to the quality of the drafting of policy and law in a specific state department and elsewhere.The state attorney and legal advisers also have to certify bills before they go to Parliament.Another participant (EG:9) also touched on shortcomings of the legal drafting process and pointed out that "competences that have already been repealed are sometimes repealed again by newer versions of laws" and that "the Afrikaans and English texts of laws do not always agree."

According to one participant (WM1:5), another probable cause of lawsuits is SGB members violating constitutional principles.Issues of access, equity and redress are often at stake.The participant cited the Matukane and others v. Laerskool Potgietersrus case as an example of a case where SGBs seemingly tried to protect vested interests instead of pursuing their primary aim of contributing to the provision of quality education.The court found that the SGB of the school in question had unfairly discriminated against black learners who had sought admission to the school when it adduced that it had cultural and language rights, which entitled them to bar certain learners from the school.

Role of officials, unions and politicians in causing litigation

There was significant consensus among participants that officials, unions and politicians played an important role in the development and necessity of litigation through their actions.

Ignorance of the law

Participants suggested that ignorance of the law on the part of officials often leads to disputes through incorrect application of the law.Provincial and national head office staff members "often do not have educational backgrounds and have very little experience of working in the education system" (EC:2).One participant expressed a very strong opinion on the roles of politicians and administrators in lawsuits and the malaise of education:

They have the life of the country in their hands, but are insensitive to the needs of people and the country.Education is not permeated with excellence and committed teachers.Poor discipline, sexual offences and absenteeism, as well as racial overtones, are rife (TA:3).

Participant EG(5) believed that "many of the problems emanate from the fact that the officials do not understand the philosophy of the rule of law in a democratic state such as South Africa".Participant TH(1) said that, during the years following 1994, departments were represented in disciplinary procedures by "inexperienced, ignorant, bloody-minded officials who cut corners."

A very serious accusation was levelled against officials by participant (FLA:2), who believes that, apart from misinterpreting the law because of their ignorance, some officials "ignore the advice from legal advisers at both national and provincial levels.They make decisions too fast and do not seek enough legal advice nor give proper consideration to such advice.Sometimes they even deliberately transgress prescripts and provisions."

Imagined power

Most participants endorsed the view of Hattingh J in the Suid-Afrikaanse Onderwysunie v. Departementshoof, Department van Onderwys, Vrystaat en 'n Ander case, where officials acted wrongfully because they incorrectly thought they had the legal power to take certain actions or make certain decisions.In the abovementioned case, the judge castigated the officials of the Free State Department of Education who " … had designed a procedure to orchestrate dismissals, which had been, at best, a scandalous display of imagined power" [emphasis added].Beckmann and Prinsloo (2006) also discuss this phenomenon in an article in the Journal of South African Law.

Officials" use of "imagined power" is closely linked to administrative justice and legality, which are "central issues in education litigation" (EG:4).This participant stressed that "the doctrine of legality, as confirmed in Fedsure Life Assurance Ltd. and Others v. Greater Johannesburg Transitional Metropolitan Council and Others, is an integral part of the constitutional dispensation."Paragraph 58 of the judgment in this case reads as follows: "it seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that confirmed upon them by law."

This particular participant reported finding "legions of examples where the provincial education authorities have pretended to have the right to exercise powers which they do not possess" (EG:4).The participant believed that the fact that authorities were involved in the implementation of law might have given them a false sense of decision-making power.According to the participant, the 1998 Bennie Groenewald Primêre Skool en Andere v. Premier van die Noord-Kaap en "n Ander (Bennie Groenewald Primary School and Others v. Premier of the Northern Cape and Another) case illustrates the argument well.This case was referred to in Paragraph 15 of the judgment in Despatch High School v. Head of the Education Department, Eastern Cape Province and Others and was triggered by a decree promulgated by the then MEC for Education of the Northern Cape, that schools should be reconstituted (amalgamated) in terms of phases like the Foundation Phase.The participant pointed out that, at that stage, the South African Schools Act (Republic of South Africa, 1996b) did not provide for the amalgamation of schools.The result of this case and another was that the South African Schools Act was amended to provide in section 12A for the amalgamation of schools in terms of a legal process (EG:4).

According to one participant (EG:4) " … the doctrine of legality is violated on a daily basis, particularly by provinces, and the problem often begins with districts.They go beyond their powers, do not know their limitations and restrictions and also do not know their [sic] constitutional principles."

It is self-evident that the exercise of imagined power could lead to illegal, unfair and unreasonable decisions and actions as contemplated in section 33 of the Constitution (Republic of South Africa, 1996a) and, consequently, to disputes, and eventually even lawsuits.

Lack of professionalism

Apart from widespread ignorance of the law among officials, respondents also pointed to a lack of professionalism, which emerges when a person who is appointed to a specific position does not take the trouble to acquaint himself or herself with the relevant law.Participants believed that many of the disputes would not reach the courts or conflict resolution mechanisms, such as the Commission for Conciliation, Mediation and Arbitration (CC-MA), if officials were equipped with better conflict resolution skills and were not loath to engage in conflict resolution activities (DL, NB).

Linking officials" ignorance to a lack of professionalism, one participant (DL:2) commented as follows:

[...] They always expect somebody else to help, they think that matters are always simple and easy as they rely on past practices and they do not seem to be prepared to do their own learning and accept professional responsibility for their action within a constitutional framework.

Another participant (FGD:2) linked officials" ignorance, use of imagined power and lack of professionalism in the following manner:

What needs to be prevented or reduced is litigation caused by the unprofessional conduct of state officials and undue or deplorable political pressure or duress exerted in certain situations, sometimes against legal advice.This again highlights the fact that officials sometimes act against advice.One participant (FLA:2) linked a lack of professionalism to four things:

1) Misinterpretation of the law as in the Head of Department, Department of Education, Limpopo Province v. Settlers Agricultural High School and Others case (which is discussed below).2) Officials ignoring the advice of legal advisers in both the provincial and national spheres.3) Decisions made too fast without seeking enough advice and giving proper consideration to it.4) Deliberate transgressions by officials of legal prescripts.

Human resource development practices

Human resource development practices were also blamed for disputes and differences that have to be resolved.Officials who are found to have transgressed the law or have proved to be incompetent and unable to fulfil the duties expected of them are seldom helped through training, mentoring and assistance to overcome their problems.Instead, they are "redeployed" to other positions where they are also unlikely to succeed, while the problems that they caused remain unresolved.In essence, this erodes the development of accountability by officials and the system.This phenomenon is also examined by Beckmann and Prinsloo (2004).

Part of the human resource development practices that cause problems leading to litigation is the extraordinarily high turnover of staff in provincial, district, regional, circuit and other education department offices.

Undue political and union influence

Apart from the fact that officials seldom have what is called "institutional memory" as they have not been occupying their posts for very long, they also have to cope with what is viewed by a number of participants as undue political and union influence on their work.Three participants (EC, PS & TC) expressed strong views on the negative role played by unions.One of these participants (TC:2) pointed out that the politicisation and bureaucratic control of education have led to too many changes in leadership at MEC and HOD level and "a resultant lack of continuity and direction."

A participant (EC:1) believes that administrators, in particular, should not be unionised.In the view of another participant (PS:2) the unprofessional approach of one specific union "protected its members against all reasonableness and constituted a stranglehold on education districts".Another participant (TA:3) mentioned a union by name and said that it was "seeking a political kingdom rather than the good of education".

After discussing the causes of litigation, we will now discuss the results of litigation: the impact of litigation and the responses to litigation.

The impact of, and responses to litigation Impact

One can identify positive and negative results of litigation.The positive results include the fact that litigation provides progressive clarity on issues such as governing bodies" authority, provincial education departments" authority regarding human resource management, governing bodies" responsibilities, and the finances and policies of schools.One can also say that litigation lays down certain markers, for example, about the unacceptability of the so-called "mud schools", the unlawfulness of corporal punishment at a school (as in the Christian Education South Africa v. Minister of Education case discussed below), the involvement of the provincial education departments in the admission of learners in close consultation with the schools (the MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others case discussed above dealt with this issue) and the fact that subsidies payable to independent schools on set dates cannot be withheld later (as the court found in the KwaZulu-Natal Joint Liaison Committee v. MEC for Education, KwaZulu-Natal and Others case) (FLA:1, 2; Prinsloo, 2013; PS:4; WC:1; WM:4).

The term "mud schools" derives from a case settled out of court between the Eastern Cape Department of Education and two agencies that represented the best interests of the child with regard to the mud schools that were found in the Eastern Cape until 2014.ii These schools were supposed to have been eradicated by 2008.

Litigation has improved or raised awareness of constitutional issues and defined certain values.The Le Roux and Others v. Dey case (in which the court found in favour of a deputy principal who had complained about learners who had superimposed his face and that of the principal on pictures of naked men) has provided clarity on aspects of learners" freedom of expression and the limitations thereof, while in the A v. Governing Body, The Settlers High School and Others case (commonly known as the Antonie case), the court criticised the school for not implementing its own code of conduct correctly and not allowing a girl who had converted to Rastafarianism to wear dreadlocks.

MEC for Education: KwaZulu-Natal and Others v Pillay dealt with a girl who wanted to wear a nose stud to demonstrate her solidarity with her Indian cultural origins.In this case, the court found that the school in question had discriminated unfairly against the girl and had violated her religious and cultural rights.These cases have shed light on learners" right to freedom of expression and their cultural and religious rights, among others.It can be said that litigation has made it possible for role players to define and protect rights more easily through well-intended and strategic litigation (WC:2).

It seems that litigation is not the only solution to problems and disputes but "litigation could be an essential part of the dynamics of education" (DL:4).One participant (WM:4) expressed the view that litigation should have a beneficial effect on the provision of education and lead to better management and the clarification of role players" roles, rights and duties.However, if cases are handled badly, they have "a huge negative potential and may destroy schoolsespecially in those areas where the role players are not aware of the Constitution and laws, and where they see the school as operating in a vacuum" (WM:4).This participant also pointed out that some political role players viewed losing cases as "ideological challenges and have difficulty distinguishing between the party to which they belong and the state".

One participant (PS:4) pointed out that some cases confirmed the authority of role players, while some eroded it.Some cases led to more security and some led to less security, and a degree of alarm.Another participant (TC:4) made the point that litigation "edifies or empowers good schools, which view the courts as institutions protecting them and keeping the Constitution alive.Successful and well-intended litigation gives hope to schools and principals."

Yet another participant (WM1:3) summarised the effect of litigation succinctly:

… the object of some litigation was accomplished to the extent that people have fought for certain rights.The generations of administrators to come can note the outcomes of this litigation and modify their administrative actions accordingly.

However, it seems that some administrators set processes in motion to have the law amended so that they can have their way (refer to the paragraph below).

Responses to cases

Sometimes, litigation seems to have no effect or an undesired effect.Court rulings and orders are often deliberately ignored and mistakes are repeated.This can be seen in S v. Zuba, for example, which dealt with repeated failures on the part of the Eastern Cape Department of Education to give effect to a court order to provide a school for juvenile offenders in that province.

Two other cases present further examples of administrators failing to carry out court orders.In Head of Department, Department of Education, Limpopo Province v. Settlers Agricultural High School and Others, the Head of Department in the Limpopo Department of Education was taken to court and taken to task for not carrying out a court order to appoint a certain candidate to the principal"s post.Similarly, Section 27 and Others v. Minister of Education and Another deals with a case in which a NGO took the Limpopo Department of Education to court for violating children"s rights to a basic education, by not providing them with textbooks in time.

Participants commented that the causes of litigation appeared to stay the same, and did not appear to have diminished or changed.To one participant (EC:1), the FEDSAS and 3 Others v. MEC for Department of Basic Education Eastern Cape and Another best illustrates how education departments can "refuse bluntly to implement court orders."The Eastern Cape Education Department failed to appoint staff the court had ordered it to appoint.This litigation did not improve the staffing situation in schools.It also did not improve the situation of the teachers themselves.

The state may seem to be emerging as an opponent of school management and governance, as well as of its own employees.One can understand that the state will not be overjoyed by litigation that exposes "the failing state" and which creates the impression that the state is leaving children and parents and, as a matter of fact, the whole country in the lurch (TA:3).

One of the results of the state"s reluctance to accept decisions against it is efforts to close perceived legislative gaps, and loopholes and obstructions that prevent the state from having its own way in certain matters (FLA:1; NB).This sometimes means that sound law is amended to suit the state better while making the law worse.Section 16A of the South African Schools Act seems to be an example of an amendment to the law that will obfuscate the boundaries between governance and management, and enable provincial education departments to take issue with governing bodies and their management of the school"s funds (which is normally beyond the control of the state) through the principal (EG:6).

The reference to government trying to close loopholes raises the question: what happens after judgments have been handed down by the courts, be they in favour of or against the state.According to participants, most departments of education do not analyse court decisions or try to relate them to their present and future actions and decisions in order to avoid future litigation (EG; NG).However, some departments take great pains to analyse cases and plan to comply with court decisions to avoid further cases (WM:4).In the past, the legal advisers of the national Department of Education had meetings with the legal advisers of all the provincial education departments to analyse cases, point out the implications and suggest ways of responding to the decisions in manners that would not bring the departments into conflict with the law (FLA:1).A participant (DL:5) expressed the view that it is "a good principle that knowledge and insight emanating from case law should feed into better legislation and policy and that amendments made to legislation as a result of lawsuits should not make "a mockery of litigation"".

The participants observed that litigation and the decisions handed down by courts appeared to have no influence on political role players and did not affect them or their careers negatively.They also pointed out that, where issues are not dealt with and resolved firmly, uncertainty and tension result in schools, as well as in departments of education.This is a matter of concern, as there are many clear and sound judgments that ought to lead to legal certainty in schools and in education systems.

Having discussed the causes and results of litigation, we will now consider possible changes in litigation patterns expected by participants.

Pattern changes expected

With regard to the possibility of patterns of litigation changing, participants" responses were diverse.Some participants expected no changes in litigation patterns, while others expected significant changes.

A participant (TA:4) believed that "the amount of litigation cannot be reduced unless the reasons for litigation are removed."This participant therefore expressed the opinion that wronged parties should "litigate hard and early" so that reasons for litigation can be appropriately and timeously addressed by the courts.Similarly, another participant (TC:5) argued that, as long as the departments are dysfunctional and there remains no recognition of the shortcoming, there must and will be litigation.Where statutory failures occur, there must be watchdogs to protect the rights of those involved.The courts must be bastions of the constitutional democracy and of the rights and obligations of citizens.

Another participant (DL:6) expressed the belief that patterns of litigation could change if role players adopt the approach that litigation should be avoided as far as possible, but that one should litigate when it is essential, inevitable and avoidable.Everybody should be able to approach the courts, but the courts should not be flooded by cases.

One of the participants (EG:7) foresaw more litigation on issues such as access to education, equality, quality and accountability for the provision of education.This participant also anticipated people increasingly using section 38 of the Constitution, as it gives anyone listed in this section the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

Participant (WM:5) voiced a concern that was shared by some other participants, namely that at the moment, "litigation is merely fiddling around the edges.Courts will also have to pronounce on where the responsibility and accountability lie in addition to providing clarity on where powers lie."In the opinion of participant (WC:1) some issues have been exhausted through litigation and settled cases reflected an element of "legalism in the form of an examination of the powers of one litigant versus those of another."This participant believed that judging cases on the legality issues did not always address real issues, and indicated that sometimes "the real issue was next door to legality."This participant expected the courts to engage "deeply with the issues of quality and the debate on democracy and equality, as well as the demands that are and should be made on public education."

It seems clear then that the participants expect litigation to continue on the same issues as in the past, unless these causes of litigation are removed.There are opinions that litigation also needs to change significantly to incorporate the rigorous examination of issues other than legality.

The cost of litigation

In this regard, the participants" opinions were disparate.Some felt that there was not an inordinate amount of litigation, while others felt that there were too many lawsuits and that the education system was suffering as a result.Some were also concerned about the amount of litigation, but were still encouraged by its positive results.Two participants (EG; WM:1) estimated that they had been involved in more than 200 disputes (litigation), another indicated involvement in more than 100 (NB), while one did research on the issue and traced personal involvement in more than 1,000 instances (TC).

Those who had no issue with the number of lawsuits as such argued that, without certain litigation, some fundamental issues could not have been resolved (DL; FLA; TA; TC; WM).In this regard, the Christian Education South Africa v. Minister of Education case that found unambiguously that corporal punishment was unlawful at a South African school and the Schoonbee and Others v. MEC for Education, Mpumalanga and Another case that found that the principal was not the accounting officer of the school were cited as examples.The various interested parties in South African education have not become overly litigious.

There may, however, be questions regarding the relationship between "the failing bureaucracy" and the cost of litigation.The participants also pointed out that, although the costs of litigation can be prohibitive and restrict access to the courts (TA:5), there are various avenues that can be used to access the courts and that, in principle, the courts are accessible to everyone (WC:5).One participant (WM:9) estimated that the departments of education spend between 4% and 6% of their budgets on legal coststhe costs are sometimes to be found in the budgets of human resource divisions in departments, but are seldom explicitly declared as such.If this participant"s estimate of the costs is correct, it could amount to between R9.3 billion and R13.98 billion in terms of the 2014 education budget.

Those who believe that the amount of litigation in South African education is excessive, believe that most of the litigation will not be necessary if people (such as political role players, bureaucrats and governing bodies) know and comply with the prescribed legal frameworks.They also argue that one should be aware of the hidden costs and the intangible influence of litigation on the climate and atmosphere of schools, for example.

Conclusion

Respondents' Opinions

This paper set out to capture the perceptions and opinions of senior and influential role players in education litigation regarding selected aspects of the litigation that has taken place since 1994.Reference in the title to hope, concern and despair captures the three mainstreams of opinions that could be identified.

Hope

Participants gained hope from litigation in this sense that clear markers have been laid down in some cases, certain rights seem to have been strongly delineated, and litigation does not necessarily seem to be the default approach to disputes anymore.

Concern

The concern that emerged from the responses of the participants to certain questions can be linked to the behaviour and performance of certain administrators, politicians, unions, governing bodies and human resource managers.The concern extends to the perceived "complicatedness" of the law and the lack of dispute resolution skills, as well as the lack of professionalism exhibited by certain administrators.

Participants also seemed concerned about the fact that some fundamental social issues or human rights issues have not been litigated or resolved to a significant degree.Participants" concern about their perceived lack of litigation on human rights was confined to human rights litigation on fundamental socio-economic issues such as access to education, unfair discrimination and the absence of proper infrastructure in schools (authors" emphasis).As far back as 2004, Mr. Justice Albie Sachs (then of the Constitutional Court) articulated a similar sentiment when he referred to the problematic issue of transformation in South Africa at a conference held to commemorate the Brown v. Board of Education case in the USA and ten years of democracy in South Africa (Sachs, 2005:10): Desegregation […] is relatively easy in South Africa; you scrap all the apartheid laws.But the structures of apartheid continue, the patterns of inequality continue, so while we have desegregated, and there are no laws blocking advancement, those that have continue to "have" and those that have not continue to "have not" (with possibly a small group of people sneaking their way out of the have-nots and being incorporated into the elite that have).This is not the vision of our Constitution.Our Constitution has a transformative vision, a vision of achieving equality […] There has been a significant amount of litigation on human rights issues such as corporal punishment (the CESA case where parents attached to Christian independent schools wanted to be exempted from Section 10 of SASA because of religious reasons); freedom of expression (the A v. Newspapers have recently reported on an action brought by Organisasie vir Godsdienste-Onderrig en Demokrasie (OGOG) against six primary schools and two ministers.In a press release OGOD (2014) states the following:

Acting on behalf of learners and parents of learners at public schools in South Africa, OGOD has laid charges in the Gauteng Division of the High Court of South Africa against six public schools and two ministers.

According to the organisation, the actions of the some (sic) public schools are in breach of the National Policy on Religion and Education, and/or unconstitutional (sic), for such public schools:

1.1 promote or to allow its (sic) staff to promote adherence to one or predominantly one religion during its religion school activities; 1.2 hold out that it promotes (sic) the interests of a religion; 1.3 align or associate itself (sic) with a religion; 1.4 require learners, either directly or indirectly, to disclose: 1.4.1 whether or not such learners adhere to any religion; 1.4.2 to which religion, if any, the learners adhere; 1.5 maintain any (sic) record of the religion, if any, to which learners adhere; 1.6 segregate or permit the segregation of learners on the basis of religious adherence.

It seems that all litigants have not yet submitted their pleadings to the court, and all that needs be noted at the time of writing is that, according to OGOD, a charge has been laid against six public schools and two [presumably education] ministers alleging that the schools are in breach of the National Policy on Religion and Education (Department of Education, 2003) and/or that certain alleged practices at the schools are unconstitutional.This possible litigation has human rights implications with regard to the right to freedom of religion, the right to conduct religious observances and the right not to be unfairly discriminated against.

Despair

Some participants experienced despair when they observed the arrogance of politicians and administrators, their exercising of "imagined powers" and their failure or reluctance to learn from their failures and mistakes.They were also extremely worried by the perceived lack of attention to the observance of human rights, the disobeying of court orders, the undue union and political influence in education and the subsequent litigation.

Our own Opinion

Our analysis of the responses of the participants seems to suggest that, although litigation should be avoided as far as possible, litigation per se should be regarded as a valuable instrument in the quest to realise all children"s right to quality education.The benefits that have accrued from litigation are relatively easy to identify.So are the challenges and problems concerned with litigation.

We believe, like one of the participants (WM1:6), that the threat of litigation, possible incarceration of officials and even attachment of their property may force those officials who engage with litigation and their official responsibilities in a random fashion, to accept greater responsibility for their acts and decisions.We also agree with participant FGD, who contended that litigation per se cannot improve education as it is the work or the role of education practitioners to do that.

In our opinion, frivolous litigation that serves no useful purpose at all should be avoided.The role players concerned should focus on strategic litigation to enable the courts to provide clarity on the content, meaning, interpretation and application of legal provisions and also to hold officials of education departments and other role players accountable for their decisions and actions.Roleplayers who defy court orders should be dealt with firmly, and in accordance with the law.

We believe that the quality of legal drafting and litigation in education can be improved through the concerted professional and initial training and development of all role players in education litigation, provided that the quality of the training and the trainers are assured by competent authorities (DL; EC; EG; FLA; TA; WC; WM).Furthermore, the point of departure when dealing with disputes should be that it is likely that management solutions can be found for all problems (DL; NB; WM) and that disputes could be resolved through the use of sound dispute resolution skills and techniques.

Participant TC pointed out that the fact that some senior officials in education are not educator staff, but public service officials, is probably also a factor that contributes to litigation.In a PhD thesis, Smith (2013) found that education districts were hamstrung by the fact that some of the managers in districts were not educators.

In conclusion, we wish to quote points made by one of the participants (TH:6), because we believe that, read together, they provide a solid point of departure for reducing litigation and for improving litigation that is unavoidable.This participant expressed the belief that there should be education law experts in education departments and in institutions of the organised teaching profession, as well as of parents" formations.This participant argued cogently that litigation is like warreadiness for war frightens possible enemies away.Money judiciously spent on litigation is not wasted.It hones brains."He who desires peace must be prepared for war."Everybody concerned should be ready to defend the domains of teachers and the rights of the child and must be in a position to stop a political head of any education department or any other role player [s] striving to prejudice or disadvantage the child.

In South Africa"s post-apartheid democratic era, one question remains about the provision of education and litigation: have the underprivileged benefited from litigation and is the provision of education better now because of litigation?This rhetorical question can be answered in the negative on the basis of the findings in a number of cases referred to in the course of the discussion above including FEDSAS and Three Others v. MEC for Department of Basic Education Eastern Cape and Another, Section 27 and Others v. Minister of Education and Another.

Furthermore, Abdoll and Barberton (2014) report on a study commissioned by the Centre for Child Law at the University of Pretoria to "assess what progress has been made in addressing the issues that brought about the litigation" [on "mud schools" in the Eastern Cape].

In their study, they made "the concerning finding that the Department [of Education of the Eastern Cape] has woefully underspent the allocated school infrastructure funding for two years running.The target for the number of schools to be built in 2011/2012 and 2012/2013 was [fortynine].However, only [ten] schools had been completed at the end of the first year."

Another report prepared for the Centre for Child Law by Veriava (2014) states boldly that, in regard to the abolition of corporal punishment by Section 10 of SASA "[P]ractice simply does not reflect the law"s promise."iii A number or references to newspaper reports on the "Our cases in the media" page of the website of the Centre for Child Law iv on 31 October 2014) depict problems still prevalent in many schools:



No end yet to mud schools -Sowetan, 22 August 2014

Governing Body, The Settlers High School and Others; Le Roux and Others v. Dey; MEC for Education: KwaZulu-Natal and Others v. Pillay) cases; the S v. Zuba case about the unavailability of child reform schools in the Eastern Cape; the FEDSAS and Three Others v. MEC for Department of Basic Education Eastern Cape and Another case, concerning that province"s failure to appoint and remunerate approximately 4,000 temporary teachers; the Section 27 and Others v. Minister of Education and Another case about the non-provision of handbooks in Limpopo as well as the language in education cases (Die
Laerskool Middelburg en "n ander v. Die Departe-mentshoof: Mpumalanga se Departement vanOnderwys en andere; Hoërskool Ermelo v. TheHead of Department of Education: Mpumalanga;Minister of Education (Western Cape) v. MikroPrimary School Governing Body; Seodin PrimarySchool and Others v. MEC of Education NorthernCape and Others).
In our opinion the above paragraphs provide evidence that the provision of education especially for the underprivileged has not improved markedly.There is convincing proof of the problems that still beset the provision of education in particular to the underprivileged.AcknowledgementThis work is based on research supported in part by the National Research Foundation of South Africa (grant-specific unique reference number (UID) 85795).The grantholder acknowledges that opinions, findings and conclusions or recommendations expressed in any publication by the NRF-supported research are those of the author(s) and that the NRF accepts no liability whatsoever in this regard.Notesi.We have assigned codes to the opinions of various participants in order to protect their anonymity.Where we cite a participant"s specific contribution, we will provide the code that we assigned to the person in brackets and the number(s) of the page(s) of the written version and summary of the responses as we captured them after a colon.For example, (DL:1) means that we acknowledge the contribution of participant DL and that we are referring to page one of the written version of his/her responses.ii.See http://www.centreforchildlaw.co.za/cases/our-cases, accessed on 26 March 2014.iii.Quotations regarding these two publications have been taken from the website of the Centre for Child Law (http://www.centreforchildlaw.co.za/, accessed on 30 October 2014).iv.Accessed on 31 October 2014.
Mud to Bricks: A Review of School Infrastructure Spending and Delivery. C Abdoll, C Barberton, 2014PretoriaCentre for Child Law, University of PretoriaReporton a study commissioned by the Centre for Child Law

ZAWCHC 4The Settlers High School and Others. 2002. 8 February 2002

Towards an analytical framework for accountability regarding equal educational opportunities. J Beckmann, J Prinsloo, Perspectives in Education. 2232004

Imagined power and abuse of administrative power in education in South Africa. J Beckmann, J Prinsloo, Tydskrif vir die Suid-Afrikaanse Reg. 32006. 2006

Bennie Groenewald Primêre Skool en Andere v Premier van die Noord-Kaap en "n Ander (Bennie Groenewald Primary School and Others v Premier of the Northern Cape and Another. 19983

All SA 426 (NC). (Referred to in Despatch High School v Head of the Education Department. ZAECHC 28Eastern Cape Province and Others. 2001. 2002. 25 September 2002242

Department of Education. ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051National Policy on Religion and Education. 2000. 18 August 2000. 2003Department of EducationChristian Education South Africa v Minister of Education

Despatch High School v Head of the Education Department. Eastern Cape Province and Others. 1997 (4) SA 982 (C).

Die Laerskool Middelburg en "n ander v Die Departementshoof: Mpumalanga se Departement van Onderwys en andere. JOL 103512002

Others v MEC for Department of Basic Education Eastern Cape and Another. Case 60 of. BCLR 1458FEDSAS and 3. 2011. 22 February 2011. 1998. 1998. 14 October 199817SA

Department Head, Department of Education, Limpopo Province v Settlers Agricultural High School and Others. CC200311774

KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal and Others 2013. CC262

. ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC)Le Roux and Others v Dey (CCT. 45102011

BCLR 446 (CC). 8 March 2011

Matukane and Others v Laerskool Potgietersrus (1996) 1 All SA. 468

SA 582 (CC); 2013 (12) BCLR 1365 (CCMEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others. 2013. 3 October 201334

ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CCMEC for Education: KwaZulu-Natal and Others v Pillay. 2007. 5 October 2007

CCT13/01ZACC 25; 2001 (4) SA 1297 (CC); 2001 (11) BCLR 1157 (CC). Minister of Education v Harris2001. 5 October 2001

ZASCA 66Minister of Education (Western Cape) v Mikro Primary School Governing Body. 2005. 2005. 20051403

. All SA. 436SCAJune 2005

Organisasie vir Godsdienste-onderrig en Demokrasie (OGOD). 30 October 2014Press release 20/8/2014

Paper read at the annual conference of the South African Education Law Association, Muldersdrift. J Prinsloo, KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal and Others. Pretoria; PretoriaGovernment Printers2013. 2013. 11 September. 1996. 1996Government Printers. Republic of South Africa 1996b. The South African Schools Act. Act No. 84 of

Equal Educational Opportunities and the Constitutional Court. A Sachs, Equal educational opportunities. Comparative Perspectives in Education Law. Pretoria: JL van Schaik. Schoonbee and Others v MEC for Education, Mpumalanga and 2002. J Cj Russo, & Jd Beckmann, Jansen, 2005877

Section 27 and Others v Minister of Education and Another. 24565/2012-05-17the High Court of South Africa. North Gauteng High Court, Pretoria

ZANCHC 5; 2006 (4) BCLR 542 (NC); (24Seodin Primary School and Others v MEC of Education Northern Cape and Others. 2005. October 2005

Understanding organisational culture in performing and poorly performing districts: A comparative study of district offices. E C Smith, 2013PretoriaUniversity of Pretoria. Suid-Afrikaanse Onderwysunie v DepartementshoofUnpublished PhD thesis. Department van Onderwys, Vrystaat, en "n Ander 2001 (3) SA 100 (O

. S V Zuba, ECJ 2004/0042004. 19 February 2004

Promoting Effective Enforcement of the Prohibition against Corporal Punishment in South African Schools. F Veriava, 2014PretoriaCentre for Child Law, University of PretoriaReport Commissioned by the Centre for Child Law