Eastern Cape School Funding Declared Unlawful

On 19 August 2026, the Makhanda High Court handed down an order by agreement declaring several funding decisions taken by the Eastern Cape Department of Education unlawful, unconstitutional and invalid in the matter of Makhanda Circle of Unity and Others v MEC Department of Education. Launched in 2023, this application was brought by the Makhanda Circle of Unity and three schools in Makhanda, challenging the constitutionality of several funding decisions taken by the ECDOE between 2020 and 2024 that resulted in the underfunding of schools in the province.

First, the court, per Malusi J, declared decisions taken by the ECDOE between 2020 and 2022 to fund learners in the province below the national target set annually by the Minister of Basic Education unconstitutional and invalid. Second, the court declared the ECDOE’s decision to retain 33.75% of schools’ school allocations in the 2023/24 and 2024/25 financial years unconstitutional and invalid. Both of these decisions contributed towards the severe underfunding of schools in the Eastern Cape, one of the most impoverished provinces in the country.

The court further confirmed that if the ECDOE intended to reduce its funding of schools below the national target, it must first follow very strict consultative requirements to develop a plan to ensure funding at the national target as soon as possible.

Taking into account the significance of the ECDOE’s unconstitutional conduct and to guard against the continuation of unconstitutional underfunding, the court also granted a supervisory order against the ECDOE, requiring it to report to court on a quarterly basis on the steps taken to ensure the constitutional and lawful allocation of funds to schools in the province.

This judgment sets an important precedent in education funding, establishing that schools are lawfully entitled to receive their full school allocation in order to decide themselves how best to spend the funds to ensure their learners’ needs are met. The judgment also emphasises the importance of guardrails created under the National Norms and Standards for School Funding to safeguard against the underfunding of schools, reinforcing the prescriptive nature of these requirements prior to any deviation from the national target.

While the LRC welcomes the outcome, it notes with regret the manner in which the matter was eventually resolved. From the outset, the ECDOE opposed the application. The ECDOE then proceeded to delay significantly in responding to the application, delaying the ability for the matter to be heard. The ECDOE’s dilatory conduct delayed justice for the applicants and schools across the country, allowing the ECDOE to continue to replicate retention decisions that it subsequently admitted were unconstitutional and invalid.

The LRC will monitor the implementation of the court’s order and ensure that the ECDOE takes the necessary steps to comply with the court’s order.