Overview of Articles and Related Court Pleadings
The Legal Resources Centre (LRC) has spent the last five years litigating the right to education in South African courts. What follows is an explanation of some of these cases, together with summaries and excerpts from related court pleadings.
Due to the voluminous nature of these pleadings, they are not included in the original form in which they were led at court. All related court pleadings are available on the LRC website: www.lrc.org.za
All the applications are based on the constitutional right to education enshrined in section 29 of the Constitution of the Republic of South Africa, 1996. The legal standing of the applicant parties is described in detail in the court papers but excluded from the summary of the court papers that follows.
The legal standing of the various clients (non- governmental organisations, civil society groups, individual parents, infrastructure crisis committees and school governing bodies) is found in section 38 of the Constitution:
- In terms of section 38(a) of the Constitution, in its own interest as an organisation, school, parent, committee which /who has an interest in the litigation;
- In terms of section 38(b) of the Constitution, on behalf of the learners at other schools who have been and will be affected by the issue at stake and who for lack of resources, lack of knowledge of their rights, lack of access to legal services, and because of their number, cannot individually bring these proceedings;
- In terms of section 38(c) of the Constitution, in the interests of the learners and their parents at named schools and other schools similarly situated;
- In terms of section 38(d) of the Constitution, in the public interest; and
- In terms of section 38(e) as an association acting in the interests of its members.
The Constitutional Right to a Basic Education
Section 29(1)(a) of the Constitution provides that “everyone has the right to a basic education…”.
The right to a basic education is immediately realisable and is not subject to progressive realisation in the light of available resources. In giving meaning to the content and scope of the right to a basic education, regard must be had to its unqualified nature and to the purposes of the right.
The purposes of the right to a basic education, as variously described in domestic legislation and policies, and in international covenants and commentaries, are several-fold. The right to education is essential, inter alia, to:
- the full development of the human personality and the individual’s sense of dignity;
- substantive equality and equal opportunity, as education is the primary vehicle by which economically and socially marginalised persons can lift themselves out of poverty and obtain the means to participate meaningfully in society;and
- the enjoyment of democratic participation and meaningful citizenship.The right to a basic education is thus unusual among other human rights in its nature as an ‘empowerment’ right: education is an end in itself, but it is also a means of realising and promoting other rights, including dignity and equality.The White Paper on Education and Training (March 1995) accordingly describes the primary “goal” of basic education as follows:
“To enable a democratic, free, equal, just and peaceful society to take root and prosper in our land, on the basis that all South Africans without exception share the same inalienable rights, equal citizenship, and common national destiny.”
Similarly, the National Education Policy Act 27 of 1997 provides that the Minister’s national education policy must be directed towards, among other things:
“Enabling the education system to contribute to the full personal development of each student, and to the moral, social, cultural, political and economic development of the nation at large, including the advancement of democracy, human rights and the peaceful resolution of disputes” (section 4(b)); and“Achieving equitable education opportunities and the redress of past inequality in education provision…” (section 4(c))
International Law: Right to Education
International law must, in line with section 39 of the Constitution, be considered when interpreting the Bill of Rights. In this context, we point out that the United Nations Committee on the Rights of the Child emphasised in its General Comment 1 that the purpose of education must be to empower the child:
“The education to which every child has a right is one designed to provide the child with life skills, to strengthen the child’s capacity to enjoy the full range of human rights and to promote a culture which is infused by appropriate human rights and values” (paragraph 2).
Similarly, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) observed in its General Comment 13 on the Right to Education that:
“Education is both a human right and an indispensable means of realising human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. Increasingly, education is recognised as one of the best financial investments States [sic] can make. But the importance of education is not just practical: a well-educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence” (paragraph 1).
Given the purposes of the right to a basic education, the importance of these purposes in a free and democratic society founded on the values of dignity, equality and freedom, and the unqualified wording of section 29(1)(a), the right to a basic education necessarily implies the right to a basic education that is adequate.
The cases covered by the LRC address multiple issues that are essential for the provision of an adequate education. Educating a child requires more than a teacher, or a teacher and a textbook. The achievement of an adequate basic education requires, amongst other things, that a child study in classrooms and environments that are safe and conducive to learning.
That the adequate component of the right is equally as important as the access component is apparent from the CESCR’s General Comment 13, which uses a “four A” criteria and provides as follows:
Functioning schools must be available and “are likely to require buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically-competitive salaries, teaching materials and so on; while some will also require facilities such as a library, computer facilities and information technology…”;
Educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party. Accessibility has three overlapping dimensions:
- Non-discrimination: education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds…;
- Physical accessibility: education has to be within safe physical reach …;
- Economic accessibility: education has to be a ordable to all…;
The form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality)…; and
Education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.
Section 29(1) must be read with the duty of the State to ensure accountability, responsiveness and openness (section 1) and to respect, protect, promote and full the rights contained in the Bill of Rights (section 7(2)), as well as with other constitutional rights, including: the right to equality (section 9); the right to human dignity (section 10); the right to freedom and security of the person (section 12); the rights of children (section 28); the basic values and principles governing the public administration (section 195); and the duty on the State to perform its obligations diligently and without delay (section 237).
Historical Context of Education in South Africa
In addition, the historical context in which the unqualified constitutional commitment to this right arises must be appreciated. It was articulated as follows by O’Regan J in MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC):
“ Education is the engine of equal opportunity. Education in South Africa under apartheid was both separate and deeply unequal. Notoriously, HF Verwoerd proclaimed in 1953 that –
“Native education should be controlled in such a way that it should be in accord with the policy of the State . . . If the native in South Africa today in any kind of school in existence is being taught to expect that he will live his adult life under a policy of equal rights, he is making a big mistake . . . There is no place for him in the European community above the level of certain forms of labour. . . .”
“And the apartheid State implemented this vision. Spending on Black school children in 1976 was a fraction of spending on White school children. It is not surprising then that education was the trigger for the Soweto revolt by Black school children. Throughout the 1970s and 1980s, the issue of unequal education mobilised thousands of South Africans of all ages to oppose the apartheid State.
When democracy dawned in 1994, the picture was bleak. By and large South African children of different colours were educated separately in institutions which bore the scars of the appalling policy of apartheid. Excellence in the matriculation examination at the end of twelve years of formal schooling reflected this unequal past. A tremendous challenge faced the new government.
Things have improved somewhat but the pattern of disadvantage engraved onto our education system by apartheid has not been erased. In 2003 there were 440 396 candidates for matriculation, of whom 77,4% were Black, 7,2% were Coloured, 3,8% were Indian and 10,5% were White. Only 73% of these candidates passed and a tiny 19% obtained a university entrance pass. While more than 50% of all white candidates who wrote obtained a university entrance pass, only just over 10% of Black candidates who wrote did so. There is much to be done to achieve educational equality of opportunity.”
It is against this legal framework that the litigation described takes place.