1. INTRODUCTION: THE CONSTITUTION AS A TRANSFORMATIVE PROJECT

1.INTRODUCTION: THE CONSTITUTION AS A TRANSFORMATIVE PROJECT

General Comment 13 of the Committee on Economic Social, and Cultural Rights (CESCR)1 emphasises that education is probably the most important tool for fostering development and improving the lives of people. South Africa gives effect to this sentiment by guaranteeing everyone the right to a basic education, including the right to adult basic education.2 Furthermore, the Constitution of the Republic of South Africa 1996 (Constitution)3 requires that the interpretation of rights in the Bill of Rights be informed by international law, providing a clear international benchmark for the realisation of this right.4

South African history undoubtedly demands transformative measures to address harm and create a future of dignity, equality, and freedom for all. In this endeavour, the Constitution5 provides a powerful vehicle to transform South African society to achieve substantive equality, social justice, and human dignity. Furthermore, the importance of the Constitution is highlighted by the rich scholarship on transformative constitutionalism in South Africa.6 This framework mandates a contextual and historical approach to legal interpretation aimed at redressing pervasive inequalities in South African society, particularly in education.7

Therefore, including the right to education in the Bill of Rights should be regarded as a vital instrument for dismantling the systemic inequalities created by apartheid. In addition, it should address the implementation failures of legitimate constitutional aspirations and undo the impact of corruption, which has plagued society since the advent of a new democracy in 1994.8 This historical context underscores the need for a legal and political framework for education that guarantees rights, dismantles structures perpetuating disadvantages, builds institutions promoting human rights, and fosters accountability for violations.9 10

This chapter analyses the right to education and its realisation through transformative constitutionalism by examining the legal framework, judicial interpretation, and ongoing challenges to its full realisation as a transformative ideal. Because these chapters focus on basic education, this analysis does not include an in-depth discussion of further education.