4. JUDICIAL INTERPRETATION AS TRANSFORMATIVE FORCE
4.JUDICIAL INTERPRETATION AS TRANSFORMATIVE FORCE
Although the right to basic education is firmly entrenched in the Constitution, it continues to face serious implementation obstacles in practice. Persistent structural, and socio-economic challenges undermine this promise, and often necessitate litigation to ensure the realisation of the right to education.
4.1Role of courts in giving content to the right to a basic education
Courts play a pivotal role in ensuring access to a basic education in the South African context. Arendse1 argues that the Juma Musjid 2 case was a blessing in disguise because the court had to rule on the negative obligation of the state not to infringe on the rights of learners, which opened the door for the ruling that education is an immediately realisable right. Since it was a pronouncement on the negative duty of the state, the court was bolder than when it ruled on the state’s positive obligations, fearing overstepping into the executive’s territory, and imposing obligations on the state that have budgetary implications. The result is that the courts are obliged to now provide content to the right to education, keeping in mind that it is an immediately realisable right that is not subject to resource constraints but only to limitations in terms of a law of general application in terms of section 36 of the Constitution.3
The judiciary, particularly the High Courts, and Supreme Court of Appeal, have played a significant role in developing the tangible content of the right to basic education, spurred by the Juma Musjid 4 case ruling. This incremental “filling out”5 of section 29(1)(a) includes the provision of school infrastructure, teaching, and non-teaching staff, school furniture, and teaching materials such as textbooks.
Ally and Kazim6 argues that while the South African Constitutional Court has been reluctant to embrace a “minimum core” approach to socio-economic rights, particularly after Mazibuko v City of Johannesburg,7 the jurisprudence concerning the right to a basic education demonstrates a distinct, and detailed development of minimum content, effectively adopting a “minimum core type” approach. In what follows, a discussion on the content given to the right to education through the different South African courts.
4.2Textbooks
4.2.1Availability of textbooks
General Comment 13 of the CESCR8 states that teaching materials should be available and are an essential feature of education. However, different Departments of Education failed to provide textbooks, but chose to defend legal actions to compel them to provide it. Through litigation, a clear set of standards was developed by the courts for the provisioning of textbooks.
In Section 27 and Others v Minister of Education and Another (Textbook 19 case) the North Gauteng High Court concluded that the government views textbooks as fundamental to quality learning, and teaching. The court unequivocally stated:
The provision of learner support material in the form of textbooks, as may be prescribed is an essential component of the right to basic education and its provision is inextricably linked to the fulfilment of the right. In fact, it is difficult to conceive, even with the best of intentions, how the right to basic education can be given effect to in the absence of textbooks.10
This judgment was significant not only for defining the content of the right but also for guiding the judiciary on how to use state policy to give concrete content to socio-economic rights.11
A year later, following the state’s incomplete delivery of textbooks after the Textbook 112 case, further litigation was initiated in Basic Education for All v Minister of Basic Education and Others(Textbook 213 case). The court confirmed that textbooks are an essential component of the right to basic education. Crucially, the court rejected the state’s argument that delivering textbooks to the majority of schools constituted compliance, emphasising the universal nature of the right. The court confirmed that the non-delivery of prescribed textbooks before the commencement of the curriculum for which they were required violated learners’ rights to basic education, equality, and dignity.14
The Department appealed the judgment, and in Minister of Basic Education and Others v Basic Education for All (Textbook 315 case) argued that a 100% delivery record was an unachievable “standard of perfection.”16 However, Navsa JA rejected this, holding the state accountable to its own stated policy, and actions. The court confirmed that the state had committed to providing a textbook for each learner across all grades, in its “Action Plan for 2014 – Towards the realisation of Schooling in 2025”.17 The Supreme Court of Appeal explicitly declared that the National, and Limpopo Departments of Education violated the rights to a basic education, equality, and dignity of learners, by failing to provide all of them with every prescribed textbook before the commencement of teaching. The judgment implicitly found unfair discrimination on the comparable ground of socio-economic status, and race, noting that the affected learners were predominantly black, poor children in rural, no-fee schools who were disproportionately impacted by the textbook crisis.18
4.2.2Availability of funding to secure textbooks
Schools with powers in terms of section 21 of SASA have the responsibility “to purchase textbooks, educational materials or equipment for the school”.19 This responsibility is sometimes hampered by Provincial Departments of Education (PDEs) that fail to pay the required subsidies in terms of the National Norms and Standards for School Funding (NNSSF) allocations to schools on the prescribed dates.20 These allocations are essential to cover the essential operating costs of schools, and include textbooks, teaching materials, utilities, day-to-day maintenance, stationery, basic hygiene products, and other Non-personnel Non-capital (NPNC) expenses
These allocations are linked to the quintile system, granting quintile 1 to 3 schools a higher subsidy per child to cover the abovementioned costs than fee paying quantile 4, and 5 schools. Quantile 1 to 3 schools are also known as no-fee schools because they may not charge parents school fees. Thus, all expenses to realise learners’ right to education must be paid from this allocation. Failing to pay these allocations, short payments, or failing to pay them on time compromises especially poor learners’ right to education significantly. This failure impacts learners, particularly poor learners’ access to essential learning materials and, as is evident from the case law, their right to dignity, equality, and right to education.
4.2.3Accessibility of content of textbooks
The case of Blind SA v Minister of Trade, Industry and Competition Minister of International Relations and Cooperation21 arose from a challenge to South Africa’s Copyright Act.22 The first applicant, Blind SA, a non-profit organisation advocating for the rights of the blind, and visually impaired, argued that the Copyright Act23 was unconstitutional. The core of the legal dispute centred on the following.
The Copyright Act required permission from copyright holders to reproduce works. Including converting them into accessible formats for persons with visual, or print disabilities, for instance, Braille, audiobooks, or large print. The Act did not contain any exceptions, or limitations to copyright protection that would allow for the creation of “accessible format copies” without the copyright owner’s consent. South Africa had been a signatory to the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty).24 The treaty specifically aims to create a legal framework for copyright exceptions to make published works available to people with disabilities.25 Blind SA argued that the Copyright Act’s26 failure to provide these exceptions violated the constitutional rights of persons with visual, and print disabilities, including their rights to equality by unfairly discriminating against them, and creating a barrier to accessing information that is not faced by others. They also argued that these persons’ right to dignity is infringed by denying them access to a vast body of knowledge, and culture, and their right to freedom of expression by limiting their ability to receive, and impart information, and ideas, as well as the right to education by creating a significant barrier to accessing educational materials.27
Blind SA first approached the High Court,28 which found in their favour, declaring certain sections of the Copyright Act unconstitutional. The matter was then referred to the Constitutional Court for confirmation of the High Court order. The Minister of Trade, Industry and Competition (the dtic), and other respondents agreed that the Act was unconstitutional. The Constitutional Court, in a unanimous judgment, confirmed the High Court’s findings, and delivered a landmark ruling.29 The main findings are as follows.
The court declared sections 6, 7, and 23 of the Copyright Act30 to be inconsistent with the Constitution, in particular the rights to equality, human dignity, and freedom of expression. The court held that the provisions constituted unfair discrimination by requiring permission for actions that are essential for people with these disabilities to access published works.31
The judgment is a globally significant precedent since it is one of the first, if not the first, instance of a court explicitly recognising the absence of an accessible format provision in copyright law as an act of disability discrimination. The court highlighted that while copyright law protects intellectual property, its application must be balanced with, and consistent with human rights.32
To immediately rectify the unconstitutional defects while Parliament worked to amend the law, the court “read-in” a new section 13A, into the Copyright Act.33 This temporary measure effectively created a legal expectation that allows certain entities, like authorised non-profit organisations, to make, reproduce, and distribute accessible format copies of published works without needing prior permission from the copyright owner. The court suspended its declaration of invalidity for a period of 24 months to give parliament time to pass legislation to fix the defects in the Copyright Act and, importantly, to align it with the Marrakesh Treaty.34
The court’s judgment strongly affirmed that access to knowledge, and information is not a privilege but a fundamental human right. It underscored that restricting access to literary works for persons with visual, and print disabilities amounts to an infringement of their dignity, and their ability to fully participate in society, and education.35 The judgment powerfully reinforces the concept of the state’s positive obligation to act, rather than simply refraining from interfering. The court found that the state’s inaction – its failure to amend the Copyright Act and ratify the Marrakesh Treaty – was a direct cause of the violation of the right to education. This is a critical legal finding that could be leveraged in future cases concerning other issues in basic education.
4.2.4South African jurisprudence and international law on learning materials
These judgments have contributed to a substantive understanding of the right to a basic education, and reinforce the notion that education provisioning is immediately realisable, and imbedded in the right to education.36 The South African legal position is clearly aligned with international legal standards on what the right to education entails, but it sets a higher standard by explicitly stating that every learner is entitled to a textbook in every subject at the commencement of the curriculum. In contrast, General Comment 1337 of the CESCR allows for the developmental context of States Parties, and thus the availability of resources, while the Appeal Court prescribes a 100% compliance rate for the availability of textbooks throughout the basic education system in the Textbook 338 case. It underscores that effective education requires more than just access to a school building; it demands adequate resources, and a quality learning environment. In this regard the courts consistently meet the imperatives of transformative constitutionalism, expecting the state to do more than draft elaborate policies but to implement them conscientiously.39
The focus of these judgments was on textbooks, and not teaching materials mentioned in General Comment 13 of the CESCR,40 which probably include other essentials such as stationery, and educational aids, or educational resources such as counting blocks, fraction tiles, posters, and flashcards. Since the CESCR were intentional in not defining the term to leave the provision open to contextual and evolving interpretation over time one can assume a wide interpretation of the term.
In Freedom Stationary (Pty) Ltd v Member of the Executive Council, For Education, Eastern Cape41 the Centre for Child Law argued that the review of a tender would delay the distribution of stationery in the province and infringe on the learners’ right to education. However, the court found that by expediting the review date of the tender process, the court can protect the applicant’s right to administrative justice, while the learners have to wait only a little longer for stationery. However, one should keep in mind that this judgement predates the Juma Musjid 42 case requiring immediate realisation of the right to education.
There are no official minimum norms, and standards for teaching materials, and the need for the development of such norms, and standards might be necessary, especially considering the inclusion of Grade R as part of compulsory education. Furthermore, the importance of the minimum norms, and standards for teaching materials is highlighted with the renewed focus on foundation phase education, and the special educational needs of children in Grade R, and the foundation phase in general.
4.3Infrastructure
As far as infrastructure is concerned General Comment 1343 of the CESCR provides that for education to be available, State Parties should provide a sufficient quantity of functioning educational institutions, and programmes which will likely require “buildings or other protections from the elements, sanitation facilities for both sexes, [and] safe drinking water, … while some will also require facilities such as a library, computer facilities, and information technology.”44
The enduring legacy of apartheid-era inequalities in the education system is evident in the lack of adequate school infrastructure in South Africa, especially in historically disadvantaged, and rural schools. The impact of these inequalities remains unjustifiably part of the existing realities45 of the education landscape and culminated in numerous legal battles spanning more than two decades, attempting to eradicate unsafe schools known as mud schools. Mud schools refer to schools that are poorly constructed from mud, and other unsafe materials such as wood, asbestos, and corrugated iron. These schools often lack basic amenities such as sanitation, electricity, and adequate furniture. These conditions not only pose significant safety risks, but also infringe on the rights to equality, dignity, and education.46
In 2004 President Mbeki had committed to improving the conditions at these schools, but by 2011 many of these schools remained intact, and eradication was slow. This culminated in the first Mud school case where seven Eastern Cape schools approached the courts to address the issue. This matter was settled, and the DBE committed to eradicating all mud schools in the country. To achieve this, the DBE allocated R 8.2 billion over a four-year period and launched the Accelerated Schools Infrastructure Development Initiative (ASIDI). Three years later, the second Mud schools’ case was launched in response to the delays in implementing the ASIDI, and it was also settled.47
4.3.1Norms and standards for school infrastructure
Simultaneously, the social movement, Equal Education, engaged in advocacy, and litigation to compel the Minister to promulgate minimum norms, and standards for school infrastructure in terms of section 5A of the SASA.48 However, by 2011, the Minister was still of the view that the promulgation of such regulations was a matter of discretion, and she was not obliged to promulgate such.49 By 2013, the parties reached a settlement that the Minister would publish draft minimum norms, and standards for school infrastructure for public comments by 12 September 2013, and publish those regulations by 30 November 2013. The proposed regulations were criticised due to the lack of stipulated timeframes for eliminating unsafe structures, the inclusion of a provision making the implementation of norms, and standards “subject to the resources, and co-operation of other government agencies,” and the failure to prohibit the use of inappropriate building materials. These issues continued to be contentious, leading to further legal challenges even after the norms, and standards were promulgated.50
In Equal Education and Another v Minister of Basic Education and Others (Equal Education Infrastructure51 case) the applicant directly challenged the provisions of the 2013 Norms and Standards for Schools Infrastructure.52 The High Court found that “it is indisputable that school infrastructure plays a significantly high role in the delivery of basic education”,53 and that the right to basic education includes the provision of proper facilities.54 Crucially, the court declared Regulation 4(5)(a) unconstitutional, and invalid. This regulation sought to make the implementation of norms, and standards “subject to the resources and cooperation of other government agencies and entities responsible for infrastructure.”55 The court found that this “escape clause” rendered the government unaccountable for the provision of school infrastructure, violating constitutional values of accountability, cooperative governance, and the immediately realisable nature of the right to basic education.56 The court rejected arguments that budgetary constraints could justify such a limitation on an immediately realisable right.57 The court delivered judgment in July 2018, and its orders also addressed specific infrastructure deficiencies, requiring that:
- Schools and classrooms built substantially from mud, asbestos, metal, and wood must be replaced within three years from the publication of the regulation by complaint structures.
- Schools without access to any form of power, water, or sanitation must comply with relevant norms, and standards within three years from the publication of the regulations.
- Exclusions for planned projects to be exempted from meeting the regulations were also deemed unconstitutional, requiring all current, and future planning to be consistent with the regulations.
- Furthermore, the court ordered that plans, and reports on infrastructure must be made publicly available to ensure transparency, and accountability.
The structural interdict aims to maintain the distinction between the roles of the judiciary, and the executive while ensuring that the right to education is realised. Despite the promulgation of the regulations, and case law stipulating that all schools should meet the requirements of the norms, and standards, numerous reports indicate that large numbers of schools do not comply with these regulations, and that there is an apparent lack of urgency on the part of the DBE, and PDEs to meet them in the near future.58
4.3.2Infrastructure and overcrowded classrooms
The lack of adequate infrastructure often results in overcrowding, and human rights violations. In 2024 in Concerned Parents of Learners at Atwell Madala Senior Secondary School and others v v Government of the Eastern Cape and others59 the court addressed the “pervading problem of overcrowding in classrooms utilising its’ Infrastructure Norms and Plans and by providing adequate infrastructure, thus making the learning environment at the applicant schools inconducive.” The Eastern Cape Department of Education (ECDOE) “admit[ted] the overcrowding of classrooms at not only the schools identified by the applicants but many other schools across the Eastern Cape Province together with their appalling effects”,60 and its “previous persistent breach of the Infrastructure Norms, and the learner’s right to basic education.”61
The court held that the state’s obligations require the provision of a range of educational resources such as schools, classrooms, teachers, and teaching materials, and appropriate facilities for learning. While the court declined to exercise ongoing supervisory jurisdiction in this specific case, citing separation of powers, it emphasised that the ECDOE’s existing policy on infrastructure provisions must be implemented without delay to address the 2107 overcrowded classrooms in 424 schools in the four affected education districts.62
The overlap between children’s right to a safe environment, and adequate infrastructure is evident in Baku v Minister of Basic Education and others63 where the court held that the Member of the Executive Committee (MEC) should be held liable for damages caused when a child was stabbed in an overcrowded school. The court highlighted the link between poor discipline, overcrowded classes, poor supervision, and lack of compliance with the responsibility of the MEC to build enough schools.64 The unfortunate reality is that resources that could have been used to improve infrastructure have to be used to settle damage claims, leaving learners destitute in overcrowded schools, possible harm, and human rights violations.
A further illustration of the court’s role in addressing infrastructure-related overcrowding is found in Swartruggens Gekombineerde Skool and Another v Head of Department of Education, North West Province and Others.65 In this matter, the court was required to engage directly with the State’s obligation to provide adequate school infrastructure in circumstance where overcrowding severely undermined access to education. The judgement reinforces the principle that the right to education is immediately realisable and necessarily encompasses the provision of sufficient physical facilities, including classrooms that can accommodate learners in conditions conducive to teaching and learning. Importantly, the court linked infrastructure inadequacy to broader systemic failures, including ineffective planning and delayed implementation of infrastructure programmes. In doing so, it underscored that provincial education authorities bear a positive duty not merely to adopt policies, but to ensure their timely and effective execution. The case thus strengthens the emerging jurisprudence that overcrowding is not a neutral administrative challenge, but a constitutional issue that implicates dignity, safety and the substantive quality of education. It further affirms that courts are willing to scrutinise state inaction where infrastructure deficits persist, thereby reinforcing the transformative potential of judicial intervention in addressing entrenched inequalities in the schooling environment.
4.3.3School furniture
In Madzodzo and Others v Minister of Basic Education66 the court found a breach of the right to education, equality, and dignity because of the lack of providing “adequate, age and grade appropriate furniture which will enable each child to have his or her own reading and writing space.” This ruling notably specified the standard at a concrete level, independent of government policy. The court order also ordered the Departments to do an audit to determine the exact need for school furniture for the whole Eastern Cape province, and that all schools are furnished with the required furniture within 90 days of the completion of the audit. A supervisory order compelled the Departments to inform the court of any failures to meet the court order, reasons for the failure, and proposed steps to address the failure, and envisaged date of compliance with the court order to provide appropriate school furniture.
4.3.4Sanitation facilities
The lack of adequate, and safe sanitation is at the core of numerous cases sparked by the death of five-year-old Micheal Komape in a pit toilet at his school.67 Not only is proper sanitation an element of the right to education in terms of international law,68 but failing to provide it also constitutes a breach of dignity, and equality.
Although the intention of the Norms and Standards for School Infrastructure69 was to address sanitation backlogs by 2016 it remains a persisting issue. Numerous deadlines for the eradication of pit toilets had been missed. The tragic loss of innocent lives in pit toilets is an indictment against those who are in a position of power, and have the responsibility to respect, protect, promote, and fulfil the rights of vulnerable learners.70
4.3.5Electricity and information technology
In Eskom Holdings SOC Ltd v Vaal River Development Association,71 the Constitutional Court affirmed that the negative impact on schooling caused by the reduced supply of electricity infringes on the right to basic education. These deficiencies undermine the transformative purpose of education, which is crucial for individual development, and escaping poverty.
The lack of stable electricity provision also impacts on the availability of internet access which plays an important role in the realisation of the right to education.72 Research related to the use of digital resources during the corona virus disease 2019 (COVID-19) disruptions emphasises a significant and growing digital divide. While private, and more affluent schools successfully transitioned to online teaching, rural, and poor urban schools struggled with inadequate hardware, lack of internet connectivity, and a shortage of computers. This was compounded by erratic power supply (loadshedding), cable theft, poor maintenance, the high cost of data, and the lack of the required skills, and confidence of many educators for online pedagogy.73 Without timely, and dedicated intervention to provide electricity, and online technology to all schools, inequality in schools will persist, and the ideals of social justice, and transformative constitutionalism will not be reached.
It is prudent to not only acknowledge the need for a stable, and affordable supply of electricity to ensure the realisation of the right education. It requires the state to take appropriate action to stay abreast of the latest developments regarding information technology, artificial intelligence, and the need for affordable access to data. These demands not only require rapid policy development on the use of artificial intelligence in education, but also to speed up the rollout of infrastructure, and training of teachers to ensure equal access to a curriculum that addresses modern demands through the presentation of a modern curriculum that includes coding, and robotics in all schools. While the keyboard is ruling the world, many schools are still stuck in the era of the blackboard. Consequently, the gap between acceptable, and adaptable education, and outdated education continues to grow.
4.3.6South African jurisprudence and international law on infrastructure
General Comment 13 of the CESCR was drafted in 1999, and is in need of re-evaluation, considering the influence of technology on the education context, and the realisation of the right to education. However, complying with international standards for the realisation of the right to education in South Africa is unequal, with many learners exposed to infrastructure that does not meet the standards set in General Comment 13 because the lack of basic infrastructure, such as sanitation, technology, libraries, and laboratories persist, or existing infrastructure is unsafe.
However, the impact of the courts on the standards set for school infrastructure is commendable, and often sets the bar higher than the international standards by being for instance explicit about unacceptable building materials, and compliance with the explicit provisions of the Norms and Standards for School Infrastructure.74 This is in sharp contrast to the international provision that requires “buildings or other protection from the elements,” and stating that “some [facilities] will also require facilities such as a library, computer facilities, and information technology.”75 The South African legal framework requires that all schools should comply with the Norms and Standards for School Infrastructure,76 and ensure compliance, and accountability through structural interdicts. The immediately realisable nature of the right to a basic education in South Africa ensures a greater urgency to provide high quality infrastructure.
4.4Teaching and non-teaching staff
“[T]rained teachers receiving domestically competitive salaries…” is another benchmark for the availability of education in terms of the 4A framework.77 The South African courts echoed this sentiment and held that the provision of competent teachers, and non-teaching staff is also integral to the right to a basic education, and that vacancies should be filled. Shortages can lead to an undue burden on educators, detrimentally impacting the quality of education.78
The current moratorium on the appointment of non-teaching staff, and delays in filling educator vacancies directly impair the availability, and accessibility of education.79 The reality is that the lack of adequate staff translates into larger classes, reduced supervision, disrupted teaching time, unsafe, and unsanitary conditions, and weaker learner support services, which can amount to an ongoing failure to fulfil the state’s section 29(1)(a) obligations as well as the rights to dignity, equality, safety, and the best interests of the child.
4.5Nutrition
The National School Nutrition Programme (NSNP), which provides daily meals to qualifying learners, is also considered part of the right to basic education. The state has a constitutional, and statutory duty to ensure its implementation. During the Covid-19 pandemic the NSNP stopped providing learners with meals in eight provinces. In 2021 in Equal Education v Minister of Basic Education (School Meals80 case) the court ordered the DBE, and PDEs to provide meals to all learners, not only those whose classes commenced, or who were at school in terms of the rotation schedule.
Including basic nutrition into the right to education exceeds the international standard for availability of education.81 It also raises new questions, such as the responsibility of schools to provide poor learners with meals during school holidays, and over weekends.82 These questions are in line with the demands of a transformative constitution, and highlight the interrelatedness of children’s right to food, and water, to basic nutrition, and to be protected from neglect, and the right to education.83 This highlights that schools are responsible for respecting, protecting, and promoting all human rights, not only the right to education.
4.6Transport
In Tripartite Steering Committee v Minister of Basic Education,84 learners lived long distances from school, and they had to walk these long distances to school, which subjected them to physical, and psychological strain, which affected their school performance, and increased dropout rates. The applicants challenged the decision by the PDE to refuse scholar transport to specific learners without explanation, arguing that the lack of transport violated the constitutional right to a basic education. The High Court held that this right to basic education is “meaningless” unless learners can physically access the education being offered. The court found that where learners’ access to school is hindered by distance, and the inability to afford transport costs, the state is constitutionally obliged to provide free scholar transport. This decision effectively incorporated scholar transport as an essential component of the unqualified, and immediately realisable right to a basic education.
While the court acknowledged that the development, and implementation of policies is the prerogative of the executive branch of government, its policies must be formulated and applied flexibly to ensure the fulfilment of the constitutional right to a basic education. Furthermore, the courts retain the authority to scrutinise these policies for their constitutional compliance, and reasonableness.
The requirement to provide scholar transport85 is in line with the international requirement that educational institutions should be “within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g., a neighbourhood school), or via modern technology (e.g., access to “distance learning” programme).86 However, the need to regulate school transport is evident from the number of incidents where children lost their lives in public transport, or as part of the school transport project. Unlicenced and/or reckless drivers, unroadworthy vehicles, and lack of accountability for breaking traffic rules are some of the most common reasons for harm caused to learners while transported to, and from schools. There is also public outcry highlighting the lack of schools, especially in townships, forcing parents to send their children to schools that are not within safe walking distance from their homes.87 This is a violation of not only the right to education but also safety, dignity, and equality.
4.7Assessment of learner performance
In the Moko case88 the acting principal barred the learner from writing the final matric paper in Business Studies because he had failed to attend certain extra classes. Consequently, he did not finish his matric with his peer group and could not continue with tertiary education. The Constitutional Court confirmed that the matric final examinations (National Senior Certificate (NSC)) fall squarely within the scope of the right to a basic education and reiterated that the final assessments are the culmination of the basic education process; therefore, access to the NSC examinations is an essential component of this right.
4.8Litigious nature of basic education and disparity of resource provision
Despite clear guidance from international human rights law, particularly the 4A framework discussed above,89 and the Constitution90 on the state’s obligation to realise the right to education, schools, and civil society organisations have had to repeatedly seek judicial intervention to clarify the content of this right. This necessity for litigation, particularly within the context of basic education, highlights a significant, and ironic disparity when contrasted with the progressively realisable right to higher education.
Issues that have formed the basis of landmark legal challenges in basic education – such as the provision of textbooks, safe infrastructure, learner transport, and school nutrition – are either not present at the same scale in higher education or are explicitly covered by students’ financial aid programs like the state-sponsored National Student Financial Aid Scheme (NSFAS). This scheme includes allowances for textbooks, accommodation, a living allowance, and a personal care allowance, which are integral to the entitlements of qualifying students.91
4.9State responsibility in terms of section 7(2) of the Constitution
Section 7(2) of the Constitution92 obliges the state to respect, protect, promote, and fulfil all constitutional rights. Therefore, this obligation should guide the state’s priorities, decisions, and actions, especially when a right impacts a vulnerable group, and the right is immediately realisable.93 The recurring need for civil society organisations to litigate on behalf of the most vulnerable children, who are often without a voice, or political leverage, raises profound constitutional, moral, and political questions about the state’s commitment to its constitutional obligations. This litigious reality challenges the state’s role as a primary agent of transformative constitutionalism, a foundational principle of South Africa’s post-apartheid democracy. It is on the one hand, concerning that so many cases concerning the right to education was instituted by civil society organisations because parents, and learners often do not have the means to enforce their rights. On the other hand, it is also affirming that the ideals of the Constitution, and the right to education are respected, and promoted by society at large, and that the judiciary continues to play a vital part in upholding the ideals of a transformative constitution, and education.
At the heart of this issue is an empowering right – basic education – that holds the potential to dismantle enduring legacies of poverty, and marginalisation. Therefore, the state’s failure to proactively, and consistently secure this right for its most vulnerable citizens necessitates a critical re-evaluation of its commitment to both its moral duties to act as primary torchbearer of social justice, and systemic change.
