1.1 INTRODUCTION: THE CONSTITUTION AS A TRANSFORMATIVE PROJECT

1.1 INTRODUCTION: THE CONSTITUTION AS A TRANSFORMATIVE PROJECT

General Comment 13 of the Committee on Economic, Social, and Cultural Rights 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, which includes the right to adult basic education. 2 Furthermore, the Constitution of the Republic of South Africa 3 (Constitution) requires that the interpretation of the rights in the Bill of Rights must 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 the harm and create a future with dignity, equality, and freedom for everyone. In this endeavour, the Constitution 5 provides a powerful vehicle to transform the South African society in achieving substantive equality, social justice, and human dignity. The importance of the Constitution is further highlighted through 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, in general and in education in particular. 7

The inclusion of the right to education in the Bill of Rights should therefore be regarded as a vital instrument to dismantle systemic inequalities created by apartheid. It should also address the implementation failures of legitimate constitutional aspirations and undo the impact of corruption that has plagued society since the advent of the new democracy in 1994. 8 This historical context underscores the urgent need for a legal and political framework for education that not only guarantees rights but also actively dismantles structures and practices that perpetuate disadvantage, 9 build institutions that promote human rights 10 and foster accountability for human rights violations.

This chapter will critically analyse the right to education, what it entails, and its realisation through the lens of transformative constitutionalism by examining the legal framework, its judicial interpretation, and the ongoing challenges to its full realisation as a transformative ideal. Since the focus of the book is on basic education, this analysis will not include an in-depth discussion on further education.