1.2 THE LEGAL AND INTERNATIONAL FRAMEWORK

1.2 THE LEGAL AND INTERNATIONAL FRAMEWORK

The discussion commences with a general overview of the right to a basic education in South African law, followed by a broad overview of international law guiding the right to education. The key domestic instruments the governs the realisation of the right to education includes the Constitution, 1 the South African Schools Act 2 (SASA), the National Education Policy Act 3 (NEPA), several regulations 4 and prominent policy documents 5 and will be discussed in what follows.

1.2.1 Everyone has a right to a basic education

Section 29 of the Constitution 6 provides that everyone has the right to a basic education, including adult basic education. The use of “everyone” is deliberately broad, meaning that the right is unqualified as to who can claim it. Therefore, everyone who is within the boundaries of the country is entitled to a basic education, irrespective of nationality, immigration status, 7 age, 8 level of disability, 9 pregnancy 10 or any other distinguishing features. This universal application is a direct counterpoint to the discriminatory and fragmented education system of the past, which was based on race and geography. In practical terms, the section implies that the state must provide accessible infrastructure, inclusive curricula, and trained teachers to ensure that tall children can learn alongside their peers. 11 Particularly, in South Africa, with its high unemployment rate, the state is obliged to provide for literacy and numeracy programmes to empower individuals economically and socially. 12

1.2.2 Scope and aims of a Basic Education

Basic education is not defined in the Constitution 13 and its content developed over time through judicial interpretation. 14 In general, the South African law follows international law trends and leans towards an adequacy approach (referring to a specific standard or quality of education 15 and extends beyond the curriculum to the learning environment, including infrastructure, 16 safety, clean environment and adequate learning materials). For example, due to the lack of textbooks, the Supreme Court of Appeal clarified that the right to education includes the right of every child to have access to all the prescribed textbooks from the onset of the curriculum delivery. In contrast, the time-based approach prescribes a specific period of schooling, without specific quality requirements. 18 Realising the right to education is not limited to the number of years of compulsory education for children only, but includes a right to adult basic education too. Basic education is not about formal schooling but rather encompasses a broad set of foundational capabilities essential for personal development, democratic participation, and socio-economic empowerment. Education aims to optimise the holistic development of the individual, 21 and it includes numerous skills and competencies such as literacy, numeracy, civic knowledge, self and environmental awareness, physical, social and emotional skills, ethical conduct and creativity to name a few. In a nutshell, the right to a basic education is a cornerstone for individual growth and societal progress. It equips learners with essential knowledge, skills, and values to navigate life meaningfully. Ultimately, it ensures equal opportunity, encouraging empowerment and participation in a just society. 22

The shortfall in fulfilling this right perpetuates cycles of poverty and entrenches inequality. When learners are denied adequate resources due to corruption, unlawful administrative action, omission to take administrative action or are excluded due to bureaucratic hurdles, their rights under both the Constitution and international instruments such as the Convention on the Rights of the Child 23 are violated. This undermines the principle of equality before the law and erodes trust in the justice system, as deserving citizens and others are denied opportunities to uplift themselves through education. 24 This requires dedicated accountability measures which include parliamentary oversight, litigation, prosecution, structural interdicts and/or disciplinary action against staff.

The failure to deliver on this right is discussed in more detail below and demonstrates how it perpetuates systemic injustice, trapping vulnerable groups in disadvantage and defeating the ends of justice. Ultimately, the gap between constitutional promise and lived reality highlights how the state’s shortcomings in delivering education continue to violate fundamental rights and obstruct the pursuit of social justice in South Africa.

1.2.3 Unqualified nature of the Right to a Basic Education

Notwithstanding the definitional framework provided above, the paramount legal characteristic of section 29 of the Constitution resides in the absolute and unqualified nature of the right to basic education. Unlike other socio-economic rights, or the right to further education, the right to a basic education is not subject to internal qualifiers like “progressively realisable” or “within available resources.” The realisation of the right to a basic education is thus not subject to a reasonableness standard, nor is it subject to the availability of resources. The Constitutional Court has affirmed this unique formulation in the landmark case of Governing Body of the Juma Musjid Primary School v Essay NO and Others (Centre for Child Law and Another as Amici Curiae), 25 (Juma Musjid case), where it was held that the right is “immediately realisable”. This means the State’s duty is not simply to take rational, progressive steps over time, but to provide a basic education as a direct, immediate, and positive obligation. Unlike the International Covenant on Economic, Social and Cultural Rights (ICESCR), which treats education as progressively realisable, South Africa requires direct provision. Measures such as no‑fee schools, the National School Nutrition Programme, and compulsory Grade R highlight this proactive commitment. As a result, education is upheld as a universally enforceable right, secured through constitutional obligation rather than personal means or gradual policy development.

The unqualified nature of the right is further highlighted through the reference to a basic education, and not just the right to basic education. The Constitution does not prescribe a single, rigid model of what constitutes basic education. In Moko v Acting Principal of Malusi Secondary School and Others 26 (Moko case), the Court treated “a basic education” as education that culminates in a national qualification. Following the amendment of the South African Schools Act (SASA) 27 through the Basic Education Laws Amendment Act (BELA Act) effective 24 December 2024, compulsory education was extended to include Grade R. Learners are now required to attend school from the start of the year they turn 6, starting in Grade R, until Grade 9 or the year they turn 15, whichever comes first. 29 These developments highlight the distinction between compulsory education (Grade R – Grade 9) and a basic education, with basic education ending in the successful completion of Grade 12 (Grade R – Grade 12). The BELA Act thus changed the compulsory school attendance framework and not the constitutional right to a basic education itself.

The right can be delivered through a variety of institutions, including independent schools, 30 public schools, 31 single medium schools, 32 online schools, home education, 33 mainstream schools, resource centres, and full-service schools. Access to a basic education is enhanced through the quintile system, where quintile 1 to 3 schools are no-fee public schools, while quintile 4 and 5 schools are also public schools but may charge school fees. Innovative models such as the Western Cape’s Collaboration Schools and Donor-Funded Schools provide targeted support to underperforming schools, while Intervention Facilities cater for learners with behavioural challenges. 35 The plurality of institutions and streams of education, such as academic, vocational, and technical education reflect the constitutional commitment to ensuring that every learner has access to education suited to their circumstances and interests, thereby broadening opportunities for meaningful participation in society and ensuring the opportunity for the optimal development of every learner. The holistic and full development of all the capabilities of the child is indicated as part of the aims of education. 36

However, the flexibility must align with the State’s obligation to ensure that all forms of basic education are not inferior to public education, are appropriate, effective, and dignified for all learners. 37 The state thus has to monitor all forms of education to ensure quality education, equality and reasonable accommodation of the learning needs of every learner to optimise their best interests. For learners with disabilities or cognitive challenges, differentiated approaches such as adapted curricula, assistive technologies, and remedial teaching are essential to meet constitutional imperatives. 38

In Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Another, 39 the Constitutional Court held that excluding learners with severe intellectual disabilities from meaningful education violated their rights to equality and dignity, affirming that the right to basic education must be inclusive. This demonstrates that the unqualified nature of the right requires the State to provide education that is not only accessible but also meaningful, equipping learners with the skills, knowledge, and holistic development to function fully in society. 40

1.2.4 Limitation of the Right to Education

The unqualified nature of the right to a basic education has profound implications for how the right can be limited and how courts adjudicate infringements. Due to the immediately realisable requirement of this right, any limitation of this right cannot be justified by a mere reasonableness test, as with other socio-economic rights. 41 Instead, it can only be limited in terms of a law of general application that meets the stringent requirements of section 36 of the Constitution. 42 In the absence of such a law, there can be no valid limitation. This creates a much higher legal standard for the state; while a lack of resources might justify a slow rollout of housing, it cannot justify a failure to provide the “minimum core” 43 of basic education. In essence, the courts will always be obliged to determine whether conduct or decisions regarding education meet the requirements for the realisation of the right to education. Failing to meet the constitutional imperatives will result in a finding of unconstitutionality, which can only be justified if it meets the requirements of section 36.

1.2.5 Resource Allocation and the Separation of Powers

One should be careful not to misinterpret the immediate realisability of the right to mean that it trumps all other constitutional rights or that it grants the judiciary the power to direct the entirety of the national budget toward schools. While a lack of resources does not justify the limitation of the right, the availability of resources plays a critical role at the remedial stage of litigation. 44

When a court finds an infringement, it must balance the need for an effective remedy with the separation of powers principle. Courts must show a degree of judicial deference to the executive’s role in policy-making and budgeting. 45 Therefore, court orders should be designed so that the State can realistically give effect to them without the court overstepping its functions by making specific budgetary line-item decisions. 46 The courts often use a supervisory order or a structural interdict as a remedy to address infringements of the right to education. 47 For instance, the courts instructed Departments of Education to report back to the courts on progress in delivering textbooks to schools.

1.2.6 Structural Interdicts and the Komape Precedent

The failure to provide “indubitably necessary” resources 49 such as safe sanitation, textbooks, or basic infrastructure constitutes a direct infringement of the right. While the court may not order the Department to build a specific number of schools in a specific area by a specific date (as this would encroach on executive function) it can issue a structural interdict. 50

This was demonstrated in the series of litigation between the Komape family and the Department of Basic Education (DBE) to the death Michael Komape in a school’s pit toilet. 51 The court found that the continued existence of dangerous pit latrines infringed upon learners’ right to dignity and a basic education. When the Department proposed a plan to eradicate these toilets over a 14-year period, the court found this timeframe unacceptable, particularly since the Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure 52 (Norms and Standards for School Infrastructure) had set an earlier deadline of 2016 for such eradications. The court used its supervisory jurisdiction to send the Department back to the drawing board, ordering them to reprioritize the plan to address the most dangerous schools immediately.

1.2.7 Constitutional rights as interdependent and interrelated

This right to a basic education must be understood as inseparable from other constitutional guarantees, since its fulfilment is a prerequisite for the enjoyment of human dignity, equality, and freedom. This statement is best illustrated in the Juma Musjid 53 case where the Constitutional court emphasised that the right to education is not merely symbolic but directly enforceable, and that its denial undermines the broader constitutional vision of a society founded on human dignity and equality. Similarly, in Minister of Health and Others v Treatment Action Campaign and Others (No 2), 54 while the case centred on health rights, the Court underscored the principle that socio-economic rights are interconnected and must be realised in ways that enable individuals to live lives of dignity. These judgments highlight that education is not an isolated entitlement but a gateway right, essential for the exercise of other freedoms and socio-economic opportunities.

A poor education system not only infringes on learners’ dignity but also hollows out the constitutional guarantee of equality, as unequal access entrenches divisions the Constitution seeks to dismantle. Thus, the right to education is both foundational and relational: its realisation strengthens the enjoyment of other rights, while its neglect undermines the transformative project envisioned by the Constitution. This is illustrated in Head of Department, Department of Education, Free State Province v Welkom High School and Others where pregnant learners’ right to education as well as their rights to dignity, equality, reproductive rights and the best interests of the pregnant learner and her baby had to be considered in disputes on access to education for pregnant learners.

1.2.8 The international and regional frameworks

South Africa’s right to education sits within a dense international and regional matrix that includes the Universal Declaration of Human Rights, 56 the ICESCR, 57 the CRC, 58 and UNESCO’s Convention against Discrimination in Education. 59 Regionally, the African Charter on Human and Peoples’ Rights (ACHPR) 60 underscores non-discrimination, cultural development, and human rights education, while the African Charter on the Rights and Welfare of the Child (ACRWC) 61 makes special reference to the education rights of female, gifted, and disabled children and urges State parties to allow pregnant learners to complete their education and to take steps to prevent the drop-out of learners. Moreover, these instruments provide normative benchmarks, including availability, equality of access, and non-discrimination that States are expected to domesticate through constitutional and legislative measures, thereby shaping the interpretation and implementation of the right to education. 62 Consequently, South Africa’s obligations are not merely aspirational; they are tethered to binding and persuasive standards that require inclusive, equitable, and quality education across the system.

Importantly, international law plays a substantive, interpretive role in South African education law. This is evident from section 39(1)(b) of the Constitution, 63 which directs courts to consider international law when developing the Bill of Rights. Furthermore, scholarship and judicial practice affirm South Africa’s international-law-friendly posture, with courts routinely engaging treaties, general comments, and comparative materials to clarify scope and content, illustrating how global standards concretely shape domestic education-related policy and rights analysis. Thus, both doctrine and practice show that international law meaningfully informs the evolution of the South African right to education.

Most importantly, the 2030 Sustainable Development Goals 64 (especially SDG 4 on inclusive, equitable quality education and lifelong learning) intersect with the 4A framework; availability, accessibility, acceptability, and adaptability, adopted by the UN Committee on Economic, Social and Cultural Rights, thereby supplying measurable targets and evaluative criteria for systemic progress. 65 Consequently, SDG 4’s targets on completion, early childhood development, technical and tertiary access, and skills acquisition, operationalise the 4A scheme in policy and monitoring, guiding resource allocation, curriculum quality, and inclusion strategies in South Africa. In this way, SDG 4 and the 4A framework together provide a coherent roadmap for transformative implementation and accountability in the South African education system.