4 The implementation of inclusive education: immediate or progressive?
WP 6 highlights the fact that the contextual (economic) realities of South Africa necessitate a progressive approach to the realization of education for all.92 The pathway to inclusive education according to WP 6 is therefore set on a progressive realisation platform typified by a three-phased implementation plan. The three phases entail the taking of short-term steps that were contemplated for 2001-2003, medium-term steps in 2004-2008, and long-term steps in 2009-2021.93 The plan provides for the designation of schools to be converted into full service schools, starting with 30 and progressing to 500. The Policy stipulates that the eventual number of full-service schools will be determined by need and the availability of resources.94 The progressive realisation approach is also reflected in the funding strategy, which is predicated upon the need to make more use of the existing resources, and the imminent possibility of inadequate budgetary allocations in the existing fiscal environment.95
Criticism of the government's commitment to the realisation of the right to basic education in South Africa has concentrated mainly on the issue of "free" basic education, particularly on the constitutionality of the fee-paying approach to financing basic education in South Africa.96 The origins of the current school fee framework in South Africa are traceable to the recommendations of the Review Committee on the Organisation, Governance and Funding of Schools as captured in Education White Paper 2.97 The Committee recommended a "financial system for public schools based on partnership between the government and communities, on the basis that nothing else is affordable in the present conditions".98 It was pointed out that this proposal was likely to compromise the commitment to free and compulsory schooling. In rebuttal, the Review Committee argued that the goal of free and compulsory education was to ensure that no child was denied access to a minimum quality of basic education, and that for as long as children below the fee threshold could be admitted to school, then there was no breach of this provision. In fact, the Review Committee was of the view that the approach would "ensure that free and compulsory education is available to all who require it".99
Generally, socio-economic rights such as the right to education are subject to progressive realisation.100 However there is widespread acceptance at the international level that children's right to primary education is not subject to progressive realisation.101 Primary education is also considered to be a minimum core obligation for all states, and therefore there is a duty upon states to implement it immediately.102 The duties in respect of the right to primary education include granting it priority in resource allocation and implementation, taking immediate (as opposed to progressive) measures towards the realisation thereof, and providing the service free of charge.
Arguably, also, the "unqualified" nature of the right to basic education under section 29 of the Constitution applies both to the elimination of fees and to the availability of education infrastructure.103 It would also be unreasonable to suggest that some children with disabilities should wait for 20 years (the lifespan of WP 6 and in terms of which inclusive education is to be attained) for a suitable school to be provided in order for them to have access to proper education.104 Such an approach would be tantamount to condemning the vulnerable to pay the price of the fiscal burden imposed on all, and would be both unreasonable and unjustifiable.105
Furthermore, children's rights under section 28 of the Constitution have been interpreted as containing "no internal limitation subjecting them to availability of resources and legislative measures for their progressive realization".106 The right to education is not addressed in this provision.107 There is, however, no reason why an approach similar to the one adopted in respect of other provisions on children such as section 29 cannot be applied.108 It is not contested that a progressive approach as proposed in WP 6 (that is, to progressively develop inclusive education infrastructure) limits the right to basic education. What remains to be established is whether or not this limitation is legitimate in terms of section 36 of the Constitution. One of the requirements for a justified limitation is that such a limitation be by a law of general application.109 The limitation in the present case is based solely on a policy document, that is, WP 6, which does not satisfy the section 36 criterion because it is a Policy as opposed to a law and cannot therefore provide a justifiable limitation.110
However, the Constitutional Court has argued that children's rights do not have absolute priority over other rights under the Constitution. In the Grootboom case the Constitutional Court was of the view that it is unacceptable that the rights of children (particularly via section 28 of the Constitution) should trump the progressive realisation approach under the Constitution.111The Constitutional Court also seems to have shunned the application of the minimum core approach, in terms of which it is incumbent upon the state to guarantee free and compulsory primary education immediately.112 Essentially, therefore, it is possible to justify a progressive approach to the realisation of inclusive education.