The right to basic education in South Africa

Section 29 of the Constitution, which grants everyone the right to education, is one of the most hotly debated sections of the Bill of Rights for a range of reasons including its significance for the realisation of other rights. The implementation of the right to basic education as set out in section 29 is not subject to resource availability. It is therefore a right that has to be directly and immediately (as opposed to progressively) implemented.¹¹ It is argued that for this reason the right to basic education under section 29 is of higher priority relative to other rights.¹²

Two meanings have been ascribed to the term "basic education" as used in South African legislation and education policy.¹³ In the first sense, the term indicates a level of education computed on the basis of time, such as a period of five years of primary education; in the second, "basic education" refers to a certain content of education such as elementary reading and arithmetic skill.¹⁴Adopting the latter approach, Woolman and Fleisch define "basic education" in South Africa as the "minimum levels of literacy, numeracy and essential life skills necessary to do more than menial work in a complex society". They argue that basic education should be about the adequacy, as opposed to the level, of education.¹⁵ This argument accords to an extent with the definition in the World Declaration of Education for All highlighted above. However, the World Declaration goes further to recognise that primary education is the main delivery channel for basic education.¹⁶

The White Paper on Education and Training (WP 1), adopted at the dawn of democratic governance in South Africa, endorsed the definition of "basic education" in the World Declaration on Education for All, arguing that basic education "must be defined in terms of learning needs appropriate to the age and experience of the learner".¹⁷ However, WP 1 subsequently stipulated that the design of education programmes to the level of general education and training (GET) would adequately define basic education for the purpose of the constitutional requirement.¹⁸ The WP 1, therefore, seems to have taken a position that accommodates both perspectives. Subsequently the South African Schools Act¹⁹ (SASA) took WP 1's view of basic education further as a level of education that covers a period of 10 years up to grade 9 or the age of 15 years, whichever comes first.²⁰ This period coincides with the GET phase of education.²¹ The GET level is also prioritised in the allocation of state education resources, a trend that at the international level is associated with the primary education phase.²² This suggests that basic education in South Africa, in so far as it applies to children, refers to the primary education phase as understood in international law.

The two perspectives on the meaning of “basic education” in South African law and policy are not mutually exclusive. Rather, they are complementary. Indeed, it is not rational to interpret basic education solely in terms of levels because an organisational structure and the sufficiency of education are complementary aspects of an education system. Learning is also a function of time, and therefore it would not be sufficient to define “basic education” exclusively with respect to its content.

The meaning of the right to education, particularly what the full implementation of the right would actually entail, is yet to be fully determined by South African courts. Nevertheless, a body of jurisprudence on some aspects of the right is slowly emerging. Cases such as the Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa (the Western Cape Forum case),²³ the Centre for Child Law v Government of the Eastern Cape Province (the mud schools case), the Centre for Child Law v Minister of Basic Education (the post-provisioning case) case,²⁴ and the Governing Body of the Juma Musjid Primary School v Essay case (the Musjid case)²⁵ have been instrumental in shaping the understanding of the right.

The Musjid case was the first time the Constitutional Court considered the content of the right to education in the light of the principle of the best interests of the child.²⁶ In its decision the Court adopted the aims of education in Article 29 of the CRC in the interpretation of section 29 of the Constitution.²⁷ This is important as an entry point for the international jurisprudence on the aims of education.²⁸ Article 29 of the CRC recognises the aims of education as the defining components of the content and hence of the quality and acceptability of education. Accordingly, in view of the Court's acceptance of the CRC's approach, the aim of fully developing the personality and talents of children under Article 29(1) of the CRC should be the primary agenda of section 29 of the Constitution. The Court in the Musjid case also highlighted "access to a school" as a necessity for achieving the right to basic education.²⁹ This is especially significant for the education of children with disabilities in the light of the inadequacy of appropriately equipped schools to facilitate access by these children.

In the Western Cape Forum case, the Western Cape High Court addressed the rights of children with severe and profound intellectual disabilities to basic education. The Court stated that the State has a duty to provide equally for the education of all children, including those with severe and profound disabilities.³⁰ This reasoning is significant in that it accords with the understanding that education is broader than classroom education with academically examinable outcomes. Rather, education includes the development of a child's potential, personality, talents and creativity,³¹ which may not be academically assessable. The Court also determined that the National Strategy on Identification, Assessment and Support (SIAS) that is applied in the implementation of White Paper 6 on Special Needs Education³² (WP 6) had the effect of excluding children with severe and profound disabilities from receiving education, and that such exclusion was discriminatory and unconstitutional.³³

In the light of the earlier socio-economic rights jurisprudence of the Constitutional Court, such as the Grootboom and Treament Action Campaign cases,³⁴ certain other interpretations may be anticipated. For instance, the Constitutional Court has maintained a preference for the reasonableness standard in the interpretation of the Bill of Rights, as opposed to the minimum core approach, which requires states to ensure at the very least the minimum essential levels of a particular right.³⁵ In the Grootboom case, the Constitutional Court was of the view that whereas there is indeed an obligation to ensure the minimum core of rights, the pertinent question under the South African Constitution was if the measures that the state was taking for the implementation of the rights were reasonable.³⁶ In the Treatment Action Campaign case the Constitutional Court reiterated the difficulty of determining the minimum core of rights, and hence its preference for a reasonableness assessment when determining whether or not the rights under the Constitution have been fulfilled.³⁷ The reasonableness approach essentially allows a case by case assessment of whether measures taken to implement a right are reasonable in the circumstances, and that such measures do not exclude those with the greatest need in a particular context. The reasonableness approach has further been interpreted to mean that education ought to be interpreted in accordance with what the state can afford.³⁸ It can therefore be anticipated that though it is generally accepted that children's right to basic education is an unqualified right, it is less likely to be interpreted as imposing an absolute duty to realise it immediately.