Introduction
Education rights are contained in section 29 of the South African Constitution. In terms of section 29 everyone has the right to a basic education, including adult basic education; [1] and to further education, which the state, through reasonable measures, must make progressively available and accessible. [2] These rights place a duty on the state to respect an individual’s right to education. It also imposes a positive obligation on the state to promote and provide education by putting in place and maintaining an education system that is responsive to the needs of the country.
The Aims of Education
Rights to education must be understood in light of the aim of education. Education should be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. [3] The right to education as described above is based on the premise that education is a precondition for the exercise of other rights. If guaranteed, it has the ability to unlock the enjoyment of other human rights and ultimately empower individuals to contribute and participate meaningfully in a free society.
Analysis of the Constitutional Framework
The right to basic education, including adult basic education, unlike other socio-economic rights in the Bill of Rights, is neither formulated as a right of access nor subject to internal qualifiers. The right to basic education is immediately realisable, as confirmed by the Constitutional Court in the Juma Masjid Case: [4]
“Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to reasonable legislative measures’. The right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and democratic society based on human dignity, equity and freedom.”
This means unlike other socio-economic rights where the state need only demonstrate that it has allocated resources rationally, the right to basic education must be prioritised regardless of the State’s other budgetary commitments. It can only be limited in such a way that is compliant with section 36, as the Court has stated.
While maintaining that this right is not subject to resource constrains, the content and meaning of this right is yet to be interpreted by a court, particularly with reference to the standard of education that is protected by the right.
The Provision of the Right to Basic Education
In understanding the provision of the right to basic education, we should be guided by the preamble of the Constitution, which gives purpose and meaning to the Constitution. It states that the task ahead is to:
“Heal the division of the past and establish a society based on democratic values, social justice and fundamental rights; ... [and] improve the quality of life of all citizens and free the potential of each person.” [5]
Also important in defining the meaning of the right to education is the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is arguably the most significant international convention, which recognises the right of everyone to education. [6] Although not ratified by South Africa, it can be used to guide South Africa’s relatively young socio-economic rights jurisprudence. [7]
General Comment No. 13, published by the Committee on Social, Economic and Cultural Rights (CESCR) of the ICESCR, states that while the exact standard protected by the right may vary according to conditions prevailing in a particular State, education in all its forms and at all levels shall exhibit the following interrelated and essential features: availability, accessibility, acceptability and adaptability. [8]
- Availability - functioning educational institution must be available to all learners. This entails the provision of buildings, sanitation facilities for both sexes, teaching material, libraries, computer facilities and access to the internet. [9]
- Accessibility - has three overlapping dimensions: non-discrimination, physical accessibility and economic accessibility; meaning education must be affordable, within safe physical reach, and must be granted on a non-discriminative basis. [10]
- Acceptability - the form and substance of education, including curricula and teaching methods, have to be acceptable. This refers to the relevance, appropriateness and quality of education, subject to educational objectives required. [11]
- Adaptability - education has to be flexible so it can adapt to societal changes and respond to the needs of learners within their diverse social and cultural settings. [12]
The Notion of Reasonableness
Several claims have been made against the State in the Constitutional Court for the enforcement of other socio-economic like health, housing and social security. This has allowed the Court to scrutinise the reasonableness of Government’s actions to provide for those rights. The notion of reasonableness has become the standard against which the Constitutional Court assesses Government’s compliance to meet its constitutional obligations in respect of qualified socio-economic rights. [13]
An application to review the reasonableness of the right to basic education has not yet been made. This means Government’s compliance to meet its constitutional obligation with regards to the right to education cannot be assessed.
In the Grootboom case, the Constitutional Court detailed the standard of 'reasonableness’ in the context of assessing the State’s positive obligation to realise socio-economic rights. The following criteria can be distilled from the judgement.
In order for a government programme to be deemed reasonable, it must display the following characteristic:
- be comprehensive and co-ordinated with a clear description of responsibilities amongst the various spheres of government, with the national government having overreaching responsibility;
- be capable of facilitating the realisation of the right;
- be reasonable both in conception and implementation;
- be balanced and flexible and make appropriate provision for crises and for short-, medium and long-term needs;
- it cannot exclude a significant segment of society; and
- it must include a component that responds to the urgent needs of those in the most desperate situations and the state must plan, budget and monitor measures to address immediate needs and the management of crises. [14]
The Constitutional Court further stated that a court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. [15]
Conclusion
Considering that this standard of ‘reasonableness’ was established for a qualified socio-economic right, an appealing case can be made that, an application to review the reasonableness of an unqualified socio-economic right, such as education, is desirable and probably necessary.
NOTES
[1] http://www.info.gov.za/documents/constitution/1996/a108-96.pdf
[2] ibid.
[3] http://www.un.org/en/documents/udhr/
[4] http://www.saflii.org.za/za/cases/ZACC/2011/13.html
[5] http://www.info.gov.za/documents/constitution/1996/a108-96.pdf
[6] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
[7] http://www.saflii.org.za/za/journals/PER/2011/34.html#sdfootnote100sym
[8] http://www.unhchr.ch/tbs/doc.nsf/0/ae1a0b126d068e868025683c003c8b3b?Opendocument
[9] ibid.
[10] ibid.
[11] ibid.
[12] ibid.
[13] http://www.saflii.org.za/za/journals/PER/2011/34.html#sdfootnote100sym
[14] Sandra Liebenberg, http://www.communitylawcentre.org.za/projects/socio-economic-rights/Research
[15] http://www.saflii.org/za/cases/ZACC/2000/19.pdf
Anele Mtwesi – anele@hsf.org.za
Researcher
Helen Suzman Foundation
