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Its importance emerges from the first case to be discussed under the first A in the four A-scheme, namely availability.In addition to making the important statement mentioned in the introduction of this article regarding the nature of the right to basic education, the Juma Musjid judgment also reflected the importance of section 28(2) of the Constitution - the child’s best interests clause - in relation to the right to a basic education. The school was a public school on private property, owned by the Juma Musjid Trust in Kwa Zulu-Natal.
Ander uitdagings hou verband met geskille rakende die magte van skoolbeheerliggame en skole teenoor die magte van provinsiale departe-mentshoofde, lede van provinsiale uitvoerende komitees en, ten opsigte van nasionale beleid, die nasionale Minister van Basiese Onderwys.Other challenges relate to disputed powers of school governing bodies and schools versus those of the provincial head of departments, members of the provincial executive councils (MECs) and, with regard to policy, the national Minister of Basic Education.The article demonstrates that litigation, or in some cases, the threat of it, does play an important role in the realisation of the right to a basic education, through resolving disputes and ensuring the allocation of services and resources for learners.This article evaluates recent case law developments regarding delivery of the right to a basic education.A number of important cases were brought before the superior courts during the years 2010 to 2012.Adaptability directs that education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students25 within their diverse social and cultural settings.26 When considering the appropriate application of the above-mentioned “interrelated and essential features” the General Comment proposes that the best interests of the student shall be “a primary consideration”.27 This is a child-centred consideration, and accords with the same principle in the Convention on the Rights of the Child, which has been ratified by South Africa.28 This is a weaker standard than set out in section 28(2) of the Constitution which asserts that “a child’s best interests are of paramount importance in every matter concerning the child”.
Due to the “expansive guarantee” provided by section 28(2),29 it is clear that this principle - which has also been interpreted by the Constitutional Court to be a self-standing right30 - is a central feature in litigation relating to children’s right to education.
The state is, in terms of that right, obliged, through reasonable measures, to make further education ‘progressively available and accessible’.4 The judgment furthermore refers to the provisions of section 3(1) of the South African Schools Act5 (SASA) which makes school attendance compulsory for children from the age of 7 years until the age of 15 years or until the learner reaches the ninth grade, whichever occurs first.
The judgment views this legal provision to be “following the constitutional distinction between ‘basic’ and ‘further’ education”.6 The court’s confirmation of the fact that the right to basic education is an immediately enforceable right, not subject to progressive realisation is of course fairly self-evident from the reading of the relevant section in the Constitution of the Republic of South Africa, 1996 (the Constitution) itself, and many authors have already interpreted it this way.7 Nevertheless, there had been concerns that the court might prefer to opt for a narrower interpretation of the right.8 Furthermore, in Head of Department, Mpumulanga Department of Education v Hoërskool Ermelo9 Moseneke DCJ stated that the power to decide on language policy in schools must be understood within the broader constitutional scheme to make education progressively available and accessible to everyone, taking into consideration what is fair, practicable and enhances historical redress.10 This reference to “progressively available and accessible” was concerning, but the context and the references to practicability and historical redress suggested that the court’s reference to progressive availability and accessibility related to education in the language of the learner’s choice,11 and not to the right to a basic education in general.12 The Juma Musjid judgment has now made it clear that the court’s interpretation of the right to a basic education in section 29(1)(a) is that it is immediately enforceable, subject only to limitation in terms of section 36 of the Constitution.
The cases considered in this article are divided according to the interrelated and essential features of education to be provided to all children as set out by the United Nations Committee on Economic, Social and Cultural Rights concerning the right to education in their General Comment 13.15 These form a useful benchmark against which to measure government’s performance towards the realisation of the right to education.16 The four A-scheme is used as a framework for the analysis in this article because it embodies international law principles,17 and although South Africa has not yet ratified the International Covenant on Economic, Social and Cultural Rights,18 the international law context remains an important consideration in measuring South Africa’s performance regarding the fulfilment of the right to a basic education.19 This is also relevant to a discussion of case law due to the fact that section 39(2) of the Constitution enjoins the courts, when interpreting a right in the Bill of Rights, to consider international law.
Furthermore, a court must prefer any reasonable interpretation of the law that is consistent with the international law over any alternative interpretation that is inconsistent with international law.20 General Comments issued by UN bodies have been utilised by the Constitutional Court.21 As explained in General Comment 13, availability requires that functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party.22 Accessibility requires that educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party.23 Acceptability has to do with the form and substance of education, including curricula and teaching methods.24 This is where quality comes into the equation.
Die vier A-skema omvat beskikbaarheid (availability), toeganklikheid (accessibility), aanvaarbaarheid (acceptability) en aanpasbaarheid (adaptability).