Margaret Stride
INFERIOR education for black people was a strategy used to entrench and perpetuate inequality during apartheid. Our current schooling system continues to perpetuate inequality, albeit without the deliberate intention of the architects of apartheid.
Litigating the right to basic education is a meaningful tool with which to pursue other rights and secure human dignity. In addition to its value as an end in itself, education’s inherent nature is critical to the realisation of other rights, both practically and philosophically.
Both South African and international law widely recognise this goal, with the committee on the International Covenant on Economic, Social and Cultural Rights stating that: “Education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.”
Within the many complex and interrelated components of the right to basic education, two broad aspects can be identified: those of access on the one hand, and quality on the other.
In 2012, official statistics reflected extremely positively on formal access to education, with gross primary and secondary enrolment at 98 and 89 percent, respectively. These formal enrolment figures do not reflect accurately on access to education for two reasons. First, while learners may be enrolled at schools and their names present on registers, diverse conditions exist on the ground which inhibit and prevent attendance of school, such as a lack of transport for remotely located schools, or having to traverse dangerous terrain.
Secondly a substantial number of children of schoolgoing age in South Africa are barred from accessing schools on the basis that they lack the necessary documentation to enrol. This group primarily includes separated and unaccompanied foreign minors, the children of failed asylum seekers, and other illegal migrants. These children are, of course, not counted in official statistics. This situation exists in violation of section 28(1)(a) of the constitution which entitles everyone to basic education, not limiting access to citizens.
Even if we accept that official enrolment figures reflect levels of access, these impressive figures mean little if our schools are ill-equipped to provide a quality basic education. A quality basic education necessarily includes, but is not limited to, safe and adequate school buildings and classrooms, safe and dignified sanitary facilities, drinking water, electricity, trained and present teachers, textbooks and other learning materials, desks, chairs, libraries and science laboratories, and access to computer facilities.
The Constitutional Court has determined that the right to basic education is “immediately realisable”. Unlike the rights to health care and housing, the wording of section 29(1)(a) does not make the right subject to progressive realisation in light of available resources. This salient feature makes litigating the right to basic education a meaningful tool with which to pursue other rights and secure human dignity because the government’s failure in meeting its obligations to provide basic education cannot be excused by the fact that there is no budget for meeting these obligations. The nature of the rights as immediately realisable means that it is necessary only that it be shown that the right has been breached for a court to order a remedy.
The Minister of Basic Education has been compelled to publish binding “national norms and standards for school infrastructure”. This has significantly improved the climate in which to litigate the right to education as the norms and standards have given directly justiciable content to many tenets of the right to education.
Traditionally judges have been slow to step into the realm of budget and policy, and exercise deference to the democratically-elected spheres of government to decide on how budgets should be allocated in implementing socio-economic rights.
Now that the executive branch of government has set out the norms by which it will be bound, it will be much easier for courts to enforce them as judges need be less concerned with issues of the separation of the powers normally at play in the adjudication of socio-economic rights.
Despite the right to basic education being “immediately realisable”, redress will not be instantaneous where a court declares a violation. Litigation on social-economic rights requires us to rethink the traditional court order. Governmental departments and agencies frequently do not obey and implement court orders – the much reported on “textbook case” in Limpopo being a distressing example of this common phenomenon.
The reasons for failing to comply are frequently due to a lack of administrative accountability, as well as failings in co-operative governance processes. This is why supervisory interdicts provide a mechanism to ensure continuous judicial oversight during the implementation stage of court proceedings. Supervisory interdicts might specifically include requirements for the submission of plans by the relevant governmental agencies or bodies detailing how they will address violations; periodic reports to be served on effected parties and filed with the court; the nomination or designation of specifically-named individuals responsible for the submission of these respective plans and reports; and consequences for non-compliance.
Orders in this form have been successfully attained in various education cases in the Eastern Cape. As an alternative to judicial supervision, it may be appropriate for the South African Human Rights Commission to fulfil this supervisory role. This would significantly strengthen the realisation of the rights enshrined in the Bill of Rights, and would ensure that the gap between the values contained in the Bill of Rights and the reality of the majority of those living in South Africa diminishes.
Despite numerous shortcomings, South Africa has made significant progress in the past 20 years. But pursuing rights and securing human dignity are two things the state cannot achieve on its own. These aims necessarily involve every individual in South Africa, and education is the key to empowering our nation, both individually and collectively.
Nelson Mandela reminded us that: “Education is the great engine of personal development. It is through education that the daughter of a peasant can become a doctor, that the son of a mineworker can become the head of the mine, that a child of farmworkers can become the president of a great nation. It is what we make out of what we have, not what we are given, that separates one person from another.”
Every child in South Africa should have an education which allows them to pursue all rights, freedoms, goals, and aspirations, both personally and for the betterment of South African society to truly realise the vision encapsulated in the constitution.
l Margaret Stride is the inaugural recipient of the Kader Asmal human rights award by the Council for the Advancement of the South African Constitution. This is an edited version of an essay she submitted as part of her application to study for a Masters in Human Rights at Trinity College, Dublin. The award will be made on July 21 at UWC. Call 021 685 8809 to make a reservation.