Monitoring the Realisation of the Right to Basic Education: The South African Jurisprudence and Structural-Process-Outcome Indicators

2021 ◽  
Vol 53 (3) ◽  
Author(s):  
Serges Kamga
Keyword(s):  
South African ◽  
Basic Education ◽  
The South ◽  
Outcome Indicators ◽  
Language And Culture ◽  
Structural Process ◽  
Free Transport ◽  
South African Constitution ◽  
The Right ◽  
Educational Staff

Under international law, the right to education should be available, accessible, acceptable, and adaptable—or comply with the four As. This right is provided for by the South African Constitution and numerous policies. Yet it remains illusory for thousands of South Africans. Against this backdrop, this article seeks to clarify indicators to monitor the implementation of this right. To this end, unpacking the South African jurisprudence on the right to basic education, it relies on the structural-process-outcome indicators model to unveil what needs to be done to secure a tangible enjoyment of the right to basic education. Based on this approach, it finds that the right to basic education is multidimensional and that its constitutive elements include immediate and non-discriminatory access to school buildings; infrastructure; the right to teachers and non-educational staff; the right to enjoy religion, language, and culture; as well as free transport for learners living far from the school. Ultimately, in light of the South African jurisprudence, the structural-process-outcome indicators explain what is effectively expected to operationalise the four As. Lessons gleaned from this approach will enable all stakeholders in South Africa and other parts of Africa to advance the right to basic education.

scholarly journals THE RIGHT TO MOTHER-TONGUE EDUCATION: PRACTICABLE OR NOT?

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
Chrizell Chürr
Keyword(s):  
South African ◽  
Basic Education ◽  
Mother Tongue ◽  
Cumulative Effect ◽  
The South ◽  
National Education ◽  
Mother Tongue Education ◽  
South African Constitution ◽  
The Right ◽  
South African Schools Act

Mother-tongue and mother-tongue education are recognized worldwide as one of the most efficient ways to function cognitively and socially. This article addresses the role of proper mother-tongue education with an emphasis on the importance of “language” since language is vital to a child’s right to a basic education in all its dimensions. Without mother-tongue education, every child’s right to learn and to become a skilful adult, able to participate independently in society, is at risk. The cumulative effect of the South African Constitution, the National Education Policy Act, the South African Schools Act, several international instruments and a number of ground-breaking cases, as well as the interaction between them on mother-tongue education will be examined. The implementation of certain education models will also be proposed.

The Human Right to Water in South Africa and the Mazibuko Decisions

2011 ◽  
Vol 51 (3-4) ◽  
pp. 521-540 ◽  
Author(s):  
Tracy Humby ◽  
Maryse Grandbois
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
The South ◽  
Human Right ◽  
Lower Courts ◽  
Access To Water ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

The right of access to sufficient water in the South African Constitution has for long been regarded as progressive in a global context where the human right to water is still a subject of contention. In its recent decision handed down in the Mazibuko matter, the South African Constitutional Court interpreted the right of access to sufficient water for the first time and clarified the nature of the State’s obligations which flow from this right. It also commented upon the role of the courts in adjudicating the human right to water. This article describes the passage of the Mazibuko matter and the manner in which the lower courts interpreted the right of access to “sufficient water” as well as outlining the Constitutional Court’s decision in the context of access to water services provision in South Africa.

scholarly journals A HEXAGON RIGHT: THE SIX DIMENSIONS OF THE SOUTH AFRICAN RIGHT TO BASIC EDUCATION

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Chiedza Simbo
Keyword(s):  
South Africa ◽  
Secondary School ◽  
International Law ◽  
South African ◽  
Basic Education ◽  
The South ◽  
Six Dimensions ◽  
The Government ◽  
The Right ◽  
Primary And Secondary School

Notwithstanding the enactment of the South African Constitution in 1996, 23 years later, the need to determine the scope and content of the right to basic education has been a battlefield for authors. Whilst authors battle, complaints are made about the South African government charging school fees for basic education, decreasing pass thresholds for matriculants, students learning in dilapidated classrooms, non-delivery of text books, unqualified teachers and many complaints reminiscent of a failing basic education system. Despite citizen attempts to take the government to court for specific violations relating to the provision of basic education, in the absence of a law of general application specifically unpacking the scope and content of the right to basic education in South Africa, an ultimate question remains, what is the scope and content of the right to basic education for the purposes of its implementation in South Africa? This paper attempts to determine the scope and content of section 29(1)(a) using an international law approach. After engaging the provisions of international law as well as writings by other authors, the conclusion is that, in relation to its scope and content, section 29(1)(a) is a hexagon right that is, a right comprising of six interrelated dimensions. The six dimensions are that, the right to basic education includes primary and secondary school attendance, the right to basic education includes compulsory and free attendance of both primary and secondary school and the right to basic education is an unqualified right. Further, the right to basic education is a minimum core content of the right to education, the right to basic education must be available, accessible, acceptable and adaptable and the quality standard of the right to basic education is explained by the World Declaration on Basic Education for All, 1990.

Accessing the Right to Basic Education in South Africa: Four Years after the Ratification of the Covenant on Economic, Social, and Cultural Rights

2020 ◽  
Vol 19 (4) ◽  
pp. 479-502
Author(s):  
Sicelo Makapela ◽  
Pius Tanga
Keyword(s):  
South African ◽  
Basic Education ◽  
Walking Distance ◽  
Cultural Rights ◽  
The Government ◽  
South African Constitution ◽  
The Right ◽  
Human Rights Based Approach ◽  
Depth Interviews ◽  
Survey Questionnaires

Abstract This article examines access to the right to basic education enshrined in the South African Constitution. Underpinned by the human rights-based approach, the study employed survey questionnaires and in-depth interviews as methods of data collection. The results of the study revealed that the majority of the survey respondents contend that the post-apartheid state has fulfilled the right to basic education only to a small extent notwithstanding the existence of pre-schools, primary, and secondary schools located within a reasonable walking distance from the communities. Preference for the three classes was not equally distributed in the population, X2 (2, N= 500) = 99.68, p < 0.05. On the contrary, the majority of government participants interviewed rated the post-apartheid state fulfillment of the right to basic education in the Buffalo City Metropolitan Municipality as fair. Overall, all the government participants had a moderate view regarding the fulfillment of the right.

scholarly journals Recalibrating Everyday Space: Using Section 24 of the South African Constitution to Resolve Contestation in the Urban and Spatial Environment

2021 ◽  
Vol 24 ◽  
pp. 1-31
Author(s):  
Thomas Coggin
Keyword(s):  
South African ◽  
Shape Space ◽  
Prima Facie ◽  
The State ◽  
The South ◽  
African City ◽  
Spatial Environment ◽  
South African Constitution ◽  
The Right ◽  
Everyday Space

Positioned as existing predominantly within a green agenda, the right to an environment (section 24 of the Constitution of the Republic of South Africa, 1996) presents numerous opportunities for rights-based interpretation in the "brown" urban and spatial environment. In this article I conduct such an exercise, focussing on both the right to freedom of movement (section 21 of the Constitution) and the right to the safety and security of the person (section 12 of the Constitution). I begin by drawing out the historical and contemporary spatial implications of both rights, drawing on empirical research that demonstrates how the enclosure of everyday space through gating practices and private securitisation in the South African city serves to extend spatial apartheid into the current day. A siloed interpretation of both rights, however, leads to an impasse between the two. Both rights are prima facie of an equal value in a constitutional setting. To resolve this standoff, I argue for the use of the environmental right as a constitutional value. This is an underutilised right in the South African Constitution, and yet it holds much promise given how it seeks to protect the health and wellbeing of both present and future generations. There are two benefits to employing the environmental right as a constitutional value. First, the environmental right situates both section 12 and section 21 in a symbiosis of individual claims to shared resources, in the process recalibrating the human ecology of the urban and spatial environment away from the centrality of dominant actors and towards a polycentricity of interests. In so doing, section 24 provides a fuller and more connected picture of both rights. Second, the duty implicit in the environmental right reveals how to begin realising these rights on a wider scale that goes beyond individual injustices and towards community justice. I argue strongly that this duty exists on the state: left unattended to, everyday space becomes the preserve of those with the means – financial or otherwise – to shape space according to their own anti-public interests. In this regard, I present two instances of policy and legal choices available to the state that serve to undo contemporary experiences of spatial apartheid

scholarly journals The South African Constitution's empty promise of "radical transformation": unequal access to quality education for black and/or poor learners in the public basic education system

2019 ◽  
Vol 23 ◽  
Author(s):  
Lorette Arendse
Keyword(s):  
South African ◽  
Basic Education ◽  
Holistic Approach ◽  
Quality Education ◽  
The South ◽  
The Public ◽  
Economic Class ◽  
Unequal Access ◽  
South African Constitution ◽  
Radical Transformation

ABSTRACT The South African Constitution mandates the radical transformation of the public basic education system. To that end, the Constitution, read with the South African Schools Act, entrenches a right of equal access to quality basic education for all. The substantive approach to equality, rooted in the transformative ideology of the Constitution, necessitates an acknowledgment and overcoming of the past patterns of disadvantage, based primarily on the grounds of race and socio-economic class. Locating my analysis in "quality education" in the United Nations Report, "Normative action for quality education", I find that the definition of "quality education" involves a holistic approach which encompasses learners' level of academic achievement, the provision of an adequate school infrastructure, a well-qualified teaching profession, and schools that embrace a substantive form of democracy. In examining each of these indicators, I find the emergence of a clear pattern: for black and/or poor South African learners in the public school domain, disadvantage manifests in an unequal access to quality education. Keywords: South African Constitution, transformation, basic education, unequal access, race , socio-economic class, black and poor, patterns of disadvantage, quality education, holistic approach.

scholarly journals Proportionality and the limitation clauses of the South African Bill of Rights

2014 ◽  
Vol 17 (6) ◽  
pp. 2229
Author(s):  
IM Rautenbach
Keyword(s):  
South African ◽  
Public Interest ◽  
General Concept ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Levels Of Abstraction ◽  
Global Constitutionalism ◽  
South African Constitution ◽  
The Right

"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality as they are generally understood in foreign systems, namely whether the limitation pursues a legitimate aim, whether the limitation is capable of achieving this aim, whether the act impairs the right as little as possible and the so-called balancing stage when it must be determined whether the achievement of the aim outweighs the limitation imposed. The German academic Alexy (Theorie der Grundrechte (1986)) developed what he called a mathematical weight formula to deal with the balancing stage. An overview is provided of how the elements of proportionality were dealt with in the text of the South African interim Constitution of 1994, the early jurisprudence of the Constitutional Court, and in the text of the final Constitution of 1996. Contemporary South African academic criticism of the use of the concept is also analysed. The article then endeavours to relate the elements of Alexy’s weight formula to both the elements of the South African general limitation clause in section 36 of the Constitution and to the appearance of such elements in the formulation of specific rights in the Bill of Rights. Although the levels of abstraction reached in the debates on the Alexy formula are so daunting that it is most unlikely that South African courts and practitioners will ever use it, certain valuable insights can be gained from it for the purposes of dealing with proportionality within the context of the limitation of rights in South Africa. Despite opposition from certain academics, proportionality is a prominent feature of the application of the limitation clauses in the South African Constitution. The elements of proportionality provides a useful tool for the application, within the context of the limitation of rights, of general and wide concepts such as "fairness", "reasonableness", "rationality", "public interest" and, somewhat surprisingly, also of the general concept "proportionality" as such. South Africa’s participation in the global recognition and application of this way of dealing with the limitation of rights is worthwhile.

scholarly journals #Schools on fire: Criminal justice responses to protests that impede the right to basic education

2017 ◽  
pp. 39-50
Author(s):  
Ann Skelton ◽  
Martin Nsibirwa
Keyword(s):  
Criminal Justice ◽  
South African ◽  
Justice System ◽  
Basic Education ◽  
Access To Education ◽  
The South ◽  
Right To Education ◽  
The Right ◽  
South African Schools Act ◽  
School Property

  In recent years, schools have borne the brunt of protesters’ frustrations with the lack of access to services in South Africa. A 2016 investigative hearing by the South African Human Rights Commission (SAHRC) explored the causes of the protests and examined the failure to prevent the destruction of school property. It found that no one was held accountable for the protest-related damage. This article explores the competing constitutionally protected rights of protest and education. Although the right to protest is central in a democracy, it must be exercised peacefully with minimal disruptions to the right to education. Protest action that causes destruction should be criminally sanctioned; however, action that impedes access to education through threats and intimidation is difficult to deal with in the criminal justice system. This article questions the applicability of section 3(6) of the South African Schools Act, which makes it an offence to stop children attending school, and considers the proposed amendments to the Act in light of these critiques. The article explores possible prosecution relying on the Intimidation Act, and finds that the Act is under constitutional challenge. The article concludes that the focus on prevention as contained in the SAHRC report is not misplaced, given the challenges in holding protesters accountable under criminal law.

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