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What is the bill of Rights in South Africa?
Who has a right to a basic education in South Africa?
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Do refugees have a right to a basic education in South Africa?
Rights 7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject ...
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- INTRODUCTION
- THE CONSTITUTION
- WHO BENEFITS FROM THESE RIGHTS?
- THE BILL OF RIGHTS
- LIMITATIONS
- REMEDIES
- JUDICIARY
- DEFERENCE AND THE RIGHT TO A BASIC EDUCATION
- LAW
- HOW TO PROTECT AND PROMOTE CONSTITUTIONAL RIGHTS
- COMBINING STRATEGIES: THE CASE OF NORMS AND STANDARDS FOR SCHOOL INFRASTRUCTURE
- WHERE TO GO FOR HELP?
- THE WATCHENUKA CASE
- WHAT IS A BASIC EDUCATION
- THE FOUR A’S APPROACH
- THE DEMOCRATIC AND COOPERATIVE EXERCISE
- WHAT DOES IT MEAN TO SAY THAT THE RIGHT IS ‘UNQUALIFIED’?
- QUALIFICATIONS, AND POSITIVE AND NEGATIVE DUTIES
- THE IMMEDIATELY REALISABLE RIGHT TO A BASIC EDUCATION
- WHEN IS A LIMITATION OF THE RIGHT JUSTIFIED UNDER SECTION 36?
- COURT DETERMINE AN APPROPRIATE REMEDY?
- THE RIGHT TO A BASIC EDUCATION IN ACTION
- OTHER CONSTITUTIONAL RIGHTS IN EDUCATION
- EQUALITY AND THE PROHIBITION OF UNFAIR DISCRIMINATION
- FREEDOM OF EXPRESSION
- CONCLUSION
The South African Constitution is described as a ‘transformative’ document. This means that our Constitution seeks to change South Africa for the better, rather than keeping things as they are. These transformative aims extend to our education system. The Constitution guarantees that everyone in South Africa has the right to a basic education which...
The Constitution is the supreme law of South Africa. This means that all other laws and conduct must be consistent with the Constitution. No person may act in a way that conflicts with the Constitution – not even Parliament, or the President.
Most of the rights in the Constitution apply to everyone, including the right to a basic education. As we explain in greater detail below, this means that any person in South Africa possesses these rights, including non-citizens. has a duty to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. The ‘state’ is a broad term, used...
The Bill of Rights is contained in Chapter 2 of the Constitution. It sets out the fundamental rights of all people in South Africa; these include the right to a basic education. South Africa is one of the few countries in the world that guarantee ‘socio-economic’ rights in their constitutions. Socio-economic rights are entitlements to basic goods a...
Rights and duties are not absolute. Often, rights are in tension, requiring choices to be made between competing interests. For example, corporal punishment in schools (beating learners) may be an expression of religious belief for some teachers and parents; but we prohibit corporal punishment, to protect the rights of children. The state also has ...
Where rights have been unjustifiably limited, the courts must decide how best to fix this situation. This is called a ‘remedy’. court must declare the ofending law or conduct to be unconstitutional, known as a ‘declaration of invalidity’. Beyond this declaration of invalidity, the courts can choose from a range of other remedies. They must exercise...
writes laws courts interpret puts laws into An order that the parties enter into The separation of powers requires that genuine discussion in an attempt to the power of the state should be split resolve their problems (‘meaningful between three branches: the legislature engagement’). For example, a court (those who make the law at Parliament), coul...
Some degree of deference is always required in constitutional matters, particularly in matters as complex and controversial as education issues. Judges are smart and competent people, but they could never have the knowledge, skills or time to fix the education system single-handedly. Also, they are not voted into ofice by the public, so they lack t...
Some particularly important international treaties to consider when interpreting the right to education are: The Universal Declaration of Human Rights (UDHR) The International Covenant on Civil and Political Rights (ICCPR) The International Convention on Economic, Social and Cultural Rights (ICESCR), The Convention for the Elimination of all forms ...
When a person’s rights are threatened or violated, one of the solutions is to take the matter to court. This is called litigation, and it can be a powerful tool in resolving legal disputes. Much of this handbook highlights litigation about the right to a basic education. It is important to remember that going to court is not the only option to prom...
In many cases, litigation works best when it is combined with other strategies. The litigation and activism over norms and standards for school infrastructure is a good example. For a number of years, activists from Equal Education (EE) had been lobbying the Minister of Basic Education, Angie Motshekga, to create norms and standards setting out bas...
If you suspect that the rights of learners are being infringed and the relevant individual, school or departmental oficials do not deal with your complaint satisfactorily, you can contact a number of public-interest law organisations around the country that ofer free advice and legal services. These organisations include: Centre for Applied Legal S...
Ms Watchenuka and her son were refugees from Zimbabwe who sought asylum in South Africa. They were issued with a permit allowing them to remain in the country while their asylum application was being considered, but they were prohibited from working or studying during this time. The Supreme Court of Appeal held that this blanket restriction was unl...
The Constitution does not define the term ‘basic education’. There was once speculation about whether a ‘basic’ education was a period of time in school (the time-based approach) or an education of an appropriate standard (the adequacy-based approach). Policy-makers and courts have increasingly favoured the adequacy-based approach, and for good rea...
Another helpful way to understand the content of the right to a basic education is through the ‘Four A’s’ approach. This approach was pioneered by the UN Special Rapporteur on Education Rights, and was adopted by the UN Committee on Economic, Social and Cultural Rights. THE FOUR A’S ARE: Availability (including infrastructure, teachers and textbook...
In Mazibuko & Others v City of Johannesburg, the court explained the ideal relationship between courts, law-makers and society in giving content to socio-economic rights such as the right to a basic education: ‘[O]rdinarily, it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and econ...
As mentioned earlier, the right to a basic education is diferent to the right to a further education and other socio-economic rights, because it is ‘unqualified’. The right to a further education is ‘qualified’ by additional words that say that the state must take ‘reasonable measures’ to make a further education ‘progressively available and access...
We mentioned earlier that all rights create positive and negative duties: duties to do something, and duties not to do something. All socio-economic rights create negative duties that are unqualified and ‘immediate’. This means that the state and other individuals must not deprive people of existing goods, or prevent them from accessing these goods...
The fact that the right to a basic education is unqualified and immediately realisable All socio-economic create rights negative duties that unqualified are ‘immediate’. and has an impact on how we determine whether this right has been limited. As we explained earlier, a limitation of a right is a restriction or failure to fulfil the right. If a li...
As explained above, one of the requirements for a justifiable limitation of rights is that the limitation must be authorised by a law of general application. If there is no law permitting the limitation, then no further justification is permitted, and the limitation must be declared unconstitutional. This means that the state would have to show tha...
declaration of constitutional invalidity is not the end of the matter. As indicated above, the courts have a choice of available remedies, depending on what is just and equitable in the circumstances. In deciding on a just and equitable remedy, a court will take many factors into account. The most important consideration is that a remedy must be ‘e...
We have covered many complex concepts in a very short space of time. It is helpful to put these concepts into perspective by seeing how they would be applied in solving a real-life problem. Take the example of a school near a busy and very dangerous road. Most learners at the school have to cross this road to get to school. Many learners have been ...
The right to a basic education cannot be seen in isolation. The rights in the Bill of Rights are all deeply connected. As a result, a violation of the right to a basic education may also involve a violation of other rights, and vice versa. For instance, in the example we have just discussed, the dangerous road outside the school is not only a threa...
Section 9 of the Constitution guarantees the right to equality and prohibits unfair discrimination. Apartheid has left deep patterns of inequality and disadvantage in our education system. The patterns of segregation under apartheid remain in many schools, and the imbalances in resources and outcomes are far from being made right. Unfair discrimina...
Freedom of expression is contained in Section 16 of the Bill of Rights. Freedom of expression plays a central role in the right to education. It is essential that both teachers and learners are allowed to express and explore diferent opinions and ideas. Unjustified restrictions of freedom of expression can prevent learners from receiving a basic ed...
This chapter has shown that the right to a basic education is basic only in name. It is a right with rich and flexible content. It also places urgent demands on the state to address the existing inequality and inadequacy of education in South Africa. The chapters that follow in this handbook will explore the content of this right, and its applicati...
7 The Higher Education and Training (HET) band includes university and technikon education. 8 Note that the HET band is the competence of the national sphere of government only – the National Department of Education (NDE). 9 This section provides that the state must respect, protect, promote and fulfil the rights in the Bill of Rights – the ...
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- Rights 1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
- Application 1. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. 2. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
- Equality 1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms.
- Human dignity. Everyone has inherent dignity and the right to have their dignity respected and protected.
Education rights are contained in s 29 of enshrines and protects the right to basic everyone. 1 The section provides that the state education progressively cessible. available Accessibility and ac that the state should move towards discrimination, to further education. everyone is entitled to receive education.
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By mid-2007, the South African public education system had 12,3 million learners, 387 000 educators and about 26 592 schools, including 400 special-needs schools and 1 000 registered private schools. Of all schools, 6 000 were secondary schools (grades 8 to 12) and the rest were primary (grades 1 to 7) schools. Learners attend school for 13 years.
The Bill of Rights is contained in Chapter 2 of the Constitution. It sets out the fundamental rights of all people in South Africa, which include the right to a basic education. South Africa is one of the few countries in the world that guarantees ‘socio-economic’ rights in their constitutions.
