The Right to an ‘adequate’ and ‘equal’ education in South Africa

An analysis of s. 29(1)(a) of the South African Constitution and the right to equality as applied to basic education

SECTION27 are pleased to publish a draft research paper on “The Right to an ‘adequate’ and ‘equal’ education in South Africa: An analysis of s. 29(1)(a) of the South African Constitution and the right to equality as applied to basic education” by respected Canadian constitutional lawyer,  Vince Calderhead. We would welcome comments and inputs on the paper.

Mr Calderhead was recently a volunteer at SECTION27. The paper is the result of research into the meaning of the right to a basic education that was commissioned by SECTION27 and its partner, Equal Education, an organisation that has reinvigorated campaigns for education in South Africa. The paper’s primary purpose is to analyse section 29(1)(a) of the Constitution with a view to give proper meaning to the constitutional right to basic education in the absence of local legal precedents on the subject.

We hope that on completion this paper will assist lawyers and activists during the course of the ongoing struggle for quality education for all in South Africa.

Co-incidentally, the draft comes at an opportune moment following the Constitutional Court’s declaration in the recent Juma Masjid case (CCT 29/10 [2011] ZACC 13) that:

“It is important, for the purpose of this judgment, to understand the nature of the right to “a basic education” under section 29(1)(a). 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, equality and freedom”.⁽³⁷⁾ This right is therefore distinct from the right to “further education” provided for in section 29(1)(b). The state is, in terms of that right, obliged, through reasonable measures, to make further education “progressively available and accessible.”

Please submit comments to vince.calderhead@gmail.com; isaacs.doron@gmail.com and maphumulo@section27.org.za.