9 November – The North Gauteng High Court yesterday upheld the constitutionality of the Department of Basic Education’s FUNZA LUSHAKA Bursary Scheme to ensure the availability of an increasing number of well-qualified, indigenous language teachers, particularly in rural areas where they are needed the most to improve poor educational outcomes.
Judge Makgoka of the North Gauteng Division of the High Court delivered the judgment in the matter of Solidarity & another v Minister of Basic Education and another.
The Council for the Advancement of the South African Constitution (“CASAC”), represented by SECTION27, was admitted as amicus curiae (“friend of the court”) in this matter and made representations in support of what we deemed was a progressive government measure in furtherance of section 29 of the Constitution.
The criteria for qualifying for the Scheme includes 1) students who intend to specialise in an indigenous African language in the foundation phase (Grades R-3), 2) students who are from rural areas and those who intend to teach in rural areas and 3) students who commit to teach at any public school to which they may be appointed by a provincial department of education. Solidariteit Helpende Hand (Solidarity) challenged the selection criteria of the Funza Lushaka bursary scheme on the basis that it unfairly discriminates on the grounds of race. They further alleged that it violates the constitutional right to further education of students who do not meet the criteria in terms of section 29(1)(b) of the Constitution. Solidarity alleges the scheme gives preference to students who intend to specialise in an Indigenous African language in the foundation phase as well as favouring candidates who are from rural areas and wish to teach in rural areas.
In response to Solidarity’s application, the Department of Basic Education, argued that the criteria used for the selection are fair and aimed at redressing past inequalities in line with section (9)2 of the Constitution. They also argued that the selection criteria is aimed at training more teachers in indigenous African languages in line with the Department’s policies to improve educational outcomes in rural areas.
CASAC submitted that the scheme is consistent with and gives effect to the right to basic education in section 29(1)(a) of the Constitution, as well as the right to receive basic education in the language of one’s choice in section 29(2) of the Constitution. In this regard, CASAC argued that these rights can only be realised if there are sufficient qualified teachers to meet the demand for instruction in the indigenous African languages. Furthermore, CASAC sought to clarify the interpretation of the equality clause of the Constitution, in arguing that the selection criteria does not constitute unfair discrimination.
In his judgment, Makgoka J dismissed Solidarity’s application and found that there was no merit in their assertion that the bursary scheme infringes section 29. The judgment found that the bursary scheme was not only consistent with the right to basic education in S29(1)(a, but sought to achieve the fulfilment of the right for South Africa’s neediest learners.
“In sum, I agree with CASAC’s submission that the bursary scheme is consistent with the right to basic education as provided for in section 29(1)(a) of the Constitution, as well as the right to receive basic education in the language of one’s choice as contained in section 29(2). Indeed both of these provisions require the state to take positive measures to ensure that learners have access to sufficient and well-qualified teachers who are able to teach them in their language of choice. The bursary scheme is thus not only consistent with these rights, but it operates to give effect to them as well.”
In dealing with the equality aspect of the case, the court found that the impugned selection criteria fell outside of the scope of section 9(2) of the Constitution but that it ought to be evaluated against section 9(3) of the Constitution. In doing so, Makgoka J found that the Scheme did not violate the right to equality of non-African speaking learners but sought to address deep structural inequalities designed by apartheid. Makgoka J justifies this reasoning with the fact that because the criteria may disadvantage some, previously advantaged groups while benefiting a legitimately identified group, does not justify the conclusion that the criteria is prejudicial.
“I therefore agree with the submission on behalf of CASAC that although the bursary scheme does not fall within the scope of section 9(2) of the Constitution, it passes constitutional muster when analysed against the test for unfair discrimination in section 9(3)”
The court concluded that Solidarity had failed to establish discrimination on the basis of section 9(2) or (3) of the Constitution.
CASAC and SECTION27 welcomes the judgment as it views the FUNZA LUSHAKA bursary scheme as a positive step by government to ensure the positive right to a basic education South Africa’s learners that have too long been denied a quality education.
For more information contact:
Section27: Kirsten Whitfield – 0722353533
CASAC: Lawson Naidoo – 0731585736