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n Law, Democracy & Development - The right to basic education, the South African constitution and the case : an unqualified human right and a minimum core standard

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Abstract

The 2011 decision by the Constitutional Court (CC) in , which dealt with the right to basic education in the context of an application for the authorisation of the effective eviction of a public school conducted on private property, provides us with telling insight about the possible scope and content of the right to basic education guaranteed in section 29(1) of the South African Constitution (Constitution). More than 16 years after the enactment of the CC has not had an opportunity to provide clarity on the scope and content of the right to basic education. Although the CC did not (and was not required to) provide full clarity on this issue in the case, Justice Nkabinde provided pointers to assist with understanding the scope and content of the right to basic education guaranteed in section 29(1) (a) of the Bill of Rights, affirming that the right - unlike some of the other socio-economic rights - is immediately realisable. The CC confirmed that because there is no internal limitation in section 29 (1) (a) requiring "access" to the right, 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". Indeed, while all socio-economic rights in the Constitution provide for negative and positive obligations, the right to education is unique in that it includes the right to basic education, which unlike the right to housing and the right to water has no internal qualifiers. That recognition of the fundamental difference between the obligations engendered by section 29 (1) (a) and the obligation engendered by other social and economic rights protected in the Constitution forms the basis of the analysis in this article. In this article the author advances the argument that basic education is not only an unqualified human right but that section 29 imposes an obligation on the state to provide a minimum core of that right to everyone. It must be conceded that the CC has indeed previously stated that the international law concept that social and economic rights place a minimum core obligation on the state cannot be uncritically imported into South African constitutional law and that, at best, it can be used to assist the CC to determine whether or not the state had acted reasonably. However, the contention in this paper is that the recognition by the court judgment in the case of the unique formulation of section 29 (1) (a) when compared and contrasted with other socio-economic rights already interpreted by the CC, should consequently lead the CC to accept that the minimum core concept applies to the interpretation of section 29 and section 29 (1) (a) which is that the right to basic education should be regarded as the minimum core standard of the right to education in South Africa.

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/content/lddev/17/1/EJC149584
2013-01-01
2016-12-09
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