Authored By: Neliswa Luthando Ntshangase
University of Fort Hare
INTRODUCTION
Chapter 2 of the Constitution of the Republic of South Africa, 1996, enshrines the rights afforded to the people of South Africa, section 29(1) provides that everyone has a right to basic education, including adult basic education and to further education, which the state through reasonable measures must make progressively available and accessible.1In accordance with the Constitution, the right to basic education is an un qualified right, which means that it is immediately realizable and must be afforded to everyone without looking at whether there is enough resources for the implementation. In this article we will be looking at the legal protection and challenges faced by the people and officials of the Republic in balancing educational rights and other human rights.
LEGAL PROTECTION OF THE RIGHT TO BASIC EDUCATION AND OTHER RIGHTS
section 2 of the Constitution provides that the Constitution is the supreme law of the Republic, any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.2 This provision ensures that all the rights provided for in the Constitution must be realised and in the way that the Constitution has ruled out. As the right to basic education is provided for under section 29(1) of the Constitution and is unqualified, it is vital that public officials ensure the immediate realisation of this right. As provided for in section 7(2) of the Constitution, the state has the duty to respect, protect, promote, and fulfil the rights in the Bill of Rights.3 This means that the state must maintain an easily accessible and effective educational system.
This was seen in the case of Governing Body of the Juma Musjid Primary School v Essay (2011) 8 BCLR 761 (SA) where the High Court without taking into consideration the impact Legal protection and challenges on the right to basic education and other rights. Vol 1 number 2 2025.
its order would have on the learners’ right to a basic education and without applying the constitutional standard that requires that, in any matter involving a child, the best interests of a child are of paramount importance, had authorised the eviction of learners and teachers of a public school operating from a privately owned property. The Constitutional Court held that “The Trustees have a constitutional duty to respect the learners’ right to a basic education in terms of section 29(1) of the Constitution and in considering the Trustees’ application and in granting the order of eviction, the High Court did not properly consider the best interests of the learners under section 28(2) and their right to a basic education under section 29(1) of the Constitution.”4 The Constitutional Court dismissed arguments that the right to basic education might be subject to progressive realisation over time and affirmed that it is immediately realisable. The case also established that eviction orders that interfere with schooling must be carefully evaluated, considering children’s rights provided for in section 28(2) of the Constitution, and that the state has a duty to protect the right to a basic education, even on private property.
Section 5(1) of the South African Schools Act 84 of 1996 states that a public school must admit learners and serve their educational requirements without unfairly discriminating in any way.5 This Act give effect to section 29(1) of the Constitution and ensures that this right is carried out with the equality right in mind, no unfair discrimination shall fall upon those meant to be enrolled. Also the educational right it intersects with other human rights, the SASA in section 7 provides that “Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.”6
The Republic of South Africa in its law interpretation, it is obliged to interpret in accordance with International Law, as per section 39(1)(b) of the Constitution statesthat “when interpreting the Bill of Rights, a court, tribunal, or forum must consider international law.”7 Article 26 of the Universal Declaration of Human Rights provides that “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary Legal protection and challenges on the right to basic education and other rights. Vol 1 number 2 2025. education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all based on merit.”8
These sources of law illustrate just how much the right to education is protected and vital for it to be carried out. How it is an unqualified right afforded to all people in South Africa guaranteeing fair and equitable admission to public schools, prohibiting unfair discrimination, and ensuring access to basic education for all learners in line with constitutional values.
LEGAL CHALLENGES ON THE RIGHT TO BASIC EDUCATION AND OTHER RIGHTS
The right to basic education in its intersection with other human rights such as human dignity provided for in section 10 of the Constitution, equality right in section 9 of the Constitution and so forth, could make it uneasy for public officials to immediately realise it. Often schools find it hard to balance all the rights as they interfere with their schools’ rules, resulting in infringing the right to basic education. One of the challenges is seen in the case of MEC for Education: Kwazulu-Natal and v Pillay (2007) 28 ILJ 133 (SA), this case raises an issue of cultural and religious practices, where a girl pupil had inserted a nose stud as part of her culture, of which wearing jewellery was against the school policy. She was advised against wearing the nose stud of which she did not heed to the advice and was pending a hearing.9
In this matter the Constitutional Court declared that “the decision of the Governing Body of Durban Girls’ High School to refuse Sunali Pillay an exemption from its Code of Conduct to allow her to wear a nose stud, discriminated unfairly against her. The Governing Body of Durban Girls’ High School is ordered, in consultation with the learners, parents and educators of the School and within a reasonable time, to effect amendments to the School’s Code of Conduct to provide for the reasonable accommodation of deviations from the Code on religious or cultural grounds and a procedure according to which such exemptions from the Code can be sought and granted.”10 The Constitutional Court ensured that there was no clash in fulfilling the educational right and cultural and religious practices, as these kinds of clashes often results to suspension of learners.
Legal protection and challenges on the right to basic education and other rights. Vol 1 number 2 2025.
An infringement on the right to basic education does not end there, it goes further to affect the right to human dignity provided for in section 10 of the Constitution. As this was seen in the case of Minister for Basic Education V Basic Education for All (2015) ZASCA 198, where there was a failure to ensure access to textbooks in some public schools in Limpopo province by the Department of Basic Education and Limpopo Department of Education. The Supreme Court of Appeal held that this was an infringement of the right to basic education, human dignity, and equality.11 The principle is that education is essential for human development, dignity, and the ability to participate in society. This was also supported by Pierre du Plessis etal., as they held “‘Basic education’ is accordingly viewed in the Declaration in terms of meeting basic learning needs (these needs include both essential learning tools such as literacy, oral expression, numeracy, problem-solving skills and basic learning content such as knowledge, skills, values, and attitudes) which essentially empower individuals to participate in and interact in the societies in which they live with dignity and with equal opportunities for employment in pursuing their life’s vocations.”12
CONCLUSION
The right to basic education is a vital right in the Republic of South Africa hence it is crucial for public officials to immediately realise it. It is an unqualified right which requires immediate attention. It is afforded to everyone in the Republic and is linked to other rights such as human dignity and equality. Right to basic education does not only not only empowers individuals by enabling their full personal development and participation in society but also serves as the foundation for the realisation of other human rights and socio-economic opportunities. Amidst the challenges, guaranteeing the right to basic education is essential for fostering social inclusion, upholding human dignity, and advancing democratic governance in South Africa.
Legal protection and challenges on the right to basic education and other rights. Vol 1 number 2 2025.
BIBLIOGRAPHY
Case law
Governing Body of the Juma Musjid Primary School v Essay (2011) 8 BCLR 761 (SA). MEC for Education: Kwazulu-Natal and v Pillay (2007) 28 ILJ 133 (SA), Minister for Basic Education V Basic Education for All (2015) ZASCA 198.
Constitution
The Constitution of the Republic of South Africa, 1996.
Journal Article
Pierre du Plessis et al., The right to education: are we facing the challenges? 2, AJ, 198, 200, 2007.
Legislation
South African Schools Act, 1996.
1 The Constitution of the Republic of South Africa, Ch. 2. S. 29(1).
2Id. s 2.
3Id. s 7(2).
4 Governing Body of the Juma Musjid Primary School v Essay (2011) 8 BCLR 761 (SA).
5 South African Schools Act, 1996, s 5(1).
6Id. s 7.
7 The Constitution of the Republic of South Africa. Ch. 2. S 39(1)(b).
8 Universal Declaration of Human Rights, Art. 26, (Dec. 10, 1948).
9 MEC for Education: Kwazulu-Natal and v Pillay (2007) 28 ILJ 133 (SA).
10 Id.
11 Minister for Basic Education V Basic Education for All (2015) ZASCA 198,
12 Pierre du Plessis et al., The right to education: are we facing the challenges? 2, AJ, 198, 200, 2007.
