The True Purpose of South Africa’s Legal Framework: A Critique of How the Education System Shapes Legal Understanding.

Part One: Introduction.

The true purpose of South Africa’s legal framework is found in the very first words of our Constitution: the Preamble. It speaks of healing past divisions and establishing a society based on democratic values, social justice, and fundamental human rights.^[1] Central to this vision is education. Section 29 of the Constitution recognised the right to education, and through it, the state undertakes to build a citizenry that understands the law, respects rights, and participates meaningfully in democracy. Yet the reality suggests a gap between this constitutional purpose and what is happening in our classrooms. According to the Department of Justice and Constitutional Development, 51% of people, based on a survey, are unaware of their constitutional rights. This raises a critical question: if half the population does not know their rights, how effective is our education system in fulfilling the Constitution’s vision? This article argues that the education system does not fully follow the framework set out by the Constitution. While the Curriculum Assessment Policy Statement includes Life Orientation and Social Sciences, these subjects alone do not adequately develop legal understanding. This article will prove that street law methods combined with participatory teaching styles are essential tools and need integration within the schools of today, giving learners real, practical legal literacy. The article will proceed as follows. Part two will examine the purpose of the legal framework. Part Three, we look at the education system and CAPS. Part Four, we address the failure to shape legal understanding. And in Part Five, I will propose the realignment of the education system with the true purpose through the Street Law models as the solution. In addition, this article will journey through relevant case law and key provisions of the Constitution of the Republic of South Africa, 1996, to show how our law understands education’s role in shaping legal understanding. Let us now proceed.

Part Two: The true purpose of the legal Framework: Dignity, Equality and Participation.

Chapter One of the Constitution sets out the founding values of our constitutional democracy. Section One lists human dignity, equality, advancement of rights and freedoms, non-racialism and non-sexism, supremacy of the Constitution and the rule of law, and universal adult suffrage, national common voters roll, regular elections and a multiparty system of a democratic government as the foundations of our democracy.^[2] These values are not just words on paper. They raise an important question: are dignity, equality and participation understood and lived by South Africans today? The purpose of the law is not to be applied literally. Sometimes applying the law can defeat the very rights it seeks to protect. For example, voting is a right, but if people vote without understanding what they are voting for, or without understanding the values behind that right, then the purpose of participation is lost. The Constitution was designed to do more than create rules. It was designed to shape how we live together.

The Constitutional Court confirmed this in S v Makwanyane and Another 1995 (3) SA 391 (CC). The Court held that the Constitution places human dignity, equality, and freedom at the centre of our legal order. In that case, the Court rejected the death penalty because it violates the right to dignity and, more importantly, the judgment explained that dignity in our context is linked to ubuntu.^[3] This means restoration, reconciliation, and reparation, not retaliation; thus, a need for ubuntu and not victimisation as a solution.^[4] Makwanyane shows that the true purpose of the legal framework is to protect and restore dignity, not to punish in a way that destroys it. The same purpose places a duty on institutions like schools. In MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC), the Court dealt with a learner, Sunali Pillay, who wore a nose stud for cultural and religious reasons. Her mother had given her permission, and the family had practiced this for generations. The school refused an exemption from the uniform policy, and the mother took this matter to the Equality Court, claiming unfair discrimination. The Equality Court found no unfair discrimination.^[5] But on appeal, the High Court turned the tide and held that the school’s conduct was indeed unfair discrimination in terms of the Equality Act, which in turn gives content to section 9 of the Constitution.

The Court reasoned that this was indirect discrimination on the grounds of religion and culture under section 9(3). Other learners had been granted exemptions for cultural practices, but not Sunali. The Court also said something important for education: “a school is an ideal place to teach learners the differences between fashion and cultural practices… should an exemption for nose studs be granted.”^[6] Schools should use these moments to foster dialogue about diversity and to educate learners about constitutional rights.^[7] This case links directly to sections 15, 30 and 31 of the Constitution. Section 15 protects freedom of religion, belief, and opinion; section 30 protects the use of languages and cultural and religious participation; and section 31 protects the rights of persons belonging to the latter or linguistic community to enjoy, practice and maintain their culture.^[8] Together these sections show that dignity, equality and participation are not abstract. They are lived in classrooms, in school codes of conduct, and in how we treat difference.

From Makwanyane and Pillay, we see the true purpose of the legal framework: to entrench dignity, equality, and participation, and to require active engagement with those values. This purpose places a direct duty on the education system. CAPS already recognises that civic education should be practical, but the way it is taught now needs to be polished. The curriculum must expand to include participatory methods so that learners do not only learn about the Constitution but learn how to apply it in their lives.

Part Three: How the Education System Currently Shapes Legal Understanding.

The manner in which CAPS teaches civic education is definitely flawed. We do not deny the fact that civic education exists within it. However, the critique here is that the way it has been taught over the years needs to change. According to the Department of Basic Education’s 2011 Curriculum and Assessment Policy Statement (CAPS), Life Orientation taught from grade 10 to 12 does include civic education. Grade 10 learners must develop skills to participate in civic life; Grade 11 learners are to clarify their own values and beliefs and respect different opinions; and Grade 12 learners are to study democratic participation, the rule of law, and accountability. Those are Grade 11 Term 1 Weeks 7-10 and Term 4 Weeks 4-6, Grade 12 Term 2 Weeks 1-4, Grade 10 Term 1 Weeks 7-10, and Grade 10 Term 3 Weeks 4-6, as shown in the CAPS LO.^[9] While they exist, they are taught as theory and assessed with written exams. With written reasons and theory-based practices instead of campaigns and projects it claims to value, we see that Grade 12 civic education did not remain as consistent as other grades, and theory took over again. The DBE knows the language of constitutional democracy but assesses with written exams while CAPS says ‘participate.’ Which brings me to another question: How can you follow the law when you do not understand it? That is where knowledge without values or skills stems from.

Part Four: The Failure to Shape Legal Understanding – Evidence and Consequences.

According to Finkel and Ernst in Civic Education in Post-Apartheid South Africa (2005), since the early 1990s:

“Street Law has operated the democracy for all civic education programmes in South African high schools in an effort to institutionalise and implement democracy and human rights education in formal school education in the post-apartheid era” ^[10]

This proves that civic education was needed after the apartheid era to create a culture of democracy because of the history of intolerance, human rights abuses, and lack of democracy, clearly inspired by the Preamble on page 1 of the Constitution. This issue is that civic education had weaker effects on democratic values and skills, while having a larger effect on political knowledge.^[11] Therefore, to instil these values and skills, the quality of instruction and the kinds of methods employed by civic instructors need to evolve, instead of written or theoretical approaches. There needs to be a higher degree of active, participatory instructional methods in civic classes, which, according to Finkel and Ernst, showed significant gains.^[12] Research showed that participatory methods had significant positive effects on civic tolerance, civic skills, institutional trust, and approval of legal behaviour, as shown in Table 3 in the Finkel and Ernst surveys.^[13] What does participatory mean? One would ask. It means mock trials, role-playing, debates, group discussions, government visits, and mock elections. To build better democrats in high schools, we need to stop theory-based methods that CAPS currently uses and use interactive methods instead.

Schools teach facts or knowledge, but not values, tolerance, and participation. Proof of this failure is in the Department of Justice and Constitutional Development’s 2018 Baseline Survey. The Department released the final survey as part of a multi-year programme called Socio-Economic Justice for All (SEJA). 25,000 people were interviewed across South Africa. The survey was designed specifically to assess awareness levels of human rights and the Constitution and found that slightly more than half (51%) of the respondents had either not heard of the Constitution or did not know their rights in the Bill of Rights.^[14] Seven years later, this remains one of the most recent national indicators of constitutional illiteracy in South Africa. And the 2025 South African Reconciliation Barometer (SARB) reports show that the problem is ongoing, negatively impacting trust in the law, democratic participation, understanding of the Constitutional values and vision, and continues to affect reconciliation.^[15]

This proves that the gap is not new. It is in the methods CAPS uses to teach civic education. This is the true purpose of the legal framework: creating a more general democratic belief system where students adhere to important democratic principles, norms, and values, and it becomes a part of their daily lives. Starting in schools is perfect because they are the beginning of our future.

Part Five: Realigning Education with the True Purpose – The Street Law Model.

To expand on the need for participatory methods when teaching civic education in schools, we look at McQuoid-Mason (2007) Methods of Teaching Human Rights and McQuoid-Mason (2008) Street Law as a Clinical Programme as our compass towards realigning education with its true purpose. The McQuoid-Mason (2007) paper also mentioned the methods that should be used in order to promote interactivity while teaching human rights, not just through mere lectures. The methods are listed and explained as follows: mock trials where learners function as a judge, lawyer, or the accused; role-plays where they act out police arrests, evictions, and discrimination scenarios, studying real South African Constitutional Court cases; debates, for example, should freedom of expression have limits? And lastly, community projects where learners run campaigns on the Bill of Rights.^[16]

Notice how this is exactly what Finkel and Ernst called participatory teaching methods that actually work. And what CAPS talks about but does not practice or assess. The goal here is achieving legal literacy, not just legal knowledge. We need learners who understand their rights and responsibilities and contributions to democracy, to cultivate their new understanding of the law and solve problems in their daily lives. This, in turn, increases the chances of access to justice in South Africa, which also remains neglected due to a lack of practical knowledge and use of the law, amongst other reasons.

The McQuoid-Mason 2008 paper is the ‘how to train the trainers’ version of the 2007 paper. Its focus is on Street Law as a university clinical programme at KZN.^[17] Here we look at the role of the university students and their impact on shifting their near-peers towards legal access that is interactive and practical, instead of merely doing one-hour visits at schools to lecture about the law or inform learners of the theory-based nature of the law. Street Law can continue with its clinical legal education where law students teach Grade 11 to 12 learners and get practical experience plus community service credit, and the learners themselves get interactive human rights education from near-peers. Law students could be the ‘experts’ that inspire the learners as well and provide relatability, therefore improving the learning experience, through seeing themselves in the person teaching them.^[18] This then also adds to the ‘quality of teaching’ that Finkel spoke about, which will benefit schools as well; for example, no extra teachers to pay. By using the same teaching methods listed in the McQuoid-Mason 2007 paper, this could be fulfilled. McQuoid-Mason also found that learners used the law better because their attitude changed towards it. In turn, law students improved their understanding of the law and their communication skills, as well as social responsibility. And learners grew in their legal knowledge and increased their confidence in using the law. Also, it directly and indirectly increased the relationship between universities and schools, which benefited the community. Street Law helps empower beyond the legacy of apartheid and empowers the learners themselves by making better democrats while healing the divisions of the past. To close the 51% knowledge gap identified by the DOJ 2018 Baseline Survey under the SEJA, the DBE needs to adopt these methods nationally.

Part Six: Conclusion and Recommendations for Reforming the Educational Framework.

We have come to the end of our journey. Through this journey, we have learned that the true purpose of South Africa’s legal framework in education needs more refining. To continue healing the divisions of the past and establishing a society based on democratic values, social justice, and fundamental human rights, the manner in which civic education is taught must evolve. The goal is to create a generation equipped with transformative legal knowledge through practical methods. Civic education already exists in CAPS, specifically Life Orientation, but it needs proper implementation. By moving from a purely written approach to a more participatory one, we may finally close the gap between constitutional purpose and classroom reality.

The article argued that while CAPS includes democratic values, its reliance on written assessments widens the gap. The survey data analysed from the 2018 DOJ SEJA Baseline Survey and the 2025 Reconciliation Barometer confirm that constitutional awareness remains low. Case analysis of S v Makwanyane and Pillay illustrated how the courts have given content to the founding values in section 1 of the Constitution. The post-apartheid framework was meant to create a united, democratic, and open society where citizens know and live the law. This demands a purposive approach to civic education.

Street Law methods provide this bridge through debates, mock trials, government visits, and law student visitations for near-peer learning that occurs on a monthly basis. And participatory teaching of the existing CAPS curriculum. This leads me towards the recommendations. The DBE should amend the CAPS assessment policy for LO and Social Sciences to include mandatory participatory assessments. Both the DBE and the DHET should formalise a national Street Law clinical programme linking law faculties and high schools, giving law students community service credits. Compulsory teacher training using McQuoid-Mason’s interactive methods to improve quality of instruction. In this way, we create better democrats who keep the purpose of our legal framework alive.

Reference(S):

Constitution & legislation

Constitution of the Republic of South Africa 1996

Table of Cases

S v Makwanyane and Another 1995(3) SA 391 (CC)

MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC)

Secondary Resources

Government Reports

Department of Basic Education, Curriculum and Assessment Policy Statement (CAPS), Life Orientation Grades 10-12 (Department of Basic Education 2011).

Department of Justice and Constitutional Development, Socio-Economic Justice for all (SEJA) Programme: Baseline Survey Report – Assessing Awareness of the Constitution and Human Rights (Department of Justice and Constitutional Development 2018).

Institute for Justice and Reconciliation, South African Reconciliation Barometer (SARB) Report (Institute for Justice and Reconciliation 2025)

Journal articles

Finkel SE and Ernst HR, ‘ Civic Education in Post-Apartheid South Africa: Alternative Paths to the Development of Political Knowledge and Democratic Values’ (2005) 26 Political Psychology 333.

McQuoid-Mason D, ‘ Methods of Teaching Human Rights: Some examples from Street Law Legal Literacy Programmes’ (2007) 5(2) Journal of Commonwealth Law and Legal Education 127

McQuoid-Mason D, ‘ Street Law as a Clinical Programme: The South African Experience with Particular Reference to the University of KwaZulu-Natal’ (2008) 17(1) Griffith Law Review 27 

[1] ‘Constitution of the Republic of South Africa, 1996’, Preamble page 1.

[2] ‘Constitution of the Republic of South Africa, 1996’, s1 (a-d).

[3] ‘S v Makwanyane,’ para 260.

[4] S v Makwanyane, para 263.

[5] Pillay 2008, paras 5 –14.

[6] Pillay 2008, para 172.

[7] Pillay 2008, para 173.

[8]‘Constitution of the Republic of South Africa, 1996, sections 15(1), 30 and 31(1).

[9] Department of Basic Education Annual Report, ‘Life Orientation Grades 10 – 12 edited’ pages 8, 12, 14, 18, and 21.

[10] Steven E Finkel and Howard R Ernst, ‘Civic Education in Post-Apartheid South Africa: Alternative Paths to the Development of Political Knowledge and Democratic Values’ (2005) 26 Political Psychology, page 342.

[11] Steven E Finkel and Howard R Ernst, ‘Civic Education in Post-Apartheid South Africa: Alternative Paths to the Development of Political Knowledge and Democratic Values’ (2005) 26 Political Psychology, page 335

[12] Ibid

[13] Finkel and Ernst (n 11), page 353.

[14] ‘SEJA Report 2018’ (n 2) page 38.

[15] ‘SAReconciliationBarometerReport2025’.

[16] David McQuoid‐Mason, ‘Method of Teaching Human Rights: Some Examples from Street Law Legal Literacy Programmes’ (2007) 5 Journal of Commonwealth Law and Legal Education 127.

[17] DJ McQuoid Mason, ‘Teaching Human Rights in Commonwealth University Law School: Approaches and Challenges, With passing references to some South African Experiences.’

[18] ibid.