The Role of the courts in the interpretation and implementation of the Right to Basic Education in Section 29(1)(a) of the South African Constitution

Ngubane, Kwanele Nhlanhla

Title: The Role of the courts in the interpretation and implementation of the Right to Basic Education in Section 29(1)(a) of the South African Constitution
Creator: Ngubane, Kwanele Nhlanhla
ThesisAdvisor: Van Schalkwyk, Cecile
ThesisAdvisor: Juma, Laurence
Subject: Right to education South Africa
Subject: Educational law and legislation South Africa
Subject: South Africa. Constitution (1994)
Subject: Legal framework
Subject: Children's rights South Africa
Subject: Jurisprudence South Africa
Date: 2023-10-13
Type: Academic theses
Type: Master's theses
Type: text
Identifier: http://hdl.handle.net/10962/424141
Identifier: vital:72127
Description: The right to education in section 29(1)(a) of the Constitution was meant to signal a break between an education system divided along racial lines, and a new democratic education system based on equity, equality, and opportunity for all learners. In reality, the South African education system still remains deeply divided along racial lines, with poor, mostly black learners, being under-resourced by the state, while their richer, mostly white, counterparts are being taught in schools that have access to all the resources necessary to realise the right to basic education. As a result, the right to education in section 29(1)(a) of the Constitution has been heavily debated, and between 2010 and 2022, the South African courts have often been called on to interpret the right. In the process, a rich jurisprudence has developed on the core content of the right to basic education, with findings by the courts that the right includes an entitlement to a number of educational resources. These include access to school infrastructure, learner-teacher support materials, desks and chairs, scholar transport, teaching and non-teaching staff, and nutrition. This study examines the way South African courts, between 2010 and 2022, have interpreted and implemented the right to basic education to give effect to section 29(1)(a) of the Constitution. While South African courts have historically shied away from interpreting socio-economic rights to contain a minimum core content and have rather opted for a reasonableness approach, the same is not entirely true for section 29(1)(a). As stated above, courts have been willing to find that the right entails a minimum basket of goods and services without which the right cannot be realised. By examining some of the most important education rights cases during this period, the study proposes that there are five factors that have guided the courts’ interpretation of the right and has assisted in the courts finding that the right contains a minimum core content. These factors are the historical context of the right to basic education; the textual formulation of the right to basic education in section 29(1)(a) of the Constitution; the interrelatedness of the right to basic education and other rights within the Bill of Rights; subsidiary education policies, legislation, and regulations, and lastly, the role of international law. This study seeks to consider the extent to which each of these factors have played a role in courts’ interpretation of section 29(1)(a). The study also considers the implementation of these judgments and the role that the courts have played in realising the right to education for learners on ground-level.
Description: Thesis (LLM) -- Faculty of Law, Law, 2023
Format: computer, online resource, application/pdf, 1 online resource (201 pages), pdf
Publisher: Rhodes University, Faculty of Law, Law
Language: English
Rights: Ngubane, Kwanele Nhlanhla
Rights: Use of this resource is governed by the terms and conditions of the Creative Commons "Attribution-NonCommercial-ShareAlike" License (http://creativecommons.org/licenses/by-nc-sa/2.0/)

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