education court cases in south africa

• Education Case Library

Constitutional Court

Federation of Governing Bodies for South African Schools v Member of the Executive Council for Education, Gauteng and Another [2016] ZACC 14 (20 May 2016)

The matter, in which Equal Education Law Centre (EELC) represented Equal Education (EE) as amicus curiae (friend of the court), concerned the validity of certain amendments to the Regulations Relating to the Admission of Learners to Public Schools published in 2012 (Regulations). The central issues were whether the Regulations were inconsistent with the South African Schools Act (Schools Act) or with the applicable provincial law; or are invalid because they are irrational or not reasonable nor justifiable.

Writing for a unanimous Court, Moseneke DCJ found that there was no conflict between the Schools Act, the Regulations and applicable provincial law. Rather, the Regulations were held to be legislation authorised by provincial legislation and may be read in harmony with the Schools Act and other national legislation.

Turning to specific regulations, the Court considered regulation 3(7) which disallows a learner’s prospective school from requesting confidential information from her current school. The Court held that the regulation properly combats unfair discrimination.

Proceeding to the issue of feeder zones, the Court held that the default position created by regulation 4(1) which determines feeder zones on a geographical basis, is indeed an interim, transitional arrangement. The Court found traction in the amicus’ submission that since the apartheid residential and workplace lines remain firm, the impact of the default feeder zone position is to prolong and legalise racial exclusion. The Court compelled the MEC to formulate fresh rules for feeder zones as required by regulation 4(1) within a reasonable time, and not later than 12 months from the date of judgment.

The Court finally found that the duty to place unplaced learners, and determine enrolment capacity and declare a school full falls on the MEC and HOD, respectively. However, the Court noted that the admission policy of a school must conform to all applicable law including provincial law. This means that the requirements of the Norms and Standards for School Infrastructure must apply until the Norms and Standards for School Capacity are promulgated.

The Court accordingly found all of the impugned regulations rational, reasonable and justifiable, but for the regulations relating to feeder zones, the latter to which it attached a finite time period for determination.

MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others (CCT 135/12) [2013] ZACC 34; 2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC) (3 October 2013)

In 2010, a Grade 1 learner was refused a place at the school for the 2011 academic year and was placed on the school’s waiting list. The mother of the learner lodged a complaint with the Gauteng Department of Education (Department) an appeal to the MEC.

The HOD took the view that the school could admit the learner into one of its Grade 1 classes, overturned the school’s refusal of the application and issued an instruction to the principal to admit the learner. The principal refused to admit the learner and the HOD intervened by physically placing the learner in one of the Grade 1 classes, seating her at an empty desk.

The school lodged a High Court application, seeking a declaration that it had the power to make the admission policy and admit learners in accordance with that policy. The High Court dismissed the application. On appeal to the Supreme Court of Appeal, the Court held that the Department did not have the power to override the school’s admission policy and thus, the HOD’s instruction to the principal to admit the learner, and the HOD’s placing the learner in the school, was unlawful.

On appeal to the Constitutional Court, the majority of the Court concluded that the HOD had the power to admit the learner, subject to certain procedural constraints. It held that the power of the school governing body to determine capacity as part of its admissions policy is subject to the Constitution and other provisions of the Schools Act, which indicates a structure in which the Department retains ultimate authority regarding admissions.

School admission policies could not be inflexibly applied and, the Court said, it would be open to the principal or HOD to depart from that policy if there were good reason to do so.

The majority held that the HOD had not exercised his power in a procedurally fair manner. The Court held that co-operation is the compulsory norm in disputes between school governing bodies and national or provincial government. This co-operation is rooted in the shared constitutional goal of ensuring that the best interests of learners are furthered and that the right to basic education is realised.

Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another (CCT 103/12) [2013] ZACC 25; 2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) (10 July 2013)

In 2008 and 2009 the governing bodies of Welkom High School and Harmony High School respectively adopted pregnancy policies that excluded pregnant learners from attending school during certain time-periods. The HOD instructed the principals of the schools to readmit two learners who had been excluded from the schools in terms of the pregnancy policies.

In the High Court, the schools sought to interdict the HOD from interfering with the implementation of their policies by readmitting the learners. The High Court granted the interdict, and the Supreme Court of Appeal confirmed the High Court’s order. The HOD then appealed to the Constitutional Court, which dismissed the appeal.

The Constitutional Court reasoned that, as a matter of legality, the HOD’s supervisory authority had to be exercised lawfully in accordance with the Schools Act. Since the HOD had overrode school policies without following the relevant procedures set out in the Schools Act, he acted unlawfully. The interdict was therefore correctly granted by the High Court.

However, the Constitutional Court also acknowledged that the schools’ pregnancy policies at face-value infringed upon the constitutional rights of pregnant learners, including the rights to human dignity, to freedom from unfair discrimination and to receive a basic education. The Court ordered the schools to review the policies in the light of the requirements of the Constitution, the Schools Act and further considerations set out in the judgment. The parties were ordered to meaningfully engage with each other in the process of reviewing their policies, according to the principles of cooperative governance enshrined in the Schools Act. In this cooperative process, an approach which places the learners’ best interests as the starting point must be adopted.

KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, Kwazulu-Natal and Others (CCT 60/12) [2013] ZACC 10; 2013 (6) BCLR 615 (CC); 2013 (4) SA 262 (CC) (25 April 2013)

In 2008, the Department of Education, KwaZulu-Natal (Department) issued a notice to independent schools setting out the “approximate” funding levels for the 2009 financial year. In May 2009, after the first payment for the year had already fallen due, the Department issued a circular warning schools that they should expect a subsidy cut not exceeding 30% for that financial year. The subsidies eventually paid to independent schools for 2009 were, on average, 30% less than those set out in the 2008 notice.

An association of independent schools brought an application in the High Court, arguing that the 2008 notice gave rise to an enforceable undertaking to pay the entire year’s subsidy without any reduction. The High Court dismissed the application and the Supreme Court of Appeal refused leave to appeal. The applicant approached the Constitutional Court for relief.

The majority of the Court held that even though the 2008 notice did not give rise to a contract between the schools and the Department, it nonetheless constituted a publicly promulgated promise to pay. The majority accepted that subsidies promised by government may generally be reduced. However, the majority held that, for reasons based on reliance, accountability and rationality, it is a constitutionally sound principle of our law that a public official who promises to pay specified amounts to named recipients cannot unilaterally reduce the amounts to be paid after the due date for their payment has passed. The Court therefore ordered the Department to pay the applicant schools the approximate amounts specified in the 2008 notice which had fallen due for payment on 1 April 2009.

Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011)

On 11 April 2011, the Constitutional Court delivered judgment in a case concerning the right to a basic education where a private property owner sought to evict a public school conducted on its property. The applicants, the school governing body (SGB) of the Juma Musjid Primary School (school) and the parents and guardians of the learners enrolled at the school, appealed against an order granted by the High Court granting the Juma Masjid Trust’s (Trust) application to evict the MEC for Education, KwaZulu-Natal (MEC) and, effectively, the learners and educators of the school, from the private premises owned by the Trust. The SGB unsuccessfully applied for leave to appeal to the Full Court of the High Court and Supreme Court of Appeal.

In the Constitutional Court, the SGB challenged the conduct of: the Trust in enforcing its rights under section 25 of the Constitution as a private owner of land; the High Court in its failure to exercise its constitutional obligation to develop the common law to protect the learners; and the High Court’s failure to craft an appropriate order. Finally, the SGB contended that, in making its decision, the High Court failed to take into account the paramountcy of the best interests of the children.

At the first hearing, the Constitutional Court provisionally set aside the eviction order made by the High Court holding that the order had an impact on the learners’ right to a basic education under section 29(1) of the Constitution and on the learners’ best interests under section 28 of the Constitution. Given the imminent end of the 2010 school-year, the provisional order directed the MEC to engage meaningfully with the Trustees and the SGB in an effort to resolve the dispute. If this failed, the Court ordered the MEC to take steps to secure alternative placements for the learners. The MEC was required to file a report setting out its efforts. The Trustees were granted leave to apply directly to the Court for an order that would be just and equitable, including an eviction order.

The parties were heard for a second time on the 25 November 2010 and the Court received the first report submitted by the MEC. It was clear that that the closure of the school had become inevitable. As a result, the Court ordered the MEC to submit a further report to indicate that the MEC complied with the obligation to provide alternative schooling.

A second report was then filed by the MEC setting out sufficient information regarding the schools where the learners would continue their schooling. The Court was satisfied that alternative arrangements for the placement of the children for the 2011 school-year had been made and that the learners’ right to a basic education would be protected. The Court then considered an eviction application by the Trust, and was satisfied that a case for eviction had been established and the learners’ rights had been given effect to. The final eviction order was granted on 11 December 2010.

Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC) ; 2010 (3) BCLR 177 (CC) (14 October 2009)

This case concerns the constitutional right to be taught in an official language of one’s choice and the power of the Head of Department of Education (HOD) to withdraw the function of a school governing body (SGB) to determine the school’s language policy.

In January 2007 there was a shortage of space in English medium schools in the Ermelo area to accommodate new grade 8 learners. There were approximately 113 English speaking learners who could not be accommodated. Hoërskool Ermelo, an Afrikaans medium school, was built to accommodate 2000 learners but had only enrolled 587. However, in the light of its language policy, the school was only prepared to accommodate the additional learners if they were prepared to receive tuition in Afrikaans. In terms of the Schools Act, a school’s language policy is determined by that school’s SGB. However, on 25 January 2007, the HOD summarily withdrew the function of the SGB to determine the school’s language policy and appointed an interim committee to perform the function. On the same day, the interim committee met and decided to change the school’s language policy to parallel medium meaning that the school would provide tuition in English and Afrikaans, accommodating the additional learners.

The school challenged the decisions of the HOD in the High Court which upheld the decisions of the HOD. The Supreme Court of Appeal reversed this decision. The HOD and the Minister for Education sought leave to appeal against a decision of the Supreme Court of Appeal.

The Constitutional Court unanimously held that the Schools Act does give the HOD the power to withdraw on reasonable grounds the function of the governing body to determine the school’s language policy. This power derives from section 29(2) of the Constitution read together with section 22 of the Schools Act.

However, in this case, the exercise of the HOD’s power was tainted by his failure to distinguish the power given to him under section 22 (the power to withdraw certain functions of the governing body) from the power given to him under section 25 (the power to appoint an interim governing body). That is, the exercise of the power was contaminated by his incorrect reliance on section 25. Consequently, the withdrawal of the function, the appointment of the committee and the subsequent alteration of the schools language policy were unlawful and were set aside.

However, the in light of the constitutional right to basic education balanced against constitutionally enshrined language rights, the Court made an order requiring the school to report on the reasonable steps taken in reviewing its language policy and on the outcome of the review process. The Court recognised the plight of disadvantaged black learners, who are are often further disadvantaged by application of language policy preventing them access to schools, and the Court stressed that school governing bodies are bound to consider the best interests not only of learners in attendance at that school but also of the broader community.

The Court also ordered the HOD to report to the Court on the steps taken to ensure that there were enough places for grade 8 English learners at the start of 2010.

MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007)

In 2004, Sunali Pillay returned to Durban Girls’ High School with a small nose stud. The school decided that Sunali Pillay should not be allowed to wear the stud. Her mother, Ms Pillay took the school and the KwaZulu-Natal MEC for Education to the Equality Court alleging that they had unfairly discriminated against Sunali Pillay and had violated her religious and cultural rights.

The Equality Court found that the school had not unfairly discriminated against Sunali Pillay. The High Court overturned the decision, on appeal, holding that the school had discriminated against Sunali Pillay and that the discrimination was unfair. The High Court accordingly declared the school’s decision prohibiting the wearing of a nose stud by Hindu/Indian learners to be null and void. Both the school and the Department appealed directly to the Constitutional Court.

The Court held that the rule prohibiting the wearing of jewellery had the potential for indirect discrimination because it allowed certain groups of learners to express their religious and cultural identity freely, while denying that right to others. The Court reasoned that the school had interfered with Sunali Pillay’s religion and culture and that interference amounted to discrimination.

The Court observed that this case was not about school uniforms in general, but about a specific exemption to a uniform. There was no evidence that permitting this particular exemption would imperil uniformity or school discipline in general. The fact that granting an exemption to Sunali Pillay might encourage more learners to express their religion or culture was to be celebrated, not feared. Accordingly, the Court concluded that the school’s discrimination against Sunali Pillay was unfair.

An order declaring that the refusal by the school to grant her an exemption from the Code unfairly discriminated against her was granted. In addition, the Court ordered that the school, in consultation with learners, parents and staff, amend the Code to provide for a procedure to reasonably accommodate religious and cultural practices.

Bel Porto School Governing Body and Others v Premier of the Western Cape Province and Another (CCT58/00) [2002] ZACC 2; 2002 (3) SA 265; 2002 (9) BCLR 891 (21 February 2002)

When the Western Cape Education Department took over responsibility for schools in the Western Cape, there were gross disparities between schools formerly under the House of Assembly (HOA) Education Department, which catered for white children, and other departments which catered for other races.

Special (Elsen) schools for disabled children employ general assistants to help the children in classrooms and hostels and on buses. The HOA subsidised its schools, letting them decide how many general assistants to employ and on what terms. General assistants in other departments were employed by the departments and not the schools. To introduce an equitable system the WCED worked on a rationalisation and redeployment scheme (Scheme) under which teachers and general assistants at overstaffed schools would be moved to understaffed schools.

With smaller subsidies under the new system, the governing bodies of HOA Elsen schools complained that they were unable to cover the salaries of their general assistants and requested the WCED to employ them. The WCED declined as it already had a surplus of general assistants, some of whom would have to be retrenched when the Scheme was implemented. The HOA Elsen schools sued the WCED in the Cape High Court, contending that the decision by the WCED to implement the Scheme without first employing the general assistants at their schools infringed their constitutional rights to equality and to just administrative action. They requested an order directing the WCED to employ their general assistants on their behalf. Their application was dismissed by the High Court and they appealed to the Constitutional Court.

The appeal was dismissed primarily on the basis that the HOA schools received adequate notice of what the WCED’s intended to do and were given adequate opportunity to make representations. These representations were considered but rejected and thus, there was no basis for holding that the decision of the WCED did not meet the requirements of the Constitution for just administrative action.

Minister of Education v Harris (CCT13/01) [2001] ZACC 25; 2001 (4) SA 1297 (CC); 2001 (11) BCLR 1157 (CC) (5 October 2001)

In January 2000 the Minister of Education (Minister) published a notice stating that a learner may only be admitted to grade one at an independent school if he or she turns seven in the course of that calendar year.

Talya Harris had for three years been attending pre-primary school in preparation for entry to primary school at the start of 2001. However, since Talya would only turn six in early January 2001, the notice prevented her from entering grade one. Her parents approached the High Court challenging the validity of the notice on a variety of grounds, among others, that it unfairly discriminated against children on the grounds of age and was against the best interests of children such as Talya. The High Court found in favour of the Harris. The Minister appealed to the Constitutional Court.

In a unanimous judgment, the Constitutional Court held that the matter was best decided not on the broad constitutional questions raised, but on whether the Minister had the power under the National Education Policy Act to issue the notice he did. The Court held that that Act only gave the Minister powers to determine policy and not to impose binding law. The appeal was therefore dismissed.

Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000)

This case concerned the prohibition by the South African Schools Act, 1996, of corporal punishment in schools. Christian Education South Africa, representing 196 independent Christian schools, contended that this prohibition violates the right of parents of its pupils to freedom of religion and that it interferes with the right to establish independent schools, the right to participate in the cultural life of their choice, the right to enjoy their culture and to practise their religion.

The Minister of Education argued that corporal punishment violates the right of the child to human dignity, to equality, to be protected from maltreatment, neglect, abuse or degradation, to be free from violence, not to be tortured and the right to be free from cruel, inhuman or degrading treatment. The legislation enacted sought to respect, protect, promote and fulfil the rights in the bill of rights that would be violated by corporal punishment.

The Court found that parents of Christian children are not being forced to make an absolute choice between obeying a law of the land or following their conscience. Schools are not prevented from maintaining their specific Christian beliefs, but they cannot authorise or instruct teachers to inflict corporal punishment on children in the name of their religious convictions. The Court held that the Minister had established that the prohibition of corporal punishment was part and parcel of a national program to transform the education system and bring it into line with the letter and spirit of the Constitution. The creation of uniform norms and standards for all schools was crucial for educational development, as was a coherent and principled system of discipline. The state was also under a constitutional duty to take steps to help diminish the amount of public and private violence in society generally, and to protect all people, especially children, from maltreatment, abuse or degradation. Furthermore, in every matter concerning a child, the child’s best interests were of paramount importance. This principle was not excluded in cases where the religious rights of the parent were involved.

The Court accordingly upheld the ban on corporal punishment in schools as lawful.

Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998)

During August 1995, the MEC for Education in Mpumalanga decided to discontinue paying all bursaries to ‘Model C’ schools in the province of Mpumalanga with effect from July 1995. The Association of Governing Bodies of State-aided Schools: Eastern Transvaal (the Association), challenged this decision in the TPD which set aside the MEC’s decision.

In the appeal before the Constitutional Court, both parties agreed that the bursaries, which were paid to schools which mainly educated white pupils, were one of the unfair legacies of the past dispensation that needed to be eradicated. The only dispute between the parties concerned the manner in which the bursaries were terminated.

The Court found that the governing bodies of the schools had a legitimate expectation that the government bursaries would continue to be paid during the 1995 school year, subject to reasonable notice by the government of its intention to bring them to an end. Accordingly, in terms of their constitutional right to fair administrative action, this meant that the MEC had either to give reasonable notice prior to the termination of the bursaries or had to act in a procedurally fair manner if he wished to bring the bursaries to an end before December 1995. It is evident that no reasonable prior notice was given. Thus, the Court had to decide what the requirements of procedural fairness required in this case (a circumstances of the case enquiry).

The Court found that the bursaries were discontinued retrospectively, without reasonable notice and without affording the Association and its members an opportunity to be heard or to restructure their contractual obligations in the light of the diminished income. This constituted a breach of their constitutional right to procedural fairness. The MEC’s decision was therefore constitutionally invalid. The Court determined that as the bursaries were payable only until the end of 1995, and that time period had long since passed, this was not an appropriate case to refer back to the MEC in order for him to act in a manner which would cure the unconstitutional action. In the result the Constitutional Court simply dismissed the appeal. The practical effect of this is that the bursaries were to be paid until the end of 1995.

Supreme Court of Appeal

Minister of Basic Education v Basic Education for All (20793/2014) [2015] ZASCA 198 (2 December 2015) The case concerned the Department’s failure to provide learners at public schools in Limpopo with textbooks following the roll-out of a new curriculum starting in 2012. By May 2012, the Department had not ensured that each learner had a textbook for each subject, and eventually the high court (in a separate case) ordered that this be rectified according to a timeline. The Department did not comply with that timeline, and also failed to ensure that each learner had a textbook for each subject in 2013 and 2014. Specifically, since the Department had complied with the High Court order in the separate case in every province except Limpopo, the Department’s conduct thus amounted to unfair discrimination against the affected learners.

Moreover, the Court upheld the High Court’s order that the Department had infringed the affected learners’ rights to a basic education, equality and dignity. However, it noted that parts of that order had been overtaken by time, and it was thus necessary to re-craft it to deal with the Department’s obligations in respect of future years, including the 2015 school year. The Court accordingly declared that it is the duty of the State, in terms of s 7(2) of the Constitution, to fulfil the right of every learner to basic education by providing him or her with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

Minister of Education for the Western Cape v Beauvallon Secondary School (865/13) [2014] ZASCA 218; (2015) 2 SA 154 (SCA); [2015] 1 All SA 542 (SCA) (9 December 2014)

The provincial Minister for Education (the Minister), had taken a decision – in the implementation of national education policy – to close a number of schools in the province, acting under section 33 of the South African Schools Act 84 of 1996 (SASA). Initially, eighteen of the affected schools and their respective school governing bodies launched an application seeking an order reviewing and setting aside the Minister’s decision. The South African Democratic Teachers Union (SADTU), a trade union representing the interests of certain teachers, was later joined.

The applicants alleged that the decision was procedurally unfair, in that the Minister had not provided sufficient reasons for the impending closures, and the schools were thus not able to make meaningful representations thereon as required by the Act. An attack on the constitutionality of section 33 of the SASA accompanied these claims. In testing the sufficiency of the reasons supplied by the Minister to the schools for their intended closure, the Court noted that the prevailing test for fairness, while dependant on the particular circumstances of the matter before the court, is whether the affected party was “informed of the gist of the case which he has to answer”. As long as the gist of his reasons was conveyed, the Minister was thus not obliged to spell out in great detail why the particular schools were being considered for closure and did not have to explain the underpinning policy of the decision.

The Court held that, while terse, in most instances the reasons provided were sufficient to communicate the ‘gist of the case” to be answered. However, with regard to Beauvallon Secondary School, the final reasons provided by the Minister for its closure differed from those initially given to the school, on which basis it made its representations, and appeared to have come from the Department itself rather than having emerged during the consultation process. The Court held that, as the final reasons for closure differed materially from those initially provided, and thus the gist of the case to be met was not laid out, the procedure followed in regard to this particular school was fatally flawed for failure to comply with the provisions of the SASA.

In the result, save for the instance of Beauvallon, the court a quo’s decision to review and set aside the Minister’s decision to close the remaining schools could stand and the appeal succeeded.

St Charles College v Du Hecquet De Rauville and Others (14307/15) [2017] ZAKZPHC 12 (12 April 2017) 

KwaZulu-Natal High Court:

The case concerns the parents of two learners at St Charles College, an independent (private) school in Pietermaritzburg, who owe fees of a total of R627 110.09 to the school.

The fees were incurred for the 2014 and 2015 academic years, and the parents signed acknowledgement of debt for them. Both learners matriculated in 2015. The school therefore took the parents to court to recover the amount of initially R428 278.09 – for which the school obtained summary judgment for in 2015. In 2016 the school then obtained default judgment for a further R198 832 which was previously in dispute.

To satisfy the judgment, the school tried to attach the parents’ moveable assets but these only amounted to about R6 000. The school therefore argued that it had to attach the parents’ home as it had no other choice to recover the debt it was owed.

The Court found that both parents were employed full time. They also attempted to sell the property, so they could not have any sentimental value for the property and can afford alternative a commission. The court found that both parents voluntarily made an informed choice to place their children in an independent school, and could have chosen to place their children in public school. They could not argue that they were unfairly discriminated against as the decision to send their children to an independent school was based on economic and financial choices they enjoyed and which many other parents do not. Such an exercise of choice could not impair their dignity, which is the test for unfair discrimination.

Lukas Pieter Fourie v Centuria 266 (Pty) Ltd and Others (97146/2016) (13 January 2017)

Gauteng High Court:

In this case the applicant asked the court to prohibit a low-fee private school from operating on a property in the East of Pretoria (the court calls this property “Holding 1”). The first respondent was the owner of the property and the second respondent, Eadvance (Pty) Ltd, was a company that operated the private school called ‘Spark School Silver Lakes’, and leased the last from the first respondent in order to do so.

The applicant, Lukas Fourie, owned two properties very near to Holding 1. In 2004 the previous owner of Hlding 1 had been granted the right to conduct the operation of a conference facility, a chapel, a reastaurant of 1300 square metres and a covered outside seating of 400 square metres, on the property.

In 2016 Mr Fourie learned through an advertisement board that Eadvance intended to open a school on Holding 1, and claimed that this was unlawful because of the restrictive zoning of the property.

The court agreed with Mr Fourie’s claim that the school was unlawfully established. However, the court noted that there are national problems surrounding access to education and that a news report on 11 January 2017 said that about 40 000 children were not yet accommodated in schools. The court also noted that the man access gate to Holding 1 was not in the street from which Mr Fourie enters his properties.

Because the school was serving low income families and providing education to previously disadvanataged learners who might be prejudiced by its closure, and because of the limited prejudice to Mr Fourie by its operation, the court refused to grant Mr Fourie’s application for an interdict against that operation.

Tripartite Steering Committe and Another v Minister of Basic Education and Others (1830/2015) [2015] ZAECGHC 67 (25 June 2015)

Eastern Cape High Court:

The applicants in this case sought orders directing the Eastern Cape Province education government to provide scholar transport to a number of learners. The applicants also seek orders directing the provincial government to complete the process of adopting a new scholar transport policy, to publish it and to report to the court on compliance with these duties. The applicants further sought orders directing the provincial government to include particular mechanisms and procedures in the policy.

The Court held that the right to basic education, in order to be meaningful, includes the right to learner transport. Accordingly, in instances where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its constitutional obligations and to promote and fulfill the right to basic education.

Against this backdrop, the Court ordered the provincial government to the applicant learners who had successfully applied for scholar transport. The Court also reviewed and set aside the provincial department’s decision to refuse scholar transport to the second group of learner applicants. These applications were remitted to the department for new decisions to be taken.

On the issue of the national scholar transport policy, the provincial government was directed to report to the Court on the progress in the adoption of the new scholar transport policy. However, the Court held that since the development and formulation of policy lies within the exclusive domain of the executive branch of government, the Court refused to grant an order directing that the new policy contain mechanisms advanced by the applicants.

Linkside and Others v Minister of Basic Education and Others (3844/2013) [2015] ZAECGHC 36 (26 January 2015)

The case concerns the ongoing failure of the Eastern Cape Department of Basic Education to appoint educators in vacant posts at various public schools throughout the province, and the consequent violation of the right of children in those schools to basic education.

Since 2011, the provincial Department had timeously declared educator post establishments, but had repeatedly failed to appoint educators in vacant posts, or failed to pay the appointed teachers. As a result, schools were forced to appoint and pay educators in unfilled vacant posts. The salaries for these educators were not included in the schools’ budgets and payment by the schools of their salaries reduced the financial resources needed for other school activities. Non-fee-paying schools, which did not have the funds to fill the vacant posts, suffered a shortage of educators.

The provincial department acknowledged that they were required to fill all vacant posts and were liable in principle to reimburse schools which had paid educators occupying vacant posts. These obligations were encompassed in a previous court order by Alkema J. However, at the time of this application, the posts had not been filled, given the Department’s slow and incomplete attempts to move excess educators in various schools to vacant posts. The applicants wished to remedy this status quo. The provincial department also took issue with the part of Alkema J’s order which required retrospective reimbursements for the years 2011 to 2012 and the appointment of a claims administrator to handle the reimbursement claims. These disputes gave rise to the present application.

The Court held that both the retrospective reimbursements and appointment of the claims administrators were competent. Regarding the failure of the provincial Department to appoint educators in vacant substantive posts, the Court held that the resultant ongoing violation of the right to basic education constitutes exceptional circumstances in terms of which the Court could substitute its own plan of action for that of the department. The order provided that educators occupying vacant posts be deemed to be appointed as permanent educators insofar as the appointments will not exceed schools’ 2015 educator post establishment.

Madzodzo and Others v Minister of Basic Education and Others (2144/2012) [2014] ZAECMHC 5; [2014] 2 All SA 339 (ECM); 2014 (3) SA 441 (ECM) (20 February 2014)

In October 2012, parents of learners attending schools in the Eastern Cape Province brought an application for an order declaring the respondents to be in breach of the learners’ rights to education, equality and dignity given their failure to provide essential school furniture, in the form of desks and chairs to public schools throughout the province.

In November 2012, Griffiths J granted an order by consent of the parties providing that the respondents must ensure that the applicant schools receive adequate, age and grade appropriate furniture by January 2013. The respondents were also to file a report indicating their compliance with the order by 21 January 2013 and an audit report assessing the furniture needs at all public schools in the province and a plan detailing when the required furniture would be provided by 28 February 2013. The order contained an undertaking made by the respondents that they would endeavour to ensure that the furniture needs of all schools listed in the audit would be met by June 2013.

In August 2013, the applicants launched further proceedings on the basis that the respondents failed to comply with the terms of Griffiths J’s order. Makaula J granted a consent order in terms of which the respondents would verify the furniture needs of schools in the province by 15 November 2013 and that a further audit report be completed by 17 December 2013. The issue of when the furniture needs recorded in the December 2013 audit report were to be delivered to schools was to be argued before the same Court on 30 January 2014.

In January 2014, it came to light that the December 2013 report had yet to be finalised, and would only be completed at the end of February 2014. The applicants accordingly sought an order that all the furniture in the audit be delivered to the identified schools within 90 days of the completion of the audit report. The respondents, however, contended for an open ended order allowing them to take into account budgetary and resource constraints. Such an order would entail a reasonable plan of action to provide furniture to learners within the shortest period of time.

The Court held that the shortage of furniture of schools in the Province is a serious impediment for children attempting to access the right to basic education in the Province. The dilatory attitude of the respondents, and the State’s failure to offer a date by when it would deliver furniture, caused the Court to hold that an open ended order was unreasonable and wholly inadequate, providing learners in the Province with no prospect of achieving access to basic resources required to access the right to basic education. Learners in the Province were entitled, according to the court, to immediate access to basic education and to be treated equally and with dignity.

The Court thus granted an order declaring that the respondents breached the constitutional rights of learners in public schools in the Province to basic education, by failing to provide adequate, age and grade appropriate furniture to the learners. The respondents were to provide the furniture to the schools identified in the audit within 90 days of the completion of the order. The time period for delivery of the furniture may be extended upon application by the respondents, subject to full disclosure as to the steps already taken to meet the deadline, reasons for non-compliance with the deadline and the projected time period within which the furniture needs would be met.

Radebe and Others v Principal of Leseding Technical School and Others (1821/2013) [2013] ZAFSHC 111 (30 May 2013)

Free State High Court:

In January 2013, Lerato Radebe was removed from her classroom in Leseding Technical School and sent home because she was wearing dreadlocks, in contravention of the school’s code of conduct which provided that “hairstyles must be neat and short. No elaborate style (such as … dreadlocks …) are allowed”. Lerato, her parents and Equal Education (the applicants) contended that Lerato’s right to education had been violated by her being removed from classes and that the school’s instruction that Lerato cut her hair was a violation of her faith and unfairly discriminated against her.

The Court agreed with the applicant’s contentions and held that the school acted unlawfully and in a discriminatory manner in banishing Lerato from her classroom during school hours. Moreover, the Court regarded the school’s requirement that Lerato cut off her dreadlocks as unfair discrimination on the basis of religion. The school’s conduct further violated Lerato’s constitutional rights to equality, dignity, education and the freedoms of religion, belief, opinion, expression, association and culture.

The school was thus interdicted from preventing Lerato from participating fully as a grade 8 learner at the school and from harassing, disadvantaging, victimising or discriminating against her in any way. The Court ordered that the school allow Lerato back into school with immediate effect, and that arrangements be made to assist Lerato in catching up the months of schooling she had missed.

South African Democratic Teachers Union (SADTU) and Others v MEC for the Department of Basic Education: Eastern Cape Province and Others (573/12) [2013] ZAECBHC 2; [2013] 2 All SA 474 (ECB) (18 February 2013) Eastern Cape High Court:

The applicants in this case sought an order reviewing and setting aside the educator post establishment for 2013 declared by the MEC for Education, Eastern Cape and the 2013 post establishment for public schools declared by the provincial HOD. The applicants contended that the HOD failed to convey the post establishment to public schools before 30 September 2012, as required by law.

The Court embarked on a thorough interpretation of the relevant legislation (section 5 of the Employment of Educators Act, 1998; Norms and Standards for School Funding; and section 5A and 58C of the Schools Act) and found that it would be absurd to find that post establishments made after 30 September 2013 would be invalid. Such an approach could never ave been forseen or intended by the Legislature. The consequences of such an approach would have far reaching financial ramifications for the department and would in effect mean that the department would be compelled to implement the post establishment for the previous year regardless of budgetary constraints.

In this case, both the MEC and HOD had substantially complied with the provisions of section 58C. The MEC announced the post establishment for 2013 on 28 September 2012. On 16 October 2013 the HOD issued ‘pre-trial post establishments” for schools and requested their input for the final post allocation. The final post allocations were communicated to District Directors on 1 November and to schools the following day. Their non-compliance was in my view therefore not so egregious that it had made it impossible for schools to function optimally.

The Court thus dismissed the appeal.

Centre for Child Law and Others v Minister of Basic Education and Others (1749/2012) [2012] ZAECGHC 60; [2012] 4 All SA 35 (ECG); 2013 (3) SA 183 (ECG) (3 July 2012)

View our Summary

Against the backdrop of a “crisis of immense and worrying proportions” in public schools in the Eastern Cape province, this case pertains to the longstanding failure of the provincial Department of Basic Education to attend to post provisioning. The result of the provincial Department’s failure is that some schools have more teachers than necessary, while others have too few teachers. Consequent prejudicial effects on teaching and learning ensued. As the provincial Department failed to take steps to transfer surplus teachers to where they were required, the budget spiralled out of control because teachers at under-resourced schools were appointed to fill vacant posts on a temporary basis.

The specific issue for decision in this case is the provincial department’s failure to provide effective support for administrative processes of schools in the province – that is, the provisioning of non-teaching staff at schools.

The Court held that without proper administration in schools, the right of learners to basic education is threated. The Court found that the Public Service Act empowers the MEC to determine the establishment for non-teaching staff; the Norms and Standards for School Funding postulate an adequate number of both teaching and non-teaching staff to be employed at each school and a correlation between both staff posts; and the South African School Act requires both teacher and non-teacher establishments to be known by governing bodies before their budgets can be approved and to allow them to determine how many additional posts are needed at their schools. The inescapable interpretation of this legislation consistent with the right to basic education, according to the Court, was that the MEC is empowered and indeed obliged to determine the establishment for both teaching staff and non-teaching staff at public schools in the province.

The Court thus ordered that the provincial department was obliged to declare post establishments for both teaching and non-teaching staff for 2013 for public schools in the province and that it is required to fill those posts.

Western Cape Forum for intellectual Disability v Government of the Republic of South Africa and Another (2011 (5) SA 87 (WCC)) [2010] ZAWCHC 544; 18678/2007 (11 November 2010)

Western Cape High Court:

This case concerned the provision of education for children with severe and profound intellectual disabilities in the Western Cape.

The applicants argued that the state makes no direct provision for the education of children with severe or profound intellectual disabilities and does not provide schools for such children in the Western Cape. Any provision for the education of such children is very much less than is provided for other children, is inadequate to cater for the education needs of the children, and only made available where a non-governmental organisation provides such facilities. On these bases, the applicants argued that provincial department policies and practices infringe the rights of children in respect of their rights to education, equality, human dignity and to be protected from neglect and degradation.

The Court undertook extensive analyses to assess whether the abovementioned rights were indeed violated. The Court ultimately found that the provincial department failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the right to basic education, protection from neglect and degradation, equality and human dignity. The provincial department was directed to take reasonable measures (including interim steps) in order to give effect to these rights. The provincial department was also directed to deliver a report on the implementation of the Court order within 12 months.

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Moodley v Kenmont School and Others CCT281/18

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Case CCT281/18  [2019] ZACC 37

 Date of Hearing:  14 May 2019 Judgement Date: 09 October 2019

Post Judgment  Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 9 October 2019 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of an order by the High Court of South Africa, KwaZulu-Natal Local Division, Durban, declaring section 58A(4) of the South African Schools Act 84 of 1996 (Schools Act) constitutionally invalid. Kenmont School and the Kenmont School Governing Body (school respondents) applied for leave to appeal against the judgment of the High Court.

The applicant, Mr Deverajh Moodley, successfully challenged the admission policy of Kenmont School in the High Court which ordered the school respondents to pay his legal costs. The school respondents took the matter on appeal to the Supreme Court of Appeal, which dismissed the appeal and, like the High Court, made a costs order in favour of the applicant.

The applicant’s taxed bill of costs amounted close to R600 000, excluding interest. After unsuccessfully seeking satisfaction of his costs award from the school respondents, the applicant obtained a warrant of execution against the school and attached the school’s bank account as well as a motor vehicle belonging to the school. The school respondents approached the High Court, on an urgent basis, seeking a court order setting aside the warrant of execution and subsequent attachment of its property. The school respondents relied on section 58A(4) of the Schools Act, which protects the assets of public schools from attachment as a result of any legal action taken against the school. The applicant filed a counter-application seeking, among others, an order declaring section 58A(4) of the Schools Act unconstitutional. The High Court granted the applicant’s counter-application and declared the section constitutionally invalid.

The applicant then approached the Constitutional Court for confirmation of the declaration of invalidity. He contended that the differential treatment of a public school with regard to the attachment of assets to satisfy a judgment debt infringes his right to equality in contravention of section 9(1) of the Constitution and that his inability to derive a benefit from the favourable costs order constitutes a violation of his section 10 right to dignity. In their appeal against the confirmation, the school respondents argued that under section 60(1) of the Schools Act, the State is liable for any delictual or contractual damage or loss resulting from a school activity. On their interpretation, that meant the State, and not the school, was liable for the applicant’s costs. Therefore the applicant had redress under this section and his section 9(1) right was not infringed. The school respondents further argued that section 58A(4) read with section 60(1) of the Schools Act upholds the right to education. Thus it was not necessary to have section 58A(4) declared constitutionally invalid.

The Head of Department, Department of Education, KwaZulu-Natal, the MEC for Education, the Minister of Justice and Correctional Services and the Minister of Basic Education (government respondents), the third to sixth respondents, argued that it was misconceived to contend that the applicant’s costs must be paid by the State as no costs order was awarded against the State. They further submitted that the school respondents were cautioned against engaging in the litigation. The government respondents took the view that section 58A(4) ought not to be declared constitutionally invalid. The Centre for Child Law, admitted as a friend of the Court, argued that the costs awarded pursuant to litigation that arose from the amendment of the school admission policy are not delictual or contractual damage or loss, nor is the amendment of the school admission policy a “school activity” as envisaged in section 60(1) of the Schools Act. Therefore, the school respondents’ suggestion that section 60(1) affords the applicant redress is misconceived. Furthermore, the right to basic education is so important that there are no less restrictive means to protect it, and the declaration of invalidity should not be confirmed.

In a unanimous judgment penned by Madlanga J, the Constitutional Court declined to confirm the High Court’s declaration of constitutional invalidity. The Court held that although section 58A(4) limits the rights to equality and dignity, in light of the right that it seeks to protect – the right to basic education – the limitation is reasonable and justifiable under section 36(1) of the Constitution. It concluded that the purpose of the limitation brought about by the prohibition in section 58A(4) is to avoid any adverse effects that could be caused by the attachment of school assets, thereby protecting the right to basic education and ensuring that the children’s best interests are afforded paramount importance. The limitation is therefore well-tailored to its purpose and there are no less restrictive means to achieve this purpose.

With regards to the fate of the applicant’s costs awards, the Court held that despite its prohibition of the attachment of assets of a public school, section 58A(4) does not outlaw the grant of orders sounding in money, including costs orders, against public schools.

The Court found that implicit in a public school’s legal capacity to sue and be sued in its own name is the power to pay the opposing side’s costs if so ordered by a court. Public schools cannot be empowered to sue and be sued, but be immune from adverse costs orders. In terms of section 37(6)(c) of the Schools Act, the governing body of a public school is empowered to pay legal costs. The Court therefore, concluded that the Kenmont School Governing Body had the statutory mandate to settle the applicant’s bills of costs. The Court ordered that Kenmont School must pay the applicant’s High Court and Supreme Court of Appeal costs. It further ordered that the members of the Kenmont School Governing Body must, individually or collectively, take the necessary steps to ensure that the payment does take place.

The Full judgment   here

The history of the idea

The notion of a bill of rights for South Africa can be traced back to an ANC document in the early 1920s. The Freedom Charter of 1955 carried the idea forward. 

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• Court Cases

Equal Education acts through the law to promote change in education.

Grootkraal primary school case.

Grootkraal UCC Primary School, a small but vibrant rural school in Oudtshoorn, faces an uncertain future. A public school on private land, owned by a Trust seeking to redevelop the land for commercial purposes, it is threatened with closure and the relocation of its learners. The case of Grootkraal, before the Cape High Court once more, is one of competing claims – a conflict between private interests and educational rights in which the lives of children are in the balance.

For over 80 years, Grootkraal has been at the heart of a close-knit community of learners, teachers, parents and church-goers. Once an impoverished farm school, it is now a source of immense pride for the community. Despite the fact that it is situated in a rural area and falls within the poorest quintile of schools, it nevertheless offers a computer laboratory and a vegetable garden which provides most of the learners with their only meal for the day. Grootkraal is also the community’s place of worship, accommodating a church on the same site.

The strength of the community has, however, been tested due to a lack of opportunity in the area – people were forced to move away in pursuit of work and a better quality of life. In spite of these difficulties, there remains a strong sense of community largely because of the commitment of learners and parents to school and church. But the community is at risk once more.

An understanding of the history of farm schools in South Africa is crucial to understanding the complex situation in which Grootkraal finds itself. During Apartheid, farm owners were able to open and close state-subsidised schools situated on their property, at their discretion. They could also determine the size of the school, what was taught and who could attend. This racist legal framework within which farm schools operated left in its wake a legacy of tenure insecurity and grossly inadequate school infrastructure.

The South African Schools Act, passed in 1996, sought a tentative remedy to this. Section 14 of the Act provides a mechanism whereby the private property owner, often a farmer, can voluntarily enter into an agreement with the MEC for Education to provide some security of tenure to a school.

In the case of Grootkraal, the Western Cape Education Department (WCED) maintains that it cannot afford to pay the rent demanded by the land owner and, as such, is unable to come to an agreement in terms of section 14. The owners of the land, the Kobot Besigheid Trust, plan to build a game farm and resort on the site currently occupied by the school. In response to the WCED’s decision to close Grootkraal and relocate its learners to Voorbedrag, a school 18 kilometres away, Grootkraal sought and was granted an emergency interdict in June 2011. The order prevented the WCED from closing the school, and instructed it to engage with Grootkraal and the Trust in order to reach an agreement as envisaged by the Act. However, a suitable agreement has not been reached and the Trust has therefore initiated eviction proceedings.

The outcome of the case is significant not merely for Grootkaal but for farm schools throughout the country whose security of tenure is similarly precarious.

Recently, it has been suggested that the Constitution and the law are a barrier to transformation, impeding substantive redress for historical injustices, land reform in particular. Equal Education (EE) joined the proceedings as amicus curiae in order to to bring to the Court’s attention section 58 of the Schools Act, which  authorises the MEC to expropriate land, with reasonable compensation, “if it is in the public interest to do so…for any purpose relating to school education in a province.” If an agreement cannot be reached in terms of section 14, expropriation must be considered. It is clear from the MEC’s own affidavit that this option was never properly considered.

In this case expropriation is in fact the only course of action in which all parties would have their constitutional rights protected. This would include the land owner, which, in terms of Section 25 of the Constitution must receive compensation that is “just and equitable, reflecting an equitable balance between the public interest and the interests of those affected.”

Without security of tenure right to a basic education will remain under threat.

It would appear, however, that the MEC takes a different view. The WCED characterised the closure of Grootkraal and its merger with Voorbedrag as a ‘relocation’. In so doing, the WCED tried to circumvent the important procedural safeguards that apply when a public school on private land closes and/or merges with another. The MEC must not only comply with these procedural safeguards; he must also consider all options including expropriation.

After the matter was heard in the Western Cape High Court, the Centre for Child Law and Lawyer’s for Human Rights were joined to the proceedings.  The Centre for Child Law has been ordered to collate a report on what would be in the best interests of the learners at the school.  Lawyers for Human Rights are representing a segment of the community and are arguing that the community/church are the rightful owners of the land on which the school is based.

What the case of Grootkraal makes clear is that the Constitution and the South African Schools Act enable real reform. Where then is the political will?

The Centre for Child Law (CCL) was asked by the court to compile a report on what would be in the best interests of the children. Centre for Child law has filed  this affidavit . Carina Du Toit (the attorney for CCL) in paragraph 127 of the affidavit concludes that it is “overwhelmingly in the children’s best interests that they continue to attend Grootkraal.” And in paragraph 130 she “strongly recommends” that the MEC considers “all the available legal remedies including expropriation before it considers closing Grootkraal.”.

All the court documents are avaliable online:

• Notice of Motion
• Grootkraal pleadings
• Applicant’s founding affidavit
• Applicant’s confirmatory affidavit
• Second and third respondant’s notice of opposition
• Second and third respondant’s replying affidavits
• Second and third respondant’s confirmatory affidavit
• Applicant’s replying affidavit
• Amicus Curiae application
• MEC in response to Amicus Curiae application
• SGB in response to Amicus Curiae application
• Grootkraal/EE heads of argument
• MEC response to heads of argument
• Centre of Child Law – joinder application
• Centre of Child Law – joinder application (2)
• LHR notice of set down for joinder application

After years of campaigning and mobilising by Equal Education members, the Minister of Basic Education Angie Motshekga promulgated Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure on 29 November 2013. This school infrastrcture law sets out the obligations on the State to fix the crisis in South Africa’s school infrastructure.

In 2014 EE and the EE Law Centre raised a number of concerns with the Department of Basic Education (DBE), relating to the vague and open ended wording of the Norms and Standards. The Minister asked for time to work on implementation, and undertook to respond to our concerns during January of 2015. As of October 2015, no response had been received, and the provincial plans for implementing the regulations reflected the same worrying vagueness and uncertainty as the law itself.

During August 2015 the EELC assisted EE in analysing the implementation plans, and addressing letters to all Provincial Education MECs about the inadequacies in the plans.

The EELC represented EE in the Bhisho High Court in March 2018,  challenging the loopholes in the Norms law, and in seeking an order from the Court that the Minister must take certain minimum steps to oversee and monitor implementation of a binding set of standards for school infrastructure.

Victory! In July 2018 the Bhisho High Court ruled entirely in EE’s favour in the #FixTheNorms case!

While Minister Motshekga and the nine Education MECs then filed an appeal against the judgment with the Constitutional Court, the Constitutional Court refused to entertain the appeal!

View some relevant court documents belows:

– Constitutional Court order dismissing appeal by Minister Motshekga and MECs

– Final #FixTheNorms judgment part one 19 July 2018

– Final #FixTheNorms judgement part two 19 July 2018

-View the Notice of Motion setting out the relief that EE and Amatolaville Primary seek

-View the Founding Affidavit of EE’s General Secretary, Tshepo Motsepe

-View the Answering Affidavit of the Minister of Basic Education, Angie Motshekga part 1

-View the Answering Affidavit of the Minister of Basic Education, Angie Motshekga part 2

-View the Answering Affidavit of the Minister of Basic Education, Angie Motshekga part 3

-View the Replying Affidavit of EE’s General Secretary, Tshepo Motsepe

-View EE’s Replying Affidavit Annexure 1 0f 2

-View EE’s Replying Affidavit Annexure 2 of 2

-View the Supporting Affidavit of EE’s Deputy Head of Policy and Training, Daniel Scher

-View Section 27’s affidavit as amacus curiae

– View EE’s Heads of Argument

– View State’s Heads of Argument part 1

-View State’s Heads of Argument part 2

-View State’s supplementary Heads of Argument

-View Amicus’ Heads of Argument 

-View Amicus’ supplementary Heads of Argument

In November 2017, the Polokwane High Court in Limpopo began to hear evidence in the trial of the Komape family against the State in Komape v Minister of Basic Education and Others.

The trial comes after five-year-old Michael Komape tragically died after falling into a dilapidated pit latrine at his school, Mahlodumela Lower Primary School in Chebeng Village, Limpopo on 20 January 2014. 

On 26 June 2015 the Komape family launched their case in the Polokwane High Court, represented by public interest law firm, SECTION27 . Michael’s family demanded the State compensate them for the trauma, loss of income, and grief they have suffered and continue to suffer as a result of his death.

On 13 June 2016 Equal Education (EE) was admitted as a friend of the Court ( amicus curiae ) in the matter. EE sought status as an amicus curiae to demonstrate the history of our campaign for the adoption of binding Regulations on Minimum Norms and Standards for School Infrastructure . Our submissions to the Polokwane High Court demonstrate the knowledge the State had, or ought to have had, of the crisis of inadequate and unsafe school conditions in South Africa, as well as that the Department of Basic Education (DBE) did not meet the constitutional duty to ensure safe infrastructure at Limpopo schools. 

Komape v Minister of Basic Education and Others was heard in the Polokwane High Court from 13 November 2017 to 1 December 2017. The Court granted an order by consent, ordering government to compensate the Komape family for past and future medical expenses; funeral expenses; and income Michael’s mother lost whilst unemployed.

On 23 April 2018 the Polokwane High Court handed down judgment in the matter. 

• The judge agreed with the Komape family’s claims for certain damages, but he dismissed the claim for emotional shock and grief. 
• The judge ordered the Limpopo Department of Education (LDoE), by means of a structural order, to remove all plain pit latrines and provide sufficient and safe toilets in Limpopo. The LDoE was also ordered to provide the Court with a report on implementation of the structural order by the end of July 2018. 

On 5 June 2018 the Komape family appealed part of the High Court’s judgment, including the claim for grief suffered by the family. 

More than two months later, on 31 August 2018 the LDoE filed their report in compliance with the structural order. The report complained of a lack of budget and stated that the eradication of pit latrines in the province would take 14 years. The LDoE said they would only be able to start removing plain pit latrines in 2026!

On 27 September 2018 the Komape family submitted a response to the LDoE’s report. In their response they questioned the accuracy of the information relied on by the LDoE, particularly in relation to budgeting, and they stated the plan failed to meet the basic requirement of reasonableness. 

On 5 October 2018 EE also submitted a response to the LDoE’s report. EE’s response particularly highlighted that the LDoE’s report failed to meet the requirements of the structural order in that it does not identify and take the necessary steps in addressing the most dangerous sanitation conditions facing learners in the province. EE emphasised that waiting until 2026 to start eradicating pit latrines violates the rights of learners.  

On 2 September 2019 the Komape family’s appeal, Rosina Komape and Others v Minister of Basic Education , in relation to their claim for damages was heard by the Supreme Court of Appeal. EE once again acted as amicus curiae . 

In the Supreme Court of Appeal, EE provided three reasons for why the claim for grief must be recognised, namely: 

• The existing common law does not provide compensation for the severe infringements of the Komape family’s constitutional rights that occurred when Micheal died in a pit latrine at his school. 
• The common law does not concern itself with the rights of the person who has died. There is no remedy for the violation of Michael’s constitutional rights to family life, to basic education, and to have his best interests protected and his dignity. The common law does not allow the Komape family to vindicate the rights of their lost family member in recognition of their inextricable link to him. 
• We also argued that the common law does not adequately address the need for deterrence. The conduct of the State respondents was egregious. Michael’s death was not only negligent, but a result of repeated and unexplained inaction. They were fully aware of the unsafe conditions at Michael’s primary school and their reckless disregard of this state of affairs is undeniable. 

Judgment in the appeal matter has been reserved.  

Court documents:

Limpopo Education Department sanitation plans

Part one EE response to Limpopo Education Department sanitation plans

Part two EE response to Limpopo Education Department sanitation plans

Judge Mokgohloa’s judgment in Equal Education’s application to be admitted as Amicus Curiae

The Heads of Argument of Equal Education in the Application to be Admitted as Amicus Curiae

Equal Education’s Heads of Argument 

Plaintiffs Heads of Argument

Defendants Heads of Argument

Supreme Court of Appeal: Appellants’ Heads of Argument

Supreme Court of Appeal: Respondents’ Heads of Argument

Supreme Court of Appeal: Equal Education Heads of Argument

Harmony High School Court Case

The Constitutional Court has admitted Equal Education (EE) as a “friend of the Court” in a court case that will decide whether school governing bodies can suspend pregnant learners.  The Free State Department of Education appealed to the Constitutional Court after a Supreme Court of Appeal judgment that significantly hampered the Department’s ability to quickly and efficiently intervene when unlawful school governing body policies deny learners access to their schools. The matter will be heard at the Constitutional Court tomorrow, 5 March 2013, at 10h00.

The Constitutional Court will decide on whether the head of a provincial education department may instruct a principal not to implement a school governing body policy that would result in the unlawful suspension of a learner.  The matter initially came before the High Court after two Free State schools, Harmony and Welkom High, sought to suspend learners because they had fallen pregnant.  In the Harmony matter the 17 year old learner concerned had already given birth in July 2010. She returned to school and had been attending classes for a full school term before she was informed that she would have to leave unless she was able to produce a medical certificate proving that she had not given birth.

The Head of Department will argue that the pregnancy policies unfairly discriminate on the basis of gender and pregnancy, violate female learners’ right to a basic education and are not taken in the best interest of the child or the individual circumstances of affected learners.  These pregnancy policies also violate national and provincial policies aimed at ensuring that pregnant learners are able and encouraged to attend school as long as they are medically able and to return to school as soon as possible after giving birth.

Both the High Court and the Supreme Court of Appeal found that a Head of Department was essentially powerless and could not instruct a principal to ignore a school governing body pregnancy policy. Both lower courts ruled that Heads of Department would have to first go to court in order to secure the learners’ return to school.

At the hearing EE will argue that the lower courts are incorrect because:

• Heads of Department are under a duty to ensure that all learners’ constitutional rights are protected;
• the South African Schools Act makes Heads of Department responsible to ensure that no learner is unlawfully denied access to a school through unlawful suspensions or discrimination;
• The South African Schools Act gives Heads of Department the power to intervene by instructing principals to ignore school governing body policies that are unlawful, unconstitutional or otherwise unreasonable;
• The Free State Head of Department acted reasonably and was therefore entitled to intervene to ensure the swift and immediate return of the learners to Harmony and Welkom High; and
• Requiring Heads of Department to first obtain court order prior to intervening flies in the face of the structure of the South African Schools Act,  would result in costly and inefficient use of limited education resources and is to the detriment of learners’ who would suffer from continued discrimination whilst cases are pending.

All the court documents are available online:

• 12 May 2011: Free State High Court ruling
• 28 September 2012 : Supreme Court of Appeal Ruling
• Gauteng Department of Education’s application for leave to appeal to the Constitutional Court
• 23 January 2013: Equal Education’s application to be admitted to the Constitutional Court as a “friend of the court”
• Equal Education’s Heads of Argument for Constitutional Court
• Judgment of the Constitutional Court

For more information please contact

Lisa Draga (EE Law Centre Attorney) on 0726500214

Yoliswa Dwane (EE Chairperson) on 072 342 7747

Kate Wilkinson (EE Media Officer) on 082 326 5353

Holford Complaint

At the time the product sold for R149.95 on Mr Holford’s website.

In its complaint Equal Education argued that Mr Holford’s claim that this supplement would improve the school performance of children was unsubstantiated and misleading. In this regard the advertisement was in violation of clauses 4.1 and 4.2 of the ASASA advertising code .

The claim also violated clauses 14.2.1 and 14.2.2 of the ASASA advertising code which state:

14.2.1 … Advertisements should not exploit the natural credulity of children or their lack of experience and should not strain their sense of loyalty.

14.2.2 Instances where the above principle may apply are, inter alia, the following:

• for a commercial product or service which contains any appeal to children which suggests in any way that unless the children themselves buy or encourage other people to buy the product or service, they will be failing in some duty or lacking in loyalty toward some person or organisation, whether that person or organisation is the one making the appeal or not;
• which leads children to believe that if they do not own the product advertised they will be inferior in some way to other children or that they are liable to be held in contempt or ridicule for not owning it; …

On 10 May 2012 the ASASA ruled in favour of Equal Education’s complaint. It ordered Mr Holford to withdraw the claim that the product would result in improved mental or scholastic performance. Furthermore, Mr Holford was ordered to stop using the product name, Smart Kids Brain Boost.

It was wrong for Mr Holford to make unsubstantiated claims that take advantage of the desire young people have to succeed in school. Succeeding in school requires adequate resources, good teachers, and hard work. There is unfortunately no short-cut based on Mr Holford’s products.

There is no magic pill for success at school , Cape Times, 31 August 2011

ASA upholds Equal Education complaint against Patrick Holford, Quackdown!, 14 May 2012

Education complaint upheld , The Sowetan, 17 May 2012

Lerato Radebe Case

This case arose after EE and the EELC had already mediated and resolved five different incidents in the Western Cape where Rastafarian learners had been discriminated against because the wearing of dreadlocks as a hairstyle was prohibited by their school. (Further details of these matters can be supplied if needed)

There were four applicants in this matter: affected learner, her father and mother and EE.

In April of this year Mr Radebe, the father of Lerato Radebe, sent an e-mail to EE seeking assistance because his 13 year old daughter had been prevented from attending classes at her school, Leseding High, in Thabang Welkom. She had been taken from her class every day and made to sit in the staffroom because she refused to cut her dreadlocks.  The school’s code of conduct prohibited the wearing of dreadlocks.   The family are followers of the Rastafarian faith and Lerato wears her hair in this manner because it is a practise associated with her faith.  Mr Radebe had relentlessly and repeatedly sought the assistance of district officials, officials in the MEC’s office, the Minister’s office, two chapter nine institutions and even the local media in an attempt to protect his daughter’s rights to freedom of religion and to receive a basic education.  Eventually a fellow Rastafarian suggested he contact EE.

EELC first addressed a letter to the Principal of the School and the Chairperson of the Governing Body which was copied to the HOD of the Free State Basic Education Department and the MEC for Basic Education.  The letter spelt out the relevant legal and policy framework and demanded that Lerato be allowed to attend classes immediately, a remedial plan be devised and implemented so that Lerato could catch up on lessons missed, that provision be made for her to take any formal assessments which she had been prevented from taking and that the school issue a formal written apology to Lerato and her family for violating Lerato’s rights.

We received a response from the HOD which stated the Lerato was no longer registered at Leseding High and which also stated that the parents of the school had decided in a meeting that the school’s code of conduct could not be changed to accommodate one learner.  The letter pointed out that in terms of the South African Schools Act the power to adopt a code of conduct vests with the SGB and not with the Free State HOD.  The letter also questioned the authenticity of Lerato’s adherence to the Rastafarian faith and claimed that her belief was not “sincerely held” and therefore the Pillay pronouncement by the Constitutional Court on religious exemptions was inapplicable.

We filed an urgent application in the Free State High Court.  Acting Judge Phalatsi granted a final order which included declarations that the principal and SGB chairperson’s conduct in banishing Lerato from her class during school hours constitutes a suspension which is unlawful and discriminatory and that the principal, SGB chairperson, District Director, Head of Department, MEC and Minister’s conduct in the matter violated Lerato’s rights to equality, dignity, freedom of religion, expression, association and a basic education.  The Judge interdicted the principal and SGB chairperson from harassing, disadvantaging, victimising or discriminating against Lerato.  He also ordered the principal, SGB chairperson and district director to meet with Lerato and her parents within 5 school days of the date of the court order concerning the drafting of an educational remedial plan for Lerato which must be implemented and completed by 16 July.

During the course of preparing our papers we debated the desirability of citing the South African Human Rights Commission as a respondent in the matter or inviting them to join as an additional applicant in the matter or suggesting that they intervene as an amicus.   Mr Radebe had turned, unsuccessfully, to the Commission for assistance before approaching EE. We decided to invite the Commission to join as either an applicant or to file an amicus application. The SAHRC, however, was reluctant to join as an applicant or amicus in the matter and instead agreed to file a supporting affidavit endorsing the relief that we were seeking.  One of the forms of relief that we sought from the Court was an order requiring the Principal, Chairperson of the SGB and District Director to ensure that the majority of officials or employees under their direction  “participate wholeheartedly in an education and relationship building workshop to be provided by the Human Rights Commission”.   Whilst we realised that the likelihood of obtaining an order along these lines were quite slim the idea was to plant the workshop seed for purposes of discourse around the litigation.  The Chairperson of the Human Rights Commission, Mr Mushwana, in his supporting affidavit indicated that “ the SAHRC is ready, willing and able to carry out such educational or awareness training as the Court may order”

Whilst Acting Judge Phalatsi ultimately did not order relief on the workshop front the Judge nevertheless stated in his judgment that he would  “appeal to the respondents and the powers that be, to educate and make our people aware of the important and advantages of accepting our religious diversity”.

In the immediate aftermath of the judgment we were informed of disruptions at the school including the principal and chairperson of the SGB removing all learners from the class and insisting that no learning would take place whilst special exceptions were being made for a specific learner (Lerato subsequently confirmed this with us).  We were also told about a protest at the school by a group of parents who wanted Lerato to be removed from the school. After we sent a letter to the State Attorney threatening contempt of court proceedings we received an invitation from the MEC to meet with him at his offices to discuss the judgment, the Free State Education Department’s intention to ensure that it was respected and implemented and a constructive way forward to prevent a repetition of the Lerato scenario in other Free State schools. Shortly thereafter we were advised that the disruptions at Leseding High had come to a halt.

At our meeting in Bloemfontein the MEC made an unequivocal undertaking to respond to the problems highlighted by the Radebe judgment by conducting educational awareness workshops with all education districts within the Free State Province.  District management and school principals will participate in these workshops which will teach participants about the latest legal and policy developments regarding learners’ rights, including the Radebe decision. These educational training sessions will highlight as unacceptable any form of racial discrimination, or gender discrimination such as discrimination against pregnant learners in schools.

We have drafted a letter to the SAHRC encouraging them to touch base with the Department about possible collaboration on this project.  EELC has also indicated to the MEC that we are happy to provide input in shaping the content of the workshop program.

• Founding affidavit  by Mr Radebe
• Supplementary Affidavit by Mr Radebe
• Affidavit by Mrs Radebe &  Affidavit by Lerato Radebe
• Respondents’ answering affidavit 1. Supporting affidavit 2. Supporting affidavit 3. Supporting affidavit
•   Applicants’ heads of argument
• Respondents’ heads of argument
• Free State High Court judgement

Moshesh Senior Secondary School

In 2012 Equal Education (EE) was  contacted  by Eastern Cape (EC) learners describing appalling problems at their rural school, Moshesh Senior Secondary School.

When EE visited the school in June 2012 it became aware of numerous problems. These included:

• Teachers arriving late for classes and leaving early. Teachers were also frequently absent from school without explaining their absence. In these cases alternative arrangements have not been made to ensure that teaching continued.
• There was a shortage of qualified teachers for critical subjects at the school.
• The principal was absent from the school  for nine months, from October 2011 to June 2012.
• On his return, the principal failed to carry out basic administrative tasks that threatened the chances of learners writing their final exams.
• The principal also unlawfully expelled two grade 12 learners.
• Curriculum planning and delivery were not occurring and were not being monitored by the principal or the district.
• The school was underperforming in the matric examinations, there was high repetition and dropout.
• There were not enough textbooks at the school. Some learners used outdated textbooks from 1986 that did not meet the current curriculum requirements.

Folowing the trip EE made a documentary  about the learners at Moshesh.

Equal Education tried to resolve these problems by contacting the Maluti district director Mr Mtatyana, the acting superintendent general Mr Mgonzo and Eastern Cape education MEC Mr Makupula from June 2012 until November 2012. However, despite numerous written and telephonic correspondences, most of the problems were not resolved.

In November 2012, Palesa Manyokole, a grade 12 learner at Moshesh, with the support of 9 other learners from Moshesh Senior Secondary School, Equal Education and her mother, filed papers against the district director, the EC Head of Department, the EC MEC for Education, the school principal, the Director General and the Minister of Basic Education, Angie Motshekga. Palesa kep a register for her teachers that is being used as evidence of absentism [PDF].

The story has been covered by the Mail and Guardian , The Sowetan , The Times  and the  South African Press Association .

In November 2012 Palesa; her mother, Madimo Mouthloali; 9 other learners at Moshesh; and Equal Education’s chairperson, Yoliswa Dwane, filed founding and supporting papers in the Bhisho High Court in the Eastern Cape:

• Palesa Manyokole’s founding affidavit [ PDF ].
• Madimo Mouthloali’s supporting affidavit [ PDF ].
• Yoliswa Dwane’s supporting affidavit [PDF].
• 9 learners’ supporting affidavits [PDF].

On 12 December 2012 MEC Makupula filed his answering affidavit [PDF].

In response to MEC Makupula’s answering affidavit two replying affidavits were filed:

• Palesa Manyokole’s replying affidavit [ PDF ].
• Yoliswa Dwane’s replying affidavit [PDF].

On 22 April 2013 the EE Law Centre sent a letter to the State Attorney seeking clarity on a number of issues including the remedial plans for the current grade 11s and the 12s and the capacity of the school governing body [ PDF ].

A settlement is reached.

On Thursday 13 June 2013, four days before the scheduled hearing of the matter, Equal Education and the Eastern Cape Department of Education met in East London to discuss progress made to resolve the problems at the school and to chart a way forward. The department reported that:

-they had investigated financial mismanagement at the school

-the school principal was currently under suspension

-a new acting principal had been appointed to turn the school around

-a new school governing body had been appointed and was being supported by the department

-they were investigating the adequacy of the educators at the school against the curriculum needs of the school as well as the status of school governing body posts

-the department had investigated the textbook shortages and had undertaken to ensure that all shortages would be addressed

-they had declared Moshesh SSS as an underperforming school and had instituted measures to address the underperformance

As a result of these efforts by the Eastern Cape Department of Education, the learners and Equal Education agreed to postpone the hearing of the matter pending resolution of the outstanding questions.

A settlement agreement has been reached and settles the matter on the following basis:

1) School management and governance

The respondents have undertaken to:

-institute and finalise disciplinary proceedings against the suspended principal of Moshesh Senior Secondary School

-appoint an acting principal to take over the management of the school

-provide on-going support to the newly appointed acting principal and SGB

2) Vacant educator posts:  The department undertakes to monitor teacher attendance and discipline.

3) Provision of LTSM:  The department is to ensure full provision of learner teacher support materials.

4) Compliance with section 58B:  No later than one month after signing this settlement, the department is to submit a report that provides details on the following:

-academic performance of the school, per subject and grade

-how the district office will work with and support the school to develop and implement a strategy to improve academic performance

-development of a school improvement plan

5) Grade progression and registration:  The department is to investigate and assist the learners who were compelled to write accounting exams instead of tourism.

6) Catch-up plan:  Provision by the department of a catch-up plan for grade 11 and 12 learners for all subjects the learners did not receive adequate teaching and textbooks for in 2012.

7) School hostel:  The department is to conduct a needs assessment for the Moshesh hostel and submit a report by the end of the 2013 academic year.

8) Costs:  The second respondent undertakes to pay the cost of this application.

The settlement will assist the school and the community to improve the teaching and learning conditions and governance at this school. We will also assist the community, parents and learners to monitor the implementation of the settlement conditions.

Equal Education continues to welcome dialogue with the Eastern Cape Education Department to ensure that underperforming schools in a similar position to that of Moshesh Senior Secondary are fully supported so that all learners in the province can receive a quality education.

What Happened after the settlement

Almost year after the settlement was reached, we went to visit Moshesh to see if there had been any progress made since the settlement and we found that the school was still in the same conditions it was in before the settlement. The only part of the order that was implemented was the replacement of the old principle with the new one.

We then decided to meet with a number of stakeholders including the district, community members, learners, parents, teachers and the teachers union in order to find a way forward as to how we make sure the court order is implemented. All the meetings did not assist in getting a clear commitment in making sure the problems at the school are fixed.

On the 11th of August we sent a letter of demand to the department in aid of specific performance on the settlement. The department has till the 25th of August to respond to the letter.

Rivonia Primary School Case

This is a case about who has the power to decide the capacity of public schools — the School Governing Body (SGB), the Provincial Department of Education, or a combination of the two? In this case, Rivonia Primary School refused to admit one additional learner because the capacity set by the SGB policy had been reached. Although the learner was subsequently admitted, the question of who has decision making power about admission to public schools needs to be determined.

The High Court found that the Department has the final word on admissions.

The decision of the High Court was overturned on appeal to the Supreme Court of Appeal (SCA). The SCA found that the power to determine admission policy lies with the School Governing Body. The SCA held that in terms of s 5(5) read with s 5A of the South African Schools Act the governing body of a public school has authority to determine the capacity of a school as an incident of its admission policy, and that provincial authorities may not ‘override’ the policy. The Basic Education MEC has responsibility to place all children seeking public school access in a province, and it is thus both lawful and logical that the MEC should have a say in admissions policy. However, government must act reasonably, and if it insists on the admission of children over and above the capacity as set by the SGB, then it must provide extra resources such as teachers and classrooms.

The SCA noted that the case concerned “a school located in an affluent, historically white suburb, where a little more than half the learners were white” but said that “none of this is relevant”. However, EE and CCL take the view that the historical, political and economic context cannot be ignored. There are two very different realities operating in the public schooling system. A majority of schools lack adequate infrastructure, books, furniture and competent teachers. The learners come from impoverished home and do not pay fees. A significant minority of public schools have inherited excellent infrastructure, have parent bodies with professional qualifications able to assist with governing the school, attract competent teachers because they are well-located and offer an attractive working environment, and are able to supplement their facilities and teaching staff due to fees collected. Whilst many public schools have 50, 60 or 70 learners per class, the Rivonia Primary School averages 24 children per class.

EE recognises that this is a sensitive issue and does not support policies that seek to destroy or diminish these adequately-resourced public schools in the name of equality. However, the law must, and does, support ensuring greater and fairer access to well-resourced public schools, while the work goes on to bring the majority of public schools up to an acceptable level.

EE and the Centre for Child Law (both represented by the Legal Resources Centre) have been admitted as amicus curiae (friends of the court) in order to support a Constitutional Court finding along the following lines:

• Government at national and provincial levels does have the power to act in relation to admissions to public schools, although the individual school has set a maximum capacity in its admissions policy. Even where a School Governing Body has the power to adopt an admissions policy that includes a determination of capacity, such a policy can never be binding on the relevant HOD or MEC for education or be applied rigidly and inflexibly by any party concerned.
• The government must exercise its power to place a child above the capacity set in a school’s admissions policy lawfully, reasonably and following a fair procedure. When exercised with regard to individual schools, the proper ambit of the government’s power is fact-specific, and may include consideration of a school’s admissions policy as well as historical disparities in public school funding.
• While this present case concerns the situation of one learner, the Court’s decision on the contentious issue of learner capacity will have far-ranging consequences for all South African children in a variety of contexts. The amici will draw attention to such contexts.

Court Documents

High Court 

• Rivonia Primary School (applicant) Heads of Argument [ PDF ]
• Equal Education (amicus) Heads of Argument [ PDF ]
• Centre for Child Law (amicus) Heads of Argument [ PDF ]
• High Court Judgement [ PDF ]

Supreme Court of Appeal 

• Equal Education’s (amicus) Founding Affidavit [PDF]
• Gauteng Basic Education MEC (respondent) Heads of Argument [ PDF ]
• Equal Education (amicus) Heads of Argument [PDF]
• Supreme Court of Appeal Judgement [ PDF ]

Constitutional Court 

• Gauteng Basic Education Application for Leave to Appeal to the Constitutional Court [PDF]
• Equal Education and Centre for Child Law Heads of Argument [ PDF ]
• Ann Skelton’s (Director for the Centre for Child Law) Founding Affidavit [ PDF ]
• Federation of Governing Bodies for South African Schools (amicus) [ PDF ]
• Rivonia Primary School (respondent) Heads of Argument [ PDF ]

An opinion piece on the court case was written by Doron Isaacs and Lisa Draga was published in The Star on 9 May 2013.

Link to the website of the Centre for Child Law , co-amicus with EE in this case.

Link to the website of the Legal Resources Centre , legal representatives of EE in this case.

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South african constitutional court confirms that the right to basic education encompasses access to final exams, south africa school building.jpg.

The right to a basic education is one of the only socio-economic rights in the South African Constitution that is unqualified. This means that it is not subject to ‘progressive realisation’ within available resources – such as, for instance, the rights to further education, housing, healthcare, food, and social security. The right to basic education is immediately realisable, regardless of available resources. It can only be limited by means of the general limitations clause in section 36 of the Constitution. However, the right to basic education was not defined in the Constitution. Therefore, there has been some confusion over how expansive the right to education is. The Constitutional Court in Moko v Acting Principal Malusi Secondary School gave some clarity in this regard, by confirming that access to the National Senior Certificate is encompassed by the right to basic education.

Because the right to basic education was not defined in the Constitution, there was some speculation as to whether the right embraced an ‘adequacy-based approach’ or whether the right simply constituted an amount of time spent in school. What constitutes part of the right to basic education and what duties the state regarding the right has long been a subject of litigation in democratic South Africa. In this regard, the courts have found that the right to basic education includes the provisioning of the National School Nutrition Programme , textbooks , basic furniture and infrastructure , scholar transport , post-provisioning , and proper sanitation facilities . These judgments point towards the adoption of an ‘adequacy-based approach’ where the right to education is ‘education of an appropriate standard’ with regards to quality and content, rather than a specific amount of time spent in school.

However, despite the implicit adoption of the adequacy-based approached by the courts there remained some murkiness regarding where basic education ended and further education began. The Constitutional Court (‘CC’) had stated in Governing Body of the Juma Musjid Primary School v Essay N.O. that at a minimum, basic education included schooling up to Grade 9. Further, in the minority judgment in AB and Another v Pridwin Preparatory School , the Nicholls AJ had stated that it was indisputable that ‘basic education’ encompassed primary school. It was thus left unclear whether higher grades, including Grade 12, were included in the definition of the right to basic education in South Africa.

The CC has now cleared up some of the speculation regarding what constitutes a basic education in the case of Moko v Acting Principal Malusi Secondary School . The case concerned Mr Moko, a matric learner, who was prevented from writing his final Business Paper 2 Exam, needed for him to acquire the National Senior Certificate. When Mr Moko went to school on 25 November 2020, ready to write his exam, the Acting Principal refused to let him into the school to write the exam on the mere basis that he had not attended a few extra lessons. The Acting Principal told Mr Moko to fetch his parents or guardians and return to the school. However, Mr Moko was unable to find them. When he returned to the school alone, he found that the school gate was locked.

Although another person eventually let Mr Moko into the school, the Acting Principal refused Mr Moko entrance into the examination room because the other learners had already begun writing. Therefore, because of the actions of the Acting Principal, Mr Moko was barred from writing his matric exam. Mr Moko and his uncle met with the Acting Principal the next day and were told that he would have to write the supplementary exam in May 2021. Wanting to pursue a higher education and aware that having to write the exam in May 2021 would set him back a year, Mr Moko escalated the matter to the MEC, Limpopo Department of Education. The MEC directed the District Director to handle the matter. The District Director subsequently took a decision against the Acting Principal but still stated that Mr Moko would need to write the supplementary exam in May 2021.

Dissatisfied, Mr Moko launched an urgent application to the High Court requesting he be allowed to write the exam as soon as possible and before May 2021. However, the High Court found the matter was not urgent and struck the case off the role. As a result, Mr Moko approached the CC for an order to allow him to write the exam as soon as possible, so that his results would be released simultaneously with other matric learners. The basis of his application was that the Acting Principal’s actions and the refusal of the state to allow him to write the exam imminently violated his constitutional rights to basic education and to higher education.

Khampepe J, for a unanimous court, stated that the definition of the right to basic education encompasses access to the National Senior Certificate. She wrote that to interpret the right to basic education as only including primary school education or Grade 9 would be an ‘unduly narrow’ interpretation considering the transformative purpose of the right. These statements are important as they confirm that the right to education in South Africa is an expansive and flexible right, encompassing a duty on the state to allow the access of students to the National Senior Certificate.

The National Senior Certificate is an application requirement for a whole host of jobs in South Africa. It also opens the possibility of pursuing higher education, thus expanding career choices and economic opportunities. It is effectively a prerequisite for any social mobility. Therefore, by clarifying that access to the National Senior Certificate is part of the right to basic education, rather than further education, the Constitutional Court recognised that there is an immediate obligation on the state to allow students a chance for better opportunities in the future. This chance would have been (at best) delayed for Mr Moko by the actions of his Acting Principal in not allowing him to write his exam. He would have had to wait until May to write the exam, delaying his future by a year. Luckily, in this case, his rights were vindicated by the Constitutional Court. Considering the number of complaints organisations like SECTION27 receive from students who have been shut out of exams because of non-payment of school fees or lack of documentation, the case confirms that students’ access to exams are part of their unqualified right to education, regardless of their personal circumstances.

Mila Harding is a legal researcher in the Education rights programme at SECTION27

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Centre for Child Law and others v The MEC for Education and others Case No. 19559/06 (T)

The applicants in this case were the Centre for Child Law at the University of Pretoria and pupils at JW Luckhoff High School, a school of industry in Gauteng. The respondents were the MEC for Education in Gauteng and JW Luckhoff High School.

The Centre for Child Law lodged an application with the Pretoria High Court (Transvaal Provincial Division) alleging that the physical conditions at the hostels where the pupils were housed, the lack of access control and the absence of proper psychological support and therapeutic services at the school infringe the pupils’ rights under section 28 of the Constitution as well as the pupils’ right to dignity (section 10) and their right not to be subjected to cruel, inhuman or degrading treatment (section 12).  The pupils were sent to the school of industry in terms of section 15 of the Child Care Act of 1983 (the Act), which makes provision for a children’s court to send a child to a school of industry if satisfied, after holding an enquiry in terms of section 13, that the child is in need of care.

The applicants sought the following relief:

• The authorities be compelled to provide each child with a sleeping bag and to put in place proper access control and psychological support structures.
• The MEC for Education be directed to make immediate arrangements for the school to be subjected to a developmental quality assurance process – a recognised means of assessment aimed at the production and implementation of an organisational development plan.
• Though the MEC for Education admitted the existence of the problems and indicated a willingness to take remedial action, the respondent put up defences such as: that it would be expensive to furnish sleeping bags and that budgets are stretched; and besides the cost, the provision of sleeping bags at the school would amount to inequality, by favouring those children above others in similar schools. The respondent further proposed that efforts will be undertaken to raise funds from the Red Cross and the non-governmental sector to solve the problems.

The Decision

• Section 195(1) of the Constitution requires the public administration to respond to public needs quickly and effectively.
• Regulations to the Child Care Act specifically provide for the maintenance of appropriate standards in such schools in order to ensure the well being of children in such schools.  The Regulations also give children in such schools certain rights that give effect to and are a concrete embodiment of the rights in section 28 of the Constitution – the right of every child to appropriate alternative care when removed from the family and to be protected from maltreatment, neglect, abuse or degradation.
• Unlike other socio-economic rights, section 28 contains no internal limitation subjecting children’s rights to the availability of resources and legislative measures for their progressive realisation. The absence of any internal limitation entrenches the rights as unqualified and immediate. However, like all rights, they remain subject to reasonable and proportional limitation.
• Particularly in relation to children’s rights and the right to a fair trial, the Constitution recognises that budgetary implications ought not to compromise the justiciability of the rights. The minimal costs or budgetary allocation problems in this case are far outweighed by the urgent need to advance the children’s interests in accordance with the Constitution.
• The equality argument – that the remedy should not be granted for fear that others similarly denied would seek the same remedy at significant cost to the state - can never be a defence to a violation of constitutional rights.
• The Constitution places a duty on everyone to aim for the highest standard in treating children and not to avoid the responsibility. The duty to provide care and social services to children from the family environment rests on upon the state. Hence, proposal that efforts will be undertaken to raise funds from the Red Cross and the non-governmental sector reflects the respondent’s misunderstanding of is constitutional duty.
• Children are sent to schools of industry for the purpose of care and rehabilitation, and psychological and social support is a critical ingredient of state care in the absence of parental support.

The Court found in favour of the applicants and directed the MEC for Education to:

• Immediately supply each pupil with a sleeping bag with a temperature rating of at least five degrees Celsius; devise plans to put perimeter and access control at the school and provide the Court with written information regarding such plans within one month from the judgment date.
• Make immediate arrangements for the school to be subjected to a developmental quality assurance process; and the MEC for Education to report back to the Court within five weeks on its plan to implement the recommendations of the team performing the developmental quality assurance process.
• Put in place, on an urgent basis and as an interim measure, listed support structures in order to properly provide for the psychological and therapeutic needs of children at the school.
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