The Right to Equal Education in South Africa
Delayed textbook delivery has plagued public schools in Limpopo, South Africa’s northernmost province for several years. The Department of Basic Education and Limpopo Department of Education appealed a high court decision holding that their failure to ensure timely delivery of textbooks to learners in Limpopo public schools violated the learners’ constitutional rights. The Supreme Court of Appeal held that the government appellants violated the rights to education, equality, and dignity under the Constitution by failing to provide learners in Limpopo with prescribed textbooks before the academic term commenced.
High Court case
In 2012, seeking to standardize education nationwide, the Department of Basic Education (DBE) began the three-year rollout of a new curriculum which entailed staggered introduction of new textbooks. Despite the successful rollout in other provinces, in Limpopo the Provincial Government was unable to deliver textbooks to all learners by the start of the 2012 school year.
Consequently, in 2012, SECTION27, a public interest organization represented by the Centre for Applied Legal Studies, brought a constitutional challenge before the Gauteng Division of the High Court, Pretoria (High Court), regarding the inadequate provision of textbooks in Limpopo by the DBE and Limpopo Department of Education (LDOE). The High Court found that the untimely delivery of textbooks violated learners’ rights under the South African Schools Act 84 of 1996 (SASA), and Section 195 of the Constitution of the Republic of South Africa (Constitution) (on basic values and principles governing public administration). The High Court ordered the DBE and LDOE to provide textbooks by June 15, 2012, develop a remedial plan for affected grade 10 learners, and submit monthly reports on the implementation of the plan. However, the government’s continued failure to deliver the textbooks led SECTION27 to return to the High Court in July and September 2012.
Despite some improvement and the appointment of an independent expert to verify the government’s progress reports, textbook delivery was delayed again in 2013 and 2014. Accordingly, the organization Basic Education for All (BEFA) and the governing bodies of 29 Limpopo public schools initiated another case before the High Court seeking an order declaring that the failure of government actors to procure and deliver books to learners in 39 Limpopo schools for the 2014 school year violated constitutional rights to basic education, equality, and dignity. Alleging that the government respondents had failed to comply with earlier court orders, the applicants also asserted violations of Sections 165(4) (concerning state organs’ responsibility to “…ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”) and 195 of the Constitution. SECTION27 served as BEFA’s attorney, making this SECTION27’s fourth court appearance over the textbook issue. The High Court found in the applicants’ favor but declined to hold that the government respondents had not complied with previous orders. The High Court also rejected the applicants’ requests for the DBE to submit its plan to address textbook shortages in Limpopo and for the South African Human Rights Commission (SAHRC) to monitor textbook delivery.
Supreme Court of Appeal Decision
The government respondents appealed to the Supreme Court of Appeal (SCA) where SAHRC joined BEFA and the school governing bodies in their cross-appeal. The SCA held that the government appellants violated rights to education (Section 29), equality (Section 9), and dignity (Section 10) of the Constitution by failing – in accordance with its obligation to fulfil human rights (Section 7(2) of the Constitution) – to provide learners in Limpopo with prescribed textbooks before the academic term commenced. Further, this failure – in a mainly rural province where learners were predominantly poor and black children – amounted to unfair discrimination. The SCA further held that the appellants had failed to comply with previous court orders.
The SCA rejected the government appellants’ arguments that: (1) their efforts to provide textbooks had been hampered by lack of cooperation from the schools; (2) budgetary constraints justified the delayed delivery; (3) the petitioners were asking the government to meet a “standard of perfection” not required by Section 29(1)(a) of the Constitution (on the right to a basic education); and (4) the order granted by the lower court violated the doctrine of separation of powers. Relying on the case of Governing Body of the Juma Musjid Primary School & others v Essay NO & others  ZACC 13; 2011 (8) BCLR 761 (CC), para 37, the SCA confirmed that the right to basic education is “immediately realisable” and not subject to progressive realization.
In making this decision, the SCA noted that the right to basic education is both “constitutionally entrenched and statutorily enforced.” (para. 40). Thus, rather than holding the government to a “‘lofty’ ideal,” as the appellants argued, the petitioners were simply trying to “hold [it] to the standard it set for itself.” (para. 42). The DBE had set a policy but had faced an obstacle in the latter stages of implementation. As such, the SCA characterized the government appellants’ arguments about budget constraints and separation of powers as “fallacious” and seemingly “contrived.” (para. 43).
In January 2016, the Minister of Basic Education publicly committed to implementing the judgment and ensuring that all learners have access to textbooks. This is the first time that the DBE has openly acknowledged its obligation to ensure that every learner has their required textbooks.
Between January and May 2016, for the first school term SECTION27 continued to monitor textbook delivery by collecting reported shortages from schools and individual learners. They are continuously engaging with the Department of Education for Limpopo as well as the Parliamentary Portfolio Committee for Basic Education, which is the primary body responsible for holding education departments accountable.
Basic Education for All (BEFA)—a voluntary, local organization formed to address education challenges in Limpopo, SECTION27, South African Human Rights Commission (SAHRC), Centre for Applied Legal Studies
This decision is monumental for education rights in South Africa. It reiterated that the right to basic education is immediately realizable and developed the substantive content of the right by detailing that its realization entitles every learner to be provided with every textbook prescribed for her or his grade before commencement of the teaching of the course for which the textbook is prescribed. The obligation on the DBE requires more than merely provision of a plan for fulfilment of this right, but that the right be actively fulfilled for each individual.
Furthermore, the SCA emphasized the link between basic education and equality and the need to ensure that vulnerable people, like the predominantly poor and black learners in this case, are afforded constitutional protections. In discussing the discriminatory aspects of the case, the SCA highlighted the transformational importance of the right to basic education, grounding its analysis in the historical recognition of “…the importance of education in redressing the entrenched inequalities caused by apartheid…” (para. 37) and noting that “[i]t cannot be emphasised enough that basic education should be seen as a primary driver of transformation in South Africa.” (para. 40)1
This summary was prepared by ESCR-Net and reprinted with permission.
Non-discrimination and equality are core elements of the international human rights normative framework. Article 2 of the Universal Declaration of Human Rights (UDHR) states that every human being is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, […]