Education is the cornerstone to every country as it is one of Free Essay Example

Education is the cornerstone to every country as it is one of the many pillars that render one as a strong nation.

Section 29 of the South African Constitution enshrines the rights given to children in terms of education as a whole. It embodies what the republic of South Africa owes it to the children of the country in terms of education and how the rights and responsibilities must be kept in line. As a class we have gone through many different learning outcomes of educational law and each of these outcomes coherently forms the provisioning jurisprudence of educational law.

There are many cases that have dealt with certain aspects of the right to education and in each of the many cases that were heard in court there were many variants and conclusions on how the court reached their final verdict. This essay will look into the development of the courts approaches to their decisions made in court cases when judged against cases regarding section 29(1), the right to education from looking at the essence of provisioning jurisprudence as well as the above mentioned developing approach in terms of the doctrine of transformative constitution.

It is first important to look at education as a whole in South Africa and how section 29 of the Constitution was implemented to ensure the right to education to the children of the country was preserved and protected. After the demise of Apartheid in 1994, the South African Constitution was enacted and changed past rules of education regarding same race schools and poor funding for schools of children of colour as well as only being taught in Afrikaans and passed section 29 where it ensured every child, a right to basic education where children would be able to receive an education that was progressive, to be able to be taught in a language they were comfortable with and most importantly receive an education that was free from any racial and discriminatory bias.

Section 29 (1) (a) states, “Everyone has the right – (a) to a basic education, including adult basic education.” This not only refers to the education in itself but also to the infrastructure regarding the facilities of the school; the necessary supplies needed for the school to run both academically and everyday supplies to provide the students with basic needs such as running water and toilet facilities to name a few; effective transportation to those learners who cannot access the school; skilled teachers who are able to teach the various syllabuses for the students and the necessary funding for those less fortunate children who cannot afford a basic education. Due to this enshrined section of the Constitution, the South African courts effectively had to tweak their usual approaches to cases with regard to education to ensure its judgments are kept in line with this section of the Constitution as the only way the right to education maybe limited is through the rule of general application. The Four A Scheme refers to a class that divides the different pillars regarding education which must be exhibited in such a way that enables the different infrastructures and factors regarding education to process adequately as a whole. It is important to understand that in terms of education and the South African courts approach to case law where they now take a more substantive equality approach which focuses more on the small differences among the different ethnic groups of people to ensure they are able to gage a better understanding of what is lacked by the minority group as opposed to what the majority group is afforded, an example of substantive equality is Black Economic empowerment or (BEE) as opposed to formal equality where the belief is for equality to take place everyone concerned must be treated exactly the same as this form of equality fails to usurp and understanding the crux of the factors that cause inequality.

The first “A” of the four- A scheme is availability. This refers to the functioning of the educational organization and what is necessarily required in order for the smooth operation of the educational institution. This availability encompasses safe buildings to provide students for a safe environment for learning, the skilled teachers needed, sanitary facilities for both boy and girl students, learning resources and non-toxic drinking water to name a few. Just like section 28 of the Constitution, the best interest of the child is off utmost importance even when regard to issues concerning education and this was portrayed in the Freedom Stationery case where the rightsof the children was at the centre of the court’s decision making thought process which subsequently showed a transformative approach to the courts as opposed to court approaches of the past.

In the Juma musjid case, a constitutional court case that looked at the right to a basic education in terms of section 29 of the constitution. In casu a private owner looked at removing a public school that had been erected on his private property. The applicants who consisted of the governing board of the Juma Musjid School as well as the parents and guardians of learners who attended the school made an appeal against an order which was made by the Kwa Zulu Natal High court which passed a verdict that the learners and teachers were to leave the private property of the Trust. The Constitutional Courts subsequently waived away the eviction order by the High Court on the grounds that the order had a negative effect on the students of the school in question which went against the section 29 enshrined right to a basic education and also held that even though the Trustees had a right to approach the High Court for an order, the basis for the granting of that order against the school was unreasonable and lacked adequate reasoning for the granting of the order as the high court failed to take the students right to education into account. The Constitutional court then ordered that the school board and trustees hold a meeting to discuss an amicable way forward for the school to continue however no resolution could be found, due to the schools impending closure the court ordered that the MEC to provide alternative schooling to the learners which they adhered to and the court was content that the right to education for the students was protected. The court ordered the MEC to cover the costs of all the litigation procedures.

The second pillar of the four – A scheme is Accessibility. This refers to the admittance to an educational institution and is divided into 3 types:

· Non-discrimination – This relates to education for all without bias and prejudice to a certain race, ethnicity, gender or social status.

· Physical accessibility – This refers to education being located within a decent distance to allow learners access to the institution and this dimension also refers to that off education via modern technology and the necessary access thereof.

· Economical accessibility – This refers to the compulsory function of ensuring education is affordable to all students who seeks it.

In the Mud schools case which is applicable to case law under this pillar of the four – A scheme more definitively the physical accessibility part, the case looked at 7 schools that have over the years not received the necessary aid for the poor infrastructure of their schools despite countless pleas and calls their provincial department. Some of the problems included not up to scratch sanitary facilities, a lack of running water, run down mud buildings which posed an unsafe environment for learning for the students to name a few. The Legal Resources Centre in Grahamstown took charge on the problem on behalf of the seven schools and the Centre for Child Law took charge on behalf of the learners in the capacity of public interest. The order for relief which was also accompanied by the provincial MEC sought compensation for not only the seven schools in question but also all surrounding affected schools in the area. The subsequent issue was settled with an 8.2 billion Rand relief order to be paid over 3 years for the seven schools as well a contingency plan to sort out the infrastructure problems surrounding the schools and if this plan was not kept then the parties may bring the matter back into court for the non – compliance of the order. In terms of accessibility, non- discrimination, the case of Matukane & Others had a scenario where an Afrikaans school disallowed several school applications of black learners to enrol in their school as they believed that their school philosophy would be affected as the new black learners are from a diverse ethnic experience. The court held that there was no substance or form for the denial of the black student’s applications to enrol in the school as there was no proof that the learners would not be able to ensure that the ethos of the school would not be honoured by the applying black learners.

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