An analysis of the legal and policy developments of the right to basic education under the South African constitution

Abstract

The purpose of the study was to undertake an analysis of the legal and policy developments of the right to basic education in South Africa as enshrined in section 29 of the Constitution. This included, amongst others, the exploration of aspects of the colonial and apartheid legacy that impacted on the right to basic education for the majority of children in South Africa. Law and policy developments of the pre- and post-1994 periods with an impact on the right to basic education in South Africa were also explored, taking into consideration international policy instruments which influenced the right to basic education, and how the courts have interpreted the right to basic education in South Africa within the context of the final Constitution. The study also considered the notion of access to education as a key to the realisation of the right to basic education under the South African Constitution. From this study, it has become evidently clear that South Africa under apartheid was characterised by deliberate government policies clearly intended to exclude the majority of the population. One of the key pieces of legislation introduced in this regard was the Bantu Education Act 47 of 1953 (Bantu Education Act). This legislative intervention followed the recommendations of the Eiselen Commission. The governing party of the apartheid regime at the time, the National Party (NP), had targeted education as its weapon to institutionalise white supremacy since it came to power in 1948. Series of events, including uprisings and protests, forced the apartheid regime into negotiations, especially in the early 1990s. At the heart of these negotiations was a constitutional dispensation that would recognise the rights of all, including the right to basic education. This explains the increased access to basic education by the majority of the population in the subsequent years. The study has shown that the right to basic education has recorded significant progress, which has reached near-universal school enrolment. The study has concluded that a lot has been achieved in South Africa with regard to legal and policy developments relating to the right to basic education under the 1996 Constitution of South Africa. This was realised through series of policies being introduced since 1994, in compliance with the new constitutional order. These policy instruments included the White Paper on Education and Training (1995); National Education Policy (1996) and the South African Schools Act (1995). All of them are critical in ensuring that the right to education is realised, as envisaged in section 29 (1) of the Constitution, especially for the Black and African majority.