All countries in the world acknowledge the universality of the right to education and South Africa (SA) is no exception. According to the Convention on the Rights of the Child (CRC) adopted by the General Assembly of the United Nations (UN) as Resolution 44/25 of 20 November 1989,⁽²⁾ every child has a right to free and compulsory basic education. How successful has SA been in ensuring the realisation of this right? Does the legal, political, economic and social environment in the country promote or constrain this right? Above all, based on what is currently happening in the country, can it be convincingly concluded that the state is committed to the fulfilment of this right for every child? This CAI paper looks at the current South African education environment and examines if such an environment promotes or constrains the realisation of the right to education.

Why should education be considered a right in South Africa?

It is important to begin a discussion of this nature by sketching the legal framework on which such a right is premised. The intention of doing so is not to overweigh the paper with too much legalese, but to ground the discussion within a factual context. The CRC defines a child as a human being below the age of 18. In Article 28, it points that state parties should recognise the right of a child to education, with the view to achieving this right progressively and on the basis of equal opportunity. In particular, member states must make primary education compulsory and available to all, and also develop different forms of secondary education that should be made accessible to every child, taking appropriate measures such as offering education for free or providing financial assistance in cases of need.⁽³⁾ Section 29(1) of the South African Constitution says “Everyone has a right to: (a) a basic education, including adult education, and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible.”⁽⁴⁾ In order to operationalise this constitutional requirement, the South African Schools Act 84 of 1996(SASA), Chapter 2 states:

Every parent must cause every learner for whom he or she is responsible to attend school from the first school day of the year in which such a learner reaches the age of seven years until the last school day of the year in which such a learner reaches the age of fifteen years or the ninth grade, whichever occurs first.⁽⁵⁾

The Act goes on to point that anyone who contravenes this requirement will be liable for prosecution. Such an expectation suggests that the state itself as the main provider of education would have played its part in ensuring that there are adequate schools available to serve the entire learner population. Social services are part of a government’s core responsibility. It is therefore the obligation of government to ensure that available schools can absorb all the children of school going age, without compromising the quality of education provided. The practical applicability of this aspect shall be interrogated below.

The right to education defined

As acknowledged by V. Calderhead,⁽⁶⁾ the idea of the right to education contemplated in the above cited legislation begs many questions. Does it just mean provision of primary and secondary education? Does it mean free provision of education to all children, and if it does, where does it locate the levies that schools charge, the uniform that children must wear at schools and the resources needed at school such as books and stationary that parents must buy? Does it mean the provision of quality schools that are adequately resourced and possessing requisite infrastructure including sanitation, health facilities, laboratories, libraries and electricity? Does the right to education also mean the right to quality education where the teacher is always present, teaching classes with a manageable teacher-learner ratio? These are difficult questions that need to be answered in order to clarify the narrative of the ‘right to education’.

Education is an important aspect of socialisation and human development. As evidenced by Chapter 2 of the SASA, quoted above, the expectation is that from the dawn of democracy, the state should have progressively availed further education to everyone, even those that are over 15 years.⁽⁷⁾ The right to education is important and therefore should be recognised as a precondition or precursor for the enjoyment of other civil, socio-economic and political rights such as the freedom of information, expression and association, and the right to vote. This is so because these later rights can only be meaningfully enjoyed after a minimum level of education has been achieved.⁽⁸⁾ After 19 years of democracy, it is ripe for researchers to begin interrogating whether or not the current environment is indeed fulfilling the constitutional mandate of ensuring the right to basic education (and progressively, the right to further education).

The current education regime: How does it constrain the right to education?

There is currently a recurring debate in SA on whether teaching should be declared an essential service or not. Such a debate has been peddled for a very long time by the Democratic Alliance (DA), the main opposition party in SA. Of late, the African National Congress (ANC) seems to have bought into the idea.⁽⁹⁾ Proponents of this idea argue that declaring education an essential service will prevent teachers, as deliverers of education, from embarking on strikes that disadvantage learners.⁽¹⁰⁾ This is clearly premised on the belief that teacher presence on a daily basis can facilitate the fulfilment of the right to education. This belief is based on a false premise that has not been supported by evidence (whether teacher absence in SA is so high as to affect the overall results of learners at the end of the year). Evidence indicates that teacher absence in SA is comparable to other countries in the southern region.⁽¹¹⁾ There are other more serious variables impeding the right to education that should be taken on board:

Direct and indirect costs to education

The first major concern that inhibits the right to education is the issue of direct and indirect costs. Almost 20 years after the realisation of democracy, the enjoyment of the right to education is still reliant on one’s social class and the ability to pay enrolment fees. Many primary schools in South Africa still charge school fees and other levies. Of course the South African Government has introduced non-fee paying schools at primary level, but the quality of education in such schools is appalling. These schools are under-resourced and the teacher-pupil ratio is high, preventing attention to learners and their individual problems. Most of these non-fee paying schools are found in rural areas as well as in townships. It is not surprising to note that many parents are deserting these schools, preferring to travel to better schools that are far from their homes. Every weekday, scores of taxis, buses and cars move children, black and white, long distances to attend better schools.⁽¹²⁾ These learners are leaving schools closer to their domiciliary, instead choosing to go to fee-charging schools even though they cannot afford the fees, because such schools provide a better education.

It is even worse for secondary schools (grade 8 to 12), where education can only be accessed through paying user fees. This seems to contradict the SASA’s requirement, quoted above, which obligates parents to ensure that all children between the ages of 7 and 15 are always at school. Many potential secondary school children are excluded from school, or victimised because their parents are not able to pay school fees and secondary costs such as transport, learning support materials and purchasing uniforms. Illegal measures such as withholding school reports, learning materials, and the insistence by some schools to produce fees upfront for the following year’s schooling occur in many schools.⁽¹³⁾ How are parents with no income expected to fulfil this requirement when the SASA itself does not obligate the state to provide free secondary education? The act of forcing learners to pay school fees and other charges violates poor people’s right to access quality basic education.

The quality of school infrastructure

The quality of infrastructure in schools, especially in remote rural areas, massively contributes to the violation of the right to education for many children. Many schools lack basic services that are a necessity for proper education to take place. According to the Department of Basic Education (DBE), as of 2011, of the 24,793 public schools in SA; 14% had no electricity; 10% had no water supply; 46% used pit latrine toilets; 90% had no computer centres; 93% had no libraries; and 95% had no science laboratories.⁽¹⁴⁾ The SASA obliges the Minister of Education to set minimum norms and standards in the quality of infrastructure for all schools. Such a clause was meant to ensure that every learner accesses education in an environment that is humane and befitting the importance of that right. However, such minimum norms and standards have never been set and that is why two civil society organisations, Equal Education and the Legal Resources Foundation, took the Minister of Education to court in 2012 in order to force her to establish such norms and standards. In November 2012, these two human rights organisations and the DBE reached an out of court settlement where the Minister agreed to promulgate binding minimum norms and standards for all public schools. According to the agreement, these norms and standards were due to be put in place on 15 May 2013. If promulgated, they will illegalise mud classrooms that are common in rural areas especially in the Eastern Cape Province.⁽¹⁵⁾

Competition for access to former ‘Model C’ schools

The growing competition amongst parents to access certain schools over others should be a great concern to everyone in SA. At the top of the public schooling hierarchy are the former white schools (Model C) that are resourced and are centres where powerful elite networks emerge. Such schools have always offered more than academic qualifications. They have established sophisticated marketing departments that scout for highly gifted learners and potential sports stars to whom they offer bursaries.⁽¹⁶⁾ All this is geared towards preserving the schools’ prestige so as to continue to attract learners who can afford to pay the high fees. This setup should be juxtaposed with what is happening in township and rural schools that make up the majority. These schools are characterised by lack of proper infrastructure; big classes, some as many as 116 learners per class ⁽¹⁷⁾ and shortages of qualified teachers due to ‘lack of funds’.

School admissions and dropouts: Is this how it should be?

In 2013, the Department of Education in Gauteng decided to bring forward the admissions period to April in order to cater for the ballooning figures of potential learners, some of them transferring from rural provinces. On 17 April 2013, The Times carried a story of long queues forming in some schools the night before the opening of the registration season.⁽¹⁸⁾ Of course these queues were forming in formerly ‘Model C’ schools that are mainly located in middle-class suburbs, where education is believed to be still of high quality. The fact that registration and admissions are now happening nine months before learners can actually step into that school should not be conceived as good and advance planning by education authorities, but as poor planning and a lack of adequate quality schools to absorb the growing number of children seeking education. The scrambling for places is a structural deficiency that cannot be resolved by tempering with registration dates, but by availing adequate quality institutions that match the size of the student population.

A symptom of the violation of the right to education is the number of dropouts that the school system experiences. Take for example the matriculation class of 2012. As shown on the table below, they started in grade one in 2001 as a group of 1,150,637 learners. By 2010, when they were in grade 10, the group had slightly dropped to a figure of 1,039,762. However, two years later, only 551,837 learners took the matricuation examinations, representing a 46.9% dropout in a period of two years. This is a dramatic drop that begs investigation. What happened to 598,800 learners who started grade one with the class of 2012? Whatever the reason for dropping-out, this is a group of learners whose right to education was violated, and this is an annual occurrence. As observed and succinctly stated in the report by Equal Education, most of these absent learners can be accounted for by what is called ‘gaming the system’.⁽¹⁹⁾ This is denying learners the chance to write open matric examinations or diverting them to write as part-timers in order to please authorities. This comes about because state subsidies to schools are awarded on the basis of pass rate. Some schools will then decide to only retain learners that have the potential to up the pass rate. The academically weak are either encouraged to write easy subjects or to write as part-time students so that their performance is not officially analysed. Of course some drop out because their parents simply cannot afford to pay the fees that schools charge, which is also a violation of their right to education.

Enrolment and dropout rates from 2010-2012 (see table on right) ⁽²⁰⁾

Another worrying trend is that the South African Government, represented by the DBE, seems to be committing to service only after being dragged to court by civil society organisations. In 2010, the DBE was taken to court by the Legal Resources Centre on behalf of the Centre for Child Law and seven schools in the Eastern Cape. The case forced the DBE into taking steps to eradicate mud schools and to provide furniture for schools. The case resulted in a settlement whereby the South African Government committed to spend more than ZAR 8.2 billion (US$ 900 million) over three years to improve infrastructure in schools.⁽²¹⁾

In May 2012, the civil society organisation Section 27, brought a High Court case to compel the state to deliver textbooks to Limpopo Schools, which the state should have delivered before the school year began. Again in 2012, the Legal Resources Centre and the Centre for Child Law brought a case against the state’s failure to fill more than 9,000 teaching vacancies in the Eastern Cape. In both cases, the state lost and was found to have violated the rights of learners to basic education. Another example is the one highlighted earlier where the Minister of Education was taken to court to force acknowledgement of binding minimum norms and standards for the infrastructure in public schools.⁽²²⁾ This is a worrying trend, firstly because, by fighting these cases in court, the state shows some degree of ignorance on the role it should play in the fulfilment of the right to education. Secondly, the resources that the state uses to oppose such cases could be better employed in advancing the right to education. But above all, why should the state wait for civil society to remind it of its obligations? If these civil society organisations had not shown any interest in the state of public education, then the status quo would have been maintained to the detriment of the children.

Concluding remarks

From the above discussion, it can be established that the state has not fully managed to ensure accession of the right to education by all children in SA. The South African Constitution recognises the right to education and the right to equality. The SASA of 1996 was promulgated as a tool to fulfil the right to education. Hence, it is fair to conclude that on paper, the right to education is recognised through the current legislation. It is the implementation and the operationalisation of these policies that is still lacking. And this is where a radical shift is needed on those tasked to fulfil the vision of the Constitution.

To be fair to the South African Government, it has tried to promote access to basic education for all by establishing non-fee paying schools. However, the quality of education in such schools is deplorable. The state needs to ensure that in implementing the right to education, the right to equality should be used as a measure to ensure that every child receives a comparable quality of education. It is wrong for rural pupils to receive education that is inferior to those in urban areas. It is equally improper for township schools to have bigger classes and fewer resources than state schools in middle-class suburbs. It is reassuring that the Minister of Basic Education has committed to promulgating the minimum norms and standards that should govern the provision of infrastructure at schools. The Minister must not procrastinate on this promulgation, and the minimum standards set must comply with the principle equality and human dignity. Education is important because it is the basis of human development and everyone must be afforded the chance to experience it regardless of social status.

Written by Zenzo Moyo ⁽¹⁾

NOTES:

(1) Contact Zenzo Moyo through Consultancy Africa Intelligence’s Rights in Focus Unit, ( rights.focus@consultancyafrica.com). This CAI paper was developed with the assistance of Laura Clarke and was edited by Kate Morgan.
(2) ‘Convention on the Rights of the Child’, United Nations General Assembly Treaty Series, vol. 1577, 20 November 1989, http://www.refworld.org.     
(3) Ibid.
(4) Constitution of the Republic of South Africa, 1996, Chapter 2(29), http://www.info.gov.za.
(5) South African Schools Act, No 84 of 1996, Chapter 2(1), http://www.info.gov.za.
(6) Calderhead, V., ‘The right to an adequate education and equal education in South Africa: An analysis of s 29(1)(a) of the South African Constitution and the right to equality as applied to basic education’, 2011, http://section27.org.za .
(7) Constitution of the Republic of South Africa, 1996, Chapter 2(29), http://www.info.gov.za.
(8) Vally, S. and Ramadiro, B., ‘Children’s right to education’, Education Rights Project, http://www.erp.org.za.
(9) ‘Education an essential service – ANC’, News24, 4 February 2013, http://www.news24.com.
(10) In South Africa, professionals whose work has been declared an ‘essential service’ are not allowed to go on strikes.
(11) Nkosi, B. ‘Minister is “misleading public” on teacher absenteeism’, Mail & Guardian, 10 March 2013, http://mg.co.za.
(12) Hunter, M., ‘Schools pick and choose their pupils – and their pass rates’, Mail & Guardian, 11 January 2013, http://mg.co.za.
(13) Vally, S. and Ramadiro, B., ‘Children’s right to education’, Education Rights Project, http://www.erp.org.za.
(14) Farbstein, S., ‘Important victory to the right to education in South Africa’, International Human Rights Clinic, Human Rights Programme at Harvard Law School, 27 November 2012, http://harvardhumanrights.wordpress.com; ‘Improvement in Matric pass rate positive, but many “born frees” lost along the way’, Equal Education, 3 January 2013, http://www.equaleducation.org.za.
(15) Farbstein, S., ‘Important victory to the right to education in South Africa’, International Human Rights Clinic, Human Rights Programme at Harvard Law School, 27 November 2012, http://harvardhumanrights.wordpress.com.
(16) Hunter, M., ‘Schools pick and choose their pupils – and their pass rates’, Mail and Guardian, 11 January 2013, http://mg.co.za.
(17) ‘Classroom infrastructure and overcrowding: LRC and CCL call for urgent action’, Centre for Child Law, 27 March 2013, http://www.centreforchildlaw.co.za.
(18) Cherney, E. and Wagner, L., ‘Parents line up at school’, The Times, 17 April 2013, http://www.timeslive.co.za.
(19) Ibid.
(20) ‘Improvement in Matric pass rate positive, but many “born frees” lost along the way’, Equal Education, 3 January 2013, http://www.equaleducation.org.za.
(21) ‘Classroom infrastructure and overcrowding: LRC and CCL call for urgent action’, Centre for Child Law, 27 March 2013, http://www.centreforchildlaw.co.za.
(22) Veriava, F., ‘Court cases initiate a domino effect: The victories of civil society become a vehicle for mobilising on education rights’, Mail & Guardian, 31 August 2012, http://mg.co.za; ‘Classroom infrastructure and overcrowding: LRC and CCL call for urgent action’, Centre for Child Law, 27 March 2013, http://www.centreforchildlaw.co.za.