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The right to education is enshrined in the Bill of Rights chapter of the South African Constitution, which states that

  • 1. Everyone has the right ­
    • a. to a basic education, including adult basic education; and
    • b. to further education, which the state, through reasonable measures, must make progressively available and accessible.
  • 2. Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable.  In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account ­
    • a. equity;
    • b. practicability; and
    • c. the need to redress the results of past racially discriminatory laws and practices.

This right to education, because it resides in the Bill of Rights chapter of the Constitution, may be restricted only “in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”[1]

The country’s Parliament has sought to define the term “basic education” and the responsibility of the state in its realization.  It did this by enacting the South African Schools Act in 1996 mandating schooling for all children until they reach age fifteen or the ninth grade, whichever comes first.[2]  The Act also requires provincial governments to ensure that there are “enough school places.”[3]  In addition, it requires the state to adequately fund public schools so that all children can realize their right to basic education, stating

[t]he State must fund public schools from public revenue on an equitable basis in order to ensure the proper exercise of the rights of learners to education and the redress of past inequalities in education provision.[4] 

South African courts have also addressed the issue.  For instance, in 2011, the Constitutional Court described the nature and importance of the right to basic education in light of the right to higher education, stating

[it is important, for the purpose of this judgment, to understand the nature of the right to “a basic education” under section 29(1)(a) [of the Constitution].  Unlike some of the other socio-economic rights, this right is immediately realisable.  There is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”.  The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.  This right is therefore distinct from the right to “further education” provided for in section 29(1)(b).  The state is, in terms of that right, obliged, through reasonable measures, to make further education “progressively available and accessible.”[5]

In a 2014 decision, the Eastern Cape Local Division of the South African High Court noted that the “state’s obligation to provide basic education as guaranteed by the Constitution is not confined to making places available at schools.  It necessarily requires the provision of a range of educational resources: – schools, classrooms, teachers, teaching materials and appropriate facilities for learners.”[6]  In a 2012 decision, the North Gauteng High Court held that

the provision of learner support material in the form of text books, as may be prescribed is an essential component of the right to basic education and its provision is inextricably linked to the fulfilment of the right.  In fact, it is difficult to conceive, even with the best of intentions, how the right to basic education can be given effect to in the absence of text books. . . . [The respondent’s] failure to provide text books, somewhat midway through the academic year would prima facie constitute a violation of the right to basic education.[7]

The South African Supreme Court of Appeals concurred with the High Court in a 2015 decision.[8]

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Prepared by Hanibal Goitom
Foreign Law Specialist
May 2016


[2] South African Schools Act 84 of 1996, § 3(1), 12 Butterworths Statutes of South Africa (updated through 2015), available on the Gauteng Department of Education website at https://www.gdeadmissions.gov.za/Content/ Files/SchoolsAct.pdf, archived at https://perma.cc/SAU8-8RWF; Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution 243 (2010).

[3] South African Schools Act § 3(3).

[4] Id. § 34(1) (emphasis in original).

[5] Governing Body of the Juma Musjid Primary School & Others v. Essay N.O. and Others [2011] ZACC 13, para. 37 (citations in original omitted), available on the Southern African Legal Information Institute (SAFLII) at http://www.saflii.org.za/za/ cases/ZACC/2011/13.html, archived at https://perma.cc/WNC8-AW86.

[6] Madzodzo and Others v. Minister of Basic Education and Others 2014 (3) SA 441, para. 20 (ECM), available at http://www.saflii.org/za/cases/ZAECMHC/2014/5.html, archived at https://perma.cc/D4YR-SYMY.

[7] Section 27 and Others v. Minister of Education and Another 2013 (2) SA 40, para. 25 (GNP), available at http://www.saflii.org/za/cases/ZAGPPHC/2012/114.html, archived at https://perma.cc/JJT6-T62C.

[8] Minister of Basic Education v. Basic Education for All [2016] 1 All SA 369, para. 46 (SCA), available at http://www.saflii.org/za/cases/ZASCA/2015/198.html, archived at https://perma.cc/84D9-AQT3.