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To summarise, the state has the following obligations in terms of section 29 of the Constitution: In addition, the state also has the obligation in terms of article 13 2 of the International Covenant on Economic, Social and Cultural Rights hereafter "the ICESCR" to make education available, accessible, acceptable and adaptable. This is also known as the "4-A Scheme". The "4-A's" are interrelated and essential features of education and contribute to the successful provision of the right to a basic education: In order to fulfil its constitutional obligations, the state has established a mainstream and inclusive school system.
This school system aims at being inclusive, efficient, and attentive to the quality of learning conditions and outcomes. How inclusive is the school system? Can an inclusive school system sometimes lead to the exclusion of certain learners?
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Does an inclusive system infringe upon a child's rights to equality and dignity? Is an inclusive mainstream school system in the best interest of the child? These questions will be addressed in paragraph 4. However, before addressing these questions, one needs to understand the way in which the courts adjudicate the right to a basic education and how the right to a basic education relates to other constitutional rights.
There is a compendium of socio-economic rights, which compendium includes rights of access to adequate housing, health-care services, sufficient food and water, and social security. The right to a basic education is part of this compendium of rights. It is important to bear in mind that a child's right to a basic education is distinguishable from other socio-economic rights in the Constitution in the sense that it is not dependent on the progressive realisation thereof. The way in which the courts adjudicate the right to a basic education differs from the way in which other socio-economic rights are adjudicated.
An explanation of how the adjudication of the right to a basic education differs from the adjudication of the right to housing can be summarised as follows: On the one hand, section 26 1 of the Constitution provides that everyone has the right to have access to adequate housing. In terms of this right, the state has the duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to have access to adequate housing.
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This means that the state needs to consider its available resources, but it does not mean that any person is entitled to insist on, or to demand, a house immediately. In terms of this right, the state is not required to realise the right to a basic education over a period of time - the right to a basic education is immediately realisable and does not carry the same limitations as other socio-economic rights contained in the Constitution such as the right to access to adequate housing. The case of Governing Body of the Juma Musjid Primary School v Essay 44 serves as a good example of how courts adjudicate the right to a basic education.
The facts of this case are that the High Court authorised the eviction of a public school conducted on private property and the eviction order had a major impact on the learners' right to a basic education in terms of section 29 1 of the Constitution and on the best interests of the children in terms of section 28 2 of the Constitution.
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This case therefore ended up in the Constitutional Court, which confirmed that the right to a basic education is not subject to progressive realisation. The court held that: 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 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'. It is clear from the above that the right to a basic education is a cardinal socioeconomic right which aims to promote, improve and develop a child's personality, talents, and mental and physical abilities to their fullest extent.
The importance of education, especially basic education, can be emphasised again - it is nearly impossible to "survive" without education in an educated world. Education gives human beings the power to claim and realise their other rights, and the right to a basic education is seen as a "central facilitative right in South Africa's constitutional democracy".
One can thus argue that through a basic education people are better able to recognise the value of their human rights and are in a better position to exercise the full range of these rights. The right to a basic education cannot be seen as a separate right. This right and many other rights are interdependent. One of the rights that may be relevant is the right to mother tongue education and language rights.
Section 30 of the Constitution stipulates that everyone has the right "to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights".
Section 31 of the Constitution makes provision for persons to belong to a cultural, religious or linguistic community. This section stipulates that these persons "may not be denied the right, with other members of that community - a to enjoy their culture, practise their religion and use their language; and b to form, join and maintain cultural, religious and linguistic associations and other organs of civil society".
Moreover, in order to indicate how the right to a basic education may affect other rights, the table below will illustrate the rights to education, rights in education and rights through education protected in the Constitution: As already noted, these rights are mutually dependent, and when the right to education is under consideration it is important to interpret it in the context of the Bill of Rights. The ethical standards for a democratic system of education are set through the right to equality section 9 of the Constitution and the right to human dignity section 10 of the Constitution.
It is stipulated that: Moreover, the South African Constitution is mainly and unequivocally "an egalitarian constitution". It can therefore be said that the organising principle of the South African Constitution is to prevent or proscribe unfair discrimination between individuals.
Because equality and human dignity are seen as the cornerstone of a democratic system of education, it is necessary to discuss these two concepts briefly. Sections 9 1 and 2 of the Constitution stipulate that:. Sections 9 3 and 4 stipulate further that unfair discrimination against any person directly or indirectly is prohibited. The right to equality is concerned with the protection and safeguarding of the equal worth of the bearers of this right. Equivalently, the right to equality is not a right to equal treatment, but rather a right "to have one's equal worth with others respected, protected, promoted and fulfilled".
Moreover, the Promotion of Equality and Prevention of Unfair Discrimination Act 53 deals with the promotion and advancement of equality on the one hand and clearly stipulates which reactive measures are available where the right to equality is violated on the other hand. The reactive provisions include inter alia the prohibition of unfair discrimination and related encroachments on the right to equality. However, the equality provision in the South African Constitution does not preclude or prevent the state from making classifications. The explanation for this is that there are various reasons why classifications between people are permissible and why these people may also be treated differently.
One should not forget that the classification of people into different groups and the provision of different treatment for different groups can be done only if "the criteria upon which the classifications are based are permissible". Thus, in order to climb the "equality ladder" successfully, it will almost always be required to prove "unfair discrimination" and not just a mere claim to equality.
It seems as if the South African courts view the right to equality in section 9 of the Constitution as "little more than a guarantee of non-discrimination". It is thus clear from the above that there is no prohibition on classifying or distinguishing between persons with differences - provided that such classification or distinguishing is permissible and does not constitute unfair discrimination.
This means that learners are protected against discrimination in education based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Lastly, the distribution of resources and supplies in education must be equitable and unbiased across all communities in proportion to what is needed. Section 10 of the Constitution stipulates that "everyone has inherent dignity and the right to have their dignity respected and protected". Moreover, dignity is not only a constitutional right, but it also has foundational value.
This means that the right to dignity enlightens, enlivens and leads all other constitutional rights. Moreover, the right to dignity is seen as a promise and pledge to human dignity which is inseparably connected to the humanity and mortality of the bearer of rights. The importance of the right to dignity was also explicitly emphasised in the case of S v Makwanyaane: Recognising a right to dignity is the acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.
This right therefore is the foundation of many other rights that are specifically entrenched. It can also be unequivocally stated that the right to dignity is pivotal to democracy. In short: Dignity promotes and respects the level of autonomy of the individual, protects and safeguards an individual's worth in society, and recognises and emphasises that all human beings have equal worth and value. One can say that the right to dignity is an extraordinary right, as it is not earned and cannot be abandoned. Furthermore, it is also clear that dignity and equality go hand in hand, since dignity is pertinent when one needs to establish whether discrimination on an unstipulated ground exists, whether such discrimination is unfair, and whether unfair discrimination if found is justifiable and admissible as stipulated in section 36 of the Constitution.
Learners' rights to dignity in education are also protected in the sense that schools must respect the inherent dignity of every learner, which means that a favourable environment of respect and tolerance in the classroom must be created in order to avoid practices and disciplinary policies that cause harm, mistreatment or humiliation to learners. Self-confidence and self-expression must be promoted and encouraged.
Moreover, the Constitution of Germany expressly provides for the right to equality and the right to dignity and will be discussed below. It is wise to first discuss the German school system, as the discussion will provide the necessary background information on how a tripartite school system functions. A school system similar to the German school system will be proposed for South Africa, and the German school system can therefore be used as a framework. Es gibt nur eine Sache auf der Welt, die teurer ist als Bildung: keine Bildung! Germany has a Constitution that is similar to the South African Constitution.
Article 1 human dignity of the German Constitution emphasises the importance of human dignity:. In other words, article 1 makes it clear that:. To respect and protect it shall be the duty of all state authority. Article 3 Equality of the German Constitution provides that:. Niemand darf wegen seiner Behinderung benachteiligt werden.
Thus, article 3 emphasises the importance of the right to equality by providing that:. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist. No person shall be disfavoured because of disability. Moreover, Germany has a written Constitution, codified in a single document. Germany has sixteen different states and each state also has its own state Constitution, which is partly modelled on the Basic Law, but each state Constitution also has an identity of its own.
However, in terms of article 28 the principle of homogeneity , all state Constitutions are obliged to comply with the fundamental principles of the Basic Law. The development of the German school system varied from that of other European countries, inter alia because of the unification of East and West Germany. The Unification Treaty Einigungsvertrag was concluded between the Federal Republic of Germany and the German Democratic Republic in and brought unity in the areas of culture, education and science. Fundamental provisions are included in this treaty in order to establish a common, comparable basic structure in education -specifically in the German school system.
It is important to remember that each state has its own Constitution, which means that each state has its own educational legislation and educational administration. In other words, a federal principle with regard to educational policy is followed. This means that the educational legislation and educational administration are primarily the responsibility of each state.
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The federal government therefore plays only a subordinate role. However, under the Basic Law and the Constitutions of each state, the entire German school system is under the supervision of the state as stipulated in article 7 of the German Constitution. However, the right to education, and more specifically the right to basic education, are not explicitly provided for in the German Constitution, although it is regarded as an important basic right.
There are several ongoing debates and demands with regard to human rights and one of the demands is to explicitly enshrine the right to education in the Basic Law.
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The freedom of teaching shall not release any person from allegiance to the constitution. Article 7 of the Constitution states that the entire German school system shall be under the supervision of the state. It also provides for the right of parents and guardians to decide whether or not their children shall receive religious instruction.
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