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Citation:
The Transformative Nature of the Right to Education,
2004 J. S. Afr. L. 700 (2004)

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The transformative nature of the right to
education
AMANDA PIETERSE*

1 Introduction

"Education is of seminal importance as far as human rights are concerned, since it liberates
people from the bondage of ignorance, superstition and fear. It gives to them dignity and self-
confidence and is a basic right, on which the materialization of many other rights depend. It is
for this reason that the right to education is extensively recognized in both international and in
'1
national constitutions."

This article provides a detailed discussion of the right to education focusing on

its transformative nature. This confirms that the constitution is "the political
and legal foundation for the democratic transformation of South Africa" 2
Given that transformation is the central theme of our constitution, it is neces-
sary to explore the content of section 29, in order to confirm the constitution's
transformative objective with regard to the right to education. 3 This article will
argue that the right to education is a "fundamental right upon which the full
exercise of other rights is dependent" 4 Adopting a transformative approach to
the right to education also "marks the starting point for the development of a
human rights culture" 5 "A human rights culture aims at allowing all indivi-
duals a measure of freedom, compatible with the freedom of others, and a
culture of justice and fairness which requires an impartial, objective and con-
siderate attitude towards others" 6 Establishing such a culture requires educat-
ing people to know their rights and respect those of others. 7 The right to
education was therefore included in the bill of rights to assist the poor, to
protect their fundamental needs and interests and to transform 8
our society
on the basis of the pillars of equality, dignity and freedom.

* Candidate Attorney, Legal Resources Centre, Johannesburg Regional Office.

Devenish "Aspects of the right to education in the constitution" 1998 De Jure 224 225.
2 Albertyn and Goldblatt "Facing the challenge of transformation: difficulties in the development
of an indigenous jurisprudence of equality" 1998 SAJHR 248 248.
3 See s 29 of the constitution of 1996.
4 Bekker "The right to education in the South African constitution: an introduction" in Mashava
(ed) A Compilation of Essential Documents on the Right to Education (2000) 1.
5 Van der Bank, Joubert and Prinsloo "The bumpy road of implementing a human rights culture in
multi-cultural schools in South Africa" in De Groof et al (eds) Promoting a Human Rights
Culture in Education (1999) 151.
6 (n 5).
7 (n 5).
Liebenberg "South Africa's evolving jurisprudence on socio-economic rights: an effective tool in
challenging poverty?" 2002 Law, Democracy and Development 1.

700
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THE TRANSFORMATIVE NATURE OF THE RIGHT TO EDUCATION

2 Transformation and the right to education

2.1 Constitutional transformation
The constitution (specifically the bill of rights) is a transformative document
aimed at redressing the social and economic inequalities of the past. 9 To under-
stand and enforce the right to education the transformative nature thereof
needs to be explored. Albertyn and Goldblatt define transformation as:
"a complete reconstruction of the state and society, including a redistribution of power and
resources along egalitarian lines. The challenge of achieving equality within this transformation
project involves the eradication of systematic forms of domination and material disadvantage
based on race, gender, class and other grounds of inequality. It also entails the development of
opportunities which allow people to realize their full human potential within positive social
relationships' 10
Also relevant is Klare's understanding of transformation. He states:
"By transformative constitutionalism I mean a long term project of constitutional enactment,
interpretation, and enforcement committed (not in isolation, of course, but in historical context
of conductive political developments) to transforming a country's political and social
institutions and power relationships in a democratic, participatory, and egalitarian direction.
Transformative constitutionalism connotes an enterprise of including large-scale social change
through nonviolent political progress grounded in law."'I
The constitution is the foundation for transformation in South Africa. The
preamble specifically states that the constitution is the supreme law of the land
adopted to heal the divisions of the past, to establish a society based on
democratic values, social justice and fundamental human rights and to improve
the quality of life of all citizens and free the potential of all people.1 The
constitution also places positive and negative duties on the state. The state
must respect, protect, promote and fulfil fundamental rights. 13 It has been
said that the bill of rights is therefore not only a document that "preserves

9 De Vos "Grootboom, the right of access to housing and substantive equality as contextual
fairness" 2001 SAJHR 258 259.
10 Albertyn and Goldblatt (n 2) 249.
l'Klare "Legal culture and transformative constitutionalism" 1998 SAJHR 146 150.
12 The preamble of the constitution as discussed by Moseneke "The fourth Bram Fischer memorial
lecture: transformative adjudication" 2002 SAJHR 309 313.
13s 7 of the constitution. It is relevant to note that the constitutional principle of transformation is
enacted in legislation. The Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 in its preamble states the following: "The consolidation of democracy in our country
requires the eradication of social and economic inequalities, especially those that are systematic
in nature, which were generated in our history by colonialism, apartheid and patriarchy, and
which brought pain and suffering to the great majority of our people .... The basis for
progressively redressing these conditions lies in the Constitution which, amongst others, upholds
the values of human dignity, equality, freedom and social justice in a united, non-racial and non-
sexist society where all may flourish ....Section 9 of the Constitution provides for the
enactment of national legislation to prevent or prohibit unfair discrimination and to promote
the achievement of equality. This implies the advancement, by special legal and other measures,
of historically disadvantaged individuals, community's and special groups who where
dispossessed of their land and resources, deprived of their human dignity; and who continue
to endure the consequences. This act endeavors to facilitate the transition to a democratic
society, united in its diversity, marked by human relations that are caring and compassionate,
and guided by the principle of equality, fairness, equity, social progress, justice, human dignity
and freedom."

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 PIETERSE

and protects entrenched privileges", but also extends the enjoyment of these
rights to everyone. 1 4 The state should act positively to ensure the progressive
realization of all rights.' 5 This is reflected in a number of provisions. Section
9(2) acknowledges that "real" equality will not be achieved over night and that
the state should take steps to promote equality in the long term. 16 Various
socio-economic rights acknowledge that negative obligations "will be immedi-
ately enforceable but only realized fully in the long term" 17 However, De Vos
points out that the constitutional text is not the only relevant factor. Historical,
social and economic circumstances should also be taken into account. 18 Espe-
cially relevant is South Africa's apartheid history where the "majority of South
Africans were deprived of their political freedom and the means of securing
their economic prosperity". 19 Political transformation
20 is therefore not enough:
social and economic transformation is needed.
In Soobramoney and Grootboom the constitutional court acknowledged the
transformative nature of the bill of rights. 2 1 In Soobramoney the following
important statement was made:
"We live in a society in which there are great disparities in wealth. Millions of people are living
in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate
social security, and many do not have access to clean water or to adequate health services. These
conditions already existed when the Constitution was adopted and commitment to address
them, and to transform our society into one in which there will be human dignity, freedom and
equality, lies at the heart of our new constitutional order. For as long as these conditions
22
continue to exist that aspiration will have a hollow ring."

This passage establishes the link between socio-economic rights and the con-
stitutional values of equality, dignity and freedom. It commits the state to
address conditions of inequality and poverty and to transform our society
based on these values. 2 3 The constitutional court sees the right to equality
and socio-economic rights as "symbiotically linked", the one set of rights
provides the context in which the other set can be understood". 2 4 The consti-
tutional court delivered several judgments where a substantive approach to
equality rather than a formal one was followed.2 5 Substantive equality requires
courts to take into account the actual economic, social and political circum-
stances of the claimant in order to determine whether the constitution's

14 De Vos (n 9) 261.
15 (n 9).
16 De Vos (n 9) 262.
17 De Vos (n 9) 262.
18 De Vos (n 9) 262.
'9 De Vos (n 9) 262.
20 De Vos (n 9) 263.
21 Soobramoney v Minister of Health, Kwazulu-Natal 1997 12 BCLR 1696 (CC); Government of
RSA v Grootboom 2000 11 BCLR 1169 (CC).
22 Soobramoney (n 21) par 8.
23 Liebenberg (n 8) 6.
24 De Vos "Substantive equality after Grootboom: the emergence of social and economic context as
a guiding value in equality jurisprudence" 2001 Acta Juridica 52 53.
25 See eg, Brink v Kitshoff 1996 6 BCLR 1489 (CC); President of RSA v Hugo 1997 6 BCLR 708
(CC); Harksen v Lane 1997 11 BCLR 1489 (CC) and National Coalitionfor Gay and Lesbian
Equality v Minister of Justice 1998 12 BCLR 1517 (CC).

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THE TRANSFORMAIIVE NATURE OF TIlE RIGHT TO EDU(ATION

commitment to equality is being upheld.26 Albertyn and Goldblatt state that

substantive equality "reflects" the constitutional court's commitment to trans-
formation and creates an "indigenous jurisprudence of transformation" 27
Substantive equality is therefore a tool that facilitates the transformation of
our society.
The Grootboom case acknowledges the vast social and economic inequalities
in society, which leave people desperate and vulnerable and far removed from
the values of equality, dignity and freedom. 28 People cannot fulfil their poten-
tial as human beings when structural inequalities exist and where the state fails
to address these inequalities. The transformative nature of the bill of rights
requires the state to address basic social and economic needs. 29 As pointed out
above, to understand the transformative vision of the constitution one must
realize that the rights in the bill of rights are inter-related and mutually sup-
porting:
"There can be no doubt that human dignity, freedom and equality, the foundational values of
our society, are denied those who have no food, clothing or shelter. Affording socio-economic
rights to all people therefore enables them to enjoy the other rights enshrined in chapter 2. The
realization of these rights is also key to the advancement of race and gender equality and the 30
evolution of society in which men and women are equally able to achieve their full potential."
De Vos states that seeing the rights in the bill of rights as mutually supporting
"reinforces the concept of transformation in general and of the right to equal-
ity in particular". 3 1 It may be an indication of unfair discrimination when the
32
state fails to address the social and economic needs of the most vulnerable.
Important to note is the internal limitation to which most socio-economic
rights are subject: "the state must take reasonable legislative and other mea-
sures, within available resources, to achieve progressive realization of this
right" (my emphasis).3 3 The amicus in Grootboom argued that this required
the state to provide a minimum core of the right. The minimum core of a right is
determined by having regard to the needs of the most vulnerable who are
entitled to the protection of the rights concerned (this concept seems very
similar to transformation).34 However, justice Yacoob rejected the notion of
a minimum core obligation. According to him the court did not have sufficient
information to determine the minimum core. He also stated that is difficult to
fix a precise definition of a minimum core: should it be defined generally or
with regard to a specific group?35 Liebenberg states that the court's rejection of
a minimum core is unconvincing. The concept does not require of the court to
give a "precise definition, it could define the general principles underlying the
concept in relation to socio-economic rights and apply it on a case by case
basis" 36 According to Liebenberg to determine a minimum core obligation
26 De Vos (n 24) 59.
27 Albertyn and Goldblatt (n 2) 250.
28 De Vos (n 9) 268.
,9 (n 9) 268.
30 Grootboom (n 21) par 23.
31 De Vos (n 9) 270.
32 De Vos (n 9) 270.
33s 26 of the constitution.
34 De Vos (n 24) 57.
35Bilchitz "Giving socio-economic rights teeth: the minimum core and its importance" 2002 SALJ
484 486.
36 Liebenberg (n 8) 16.

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 PIETERSE

one should keep its purpose in mind: "to protect vulnerable people from ser-
ious social and economical threats, thus giving effect to the transformative goal
of the Constitution". 37 Without the recognition of a basic standard, other
rights will have a "hollow ring" 3 8
The court in Grootboom also attached great value to the concept of reason-
ableness. To determine whether an act is reasonable, actions will have to be
evaluated against the constitutional background of substantive equality, taking
into account social and economic circumstances. 39 State action that fails to
take into account structural inequalities and the impact on vulnerable groups
will be found to be unreasonable. 40 Liebenberg extracted the following criteria
from the judgment, for the establishment of a reasonable government program
(thus needed to implement transformation):
" The program must be comprehensive and coordinated, which allocates responsibilities and
tasks to the different spheres of government ensuring that the appropriate financial and
human resources are available.
" The program must facilitate the realization of the right in a progressive manner, within the
state's available resources.
* Policies and programs must be reasonable in their conception and implementation.
" The program must be balanced and flexible providing for short and long term needs.
* The program must include a component that responds to the needs of those in desperate
situations. 4 1

A "major social rights crisis" like the one in Grootboom can only be solved in the
long term. 4 2 However, this does not mean that the government should delay the
progressive realization of these rights. 43 Scott and Alston state that the govern-
ment will have to adopt a set of objectives and policies, that flow from an analysis
of its constitutional obligations. 4 These plans "should give priority to ensuring
respect for a minimum core content to be realised within the shortest possible
time" (my emphasis). 4 5 If a minimum core concept is accepted, transformation
will be achieved affording basic rights to the most vulnerable in society. Accord-
ing to Coomans the minimum core of education consists of the following: "access
to education on a nondiscriminatory basis, the right to enjoyfree and compulsory
primary education, special facilities for persons with an educational deficit, qual-
ity of education, free choice of education and the right to be educated in the

37 Liebenberg (n 8) 16.
38 Liebenberg (n 8) 16.
39 De Vos (n 9) 272.
40 De Vos (n 9) 272.
41 Liebenberg (n 8) 12-13.
42 Scott and Alston "Adjudicating constitutional priorities in a transnational context: a comment
on Soobramoney's legacy and Grootboom's promise" 2000 SAJHR 206 263.
43 (n 42).
44 (n 42).
41 (n 42).

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THE TRANSFORMATIVE NATURE OF THE RIGHT To EDUCATION 705

language of ones choice" (my emphasis).4 ' The transformative nature of the
constitution can thus be described as follows:
"Given South Africa's history of deprivation and prejudice; given the deep structural social and
economical inequalities that exists in our society; given the Constitution's respect for
individuality, difference, and hence the human dignity of all; given the constitutional goal of
achieving a totally transformed society; how should the state or other relevant actors act or
refrain from acting to ensure that there will be no unfair impact on the affected group? We look
at the actual impact of the action or inaction by the state or other relevant actors and ask
whether this can be sanctioned given our long-term 47
commitment to a complete transformation
of society in a manner thait is contextually fair."

2.2 Section 29 of the constitution

From the above discussion it is clear that the constitution is indeed a transfor-
mative document, protecting the most vulnerable in society. In order to under-
stand the transformative nature of the right to education it is important to
analyse the content of section 29 of the constitution, which serves as the foun-
dation on which its transformative character is built. 48 Section 29 of the bill of
rights provides the following:
"(1) Everyone has the right -
(a) to a basic education, including adult basic education;
(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.
(3) Everyone has the right to establish and maintain, at their own expense, independent
educational institutions that -
(a) do not discriminate on the basis of race:
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable public educational
institutions.

46 Coomans "In search of the core content of the right to education" in Brand and Russell (eds)
Exploring the Core Content of Scio-Economic Rights. South African and International
Perspectives (2002) 159 167-174; The General Comments of the Committee on Economic,
Social and Cultural rights as discussed by G Bekker (2000) 15, notes that the minimum core of
the right to education will include obligations to ensure the right to access to public education
institutions, programmes of a non-discriminatory nature, primary education to all, to adopt and
implement a national education strategy which includes provisions for secondary, higher and
fundamental education and to ensure free choice of education without interference from the
state or third parties. A state party cannot merely claim a lack of resources for not meeting the
minimum core obligation. In order for a state to use such a justification it has to prove that it
has used all possible resources at its disposal. Bekker emphasizes that when resources are
47 inadequate, the state will have to at the very least have a plan of action in place.
De Vos (n 9) 275.
48 Also take note of s 104 (1) of the constitution read with sched 4. Education, except for tertiary
education, is a Functional area that is shared between the national government and provincial
governments and over which they have concurrent legislative powers.

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 PIETERSE

(4) Subsection (3) does not preclude state subsidies for independent educational
49
institutions. -

The right to education (a right that belongs to everyone, adults as well as

children) places a positive duty on the state to provide education or access
thereto.5 0 Unlike many other socio-economic rights,51 this right is not qualified
by terms such as "reasonable legislative and other measures", "available re-
sources" and "progressive realization". 52 This means that the right to basic
education is an immediate right, unlike most other socio-economic rights and
the right to further education, which is subject to an internal limitation
clause.5 3 The concept of basic education is open-ended, but it is accepted
that it should at least provide learners with basic literacy and numeracy skills
as well as basic professional
54 skills enabling them successfully to take part in
society and cultural life.
The right to basic education in South Africa does not imply free education,
although it is compulsory.5 5 To avoid the harshness of this policy, schools are
prohibited from turning learners away and excluding them from activities
because of their inability to pay school fees. 56 The fact that no provision is
made for free basic education may be in conflict with the transformative and
substantive nature of the constitution. Many South Africans live in conditions
of extreme poverty, and it is hard, if not impossible, to finance education.
Although provision is made for poor children, parents may feel that their
dignity is undermined by a process where they have to "flaunt" their poverty
to gain access to education.5 7 Children are subjected to degrading treatment
such as sittin on the floor when their parents have been exempted from paying
school fees. N It is also generally accepted in international instruments that
primary education should be free and compulsory.5 9 South Africa is party to
most of these instruments and is obliged to consider international law when
interpreting the bill of rights. 60 I realize that it is not realistic for many
49 It is important to note that the right to education is not an isolated field of study referring only
to well known institutions like schools and universities as is mainly done here. Education is also
present in other institutions for example the workplace, community centers and prisons. See for
example Thukwane v Minister of CorrectionalServices 2003 1 SA 51 where the right to education
in prison was discussed.
50 Bray Human Rights in Education (2000 CELP) 79; In Re: The School Education Bill of 1995
(Gauteng) 1996 4 BCLR 537 (CC) par 9 states: "Section 32(a) creates a positive duty that basic
education be provided for every person and not merely a negative right that such a person
should not be obstructed in pursuing his or her basic education."
51 See eg, s 26 and 27 of the constitution, the right to housing as well as health care, food, water
and social security.
52 Seleoane A Right to Free Basic Education for all? < http://www.communitylawcenter.org.za/serl
esr200212OO2julyeducation.php > (visited on 1 April 2003); Bekker (2000) 7.
53 Bekker (2000) 7.
54 Kriel "Education" in Chaskalson et al (eds) ConstitutionalLaw of South Africa (1999) 38-1;
Devenish (n 1) 228; Seleoane (n 52).
55 Seleoane (n 52); s 3 of the South African Schools Act 84 of 1996 (Schools Act) requires school
attendance from the age of seven to 15, or from grades one to nine, whichever happens first.
56 s 5 (3)(a) of the Schools Act.
57 Seleoane (n 52).
58 Veriava EradicatingBarriersto Education:An Introduction to the Education Rights Project < http.//
www.communityla wcenter.org.za/ser/esr2002/2002sept_barriers.php > (visited on 1 April 2003).
eg, a 11 (3) of the African Charter on the Rights and Welfare of the Child; a 2 International
Covenant on Economic, Social and Cultural Rights; a 28 of the Convention on the Rights of the
Child and a 4 of the Convention against Discrimination in Education.
60 See s 39 of the constitution.

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THE TRANSFORMATIVE NATURE OF THE RIGHT TO EDUCATION

countries, but they should at least make the right progressively free and acces-
sible to all. South Africa should implement programs and policies to realize the
right to free primary education. The inclusion of the concept of adult basic
education (ABE) reinforces the constitution's transformative goal. ABE is
aimed at bringing about a degree of reparation and wealth distribution, and
thus seeing to it that those who have
61
suffered from apartheid benefit most from
the nation's education resources.
The right to further education (section 29 (1)(b)) includes education above
the basic level: secondary and higher education, as well as technical and voca-
tional training. 62 However, this right contains a limitation clause relying on the
state's financial and other resources, and unlike the right to basic education,
the right to further education does not impose an immediate obligation but one
that needs to be implemented over time. 63 The concept of resources is an
important one and should not be restricted to direct economic resources
only; human and organizational resources should be included. 64 According
to Van Beuren this includes time, energy, motivation, skills, professionalism,
vision, and help from political and non-governmental organizations. 65 In the
education context this would require the state to implement an infrastructure
conducive to learning, training of qualified teachers, implementation of proper
curricula and private funding to extend the state's depleted budget.
The right to receive education in the language of ones choice is very con-
tentious. The right recognizes the importance of children being educated in
their mother tongue, but is qualified in two instances. Firstly implementation
needs to be reasonably practicable and secondly it is not a right to mother-
tongue instruction, but instruction in one of the official languages. 66 For lin-
guistic minorities this might be problematic. Academic performance as well as
the development of the language may be undermined. 6 However, this limita-
tion is realistic and reasonable, taking into account the multilingual nature of
South African society. The term "reasonably practicable" requires objective
justification for the denial of the right. 68 For this purpose a sliding scale for-
mula is used. 6 9 The larger the number of speakers of a particular language in
an area, the greater the obligation to provide mother-tongue education. 70 The

61 Kriel (n 54) 38-5.

62 Malherbe "A constitutional perspective on higher education" 1999 Stel LR 349.
63 Bekker (n 4) 8.
64 Van Beuren "Of floors and ceilings: minimum core obligations and children" in Brand and
Russell (eds) Exploring the Core Content of Socio-Economic Rights: South African and
InternationalPerspectives (2002) 185.
65 (n 64).
66 Bekink and Brand "Constitutional protection of children" in Davel (ed) Introduction to Child
Lal in South Ajrica (2000) 180; the official languages of South Africa is stated in s 6 of the
constitution.
67 De Waal, Currie and Erasmus The Bill of Rights Handbook (2001) 484; also take note of s 30 of
the constitution which states: "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". Also s 31 "Persons belonging to a cultural,
religious or linguistic community may not be denied the right, with other members of that
community - (a) to enjoy their culture, practice their religion and use their language."
68 De Waal, Currie and Erasmus (n 67) 484.
69 (n 67).
70 (n 67).

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 PIETERSE

department of education's language policy states that it ws ould be reasonably

practicable to provide education in a particular language if at least 40 learners
in grades 1 to 6 or 35 in grades 7 to 12 request it in a particular school. 7' The
second part of section 29(2) refers to.effective access and implementation of the
right, taking into account educational alternatives and single-medium institu-
tions. Single or even dual medium schools may be the most effective and
equitable way of realizing this right but practicability and the need to redress
past racial discrimination need to be taken into account as well. 72 Recognizing
the need to address racial discrimination confirms the constitution's transfor-
mative goal. The state should realize this right and its transformative goal by
establishing schools that use the other official languages rather than Afrikaans
and English, as these languages were the only languages recognized under the
apartheid regime.
Section 29(3) allows for the establishment of private schools.7 3 These institu-
tions may not discriminate on the basis of race. 74 Although other forms of
discrimination are not mentioned it is presumed that they remain forbidden
under section 9 of the constitution. 7 5 In the Wittman case the court concluded
that the right to establish an independent institution based on common lan-
guage, culture and religion by necessity includes the right to exclude those who
do not subscribe to the particular language, culture or religion.7 6 This can
therefore be seen as a form of justified discrimination. Independent schools
function within the legal framework of public schools and are also subject to
state control. These institutions need to be registered with the state and should
maintain the same standards as public institutions.77 However, the question
arises whether the state is obliged to assist individuals in establishing educa-
tional institutions based on a common language, culture or religion. 78 In the
Education Bill case the court declared the following:
"The submission that every person can demand from the State the right to have established
schools based on a common culture, language or religion is not supported by the language of
section 32(c). The section does not say that every person has the right to have established by the
State educational institutions based on such a common culture, language or religion. What it
provides is that every person shall have the right to establish such educational institutions.
Linguistically and grammatically it provides a defensive right to a person xNho seeks to establish
such educational institutions and it protects that right from invasion by the State, without
79
conferring on the State an obligation to establish such educational institutions."-

7i The department of education's language policy as discussed by Bekker (n 4) 11.

72 Bekker (n 4) 11; Malherbe "Reflections on the background and contents of the education clause
in the South African bill of rights" 1997 TSAR 85 97.
7 Also refer to s 45 of the Schools Act, which states: "Subject to this act and any applicable
provincial law, any person may, at his or her own cost establish and maintain an independent
school." In terms of s 53 former registered private schools are still deemed to be independent
institutions.
74 See Matukane v Laerskool Potgietersrus 1996 3 SA 223 (T).
75 Bekker (n 4) 12.
76 Wittman v Deutsher Schulverein, Pretoria 1998 4 SA 423 (T)as discussed by Bekink and Brand
(n 66) 180.
77 Bray "The South African Schools Act 84 of 1996" in Davel (ed) Introduction to Child Law in
South Africa (2000) 285 299.
78 Kriel (n 54) 38-17.
79Education Bill case (1996) par 7;for a detailed discussion of this case see Visser "Public schools
based on a common language, culture or religion not constitutionally sanctioned" 1997 THRHR
341.

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THE TRANSFORMATIVE NATURE Of- THE RIGHT TO EDUCATION

It is clear that the state is permitted, but not required, to help individuals
establish independent institutions and may not interfere with individual efforts
to establish such schools. 80 However, the constitution does not rule out the
possibility of state funding for independent institutions.8 s It is important to
keep in mind that section 29(3) extends protection to all independent educa-
tional institutions
82
and not only those based on a common culture, language or
religion.

2.3 The transformative nature of the right to education

Coomans describes the right to education as an "empowerment right". 8 3 It
enables a person to experience the benefit of other rights. 84 Certain civil and
political rights, for example the rights to freedom of expression, freedom of
association and the right to political participation, only have meaning when a
person is educated 8 5 Education also promotes certain socio-economic rights,
like the rights to food, housing and health. An educated person will have a
better chance of finding a job, securing a food source and will be more aware of
"public health dangers" 6 Education furthermore helps to facilitate escape
from discrimination based on social status. In essence, education promotes
human dignity, a core value of all human rights.8 7
Educational reform is an integral part of constitutional transformation.8 8
Transforming the schools system into a democratic and non-discriminatory
system has been one of the most challenging items on the government's poli-
tical and educational agenda. 89 The transformative nature of the right to edu-
cation is clearly visible from the preamble of the School's Act, which states:

"Whereas the achievement of democracy in South Africa has consigned to history the past
system of education which was based on racial inequality and segregation; and
Whereas this country requires a new national system for schools which will redress past
injustices in educational provision, provide an education of progressively high quality for all
learners and in doing so lay a strong foundation for the development of all our people's talents
and capabilities, advance the democratic transformation of society, combat racism and sexism
and all other forms of unfair discrimination and intolerance, contribute to the eradication of
poverty and the economic well-being of society, protect and advance our diverse cultures and

soKriel (n 54) 38-17.

81See s 29(4) of the constitution. S 48 of the Schools Act states: "(1) The Minister may, by notice in
the Government Gazette, determine norms and minimum standards for the granting of subsidies
to independent schools after consultation with the Council of Education Ministers and the
Financial and Fiscal Commission and with the concurrence of the Minister of Finance; (2) The
Member of the Executive Council may, out of funds appropriated by the provincial legislature
for that purpose, grant a subsidy to an independent school."
82 Devenish (n 1) 230.
83Coomans (n 46) 160.
14 (n 46).
" (n 46).
86 (n 46).
87 (n 46). The right to education as an empowerment right is in line with the constitutional court's
interpretation in Grootboom, seeing the rights in the bill of rights as inter-related and mutually
supporting; See Grootboom (n 21) par 23.
88 Bray (n 50) 284.
89 (n 50) 284.

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languages, uphold the rights of all learners, parents and educators, and promote their acceptance
of responsibility for the organization, governance and funding of schools in partnership with
state; and
Whereas it is necessary to set uniform norms and standards for the education of learners at
schools and the organization, governance and funding of schools throughout the Republic of
South Africa."

Although most educational structures have changed since our first democratic
elections in 1994, complete transformation has not yet been achieved, as is evi-
dent from cases such as Matukane and the EducationalBill Case.90 In the Matu-
kane case the applicants (who were black) applied to have their children enrolled
at the respondent's primary school (a state-aided public school). Their applica-
tion was refused. The reason given was that the school was full. The school was an
Afrikaans and English parallel-medium school with the majority consisting of
Afrikaans-speaking pupils. The applicants contended that the refusal constituted
racial discrimination. The respondent relied on international law protecting cul-
tural minorities. They argued that the school has an exclusively Christian, Afri-
kaans culture which would be destroyed by admitting pupils from a different
cultural background. The court found that the respondent seems to have ignored
the fact that it was not an exclusive Afrikaans school but a parallel-medium
school already accommodating two cultures. The court pointed out that there
is no reason why the Afrikaans section should have better rights than the English
section. The court also held that the governing
91
body of a school can never exercise
powers in conflict with the constitution.
In the Education Bill case the court was faced with a similar dilemma. It was
argued that the constitution placed a positive obligation on the state to estab-
lish educational institutions based on a common culture, religion or language
where practicable. The state would therefore be obliged to establish schools
that only speak a certain language. The constitutional court rejected this con-
tention, stating that the right was a right of everyone themselves to establish
such schools. 92 Specifically I would like to focus on the reasoning of justices
Sachs and Kriegler. Justice Sachs starts out with a number of assumptions in
favour of the petitioners: First, that the Afrikaans language is not simply a
means of communication and instruction but a central element of community
cohesion and identification for a distinct community in South Africa; secondly,
that there exists a subjective fear that democratic transformation will lead to
the suppression of the Afrikaans language; and finally, that the Afrikaans
language is a cultural treasure that needs protection. However, justice Sachs
pointed out that these assumptions need to be located in the context of three
important considerations highlighted by the constitution. 93 He made the fol-
lowing points:
". Similar claims for constitutional regard can be made by ten or more language communities.
Even if the poignancy of history flows through the Constitution, we must be guided by the
words and spirit of the constitutional text, supporting not this group or that but the values
enshrined in the Constitution. Rights of the Afrikaans speaking community cannot be
94
considered in isolation from equally valid claims of other members of society.

90 Matukane case (1996); the Education Bill Case (1996).

91 The Matukane case (1996) 234 A D and E.
92 The Education Bill case as discussed by Bekink and Brand (n 66) 180.
93 Education Bill case (1996) par 45-50.
94 Education Bill case (1996) par 51.

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THE TRANSFORMATIVE NATIURE OF THE RIGHT TO EDUCATION

" Immense inequalities still exist in relation to access to education. t-quality needs to be
achieved with maximum regard for diversity. The objective is not to set the principle of
95
equality against cultural diversity, but to harmonize these two principles.
" The Constitution should not only take into account the interests of the parent, which may be
unduly rooted in the past, but give paramount importance to the best interest of the child
96
which may require looking more to the future."'

Justice Sachs further noted that whether the Afrikaans language would survive
better in isolation would not be a matter of constitutionality but one of policy
on which the court does not wish to decide. "It is not the Court's place to say
whether denying Afrikaans-speaking children the right to study and play with
children from other backgrounds would or would
' 97
not be to their mutual edu-
cational and social detriment or advantage."
Justice Kriegler, in the court's only Afrikaans judgment, stated the follow-
ing:
"Solank 'n minderheid daadwerklik wagstaan oor sy gemeenskaplike erfgoed, solank is dit sy
onvervreembare reg om eie onderwysinstellings ter behoud van kultuur, taal en godsdiens tot
stand te bring. Daar is egter twee belangrike voorbehoude. Ten eerste is die slotwoorde van die
betrokke subartikel ondubbelsinnig: daar mag geen diskriminasie op grond van ras wees nie. Die
Grondwet bied dus geen beskerming vir rassevooroordeel op die onderwysterrein nie. 'n
Gemeenskaplike kultuur, taal en godsdiens met rassisme as wesenselement het geen
konstitusionele aanspraak op die vestiging van afsonderlike onderwysinstellings nie. Die
Grondwet beskerm verskeidenheid nie rasse diskriminasie nie... hou die Grondwet daarmee die
deur oop vir diegene vir wie die staat se onderwysinstellings ontoereikend geag word wat betref
gemeenskaplike kultuur, taal of godsdiens. Dit staan hul vry om eendragtig die erwe van hul
vaders vir hul kinders te behou. Daar is egter 'n prys, naamlik dat so 'n bevolkingsgroep
daarvoor die hand in eie sak moet steek. In 'n sin gaan die huidige geskil dus nie om volksgoed
nie maar om geld."' 98

The reasoning in both cases is similar and clearly in line with the constitution.
Both schools, which are by no coincidence mainly Afrikaans speaking, attempt
to use the constitution to their own advantage by relying on section 29(3) and
31. It is clear that these claims are in contradiction with the notion of trans-
formation and cannot be allowed, given that transformation is an underlying
(although not explicitly stated) value of the constitution. I therefore agree with
the above decisions, placing the value of transformation above Afrikaner ide-
alism and cultural elitism. 9 Despite sound constitutional principles, however,
indirect discrimination and exclusion on the basis of race is still rife in our

95 Education Bill case (1996) par 52.

96 Education Bill case (1996) par 53.
97 Education Bill case (1996) par 74.
98 Education Bill case (1996) par 39, 40 and 42.
99 I would like to refer to the following paragraph in Christian Education South Africa v Minister of
Education 2000 4 SA 757 (CC) par 26: "Section 31(2) ensures that the concept of rights of
members of communities that associate on the basis of language, culture and religion, cannot be
used to shield practices which offend the Bill of Rights. These explicit qualifications may be seen
as serving a double purpose. The first to prevent protected associational rights of members of
communities from being used to "privatise" constitutionally offensive group practices and
thereby immunise them from external legislative regulation or judicial control. This would be
particularly important in relation to practices previously associated with the abuse of the notion
of pluralism to achieve exclusivity, privilege and domination. The second relates to oppressive
features of internal relationships primarily within the communities concerned, where s 8, which
regulates the horizontal application of the Bill of Rights, might be specially relevant."

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education system. Promoting a human rights culture in the South African edu-
cation system is not easy. As Sithole states: "School desegregation is assuming
the pace of a tortoise and in most cases it does not even seem feasible."'I%
Desegregation has often been used as a "political platform", creating an atmo-
sphere that is counter-productive to learning.10 ' A possible solution to achieve
desegregation might be for white students to attend 10 black 3
schools. 10 2 This is
unlikely, taking into account our political situation.
Racial isolation in schools seriously harms learners and therefore the nation
as a whole. Schools should equip learners with values needed to function in a
diverse society. 10 4 It is clear that underprivileged youths will suffer most from
racially segregated schools, taking into account South Africa's history of un-
even resource distribution resulting from apartheid. The concept of transfor-
mation makes it clear that the traditional skills of reading, writing and
numeracy are not enough. 10 5 "Human relation skills", showing learners 06
how
to relate adequately to people who differ from them, are also needed.
The bill of rights is not a "self-executing" document.' 0 7 The question that
arises is what government has done to implement the notion of transformation
in our education system. i08 Over the past two years government has moved its
focus from establishing policy and governance structures, to improving access,
quality and equity. 109 The purpose of schools is to offer learners education that
enables them to grow into responsible citizens in our new democracy. "o This is
done through the implementation of curriculum 2005 and multicultural educa-
tion.iii The concept of multiculturalism lies at the heart of transformation.
Only through the acceptance of a multicultural society will transformation be
achieved. Multiculturalism implies "respect for and tolerance of diverse cultur-
al beliefs, coupled with a commitment to a cohesive society within a democratic
framework" i1 2 Multicultural education, according to Le Roux and Beckmann
includes the following:
" Ensuring the recognition, acceptance and appreciation of the multi cultural character of
society;
" fostering intercultural respect and interaction;
" eliminating ethnocentrism, stereotyping and prejudice;

100 Sithole "The learner's perception of a human rights culture in South African education" in De
Groof et al (eds) Promoting a Human Rights Culture in Education (1999) 85 86.
101 (n 100).
102 (n 100).
'o3 (n 100).
104 (n 100).
10'(n 100) 87.
106 (n 100) 87.
107 Van der Bank, Joubert en Prinsloo (1999) 151.
08 The state started its transformative journey by invalidating corporal punishment, therefore
protecting the dignity of learners. See the ChristianEducation case (2000).
109 The Education Budget at <http://www.gov.za/events/20O3/budget2OO3.htm.> (visited on
11 Apr 2003) 294.
1l0 Sithole (n 100) 86.
...
Sithole (n 100) 86; for a discussion of curriculum 2005 see Taylor "Human rights materials
development for curriculum 2005: A practical model" in De Groof et al (eds) Promoting a
Human Rights Culture in Education (1999) 127.
112Le Roux and Beckmann "Multiculturalism, constitutionalism and education in South Africa:
responsibilities and opportunities" in De Groof et al (eds) Promotinga Human Rights Culture in
Education (1999) 39 43.

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THE TRANSFORMATIVE NATURE OF THE RIGHT TO EDUCATION

" eliminating intercultural conflict

" enhancing social skills in a multicultural society, including communication skills;
" ensuring equal educational opportunities for all;
" promoting tolerance of groups other than one's own;
" countering cultural alienation;
" comprehending that different groups attach meaning and award values in different ways;
" acknowledging the reality that various groups exist and that it is essential that they be
retained. ,"13

However, it is uncertain how government will go about implementing educa-

tion based on human rights principles, and if they will be able to implement it
at all. A great achievement of the department of education is the implementa-
tion of the National Policy on HIV/Aids. 114 South Africa is in the midst of a
HIV pandemic, which will most definitely impact the school system. Learners
themselves, or a family member, may be infected with the virus, placing strain
on the learner and possibly the financial means of the household (this may for
example influence the family's ability to pay school fees). 1 5 Children with HIV
should lead as full a life as possible and should not be denied the right to
receive education to the best of their abilities. 116 Through the implementation
of the above policy the state not only realizes its transformative duty by pro-
tecting the vulnerable members of society, it also gives effect to education
based on human rights. Education (among other things) can be one of the
most important tools (if not the only) to combat the spread of HIV/Aids. In
the Van Vuuren case, 11 7 the court stated the following:
"In the absence of a cure or vaccine, the only way to stop the spread of this deadly disease is the
prevention of infection in the first place. This is clearly the task of education which is the only
118
current tool available to combat the AIDS epidemic."'

How can the transformative goal of the constitution be achieved in future

education? Taking the history of our country into account it is well known
that there are "great and unacceptable discrepancies in wealth"." 19 There are
many barriers that rural black children face to an equal education. These
include inadequate school services as a result of unequal resource distribution
as well as certain socio-economic factors preventing these children to gain
access to proper institutions.1 20 These include, for example, parents' inability
to pay high school fees, a lack of transportation between the student's home
and the school, no running water and sanitation facilities at schools, lack of
adequate buildings, teaching materials and teachers.' 21 As the poor are parti-
cularly vulnerable they require special attention.1 22 This will require govern-
ment seeing to the equal distribution of resources, for example by looking at

113 Le Roux and Beckmann (n 112) 45.

114 The National Policy on HIV/Aids as discussed by Prinsloo and Beckmann "HIViAIDS and the
learner" in Davel (ed) Introduction to Child Law in South Africa (2000) 317-339.
115 Blackbeard "Diskriminasie teen leerlinge met HIV-infeksie of Vigs" 1998 THRHR 491 492.
116 Prinsloo and Beckmann (2000) 324.
ii7 Van Vuuren v Kruger 1993 4 SA 842 (A) as discussed by Prinsloo and Beckmann (2000) 319.
118 Van Vuuren case (n 117) 852.
119 De Vos (n 9) 263.
120 Coomans (n 46) 171.
121 (n 46) 171.
122 De Vos (N 24).

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private sponsorship for the establishment of schools, requiring (even compel-

ling) qualified teachers to teach at rural schools, placing particular importance
on the desegregation of schools and implementing free basic education. In
future the constitutional court will have to intervene in unjust power and
resource distributions to restore the notion of substantive equality.1 23 Deci-
sions on violation of constitutional rights must be seen in historical and rele-
vant socio-economic context. 124 As Moseneke states: "The judiciary is
commanded to observe with unfailing fidelity the transformative vision of
the Constitution." 125

3 Conclusion
It is clear that the right education enables people to participate and function in
society. The state therefore needs to respect, protect and realize this right
specifically taking its transformative character into account.12 6 It is a reality
that education will have to "compete with other basic needs such as health,
housing, child care and poverty relief'. 127 Courts should adopt a "specific
jurisprudential view of the Bill of Rights, namely that it is a transformative
document that was designed to ensure that it would not stand in the way of the
transformation of the power relations in South Africa, and that it would
become the vehicle of such transformative efforts" 128 If the transformative
nature of this right is accepted it will establish a human rights culture benefit-
ing society as a whole. Education should therefore not just be seen as teaching
basic skills, but as a tool assisting in the transformation of our society enabling
citizens to enjoy equality, freedom and dignity.
"Education is of cardinal importance for meaningful human existence. It allows individuals to
develop whole and mature personalities, and it empowers them to fulfill a role in the community
that is enriching for themselves and is beneficial for the community. Education is inextricably
intertwined with culture, since it cannot take place in a vacuum. All education involves a cultural
dimension and the imparting of a system of values. Education in a democratic body politic and a
plural society requires that there should be inculcated in people a respect and tolerance for
religious, linguistic and cultural diversity, without preventing the transmission of values of the
individual cultures in a particular community." 129

SAMEVATTING
TRANSFORMASIE EN DIE REG OP ONDERWYS

Hierdie studie behels 'n bespreking van die reg op onderwys soos verseker in artikel 29 van die
grondwet van 1996. Spesifiek word daar gefokus op transformasie as sentrale tema van die
grondwet en hoe hierdie begrip die interpretasie van alle fundamentele regte beinvloed, spesifiek die
reg op onderwys. Deur transformasie te vereenselwig met die reg op onderwys word individue in
staat gestel om ander fundamentele regte ten volle te benut ten einde 'n menseregte kultuur daar te
stel.

123 Moseneke (n 12) 318.

124 (n 12) 318.
125 Moseneke (n 12) 319.
126 Bekker (2000) 1; Coomans (n 46) 175.
127 Devenish (n 1) 240.
128 De Vos (n 24).
129 Devenish (n 1) 225.

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