BASIC

EDUCATION

RIGHTS

HANDBOOKEDUCATION RIGHTS IN SOUTH AFRICA

BASIC

EDUCATION

RIGHTS

HANDBOOKEDUCATION RIGHTS IN SOUTH AFRICA

First published in South Africa in 2017 by SECTION27, First Floor, Heerengracht Building, 87 De Korte Street, Braamfontein, Johannesburg 2017© SECTION27, First Floor, Heerengracht Building, 87 De Korte Street, Braamfontein, Johannesburg 2017. All rights reserved.

Print ISBN: 978-0-620-74559-8. Online PDF ISBN: 978-0-620-74301-3

PREFACEFaranaaz Veriava

Legal literacy is an essential tool of rights-based struggles. Legal literacy seeks to empower people and communities without any formal legal training to know and understand the law and its impact, so that they can engage and apply the law in a manner that improves the quality of their lives.

This is the purpose of the Basic Education Rights Handbook.

It aims to empower communities, school governing bodies, principals, teachers and learners to understand education law and policy, and to know when learners’ rights have been violated and what steps are required to protect those rights.

For example, poor parents who know they have the right to apply for an exemption from school fees can resist efforts by a school to turn their child away because they cannot afford the fees being charged. Instead, parents can demand the opportunity to apply for the exemption.

This Basic Education Rights Handbook aims to be as comprehensive and inclusive as possible, by discussing a wide spectrum of areas of education law that potentially have an impact on learners’ rights. Each chapter provides an overview of the law, policy and case law on a particular issue, and uses real-life examples that give context to the issue under discussion. Finally, each chapter provides the user with tools for remedying issues that may arise in respect of the area under discussion.

This Basic Education Rights Handbook was conceptualised and edited by the SECTION27 team, but is the result of

collaboration between many civil-society organisations involved in education-rights activism, litigation and advocacy. The organisations involved in this book’s development are: Equal Education, The Equal Education Law Centre, The Centre for Child Law, The Legal Resources Centre, The Southern African Litigation Centre, and the Studies in Poverty and Inequality Institute. Members of SECTION27 also authored some chapters. Each author has contributed to the handbook based on her or his personal and professional experience and expertise – through either research or litigation – in a particular area.

A noteworthy feature of the handbook is the approach taken in respect of learners with disabilities, across the spectrum of available schooling options in terms of South Africa’s inclusive education system: special schools, full-service schools and ordinary schools. While the Basic Education Rights Handbook features a chapter that focuses specifically on learners with disabilities, in keeping with the philosophy of inclusive education, almost every chapter has integrated the particular concerns for learners with disabilities into the topic under discussion.

Also noteworthy is the chapter on the

funding of basic education. The structure and format of this chapter differs from those of others in the handbook. This is because it seeks to provide a detailed and comprehensive rights-based overview of the processes for the funding of basic education. The purpose of this is to assist education-rights activists to understand the funding of basic education more holistically, and to develop campaigns for a more progressive funding model. It also seeks to provide insights into how basic-education stakeholders may better engage public participation processes concerning funding for basic education.

For the majority of South Africa’s learners, the state of our education remains a major concern. Organisation to improve the education system is a matter of significant urgency.

Without resources such as adequate infrastructure or equipment, textbooks and teachers, historically disadvantaged schools continue to exist and function at sub-optimal levels. The impact of this is evident in educational outcomes in these schools – which constitute the majority of South African schools. Added to this are the many barriers that continue to impede access to quality education for specific

groups of learners. These barriers include school fees, language barriers, and the exclusion from school of pregnant learners. Finally, levels of violence in schools – including gender-based violence – remain excessive; schools are not the safe spaces we require for our children. This is particularly true for children with disabilities, who often live in special-school hostels.

In short, the struggle for access to safe schools that offer quality education continues to elude most learners.

As a legal literacy aid, therefore, this handbook can help to build and strengthen an education movement fighting for education reform, so that each and every learner may live up to her or his potential. The importance of this movement cannot be overstated, and extends far beyond improving the numeracy and literacy of children throughout South Africa. As the Supreme Court of Appeal noted recently in the case of Minister of Basic Education and Others v Basic Education

for All and Others, ‘Basic education should be seen as a primary driver of transformation in South Africa.’

The SECTION27 editorial team would like to thank each organisation and individual who gave their time and knowledge so generously to the development of this handbook.

We would also like to acknowledge and thank Karin Schimke, the plain-language editor, for her efforts in editing and simplifying technical jargon to make the handbook as user-friendly as possible.

Let us educate to liberate.

Faranaaz Veriava is legal counsel at SECTION27. She has a BA LLB from the University of the Witwatersrand and an LLM in Human Rights and constitutional Practice from the University of Pretoria, where she is currently registered for an LLD in education.

...the struggle for access to safe schools that offer quality education continues to elude most learners.

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TS PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ACRONYMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

EDUCATION, CONFIDENCE AND THE CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

CHAPTER 1

THE CONSTITUTION AND THE RIGHT TO A BASIC EDUCATION . . . . . . . . . . . . . . . . . . . . 13

CHAPTER 2

FUNDING BASIC EDUCATION . . . . . . . . . . . . . . . . . . . . . . .37

CHAPTER 3

SCHOOL GOVERNANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75

CHAPTER 4

EQUALITY AND UNFAIR DISCRIMINATION IN EDUCATION . . . . . . . . . . . . . . . . . .91

CHAPTER 5

THE RIGHT TO BASIC EDUCATION FOR CHILDREN WITH DISABILITIES . . . . . . . . . . . . . . 105

CHAPTER 6

THE RIGHTS OF REFUGEES AND MIGRANT WORKERS . . . . . . . . . . . . . . . . . . . . . . . . .129

CHAPTER 7

SCHOOL FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

CHAPTER 8

PREGNANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

CHAPTER 9

SEXUAL ORIENTATION AND GENDER IDENTITY IN SCHOOLS . . . . . . . . . . . . . . . . . . 173

CHAPTER 10

RELIGION AND CULTURE IN PUBLIC EDUCATION IN SOUTH AFRICA . . . . . . . . . . . . . . . . . . . .185

CHAPTER 11

LANGUAGE IN SCHOOLS . . . . . . . . . . . . . . . . . . . . . . . . . . .205

CHAPTER 12

BASIC EDUCATION PROVISIONING . . . . . . . . . . . . . . . .219

CHAPTER 13

INFRASTRUCTURE AND EQUIPMENT . . . . . . . . . . . . . . . . 237

CHAPTER 14

POST PROVISIONING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

CHAPTER 15

TEXTBOOKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263

CHAPTER 16

SCHOLAR TRANSPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275

CHAPTER 17

SCHOOL VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

CHAPTER 18

SEXUAL VIOLENCE IN SCHOOLS . . . . . . . . . . . . . . . . . . . 311

CHAPTER 19

CORPORAL PUNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . .331

CHAPTER 20

EDUCATION RIGHTS IN INDEPENDENT SCHOOLS . . . . . . . . . . . . . . . . . . . . . . . . . .353

CHAPTER 21

TAKING RIGHTS FORWARD: MOBILISATION, ORGANISATION AND PUBLIC PARTICIPATION . . . .373

FUNDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

INDEX OF CASES, LAW AND POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

ACRONYMS ASIDI Accelerated School Infrastructure Delivery Initiative ACRWC African Convention on the Rights and Welfare of the ChildANA Annual National AssessmentsANC African National Congress CALS Centre for Applied Legal StudiesCNE Christian National EducationBEFA Basic Education For AllCAPS Curriculum and Assessment Policy StatementsCC Constitutional CourtCCL Centre for Child LawCNE Christian National EducationCRL Commission for the Protection and Promotion of Cultural, Religious and Linguistic CommunitiesCEDAW The Convention for the Elimination of all forms of Discrimination Against WomenCESCR United Nations Committee on Economic, Social and Cultural Rights CRC Convention on the Rights of the ChildDBE/DOE Department of Basic EducationDHA Department of Home Affairs DHET Department of Higher Education and TrainingDORA Division of Revenue ActDOT Department of TransportDPME Department of Planning, Monitoring and Evaluation EE Equal EducationEELC Equal Education Law CentreELRC Education Labour Relations Council EEA Employment of Educators Act EMIS Education Management Information System EPR Estimates of Provincial Revenue and Expenditure FAL First Additional LanguageFEDSAS Federation of Governing Bodies of South African Schools FFC Financial and Fiscal Commission GDP Gross Domestic ProductGHS General Household SurveysHOD Head of DepartmentICCPR International Covenant on Civil and Political RightsICESCR International Covenant on Economic, Social and Cultural RightsIEC Independent Electoral Commission ISASA Independent Schools Association of South Africa LGBTIAQ Lesbian, Gay, Bisexual, Transgender, Intersex, Asexual and QueerLOLT Language of Learning and TeachingLURITS Learner Unit Record Information and Tracking System LRA The Labour Relations ActLRC Legal Resources CentreLTSM Learner Teacher Support MaterialsKZN KwaZulu-NatalMEC Member of the Executive Council (this is like the minister of a provincial department)MP Member of ParliamentMTEC Medium Term Expenditure CommitteeMTEF Medium Term Expenditure Framework

MTBPS Medium Term Budget Policy Statement NAPTOSA The National Professional Teachers’ Organisation of South AfricaNECT National Education Collaborative TrustNEEDU National Education Evaluation and Development Unit NCOP National Council of Provinces NDP National Development Plan NEPA National Education Policy Act NEIMS National Education Infrastructure Management System NIDC National Interdepartmental Committee NPEP National Policy for an Equitable Provision of an Enabling School Physical Teaching and Learning EnvironmentNSC National Senior CertificateNNSSF National Norms and Standards for School FundingNT National TreasuryOBE Outcomes-Based EducationOBI Open Budget IndexOGOD Organisasie vir Godsdienste-Onderrig en DemokrasiePED Provincial Education DepartmentPEPUDA Promotion of Equality and Prevention of Unfair Discrimination Act (referred to in this handbook as ‘the Equality Act’) PPM Post-Provisioning ModelPSAM Public Service Accountability Monitor RCL Representative Council of LearnersR2EWCD The Right to Education of Children with Disabilities Campaign RNCS Revised National Curriculum Statements SACE South African Council of EducatorsSACMEQ Southern and Eastern Africa Consortium for Monitoring Educational QualitySADC Southern African Development Community SADTU The South African Democratic Teachers Union SAHRC The South African Human Rights CommissionSAOU Suid-Afrikaanse Onderwysersunie (The South African Teachers’ Union)SAL Second Additional LanguageSALGA South African Local Government AssociationSAPS South African Police ServiceSARS South African Revenue ServicesSASA The South African Schools Act (referred to in this handbook as ‘The Schools Act’)SA-SAMS South African School Administration and Management System SCA Supreme Court of AppealSGB School Governing BodySIAS Screening, Identification, Assessment and Support PolicySONA State of the Nation AddressSPII Studies in Poverty and Inequality InstituteTIMSS The Trends in International Mathematics and Science StudyVAT Value-Added TaxUmalusi This is the name given to the Council for Quality Assurance in General and Further Education and TrainingUNCRPD The United Nations Convention on the Rights of Persons with DisabilitiesUNDHR The Universal Declaration of Human RightsUNESCO United Nations Educational, Scientific and Cultural OrganisationUNHCR United Nations High Commissioner for Refugees UNICEF The United Nations International Children’s Emergency FundWCED Western Cape Education DepartmentWHO World Health OrganisationWP6 Education White Paper 6: Building an Inclusive Education and Training System

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INTRODUCTION

EDUCATION, CONFIDENCE AND THE CONSTITUTIONSisonke Msimang

The final Constitution was adopted when I was twenty-two years old. The following year, I began working full-time in the civil society sector. In those days, no matter what area of non-governmental life you worked in – whether it was health, or education, or housing, or water and sanitation – your efforts were grounded in the Constitution. In those early days, democracy was still brand new, and there was a lot of interest in the Constitution. Many people carried a small pocket version of the Constitution with them.

Early in my career I was hired by the African Gender Institute, at the University of Cape Town, to train public servants and people who worked for NGOs on gender equality. I could not have been more proud. In every workshop, we spent a lot of time talking about the Bill of Rights and the Constitution. Whenever I referred to something in the Constitution, I could always count on a few people in the course opening up their pocket Constitutions to make sure what I said was correct.

Our office was always stocked with those small Constitutions, and community meetings almost never took place without copies being handed around. Today, in most of the community-based events I attend, I see T-shirts are the new gift of choice.

Over time, as the excitement about the shiny new document so many people fought for has died down, I have noticed that fewer and fewer people I come across seem familiar with the language of the Constitution – and how it relates

to their lives, to their rights and to what they can expect in their daily living.

In part, this was inevitable. We are becoming ‘normal’; and so there is no need to be very excited that we have rights. We now accept them as part of our democracy.

I’ve noticed something else, though: over the last few years, our country has had more and more political dramas. When these dramas unfold, the Constitution is often invoked. South Africans have learned to talk

The truth, of course, is that the Constitution matters every day, and it should matter most to those who are least powerful.

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about the Constitution in the context of political power. This is as it should be – the Constitution is the guardian of the separation of powers. When all else fails, the Constitution stands firm.

Still, I have been worried lately; because one of the consequences of frequently settling political matters through legal means is that ordinary people can begin to see the Constitution as something that only matters when the stakes are very high, when the very life of the nation is at stake – and that the Constitution is for the powerful.

The truth, of course, is that the Constitution matters every day, and it should matter most to those who are least powerful.

Two decades into our new dispensation, many of the least powerful members of our society – who continue to live in miserable circumstances, under the continuing yoke of oppression – are asking questions about the importance of the Constitution. It’s hard not to notice that even though a number of cases have been won by poor people and communities, often the circumstances of those in whose favour the court has found have not changed.

In the words of Justice Albie Sachs: ‘We haven’t achieved quality in daily life. There are massive discrepancies in terms of wealth and confidence and access to resources, still based largely on colour, in South Africa.’

Sachs’ use of the word ‘confidence’ in this sentence strikes me as important. Confidence is the feeling or belief that you can have faith in or rely on someone or something. The idea that our society is divided not only along race and class lines, but along lines determined by how much confidence you can have in yourself, in the institutions that exist around you and in the future, is unsettling.

Indeed, expressed this way, the ‘discrepancy in confidence’ is possibly the most heartbreaking aspect of our country’s journey. For South Africa, a country that has achieved so much and at such great human expense – and that has such an astounding constitutional framework – to produce children and young people who lack confidence is a tragedy of epic proportions.

I can’t imagine a worse way to bring up our nation’s children than to starve them of knowledge, to subject them to all manner of indignities at school and on

their walks to school, to force them to use sub-standard facilities and expose them to predatory or cruel teachers. For too many of South Africa’s learners, this is the reality.

We are faced with a conundrum. Many black South Africans lack confidence in the systems that affect their daily lives – public transport, health and education being key. Yet these systems have been put in place precisely to give them confidence in the future. At the same time, the Constitution no longer enjoys the place of respect it once held at the centre of our daily lives. This means that when we need it the most, faith in the Constitution is far too low.

The practical implications are profound. Those who are frustrated are alienated and disaffected, even though the Constitution offers them many ways forward. The Constitution – proactively applied – can be used to mobilise, well before crises arise in our communities.

This confluence of doubt and a lack of confidence lies at the heart of our deepest challenges.

That is precisely why this manual is so important. This handbook assumes that the people who live in this country are able to think about the Constitution

not as a large and incomprehensible document that has let us down; but as a tool that we have not sufficiently learned how to use. It recognises the need to re-ignite a movement for the use of the Constitution in daily life. It seeks to remind us that once we were a country that ensured everyone access to and an ability to understand the contents of the Constitution, whether or not we could read and write or speak in English.

There can be no better way for children to learn confidence than through a thorough and deep understanding of their constitutional rights – not just to education, but to dignity, and safety, and water, and housing, and all the elements that contribute to their well-being.

This manual uses the Constitution as its starting point. As a collaboration between public-interest organisations that have been working in different areas of education, its purpose is to encourage and provide information to others to initiate their own activism on education issues affecting their children and communities.

The case studies in this handbook remind us that the Constitution has no meaning unless we talk about it; and that is has no power unless we act to make it

real in our lives – by demanding better standards from educators and officials, and expecting more from administrators and bureaucrats. In this manual we see the blossoming of a radical idea: the idea that the structural benefits that accrue from an educated population include confidence and self-esteem, and a belief in the future.

We educate our children so that they can join the labour force, of course; but education is not instrumental. It creates a healthy, active and engaged rights-bearer; one who is also prepared to take on social duties. The education system is the engine room not only of our economy, but of our democracy.

Yet we are all too aware that this system is in crisis. Many of our schools are not functioning optimally: textbooks arrive late, conflicts in communities result in infrastructure being destroyed. Similarly, on some days it seems our constitutional democracy is in a state of disarray.

Still, there are many thriving communities in which schools are vibrant centres of learning, and where young people hold their heads up high because they know the Constitution was written with them in mind. It is these communities that serve as a

guiding light, a reminder that South Africa knows how to be confident.

This manual reminds us that our work is not yet done. Each case study offers a practical example of how we can move from promises to action. It profiles everyday heroes – children and youth and community leaders who have decided to have confidence, in themselves and in the future.

In these times of cynicism and chicanery, this manual offers that rarest of commodities: hope. We all know, however, that hope without progress is mere foolishness. So this book offers a dose of practical momentum.

Most importantly, the contributions in this manual are all written in the spirit of Mwalimu Julius Nyerere, who said: ‘Education is not a way to escape poverty; it is a way of fighting it.’ Above all else, in these times of stagnation and paralysis, the words in the pages that follow offer us all a way forward.

A luta continua,Sisonke

Sisonke Msimang is a South African writer and activist. Her work centres on democracy, human rights and justice.

For South Africa, a country that has achieved so much and at such great human expense [...] to produce children and young people who lack confidence is a tragedy of epic proportions.

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