Basic Education Jurisprudence: Courts’ Development of the Right to Basic Education in South Africa

Abstract

Over the last decade, courts have experienced a string of litigation on the right to basic education. Central to this litigation is to effect access to basic education for all learners, particularly those in remote villages, forgotten townships, and formerly whites-only schools. A significant number of judgements from the High Courts, the Supreme Court of Appeal and the Constitutional Court have addressed this right by highlighting what ought to be the obligations of the government in respect of basic education access and provisioning. Two streams of basic education litigation regarding public schools in South Africa have emerged. In this paper, I focus on several judgements from these streams and analyse the courts’ interpretation of the right to basic education and approach to inserting substantive entitlements into this right. Thereafter, I draw on scholarly work to briefly make proposals in respect of effective remedies and a substantive approach to basic education right. The paper concludes that the courts’ jurisprudence on the right to basic education has played significant role in interpreting this right and attempting to ensure it is realisable. However, their substantive approach to the right and the employment of meaningful engagement as a remedy in certain circumstances can both be further developed to improve the realisation of basic education for all and its effective governance.