The right to a basic education is one of the only socio-economic rights in the South African Constitution that is unqualified. This means that it is not subject to ‘progressive realisation’ within available resources – such as, for instance, the rights to further education, housing, healthcare, food, and social security. The right to basic education is immediately realisable, regardless of available resources. It can only be limited by means of the general limitations clause in section 36 of the Constitution. However, the right to basic education was not defined in the Constitution. Therefore, there has been some confusion over how expansive the right to education is. The Constitutional Court in Moko v Acting Principal Malusi Secondary School gave some clarity in this regard, by confirming that access to the National Senior Certificate is encompassed by the right to basic education.
Because the right to basic education was not defined in the Constitution, there was some speculation as to whether the right embraced an ‘adequacy-based approach’ or whether the right simply constituted an amount of time spent in school. What constitutes part of the right to basic education and what duties the state regarding the right has long been a subject of litigation in democratic South Africa. In this regard, the courts have found that the right to basic education includes the provisioning of the National School Nutrition Programme, textbooks, basic furniture and infrastructure, scholar transport, post-provisioning, and proper sanitation facilities. These judgments point towards the adoption of an ‘adequacy-based approach’ where the right to education is ‘education of an appropriate standard’ with regards to quality and content, rather than a specific amount of time spent in school.
However, despite the implicit adoption of the adequacy-based approached by the courts there remained some murkiness regarding where basic education ended and further education began. The Constitutional Court (‘CC’) had stated in Governing Body of the Juma Musjid Primary School v Essay N.O. that at a minimum, basic education included schooling up to Grade 9. Further, in the minority judgment in AB and Another v Pridwin Preparatory School, the Nicholls AJ had stated that it was indisputable that ‘basic education’ encompassed primary school. It was thus left unclear whether higher grades, including Grade 12, were included in the definition of the right to basic education in South Africa.
The CC has now cleared up some of the speculation regarding what constitutes a basic education in the case of Moko v Acting Principal Malusi Secondary School. The case concerned Mr Moko, a matric learner, who was prevented from writing his final Business Paper 2 Exam, needed for him to acquire the National Senior Certificate. When Mr Moko went to school on 25 November 2020, ready to write his exam, the Acting Principal refused to let him into the school to write the exam on the mere basis that he had not attended a few extra lessons. The Acting Principal told Mr Moko to fetch his parents or guardians and return to the school. However, Mr Moko was unable to find them. When he returned to the school alone, he found that the school gate was locked.
Although another person eventually let Mr Moko into the school, the Acting Principal refused Mr Moko entrance into the examination room because the other learners had already begun writing. Therefore, because of the actions of the Acting Principal, Mr Moko was barred from writing his matric exam. Mr Moko and his uncle met with the Acting Principal the next day and were told that he would have to write the supplementary exam in May 2021. Wanting to pursue a higher education and aware that having to write the exam in May 2021 would set him back a year, Mr Moko escalated the matter to the MEC, Limpopo Department of Education. The MEC directed the District Director to handle the matter. The District Director subsequently took a decision against the Acting Principal but still stated that Mr Moko would need to write the supplementary exam in May 2021.
Dissatisfied, Mr Moko launched an urgent application to the High Court requesting he be allowed to write the exam as soon as possible and before May 2021. However, the High Court found the matter was not urgent and struck the case off the role. As a result, Mr Moko approached the CC for an order to allow him to write the exam as soon as possible, so that his results would be released simultaneously with other matric learners. The basis of his application was that the Acting Principal’s actions and the refusal of the state to allow him to write the exam imminently violated his constitutional rights to basic education and to higher education.
Khampepe J, for a unanimous court, stated that the definition of the right to basic education encompasses access to the National Senior Certificate. She wrote that to interpret the right to basic education as only including primary school education or Grade 9 would be an ‘unduly narrow’ interpretation considering the transformative purpose of the right. These statements are important as they confirm that the right to education in South Africa is an expansive and flexible right, encompassing a duty on the state to allow the access of students to the National Senior Certificate.
The National Senior Certificate is an application requirement for a whole host of jobs in South Africa. It also opens the possibility of pursuing higher education, thus expanding career choices and economic opportunities. It is effectively a prerequisite for any social mobility. Therefore, by clarifying that access to the National Senior Certificate is part of the right to basic education, rather than further education, the Constitutional Court recognised that there is an immediate obligation on the state to allow students a chance for better opportunities in the future. This chance would have been (at best) delayed for Mr Moko by the actions of his Acting Principal in not allowing him to write his exam. He would have had to wait until May to write the exam, delaying his future by a year. Luckily, in this case, his rights were vindicated by the Constitutional Court. Considering the number of complaints organisations like SECTION27 receive from students who have been shut out of exams because of non-payment of school fees or lack of documentation, the case confirms that students’ access to exams are part of their unqualified right to education, regardless of their personal circumstances.
Mila Harding is a legal researcher in the Education rights programme at SECTION27