1. Introduction
This essay aims to provide advice to Amy Clarkson regarding the constitutional rights of her six-year-old daughter, Jasmin, who has been unable to secure a place in a Grade 1 class at a government school in Pretoria. The Gauteng Department of Education (GDE) has a constitutional duty towards children like Jasmin, and its failure to place her in a school may indeed be an infringement of her fundamental rights. This essay will explain how the Bill of Rights in the Constitution of the Republic of South Africa, 1996 works, whether it applies to Jasmin, and what specific rights are relevant to her situation. It will be argued that the Constitution provides strong protection for Jasmin, and that the GDE’s inaction is a potential violation of its legal and constitutional obligations, particularly concerning the right to basic education and the rights of the child.
2. The Operation and Application of the South African Bill of Rights
To understand Jasmin’s position, it is first necessary to understand the role of the Constitution and the Bill of Rights in South African law. Amy has been correctly advised that Jasmin’s constitutional rights may have been infringed, but it is important to understand why this is the case.
The Constitution of the Republic of South Africa, 1996 (the Constitution) is the supreme law of the country. Section 2 of the Constitution states that any law or conduct that is inconsistent with it is invalid. This means that all government actions, including those of the GDE, must comply with the Constitution.
Chapter 2 of the Constitution contains the Bill of Rights, which is described in section 7(1) as a “cornerstone of democracy in South Africa”. The Bill of Rights contains a list of fundamental rights that are guaranteed to everyone in the country. The state has a duty to "respect, protect, promote and fulfil the rights in the Bill of Rights" (section 7(2)).
A key question for Amy is who is bound by the Bill of Rights and who benefits from it. Section 8 of the Constitution, which deals with application, provides the answer. Section 8(1) states that the Bill of Rights binds the legislature (Parliament), the executive (government departments), the judiciary (the courts), and "all organs of state". The GDE is a provincial government department and therefore clearly falls under the definition of an organ of state. This means that the GDE has a direct legal duty to act in a way that respects and fulfils the rights in the Bill of Rights. This is known as "vertical application", as it applies downwards from the state to individuals.
The Bill of Rights protects "everyone", which includes all natural persons, regardless of their age. Therefore, Jasmin, as a six-year-old child, is a full bearer of all the rights contained in the Bill of Rights, in so far as the nature of the right allows (Currie and De Waal, 2013). Her age does not reduce her legal standing as a rights-holder; in fact, as will be discussed, the Constitution gives children additional, specific protections.
3. Jasmin’s Constitutional Rights in a School Placement Context
Having established that the Bill of Rights applies to the GDE and protects Jasmin, we must identify which specific rights are relevant to her situation. Two rights are particularly important here: the right to education and the special rights afforded to children.
3.1. The Right to Basic Education
The most directly relevant right is found in section 29(1)(a) of the Constitution, which states: "Everyone has the right to a basic education". This is a fundamental right that the state is obliged to provide. The case of Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others [2011] ZACC 13 is the leading authority on this right. In this case, the Constitutional Court made it clear that the right to a basic education is different from many other socio-economic rights. While some rights, like the right to further education, are "progressively realisable" (meaning the state can achieve them over time), the right to a basic education is "immediately realisable" (para 37).
This means the state does not have the excuse of a lack of resources to deny a child a basic education. The Constitutional Court stated that the right is not subject to a "phase-in" or "progressive realisation" and that there is a direct positive duty on the state to provide it. The GDE, as an organ of state, has a duty to ensure that there are enough school places for children like Jasmin and that systems like the Online Application System facilitate, rather than obstruct, access to education. The failure to place Jasmin in a Grade 1 class is therefore a direct and ongoing potential breach of this immediately realisable right. The South African Schools Act 84 of 1996 was enacted to give effect to this right, making schooling compulsory for children from the age of seven until the age of fifteen or the ninth grade, whichever comes first (section 3(1)). While Jasmin is six, the GDE’s own system is designed for Grade 1 entry, and the failure of that system to place her engages the state’s constitutional obligation.
3.2. The Rights of the Child
In addition to the general right to education, section 28 of the Constitution provides a set of rights specifically for children (defined as persons under the age of 18). The most important principle in this section is found in section 28(2): "A child's best interests are of paramount importance in every matter concerning the child."
This "best interests" principle is not just a vague guideline; it is a legal standard that all organs of state, including the GDE and the courts, must apply when making any decision that affects a child (S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC)). When the GDE manages its school application system or makes decisions about pupil placements, it must ensure that the best interests of the children involved are the most important consideration. It is difficult to see how leaving a six-year-old child without a school place for the start of the academic year could possibly be in her best interests. The failure to secure a place for Jasmin is arguably a failure by the GDE to give paramountcy to her best interests. This principle strengthens the claim that the GDE is acting unconstitutionally.
4. Potential Justification and Available Remedies
The GDE might try to argue that its failure to place Jasmin is justified. Rights in the Bill of Rights are not absolute and can be limited. However, section 36 of the Constitution sets a strict test for any such limitation. A right can only be limited by a "law of general application" to the extent that the limitation is "reasonable and justifiable in an open and democratic society". The GDE would have to provide a very compelling reason for why denying a six-year-old a basic education is reasonable and justifiable. Administrative problems, such as a faulty online system or a lack of planning, are highly unlikely to meet this standard, especially given the Constitutional Court's clear statement in Juma Musjid that the right to basic education is immediately realisable.
Given the strong constitutional case, Amy has been correctly advised to proceed legally. The most appropriate legal action would be to bring an urgent application to the High Court. In this application, she would ask the court for a mandatory interdict, which is a court order that compels a person or entity to perform a specific act. In this case, the order would compel the Member of the Executive Council (MEC) for Education in Gauteng to place Jasmin in a suitable school within a reasonable distance of her home. The court, guided by section 38 of the Constitution, can grant "appropriate relief" for a rights violation, and an order ensuring Jasmin can start her schooling without further delay would be the most appropriate remedy.
5. Conclusion
In conclusion, Amy should be advised that the South African Bill of Rights provides powerful protections for her daughter, Jasmin. The Constitution is the supreme law, and the GDE, as an organ of state, is legally bound to respect, protect, promote, and fulfil the rights it contains. Jasmin, as a child, is a full beneficiary of these rights. The GDE's failure to place her in a Grade 1 class is a clear potential violation of her immediately realisable right to a basic education under section 29(1)(a) of the Constitution. Furthermore, this failure is contrary to the principle enshrined in section 28(2) that a child's best interests are of paramount importance. It is unlikely that the GDE could justify this failure under the limitation clause. Therefore, Amy has a strong legal basis to approach the High Court for an order compelling the GDE to fulfil its constitutional duty and place Jasmin in a school timeously.
References
Cases
- Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13.
- S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).
Legislation
- Constitution of the Republic of South Africa, 1996.
- South African Schools Act 84 of 1996.
Books
- Currie, I. and De Waal, J. (2013) The Bill of Rights Handbook. 6th edn. Cape Town: Juta.
