Providing greater clarity on the meaning of basic education [Discussion of Moko v Acting Principal, Malusi Secondary School 2021 3 SA 323 (CC)]
| Author | Adams, G. |
| DOI | https://doi.org/10.47348/SLR/2022/i3a12 |
| Published date | 27 October 2022 |
| Date | 27 October 2022 |
| Pages | 579-591 |
579
https://doi.org /10.47348/ SLR/2 022/i3 a12
PROVIDING GREATER CLARITY ON
THE MEANING OF BASIC EDUCATION
[DISCUSSION OF MOKO V ACTING PRINCIPAL,
MALUSI SECONDARY SCHOOL 2021 3 SA 323
(CC)]
G Adams
BComm LLB LLM (Stell)
LLD Candidate, Department of Public Law
Faculty of Law, Stellenbosch University
BV Slade
BComm LLB LLM LLD (Stell)
Associate Professor, Department of Public Law
Faculty of Law, Stellenbosch University
Abstract
Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996
provides everyone with the right to a basic education. However, the exact
meaning of a “basic education” as protected in this section has been rather
uncertain as it is not dened in the Constitution or any legislative document.
In Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR
761 (CC), the Constitutional Court accepted that basic education includes,
at a minimum, schooling from grades 1 to 9. In AB v Pridwin Preparatory
School 2020 5 SA 327 (CC), Nicholls JA held that an educational institution
which does not offer secondary or tertiary education, provides those attending
the institution with a basic education. Several policy documents refer to basic
education as the General Education and Training phase of schooling, which
consists of schooling from grades 1 to 9. Given the uncertainty surrounding
the exact ambit of a basic education, both in case law and legislation, the
Constitutional Court in Moko v Acting Principal of Malusi Secondary School
2021 3 SA 323 (CC) had to answer the question “where does basic education
end and further education begin?” The court’s decision provides clarity
on the meaning of a basic education as protected in section 29(1)(a). This
decision is to be welcomed given the importance of the right as a direct and
unqualied right, and for its transformative potential. However, there is now
a misalignment between the understanding of a basic education protected in
section 29(1)(a) and several policy documents issued by the Department of
Basic Education. This misalignment may lead to further confusion regarding
the meaning of the right to a basic education and potentially negatively impact
the realisation or fullment of the right. This note will consider the court’s
decision, particularly in relation to its nding to the question posed above.
Keywords: Basic education; best interests of the child; education policy;
international law; misalignment between law and policy; transformation
(2022) 33 Stell LR 579
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