Abstract

 
 In recent years, schools have borne the brunt of protesters’ frustrations with the lack of access to services in South Africa. A 2016 investigative hearing by the South African Human Rights Commission (SAHRC) explored the causes of the protests and examined the failure to prevent the destruction of school property. It found that no one was held accountable for the protest-related damage. This article explores the competing constitutionally protected rights of protest and education. Although the right to protest is central in a democracy, it must be exercised peacefully with minimal disruptions to the right to education. Protest action that causes destruction should be criminally sanctioned; however, action that impedes access to education through threats and intimidation is difficult to deal with in the criminal justice system. This article questions the applicability of section 3(6) of the South African Schools Act, which makes it an offence to stop children attending school, and considers the proposed amendments to the Act in light of these critiques. The article explores possible prosecution relying on the Intimidation Act, and finds that the Act is under constitutional challenge. The article concludes that the focus on prevention as contained in the SAHRC report is not misplaced, given the challenges in holding protesters accountable under criminal law. 
Highlights
Destroyed through acts of arson, leaving 42 000 children out of school.[1]
A 2016 investigative hearing by the South African Human Rights Commission (SAHRC) explored the causes of the protests and examined the failure to prevent the destruction of school property
This article questions the applicability of section 3(6) of the South African Schools Act, which makes it an offence to stop children attending school, and considers the proposed amendments to the Act in light of these critiques
Summary
South Africa has an evocative history of protests related to education. The iconic image of the slain child, Hector Pieterson, being carried in the street during the 1976 Soweto uprising is etched on the national psyche. The South African public education system is bifurcated, with better schools for the rich and worse schools for the poor.[19] This is a country in which, in an effort to improve standards, non-governmental organisations have litigated on issues such as the existence of mud schools,[20] admissions policies that favour wealthy schools,[21] non-delivery of textbooks,[22] failure to deliver school furniture,[23] problems of scholar transport in rural areas,[24] provision of teachers,[25] and the policy of some schools to offer tuition only in the Afrikaans language.[26] Yet these issues have not been the subject of protests on any significant scale It is an interesting question whether targeting schools to drive home frustrations about education would be more justifiable than targeting them for other service delivery failures. Before considering the applicability of criminal sanctions, the legal basis of the competing rights will be examined in the part of the article
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