Abstract
This article assesses the extent to which the South African Constitutional Court's seminal findings in Governing Body of the Juma Musjid Primary School v Essa NO have bolstered the lower courts to give tangible content to the right to basic education. It is contended that the particular facts of Juma Musjid, which required the Constitutional Court to rule on the negative obligations of section 29(1)(a) of the Constitution, actually played a significant role in the Court's unequivocal pronouncement that the right is unqualified. The Court's ruling on the nature of section 29(1)(a) seems to have emboldened lower courts to adopt a substantive interpretation of the right. The article traces the lower courts' judgments over a period of almost a decade and explores in detail how the right to basic education has been 'filled out' incrementally by these courts. The connection between the incremental approach and a conceptualisation of transformation that is cognisant of the changing context of our society is also explored in the article. It is argued that a case-by-case approach to litigating potential violations of the right to basic education ensures that the right is never fixed but keeps on evolving to keep abreast of changing forms of (in)justice in our society.
Highlights
The Constitutional Court (Court) has consistently refused to give normative content to socio-economic rights under the South African Constitution.[1]
It is contended that the particular facts of Juma Musjid, which required the Constitutional Court to rule on the negative obligations of section 29(1)(a) of the Constitution, played a significant role in the Court’s unequivocal pronouncement that the right is unqualified
Taking into account that the Court has been more generous in its interpretation of negative obligation cases as opposed to cases where it was tasked to rule on the positive obligations of socio-economic rights, I argue that the facts of Juma Musjid represented the proverbial ‘blessing in disguise’
Summary
The Constitutional Court (Court) has consistently refused to give normative content to socio-economic rights under the South African Constitution.[1]. The particular facts of the judgment required the Court to rule on the negative obligations of the right to basic education. The article examines the link between the incremental ‘filling out’ of the right to basic education and a particular conceptualisation of transformation that takes account of the ever-changing context of our society. In part 2 I focus first on the significance of the unqualified nature of the right to basic education; second, I examine how the Constitutional Court’s ruling on the negative obligations of the right in Juma Musjid led to a more generous interpretation of section 29(1)(a) of the Constitution; third, I chronologically trace the judgments of lower courts to provide an account of how the right to basic education incrementally has been ‘filled out’.
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