Abstract
In South Africa many learners are denied the right to basic education because of the levying of school fees and other educational charges, in spite of the international obligation imposed on government to provide free primary education. This article examines the exact nature and extent of this obligation by exploring the concept of "free" basic education. The applicable international instruments and their interpretation as well as the significance of the right to education as a central, facilitative right are examined in order to establish the content of the right to basic education and the legal obligations that ensue. Against this background, the implications of the South African Constitutional Court's approach to the realisation of socio-economic rights and the possibility of the establishment of a core minimum obligation are analysed. It is argued that learners in South Africa may come from different socio-economic backgrounds but as learners in the same public school domain and as equal bearers of their constitutional right to basic education all of them are entitled to the same type and quality of free basic education.KEYWORDS: Right to education; free education; basic education; international obligations; core obligations
Highlights
In an earlier judgment[1] on the right to education delivered by the South African Constitutional Court, the principal focus was on the restriction of access to education through the implementation of the language policy of the school
Whereas the right to primary education was included in the Universal Declaration of Human Rights (UDHR) as a mere aspiration, the Convention against Discrimination in Education (CDE) was the first international treaty to include an obligation on states parties to provide free and compulsory primary education.[12]
According to Coomans free, compulsory primary education under the ICESCR is the minimum core of the right to education. He argues that primary education is so essential for the development of a person's abilities that it can be "rightfully defined as a minimum claim".82. His argument is strengthened by the fact that the ICESCR regards basic education as so important that it imposes an immediate obligation on states to realise the right.[83]
Summary
In an earlier judgment[1] on the right to education delivered by the South African Constitutional Court (the Constitutional Court), the principal focus was on the restriction of access to education through the implementation of the language policy of the school. Language is only one barrier preventing access to education in South Africa. Learners countrywide are denied the right to basic education because of the levying of school fees and other educational charges.[2] This practice is prevalent in spite of the international obligation imposed on the South African government to provide free primary education. This article examines the exact nature of this obligation by exploring the concept of "free" basic education
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