“There are few things as important for the flourishing of a society and its people as education. Through education, doors are opened to opportunities that were only before ever dreamt of. I am not exaggerating when I say that education changes lives. It enriches and develops our children so that they may reach the height of their potential.” – Constitutional Court
The numerous challenges facing the public education system in South Africa, which have been exacerbated by the Covid-19 pandemic and school closures, seriously undermine the empowerment potential of education described by the Constitutional Court. However, the Constitutional Court’s recent judgment in Moko provides a glimmer of hope in what might otherwise seem a gloomy picture.
The Moko case reached the Constitutional Court after Johannes Moko, a matric learner at Malusi Secondary School in Limpopo, was denied the opportunity to write the matric examination for Business Studies Paper 2 by the acting principal of the school. Upon arrival at school on the date of the examination, 25 November 2020, Moko was turned away by the acting principal. He later returned to the school after the examination had already started and was consequently barred from taking the examination by the acting principal. Moko was subsequently informed that he would only be able to write a supplementary examination for the missed examination in May 2021. The resultant delay in the completion of his matric examinations would prevent him from commencing tertiary education in 2021.
Moko approached the Constitutional Court directly on an urgent basis for an order directing that he be given the opportunity to write the missed examination imminently, after his application to the Polokwane High Court was struck from the roll for lack of urgency. In the Constitutional Court, Moko argued that the conduct of the acting principal, which resulted in him missing the matric examination, violated his right to basic education as stipulated in section 29(1)(a) of the Constitution as well as his right to further education as stipulated in section 29(1)(b).
The Constitutional Court, differing starkly from the high court, found that the urgency of the matter was undeniable. This was because a lack of urgent relief could have a significant adverse effect on Moko’s future endeavours and opportunities. As the Constitutional Court stated, “[h]is life could forever be out of step by a whole year”. It accordingly held that it was in the interests of justice to hear the matter directly and on an urgent basis.
In determining whether Moko’s right to basic education had been violated, the court had to consider whether matric examinations form part of the right to basic education. In other words, the court had to determine where basic education ends and further education begins.
The distinction between basic and further education is of considerable importance. This is because, as held by the Constitutional Court in Juma Musjid, the right to basic education is immediately realisable, whereas the right to further education is qualified in that the state is only obliged to take reasonable measures to make further education “progressively available and accessible”.
The right to basic education is also different from other socioeconomic rights, like the rights to housing and healthcare, which are qualified in that the state is only obliged to take reasonable measures to progressively realise these rights within the scope of available resources.
The fact that the right to a basic education is immediately realisable means that a court will find that the right has been limited if a person is able to show that they have not received a basic education. It is then up to the state to show that the limitation of the right is reasonable and justifiable in terms of section 36 of the Constitution. An unjustifiable limitation of the right entitles the court to grant a just and equitable remedy. However, just and equitable relief may not be immediate relief – allowing the budgetary and other constraints faced by the state in realising the right to be considered at the stage of determining the appropriate remedy.
This contrasts with qualified socioeconomic rights, including the right to further education. A court will only find a limitation of a qualified socioeconomic right if it can be shown that the measures taken by the state to realise the right are not reasonable.
The Constitutional Court had previously held that basic education at least comprised education from grades 1 to 9, but had not yet pronounced on whether secondary education beyond Grade 9 constitutes basic education. In Moko, the court held that “school education culminating in the ‘nationally recognised qualification’ of the National Senior Certificate is basic education under section 29(1)(a). This includes Grade 12 and the matric examinations.”
The court concluded that the acting principal’s conduct, in denying Moko access to the school and to the matric examination, violated his right to basic education. No attempt was made to justify the violation of the right.
The court, accordingly, declared the conduct of the acting principal to be a violation of Moko’s right to education, and ordered that Moko be given the opportunity to write the missed examination by 15 January 2021 and that the result of his supplementary examination be released simultaneously with the general release of the 2020 National Senior Certificate examination results.
This is an important recognition from our highest court that the state’s obligation to provide everyone in South Africa with a basic education extends to the end of matric. However, it must not be understood as limiting the right to basic education to a period of time in school. The Constitutional Court in Juma Musjid made it amply clear that the right to basic education is not merely a right to a period of time in school, but a right to an adequate standard of education – education “directed, among other things, at promoting and developing a child’s personality, talents, and mental and physical abilities to his or her fullest potential”.
The court’s judgment and order not only vindicated Moko’s right to education – sparing him from losing a year that could have resulted in “an irretrievable alteration of his future” – but also gave considerable bite to the right to basic education by clarifying that the right comprises secondary education up to and including matric. DM/MC
Catherine Kruyer is an advocate and a legal researcher at the Helen Suzman Foundation.
"No idea is above scrutiny and no people are beneath dignity." ~ Maajid Nawaz