Name: Mokgomotsi Seshoka

Module: Human Rights (CPEB042)

Lecturer: Dr G Mbajiorgu

[Word Count : 4300(all texts)]

Table of Contents
1.Introduction
2.The right to an education
2.1 At International Law
2.2 At Regional Law
2.3 At National Law
3.The inter-relationship between the right to education and other rights
4.Conclusion

1 Introduction
Human rights are a prerogative that belong to every human being. Every human being
is unique and we differ on account of, inter alia, our races, sexes, religions, colours,
political opinions, as well physical and mental abilities. However, a universal trait that
we all have as a species is the fact that we are all entitled to human rights. These rights
are the manifestations of natural law and thus have been in existence from the
beginning of mankind. Despite this, however, human rights violations have been
observed throughout history and this necessitated the need for human rights law. 1
Following the end of the second world war, the international community reached a
consensus that, the flagrant human rights violations that occurred prior to 1948 cannot
be tolerated again.2 Several treaties, international customary laws and declarations
were promulgated as a result. It is important to note, however, that human rights do not
emanate from these laws.3 As aforementioned, human rights are intrinsically attached to
every human and the latter-mentioned laws serve as a protective shield of these rights,
protecting them against violations.4

1
Office of the High Commissioner of Human Rights; United Nations Staff College Project, Human Rights:
A Basic Handbook for UN Staff (UN Office of the High Commissioner for Human Rights 2000) 3.
2
United Nations, ‘Universal Declaration of Human Rights: History of the Declaration’ <
https://www.un.org/en/about-us/udhr/history-of-the-declaration >Accessed on 20 July 2022.
3
See footnote 1.
4
ibid.
1948 saw the foundation of human rights law, that is the Universal Declaration of
Human Rights,5 set the threshold for the recognition and protection of human rights.
Contained within its 30 Articles, is Article 26, which proclaims the right to education.
This right will serve as the focal point among other rights that will be discussed in this
paper. The right to an education has been provided for in several international, regional
and national instruments and as will be seen later, this right is the basis for the exercise
of other rights. Furthermore, this right is vital in breaking the poverty cycle that has
struck millions of families around the world.6 Several judicial precedents have also
indicated the importance of this right, with the court in Juma Musjid holding that,7 this
right is a socio-economic right that is vital for developing, inter alia, children’s
personalities, talents, physical and mental abilities, as well as helping them to realise
their full potential. In developing countries such as South Africa, the court in Head of
Department: Mpumalanga Department of Education v Hoerskool Ermelo held that,8
education can be used as a tool of transformation in dealing with the inequalities that
arose from apartheid. Furthermore, this right as an indispensable human right is
dependent on the meeting of other rights such as, access to a safe, clean and healthy
environment with safe sanitation services.

This paper will substantially discuss the right to an education and what it entails, it’s
recognition in international, regional and national law, the extent to which it is, and must
be observed at national law and how it is inter-related with other rights, before
concluding.

2. The right to an education

The right to education is absolute. This means that this right cannot be compromised for
whichever reason and this indicates the significance of this right. Moreover, this right

5
United Nations, Universal Declaration of Human Rights, 1948.
6
UNESCO, What You Need To Know About The Right To Education’ (26 November 2020) <
https://en.unesco.org/news/what-you-need-know-about-right-education > Accessed on 20 July.
7
Governing Body of the Juma Musjid Primary School & Others v Essay N.O and Others 2011 (8) BCLR
761 (CC).
8
Head of Department: Mpumalanga Department of Education and Another v Hoerskool Ermelo and
Another 2010 (3) BCLR 177 (CC).
provides the platform to enable persons to exercise their other rights. It does this by, for
example, enabling persons to read programs of political candidates during state
elections in order to make informed decisions when voting. 9 The following instruments,
although worded differently, indicate this state of affairs.

2.1 At International Law

The point of departure is located in Article 26 of the Universal Declaration of Human
Rights, laying the unqualified basis of this right. Sub-Article 1 provides that, ‘everyone
has the right to education’.10 This means that, literally any person can obtain an
education and as was seen by the late Kimani Maruge, age also does not serve as an
obstacle to realising this right.11 Furthermore, primary education is required to be free
and compulsory to everyone and tertiary education should also be made equally
accessible to all on depending on individual capacity. 12 Sub-Article 2, on the other hand,
is reiterated by Article 22 and 29 of the same convention in promoting the personality
development of people and thus maintaining their human dignity through the platform of
education.13 Parents and legal guardians are given leeway to choose the schools that
are considered suitable for their children under sub-Article 3, provided that the school
actually provides education.14 This is particularly important for those persons who wish
to enrol their children in schools that offer more than academic education, requiring
other education such as, religious education. Pax High School, in Limpopo is an
example of such a school.

Women are a part of society that have been subjected to generations of marginalisation.
They have universally been lowered to the status of perpetual minors, incapable of
doing activities that their male counterparts have been doing. One of those activities
include obtaining an education. The Convention on the Elimination of All Forms of
9
GPE Secretariat, ‘3 Things To Know About Education As A Human Right’ ( 10 December 2017) <
https://www.globalpartnership.org/blog/3-things-know-about-education-human-right > Accessed on 19
July 2022.
10
See footnote 5.
11
Singh A, ’Kimani Maruge: The Inspiring Story of Oldest Primary School Student In The World’ (30
November 2017) < https://ndtv.com/education/kimani-maruge-the-inspiring-story-of-oldest-primary-
school-student-in-the-world-1781786 > Accessed on 20 July 2022.
12
See footnote 6.
13
See footnote 5.
14
ibid.
Discrimination against Women is an international instrument that has its goal to correct
the injustices that women faced in the past and uplift them so they can be on an equal
footing with men. Article 10 of this covenant prohibits any form of discrimination that has
the result of excluding women from obtaining an education and promotes access of the
same level of education and the fruits that come with it, that men have enjoyed for
centuries to women.

The International Covenant on Economic, Social and Cultural Rights is an international

instrument that focuses its basis on socio-economic rights. 15 This right, which is also
enshrined in the Convention on the Rights of the Child, 16 is a socio-economic right and it
comes as no surprise that it is made provision for in this convention. Article 13, more or
less reiterates Article 26 of the UDHR. It is the longest provision of the 31 Articles
contained therein, and that in itself says volumes. It also obligates signatory states to
recognise the right of everyone to education and also requires free and compulsory
primary education,17 generally available and accessible secondary schools made
progressively free,18 an equally accessible tertiary education that is made progressively
free,19 as well as the encouragement of fundamental education for those who never
obtained or completed their primary education.20 Regarding secondary education, states
are obliged to avail and provide access to education for all without differentiating on the
basis of individual capacity and moreover, should take steps towards ensuring the
provision of free secondary, as well as tertiary education as well. 21 Below the relatively
lengthy article 13 lies article 14, which provides for states to come up with steps within
two years that would give effect to free primary education for all if they have not yet
complied with Article 13(2)(a).22

15
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 1966.
16
UN Commission on Human Rights, Convention on the Rights of the Child, 1990.
17
Article 13(2)(a).
18
Article 13(2)(b).
19
Article 13(2)(c).
20
Article 13(2)(d).
21
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 13: The Right
to Education (Art. 13 of the Covenant), 1999.
22
See footnote 15.
Article 13 has its own separate regulation which provides the yardstick that will
determine whether states have complied with their international obligation to provide for
the right to education. States are considered to have discharged this obligation if they
23
have firstly made educational facilities available. Such availability will depend on a
wide range of circumstances, including a substantial number of schools in a particular
state and proper buildings constituting classrooms, libraries, sanitation facilities, office
areas for the teaching staff, etc. Furthermore, the aforementioned elements must be
decent and proper enough to enable learners to receive an education in an environment
that secures their health and human dignity. Examples of proper facilities include well-
ventilated classrooms, sufficient learning material, clean lavatories and in the case of
physically disabled learners, there must be facilities such as, wheelchair ramps,
accessible assistance in the library and specially-designated lavatories. Seeing that this
right is absolute, lack of state resources cannot be used as a justification for the lack of
availability of educational facilities. This means that states, when determining their
public budget, must ensure that sufficient amounts are directed at discharging this
obligation, even if it means such funds will be spent disproportionately among state-
needed resources.

Secondly, it is incumbent upon states to ensure that educational facilities that they have
made available are accessible to all who are entitled to such access. 24 Those who are
entitled access will depend on whether reference is made to primary, secondary or
tertiary education. Furthermore, demarcations should be made on how such access is
to be made available in accordance with the three levels of education on three
grounds.25 As aforementioned, education is a right guaranteed to all humans and it
should made accessible to all without any discrimination. Save for primary and
secondary education, however, the accessibility of tertiary education contains a minor
qualification, that is, accessibility will be made available to those with the required
cognitive ability.26 Educational institutions are also required to be made physically
accessible to learners. Learners cannot be expected to travel long distances in order to
23
See footnote 21.
24
ibid.
25
ibid.
26
Article 13(2)(c).
exercise their right to education, but should rather expect to access this right without
difficulty. Therefore, schools and other educational institutions must be located within
the reach of those entitled to them. Another factor that is indispensable to people
realising this right is the necessity to make education economically accessible. Both the
UDHR and ICESCR require primary education to be free and this is made non-
negotiable by these conventions. It is only secondary and tertiary education that may
exclude free education. However, these fees must be reasonable so as to not form an
indirect barrier standing in the way of people exercising this right. According to the
wording of Article 26 and 13 respectively, states are required to effect means geared
towards making education free at all levels of education.

Once learners have gained access to education, it is required that they must be
subjected to a standard and curriculum of education that is suitable and thus acceptable
by the learners and their parents.27 This entails, inter alia, teachers adopting age-
appropriate teaching methods,28 a culturally and socially acceptable curriculum and
avoiding religiously-biased education, especially in schools with a diverse concentration
of learners. The quality of the education is also required to be at the highest possible
level and learners should not be required to settle to poor education on account of, for
example, acquiring free education. Therefore, standards of education such as those
provided under the Bantu Education System, cannot be reconciled with international
law.29 Providing such poor quality of education does not only infringe upon the right to
education, but also infringes the human dignity of individuals subjected to it.

The last element that is intrinsically attached to the right of education is that education
must be capable of adapting to changing circumstances. 30 As mentioned, the right to
education is a socio-economic right and as a result, it responds to changing
circumstances within society. What may be barred from being included in a particular
level of education today may be necessary for inclusion in the next five years.
Furthermore, the methods of teaching must also keep up with relevant trends and
unforeseen circumstances. An example of the latter is the adoption of technology-based
27
See footnote 21.
28
ibid.
29
Bantu Education Act 47 of 1953.
30
See footnote 21.
forms of education necessitated by the Covid-19 pandemic that befell the world. The
means of still acquiring education through technology must be provided to learners so
that no learner fails to access this right on account of reasons that are beyond his or her
control.31 The latter is an indication of how these stipulated elements overlap with each
other in securing the implementation of this right. Therefore, it is clear that states cannot
claim to have discharged their obligation to implement this right if they have not
complied with the abovementioned requirements.

2.2 At Regional Law

South Africa is a state party to the African Charter on Human and Peoples’ Rights as
well as the African Charter on the Rights and Welfare of the Child, both of which protect
the right to education at regional level in Article 17 and 11 respectively. This right, under
these conventions, is observed from an African perspective and on top of the provisions
contained in the Articles at international law, it also introduces African nuances that
must be achieved through giving effect to this right.

2.3 At National Law

S39(1)(b) of the Constitution provides for the compulsory consideration of international
law when interpreting the Bill of Rights.32 S29,33 as a result of South Africa discharging
its international obligations, reiterates the aforementioned conventions’ provisions for
the right to an education. This right at national law is also unqualified and unconditional,
as was pointed out in Centre for Child Law v Minister of Basic Education .34
Furthermore, this right was held to be immediately realisable, without any internal
limitation providing for its progressive realisation. 35 Therefore, it can only be limited in
terms of s3636. This means that the state can never use any excuse to justify its failure

31
Jan Persson, ’Digital Rights Are Human Rights’ < https://digitalfreedomfund.org/digital-rights-are-
human-rights/article-26-the-right-to-education > Accessed on 19 July 2022.
32
Constitution of the Republic of South Africa, 1996.
33
ibid.
34
Centre for Child Law and Others v Minister of Basic Education and Others 2020 (3) SA 141 (ECG).
35
See footnote 7.
36
See footnote 31.
to implement this right, regardless of the circumstances. 37 The aforementioned
characteristics of this right at national level apply to basic education, with further
education containing the qualification of progressive realisation through reasonable
means.38 s29(2) speaks to Regulation 6(b) of General Comment No. 13, 39 in the sense
that the accessibility of education is facilitated by permitting the medium of its provision
to be in any language preferred by the learners. This is important because most
learners grew up speaking and understanding their home language, and another
language should never stand in the way of them accessing education since this will
infringe on their education right and human dignity. The Constitution further reinforces
the right to education by imposing on the state the duty to respect, protect, fulfil and
promote this right.40 Therefore, it can be said that South Africa is discharging its
international and regional law obligations at national level regarding this right.

3 The inter-relationship between the right to education and other rights

In Grootboom,41 the court expressed the inter-relatedness nature of human rights and
provided that they are ’mutually supporting’. It was further held that socio-economic
rights are connected to such an extent that if one is infringed, several others are
infringed as well.42 The discussion that follows will be on the practicality of this inter-
relationship as evidenced from judicial precedents.

In Centre for Child Law,43 children were denied access to education due to the fact that
some of them did not have identification documents and their parents or legal guardians
did not apply for them at the relevant department, while others were denied access on
account of their illegal presence in the country. Both of these provisions were contained
in Circular 06 and it is on the basis of this circular that learners were deprived of their

37
Simbo C, ‘The Right to Basic Education, The South African Constitution and The Juma Musjid Case: An
Unqualified Human Right and A Minimum Core Standard‘ (2013) 17 Law, Democracy & Development 477,
488.
38
S29(1)(b) of the Constitution.
39
See footnote 31.
40
S7.
41
Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).
42
ibid.
43
See footnote 34.
right to education. 44 The court found that in denying the children this access, their right
to have their best interests considered paramount was infringed because the
Constitution does not differentiate children, but rather renders this right as the
prerogative of every child within the Republic.45 Their right to human dignity was also
held to be infringed since,46 inter alia, they felt ashamed of staying at home while their
peers left for school on a daily basis. By injuring their dignity in discriminating them from
exercising their s29 right, the children also had their right to equality infringed upon as
they were treated on an unequal basis with those learners who possessed their
identification documents and legal immigrants. 47 The court lastly found that none of the
infringements of the aforementioned rights, including that of education, was justified in
terms of the law of general application.48 Therefore, it is clear that by infringing the
children's right to education, several rights were also infringed in the process.

In Minister of Basic Education v Basic Education for All, 49 the government failed to
provide sufficient textbooks for all the learners in Limpopo. This failure clearly amounted
to non-compliance with Regulation 6(b) and the court in Juma Musjid spoke on such
failure by providing that,50 as long as there is one learner without textbooks, their s29(1)
(a) right has been infringed. This indicates that it is irrelevant how many learners
obtained textbooks, as long as there is merely one learner without them then the state
failed to discharge its international, regional and national obligation to implement the
right to education. Furthermore, by infringing that right, their right to equality was
infringed as well since learners without textbooks were discriminated against those who
had them.51 Although such infringement occurred on a non-listed ground, the court in
Minister of Basic Education continued to assert that having to be subjected to the
indignity of searching and obtaining means to obtain the information in the textbooks so
that they can access the same quality of education as those with textbooks, renders this

44
Circular 06 of 2016.
45
S28(2).
46
S10.
47
S9.
48
S36.
49
Minister of Basic Education v Basic Education for All 2016 (4) SA 63 (SCA).
50
See footnote 21; See footnote 7.
51
See footnote 47.
discrimination unlawful. The right to human dignity was, as result, included on top of the
aforementioned infringements as well.

Regulation 6(a) was subjected to non-compliance in Komape v Minister of Basic

Education,52 where a learner died on the school premises on account of the school’s
failure to provide safe, clean and healthy sanitation services for the students. As
aforementioned, the availability of educational facilities includes proper, clean and
healthy sanitation for learners in order for them to properly exercise their s29(1)(a) right.
Good sanitation helps to fulfil the latter-mentioned right and without it, that right will be
infringed. In this case, a learner fell and died inside a latrine. His parents were horrified
of this state of affairs since they placed their child’s care in the school’s custody, trusting
the latter to not only provide him with quality education, but also to safeguard him in the
process. It is not only in the interest of the parents, but also that of society, to expect
learners to be safe while obtaining an education. 53 The latrines were found to be in a
terrible condition when this demise happened and it would appear that it has been this
way for a long time. The court provided that, the school’s lack of safe and sufficient
toilets and its allowance to let this continue for as long as it did was a clear violation of
the learners’ right to human dignity. 54 It is inconceivable that humans will be subjected to
using sanitation services that are in such horrendous shape in a democratic state with a
Constitution of over twenty years. The court ordered for proper sanitation services at all
schools without it and demanded the relevant department to obtain and use state
resources that will enable them to achieve that goal.

A number of rights were infringed in this case and none of them can be said to have
been the root or the most vital out of them since there is no hierarchy of rights. The right
to education was, inter alia, infringed because of the state’s lack of availing sufficient
and proper educational facilities, namely, safe and healthy toilets. Whenever there is a
lack of means that can help fulfil and exercise this right, then this right is infringed upon.
This leads to the human dignity of those subjected to poor sanitation being infringed
since they have to tolerate conditions that no human should be expected to tolerate,

52
See footnote 21; Komape v Minister of Basic Education 2019 ZASCA 192.
53
ibid.
54
See footnote 46.
regardless of any circumstances. The manner in which the learner died was a severe
injury on his dignity and that cannot be condoned at all. His right to life was also
infringed upon because the state is indirectly involved in his death, which came too
prematurely as the learner was still in his developing years. 55 The right of the learners to
an environment that is not harmful to their health and wellbeing was also infringed since
those toilets polluted their environment, and thus affecting their health. 56 The right to
equality of the learners was also infringed since there were similar schools but with
proper sanitation services.57 There is no reason or justification why this school had to be
subjected to such poor conditions while others enjoyed implementation of their
constitutional rights. The learners in this school had also had their right to have their
best interests made paramount infringed because it is clear that when funds were
allocated for state necessities,58 considerations of proper sanitation services in schools
were overlooked and this was made blatant by the fact that funds were actually
available but were returned to the treasury.59 Therefore, a chain of rights was violated
simultaneously by the state’s failure to provide for the right to education in their lack to
provide safe, clean and healthy sanitation services.

Conclusion
The right to education is clearly a universal right that every person can expect to enjoy
and South Africa has done well to implement this right to a significant degree. However,
just like other rights, this right is indivisible and the state cannot claim to have
discharged it if it has not provided the means to enable people to exercise this right,
irrespective of the large extent to which it has implemented it. Therefore, respect for the
other rights is indispensable in effecting this right as well.

55
S11.
56
S24.
57
See footnote 47.
58
See footnote 45.
59
See footnote 51.
REFERENCES

Table of cases

1.Centre for Child Law and Others v Minister of Basic Education and Others 2020 (3)
SA 141 (ECG).

2.Governing Body of the Juma Musjid Primary School and Others v Essay N.O and
Others 2011 (8) BCLR 761 (CC).

3.Government of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46 (CC).

4.Komape v Minister of Basic Education 2019 ZASCA 192.

5.Minister of Basic Education v Basic Education for All 2016 (4) SA 63 (SCA).

Table of Statutes

1. Bantu Education Act 47 of 1953.

2.Constitution of the Republic of South Africa.

BIBLIOGRAPHY

Books

1.Office of the High Commissioner of Human Rights; United Nations Staff College
Project, Human Rights: A Basic Handbook for UN Staff (UN Office of the High
Commissioner for Human Rights (OHCHR) 2000).

Journal Articles
1.Simbo C, ‘The Right To Basic Education, The South African Constitution And The
Juma Masjid Case: An Unqualified Human Right And A Minimum Core Standard’ (2013)
17 Law, Democracy & Development.

International and regional instruments

1.United Nations, Universal Declaration of Human Rights, 1948.

2.UN Commission on Human Rights, Convention on the Rights of the Child, 1990.

3.UN General Assembly, International Covenant on Economic, Social and Cultural

Rights, 1966.

4.Organization of African Unity (OAU), African Charter on the Rights and Welfare of the
Child, 1990.

5.Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights
(“Banjul Charter”), 1981.

6.UN General Assembly, Convention on the Elimination of All Forms of Discrimination

Against Women, 1979.

Regulations

1.UN Committee on Economic, Social and Cultural Rights(CESCR), General Comment

No. 13: The Right to Education(Art. 13 of the Covenant), 1999.

2.Circular 06 of 2016.

Internet/Website

1.United Nations, ‘Universal Declaration of Human Rights: History of the Declaration’ <
https://www.un.org/en/about-us/udhr/history-of-the-declaration > Accessed on 20 July
2022.

2.UNESCO, ‘What You Need To Know About The Right To Education’ (26 November
2020) < https://en.unesco.org/news/what-you-need-know-about-right-education >
Accessed on 20 July 2022.
3.GPE Sectritariat, ‘3 Things To Know About Education As a Human Right’ (10
December 2017) https://www.globalpartnership.org/blog/3-things-know-about-
education-human-right Accessed on 19 July 2022.

4.Singh A, ‘Kimani Maruge:The Inspiring Story Of Oldest Primary School Student In The
World’ (30 November 2017) < https://ndtv.com/education/kimani-maruge-the-inspiring-
story-of-oldest-primary-school-student-in-the-world-1781786 > Accessed on 20 July
2022.

5.Jen Persson, ‘Digital Rights Are Human Rights’ <https://digitalfreedomfund.org/digital-

rights-are-human-rights/article-26-the-right-to-education> Accessed on 19 July 2022.