Human Rights Law Centre, South African Constitutional Court Considers the Nature and Scope of the Right to Education, 2011. Available at:


In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the rights to education and children’s rights when considering the rights of a private property owner to evict a school which was operating on its premises.


The Juma Musjid Trust (Trust) owned the land on which the state-run public Juma Musjid Primary School was operating.  The Trust made an application to the KwaZulu-Natal High Court (High Court) to evict the school as the Member of the Executive Council for Education for KwaZulu-Natal (MEC), which was responsible for operating the school, had not paid the Trust for rent or out-of-pocket expenses to run the school dating back to 1998.

The High Court, hearing the matter at first instance, made an order which effectively authorised the eviction of the public school from the private property. In granting the eviction order, the High Court held that:

  • the Trust was not performing a public function that required it to observe fair process towards the school;
  • the Trust owed no constitutional obligations to the MEC or to the learners at the school; and
  • the Trust’s rights under s 25 of the South African Constitution (rights to property) must be respected.

The High Court further held that the obligation to respect the learners’ right to a basic education lay with the MEC, and not with the Trust.

The School Governing Body (SGB) of the Juma Musjid Primary School and the parents and guardians of the learners enrolled at the school (Applicants) appealed the High Court’s order to the Constitutional Court. Specifically, the Applicants challenged the conduct of:

  • the Trust in enforcing its rights under s 25 of the Constitution (property rights) as a private owner of land;
  • the High Court in its failure to exercise its constitutional obligation to develop the common law to protect the learners; and
  • the High Court’s failure to craft an appropriate order.

Finally, the Applicants contended that in making its decision, the High Court failed to take into account the paramountcy of the best interests of the children.


First hearing

The Constitutional Court first heard the matter in August 2010, following which it provisionally set aside the eviction order made by the High Court. It held the High Court’s order had an impact on the learners’ rights under ss 28(2) (best interests of the child) and 29(1) (rights to basic education) of the Constitution. The Court ruled:

  • the Trustees had a constitutional duty to respect the learners’ right to a basic education under s 29 of the Constitution;
  • having regard to all the circumstances of the case, including that obligation, the Trustees had acted reasonably in approaching the High Court for an eviction order but that that was not sufficient reason for the High Court to grant the eviction order; and
  • in considering the eviction application, the High Court had failed to consider properly the best interests of the learners and their right to a basic education.

The Court held the MEC had a primary positive obligation to provide access to schools in respecting the learners’ right to a basic education, but the Trustees had a negative obligation in terms of s 8 of the Constitution (which provides the South African Bill of Rights applies to all persons in South Africa) not to infringe that right. Although the Trust may have rights to evict the school as a property owner, such protection was subject to the right to education and the paramountcy of the best interests of the child.

Because of the fast-approaching end of the 2010 school-year, the provisional order directed the MEC to enter into negotiations with the Trustees and the SGB in an effort to resolve the payment dispute to allow for the continued operation of the school. If these discussions failed, the Court ordered the MEC to take steps to secure alternative placements for the learners. The MEC was required to file a report setting out, among other things, the steps taken to ensure that the learners’ right to a basic education was respected. The Trustees were granted leave to apply directly to the Court for an eviction order if the dispute was not resolved.

Second hearing

The parties were heard for a second time in November 2010. The Court received the first report submitted by the MEC and it became clear to the Court the closure of the school had become inevitable as the MEC and the Trustees could not reach agreement on the payment dispute. As a result, the Court ordered the MEC submit a further report to demonstrate its compliance with the obligation to provide alternative schooling.

A second report was subsequently filed by the MEC which set out sufficient information about the schools where the learners would continue their schooling. The Court was satisfied that alternative arrangements for the placement of the children for the 2011 school-year had been made and that the learners’ right to a basic education would be protected.

The Court then considered the eviction application by the Trust and was satisfied a case for eviction had been established and the learners’ rights had been given effect to.

The final eviction order was granted on 11 December 2010.

Relevance to the Victorian Charter

This case turns on its unusual fact scenario and the vagaries of state education in South Africa. Unlike the South African Constitution, the Victorian Charter does not provide for a right to education. However, the Victorian Charter does protect the rights of children (s 17) and protect property rights (s 20) and this decision indicates how the best interests of the child may influence decision-making and justify the limitation of other protected rights in certain circumstances.