On 2 December 2015, the Supreme Court of Appeal of South Africa held in Minister of Basic Education v Basic Education for All that the failure of the Department of Basic Education (DBE) to provide free textbooks to all students in the Limpopo province breached the constitutional guarantees of equality, human dignity, and the right to a basic education. The Court’s powerful judgment is welcomed and is an important declaration that the right to education must be realised for all children in South Africa, including the predominantly poor black children in Limpopo’s public schools.
The case concerned the provision of textbooks. Following the implementation of a new curriculum, many students in the Limpopo province were not provided with the required materials recognised as necessary for their work. This situation was unique to Limpopo province – and despite a number of court orders, the DBE failed to adequately remedy the situation. As a result a case was brought by Basic Education for All (BEFA) and others, arguing that the repeated failings of the DBE and the Limpopo Department of Education (LDOE) to procure and distribute the required textbooks constituted a violation of Sections 9 (Equality), 10 (Human Dignity) and 29(1)(a) (Basic Education) of the Constitution. The case succeeded and the government appealed to the Supreme Court of Appeal.
Throughout its judgment, the Supreme Court reiterated the transformative effects of education. During apartheid, black schools were poorly resourced, and students disadvantaged. The Constitution was drafted in order to address “social unevenness” through the transformation of society “and education in particular”. The Court found that there was nothing preventing the DBE from vindicating learners’ rights under Section 29 of the Constitution. On the contrary, the right to education was “immediately realisable”.
The Court found that those students denied access to textbooks had been subject to unjustified discrimination. The students were adversely affected and denied access to their right to a basic education:
Why should they suffer the indignity of having to borrow from neighbouring schools or copy from a blackboard which cannot, in any event, be used to write the totality of the content of the relevant part of the textbook? Why should poverty stricken schools and learners have to be put to the expense of having to photocopy from the books of other schools?
As the Court acknowledged, the importance of basic education in redressing societal inequalities is profound. The Trust particularly welcomes the recognition of the importance of eliminating discrimination in the enjoyment of the right to education, a key socio-economic right. Discrimination in the enjoyment of socio-economic rights represents a significant hurdle to achieving equality and the Trust urges the South African authorities to respond swiftly to court orders upholding these rights and to put systems in place to avoid the need for future litigation.