Court/Judicial body: Constitutional Court of South Africa
Date: 11 April 2011 CRC
Provisions: Article 3: Best interests of the child Article 28: Right to education
Other international provisions:Universal Declaration of Human Rights, Article 26 (Right to education)International Covenant on Economic, Social and Cultural Rights, Article 13 (Right to education)
Domestic provisions: South African Schools Act 1996 Section 29(1) of the Constitution: Right to a basic education Section 28 (2) of the Constitution: Best interests of the child Promotion of Administrative Justice Act 2000 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998
Background: The Juma Musjid Primary School was renting its building from the Juma Musjid Trust. After the Department of Education failed to pay some of the school’s rent, the Trust obtained a court order for the eviction of the school. In the current case, student’s parents, guardians and caregivers challenged the eviction order, citing the students’ constitutional right to basic education and the principle of the best interests of the child.
Issue and resolution: Right to education and the best interests of the child. The Court found that an order to evict a school was invalid because the best interests of the children were not taken into account in violation of the South African Constitution. However, an eviction was later granted once it became clear that the closure of the school had become inevitable and alternative schools were secured by the Department of Education.
Court reasoning: The Court explained the eviction order had an impact on the student’s right to basic education under s.29(1) Constitution and the principle of the best interests of the child under s.28. The right to education is also recognised in international instruments such as the Universal Declaration on Human Rights ( Article 26), International Covenant on Economic, Social and Cultural Rights ( Article 13), and the UN Convention on the Rights of the Child (CRC) ( Article 28). The principle of the best interests of the child is also found in CRC ( Article 3). The Court emphasised the importance of these rights, particularly the right to a basic education which must be immediately realised by the State and only limited by law where it is reasonable and justifiable in a democratic society based on human dignity, equality and freedom. The Court considered whether the Trust could be said to hold constitutional obligations. The Court explained that the Constitution requires that private parties do not interfere with the enjoyment of a right. As the Trust had accepted a public school onto its property and contributed to its maintenance, it had a constitutional obligation not to impair the student’s right to basic education. This is secondary to the primary obligation of the State to provide education to children. However, the Court found that the Trust had acted reasonably in seeking an eviction order as they had previously made efforts to engage with the Department of Education in the interests of the students. The Court made clear that although the Trust as property owners were end to seek an eviction order, the best interests of the child should still be taken into account. This was not done when the eviction order was first granted, therefore that order must be set aside. The Court required the Department of Education and the Trust to negotiate an agreement which might prevent the eviction and closure of the school. However, the dispute remained unresolved, so the Court ultimately granted an eviction order once it was satisfied that the Department of Education had made arrangements for the children to continue their education at other schools. The Court rejected parental concerns that students would now have to travel to school and siblings educated separately, and confirmed that the eviction can go ahead.
Excerpt citing CRC and other relevant human rights The United Nations Convention on the Rights of the Child (Child Rights Convention) also recognises the right of the child to education. Notably, Article 3(1) of the Child Rights Convention, above n 41, provides that ―[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 4(1) of the Child Welfare Charter, above n 38, provides that ―[i]n all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. See also Article 29(1) of the Child Rights Convention, which provides States Parties agree that the education of the child shall be directed to: The development of the child‘s personality, talents and mental and physical abilities to their fullest potential; The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; The development of respect for the child‘s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; The development of respect for the natural environment.
CRIN comments: CRIN believes this decision is in compliance with the CRC. Article 3 provides that the best interests of the child shall be the primary consideration in all actions concerning children.
Citation: Case CCT 29/10  ZACC 13
Link to full judgement: http://www.saflii.org/za/cases/ZACC/2011/13.pdf