The Supreme Court of Appeal of South Africa
(20793/2014)  ZASCA 198
2 December 2015
South African Constitution (the “Constitution”), Section 9 (Equality before law), Section 10 (Human dignity) and Section 28 (Right to education)
The organisation Basic Education for All (“BEFA”) had brought a challenge against the Department of Basic Education (“DBE”) and the Limpopo Department of Education (“LDOE”) over their failure to ensure access to textbooks for school pupils in the Limpopo province of South Africa. New textbooks were required across South Africa as a result of the introduction of a new curriculum in 2012. A previous court decision had found that a failure to procure the books amounted to a violation of the Constitution. The DBE and LDOE were ordered to provide the books and devise a catch-up plan for affected children. By March 2014, there remained a shortfall in textbooks and following unsuccessful attempts to resolve the issue, BEFA launched further legal action, alleging a violation of the constitutional rights to education, equality and dignity.
The first instance court found in BEFA’s favour, but refused to hold that the DBE had failed to comply with previous court orders. Both parties appealed to the Court in the current case.
Issue and resolution:
Right to education. The Court ruled that the DBE and LDOE had violated the rights to education, dignity and equality under the South African Constitution and also found that they had failed to comply with the previous court order requiring them to supply the necessary books.
The Court based its decision on the South African Constitution which states that every individual has a right to a “basic education”. The Court discussed the importance of education given its transformative qualities and its capacity to address entrenched inequalities and acknowledged that during apartheid, black schools were poorly resourced, and students disadvantaged. South Africa’s Constitution was drafted with a view to address this social inequality through a radical transformation of society and education. Therefore, the Court concluded that the right to a basic education is constitutionally entrenched and statutorily enforceable. It further said that textbooks are central to the realisation of the right to basic education and that in failing to provide a textbook for each student, the government had failed to achieve its own objectives and policies.
Furthermore, the South African Constitution also provides that everyone is equal before the law and end to equal enjoyment of their rights and freedoms. The Court noted that the textbook shortages were not a problem in any other province except for Limpopo, where most of the students were poor black children. According to the DBE, approximately 3 percent of students were affected by the shortage of books. The Court held that these students were discriminated against without justification. The DBE had clearly failed their obligation to supply a book for every child, as well as failing to comply with the 2012 court order to provide the books.
Link to full judgement:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.