Court/Judicial body: High Court of Swaziland
Citation: (335/09)  SZHC 104 (16 March 2009)
Date: 16 March 2009 CRC
Provisions: Article 28: Education
Other international provisions:International Covenant on Economic, Social and Cultural Rights, Article 13 Universal Declaration of Human Rights, Article 26(1)
Domestic provisions: Swaziland Constitution, Sections 29(6)
Background: An association of former mine workers and parents of school-aged children sought an order compelling the Swaziland Government to make free education in public schools available for every Swazi child pursuant to section 29(6) of the Constitution, which provides that “[e]very Swazi child shall within three years of the commencement of this Constitution have the right to free education in public schools at least up to the end of primary school, beginning with the first grade.” They also sought an order compelling the Government to produce its policy on education to enable the court to assess whether it complied with the Constitution.
Issue and resolution: Free primary education. The Court declared that under the Constitution, every Swazi child attending primary school is end to a free education and that the Government of Swaziland has the obligation to provide education free of charge to every child so end. The Government was not required to produce its education policy.
Court reasoning: The clear and unambiguous interpretation of the language of section 29(6) of the Constitution obligates the Government to provide free primary school education at no cost or charge to the children so end. This obligations includes tuition at no cost, provision of textbooks, and where possible, exercise books and stationery (but not school uniforms). Under a common sense interpretation of provision, the right to free education belongs to every Swazi child, commencing as soon as the child enters first grade. Thus, the Government has an obligation to provide free education to every Swazi child attending a public primary school whatever the grade. The Government’s responsibility is imperative, and not permissive, and is not to be abdicated for lack of funds, shortage of teachers, or other reasons. The provision required the Government to commence provision of free education during the three years following the date upon which the Constitution came into force. The Government did not discharge its obligation to provide free education by providing subsidies to orphaned and vulnerable children or by taking other incremental steps within the limits of the Government’s resources.
Excerpt citing CRC and other relevant human rights [Counsel for respondents the Minister of Education, the Prime Minister, and the Swaziland Government] urged the court in its consideration . . . to have regard to international law and recognize that socio-economic rights such as the right to free education are programmatic and achievable incrementally, and in consequence, to interpret it to ‘include a primary obligation on Government to progressively realize the right within the limits of its resources’. He urged the court thus to find that the third respondent [the Swaziland Government] had complied with its responsibility to progressively provide free primary education which responsibility included the ventures it had undertaken, and to do so starting with children in the first grade and not across all primary school grades. He asserted that this progressive implementation of free education in primary schools undertaken by the Government was recognized in Articles 13 and 28 of the International Covenant on Economic, Social and Cultural Rights, and the United Nations Convention on Rights of the Child respectively. […] On the merits of the case, learned counsel [for applicants] reiterated the matters contained in the founding affidavit and contended that the Government of Swaziland had so far not complied with the constitutional provision contained in S. 29 (6) of the Constitution, for it had merely introduced subsidies by way of the provision of some components of free education such as textbooks, among others. Citing such international Law instruments as: the Universal Declaration of Human Rights: Art. 26(1), the International Convention on Economic, Social and Cultural Rights: Art. 14, and the United Nations Convention on the Rights of The Child: Art. 28 which provide for free compulsory basic education for States Parties thereto, learned counsel furthermore contended that the definition of free education canvassed by the first respondent speaking for himself and the third respondent, was incorrect. He urged the court to find that free primary education as provided for in S. 29 (6) of the Constitution, meant primary education free of charge, and at no cost to the persons so end. He canvassed further for the court to find that same was to be implemented by the third respondent within three years of 2005 when the Constitution came into force, and not to commence after that period as apparently understood by the latter. […] Learned counsel for the respondents finding himself in some difficulty has urged the court not to read S. 29 (6) as it stands, contending that the language thereof does not sufficiently conform to the requirements of free education advocated for in two international Articles 13 and 28 of the International Covenant on Economic, Social and Cultural Rights, and the United Nations Convention on the Rights of the Child respectively which influenced the drafting of S. 29 (6). In saying this, learned counsel for the respondents has asked the court to adapt the wording of the obligation placed upon the third respondent to provide free education in the Constitution, to the intentions of the drafters of the said international instruments. He urges this upon the basis that these instruments which have been ratified or acceded to by the Kingdom of Swaziland, recognise the need for progressive implementation within the resources of the country, a circumstance lacking in the language of S. 29 (6). I find the argument uninspiring. First of all I must bring to the fore that although helpful in helping the court achieve a purposive interpretation of the words used in S. 29 (6), these international instruments may not be made to hold sway over a constitutional provision which taken in the context in which it appears, lends itself to a literal interpretation. It must be borne in mind that these international instruments although ratified and acceded to by the Kingdom of Swaziland, do not as yet form part of her laws. S. 238 (2) and (4) of the Constitution sets out clearly the mode by which international agreements become binding on Swaziland: by an Act of Parliament, or by a resolution of at least two-thirds of the members at a joint sitting of the two chambers of Parliament; and the mode by which such become law in Swaziland – by an Act of Parliament. This is not to say that such instruments should have no bearing at all on the interpretation of constitutional provisions. Indeed, on occasion, it may be crucial to have regard to same in order to arrive at the true meaning and purport of a provision within the spirit of the Constitution. But such recourse should only be had where it becomes “relevant only in the interpretation of the Constitution itself, on the grounds that the lawmakers of the Constitution should not lightly be presumed to authorise any law which might constitute a breach of the obligations of the State in terms of international law” see per Mohomed DP in Azanian Peoples Organisation (AZAPO) and ors v. President of the Republic of South Africa 1996 (4) SA 671 at 688 (CC). In the present instance, there is no indication, contrary to the assertion of learned counsel for the respondents, that S. 29 (6) as it stands, sins against the said international instruments ratified or acceded to by Swaziland. Indeed it seems to me that it is rather in consonance with same although the drafters of the Constitution, having regard to the Swaziland situation apparently created a right for every Swazi child that placed an obligation on the Swaziland Government perhaps more imperative and extensive than obtains in the said instruments. Furthermore, it is my view that even where recourse is had to the said international instruments, they will not, in view of their purport which is the realisation of a universal compulsory basic education free of charge, discourage the application of S. 29 (6) based on a literal interpretation thereof. In the instant case, by reason of the clear and unambiguous use of the words “free education” appearing in the context of S. 29 (6) even with the said international instruments as a background to their being, I see no reason not to adhere to the golden rule of interpretation which is to interpret the word “free” as used in connection with the provision of goods and services, (education being in such a category), in its ordinary grammatical usage to mean: at no charge. I reiterate that the context in which the word “free” appears in S. 29 (6) as an adjective to describe the word “education”, leaves no ambiguity in the reader. Nor in my view, does the literal interpretation that such provision be at no cost to the recipient lead to injustice or absurdity so as to warrant recourse being had to other rules of interpretation calling in aid extraneous material. It seems to me that the respondents are seeking to have the court give the words “free education”, an interpretation which in context, will only do violence to the language, will at best be artificial, and in reality, be absurd. I must decline the invitation of learned counsel for the respondents to resort to other rules of construction in order to achieve the interpretation urged by him which will not be in line the purport and the spirit of the entire Constitution: the aspiration of a people towards a free society that seeks the welfare of its own. Follow Up: The plaintiffs subsequently filed suit to enforce the 16 March 2009 judgment, seeking an order directing and compelling the Government to provide free education to all eligible Swazi children. In Swaziland National Ex-Miners Workers Association v. The Minister of Education and Others (2168/09)  SZHC 258 (19 January 2010), available at: http://www.swazilii.org/sz/judgment/high-court/2010/258, the High Court held that the 16 March 2009 order was declaratory, rather than mandatory, meaning that it merely pronounced what the law was but did not compel the Government to do anything. The Court stated that the right to free education is “positive” in nature, in that it requires government action to in order to realize the right. In particular, it requires the Government to put in place a programme of action with a budget allocation, and is therefore dependent on the availability of resources. It was found that the Government demonstrated that it had taken steps towards implementation of a program for free education, and that there was no evidence that the Government had resources available at that time to fulfil its constitutional obligation. The Court found that the steps taken by the Government to comply with its obligation were reasonable and satisfactory in view of the limited resources at its disposal. This decision was appealed to the Supreme Court of Swaziland, which dismissed the appeal in Swaziland National Ex-Miners Workers Association v. The Minister of Education and Others (2/10)  SZSC 35 (28 May 2010), available at: http://www.swazilii.org/sz/judgment/supreme-court/2010/35 on the basis that the decision of the High Court from 19 January 2010 was “pragmatic and appropriate.” Link to Full Judgment:http://www.swazilii.org/sz/judgment/high-court/2009/104/ 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. Promotional Image: Countries Swaziland CRIN does not accredit or validate any of the organisations listed in our directory. 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