Abstract:
This article assesses the extent to which the South African
Constitutional Court’s seminal findings in Governing Body of the Juma
Musjid Primary School v Essa NO have bolstered the lower courts to
give tangible content to the right to basic education. It is contended that
the particular facts of Juma Musjid, which required the Constitutional
Court to rule on the negative obligations of section 29(1)(a) of the
Constitution, actually played a significant role in the Court’s unequivocal
pronouncement that the right is unqualified. The Court’s ruling on the
nature of section 29(1)(a) seems to have emboldened lower courts to
adopt a substantive interpretation of the right. The article traces the
lower courts’ judgments over a period of almost a decade and explores in
detail how the right to basic education has been ‘filled out’ incrementally
by these courts. The connection between the incremental approach and
a conceptualisation of transformation that is cognisant of the changing
context of our society is also explored in the article. It is argued that
a case-by-case approach to litigating potential violations of the right
to basic education ensures that the right is never fixed but keeps on
evolving to keep abreast of changing forms of (in)justice in our society.
