Abstract:
The purpose of this thesis is to critically evaluate the South African courts’ role in contributing
to the radical transformation of public basic education which is mandated by the South African
Constitution. The author observes that deeply rooted patterns of racial and class inequality, that
developed over a span of four centuries of colonial and apartheid rule, are reproduced in the
post-apartheid public basic education system. This disparity manifests as unequal access to
quality basic education for the majority of black and poor learners in the post-1994
dispensation. It is contended that the substantive-based approach to the right to basic education
by the High courts and Supreme Court of Appeal (SCA) has led to some transformative change
in public education. However, this approach is only half the battle won because it does not
address the engrained patterns of systemic inequality perpetuated by school governing bodies
(SGBs) of former white/Model C schools. In this regard, it is argued that governing bodies of
former Model C schools manipulate the autonomous legislative powers awarded to SGBs with
the purpose of retaining their inherited privilege(s). Whenever the state has challenged these
schools’ utilisation of their policy-making autonomy, the school governing bodies have had
recourse to the courts. As a result, a contentious relationship between SGBs of former white
schools and provincial education departments has developed in the sphere of public schooling.
Apart from contextualising the historical and contemporary inequality in basic education as
well as analysing the transformative potential of the substantive-based approach of the High
courts and SCA, this thesis focuses on the Constitutional Court’s resolution of the acrimonious
disputes between the government and former white schools. The author notes with concern the
development of an approach by South Africa’s apex Court rooted in the notion of “meaningful
engagement”. The application of meaningful engagement entails that the Court does not
resolve the dispute before it, but requires of the SGBs and the state to engage with each other
and settle the matter. The Court has classified meaningful engagement as the required
procedure through which all education disputes must be resolved. In this regard, the author
argues that the Constitutional Court’s perfunctory application of meaningful engagement has
hampered the Court’s ability to deal effectively with the underlying “hard” issue of structural
inequality which permeates the education system. Accordingly, the study concludes that the
meaningful engagement approach threatens the radical transformation of the public basic
education system.
