Inequality in the public basic education system: the role of the South African courts in effecting radical transformation

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.