This volume of work is a legal thesis of approximately 10,000 words, looking at the right to basic education for black indigent girls living in rural South Africa; and how their biological predisposition and menstrual cycle are a hindrance to their ability to access education. This thesis aims to create a constitutional obligation on the state to provide free sanitary pads to these girls. Alternatively, the state must increase child grants in favour of young girls.
THIS VOLUME OF WORK WILL BE DIVIDED INTO SEVEN ARTICLES AND PUBLISHED WEEKLY.
This paper serves as only one portion of a series of research papers dedicated to exploring whether South Africa is, in practice, a Constitutional Democracy for all; and not just a select few. To assist in making this determination, this research paper focuses on s29 1a (4) of the Bill of Rights, which sets out that everyone is entitled to a basic education. In particular, it aims to analyse the reasonable measures (5) which can be taken by the State (6) to make basic education ‘progressively accessible’ (7) to black (8) indigent girls, who live in extremely poor rural (9) regions (such as Alfred Nzo located in the Eastern Cape) (10) and survive on child grants; as well as who qualify to attend ‘no fee’ paying schools. According to a report conducted by the United Nations International Children’s Emergency Fund (‘UNICEF’), girls from indigent homes miss, at least, 10% of their annual schooling, due to their period. (11)
This paper shows that, in order for these girls to actually access their basic education, a substantive equality approach which strives to achieve equal outcomes must be applied to the state’s reasonable measures, to ensure that these girls can attend school, even during their menstruation.
To achieve this substantive equality, I suggest that, the ‘Norms and Standards’ School Funding allocation for individual students, in ‘no fee’ paying schools, must be increased for girl students. These increased allocations would provide for adequate sanitation facilities which accommodate the needs of females during their menstruation. In addition to this, child grant allocations should be increased, to include the cost of sanitary towels and panties. However, before reaching the substantive equality discussion, this paper begins by addressing and clarifying some relevant issues around the South African School’s Act.
THE MEANING OF ‘CONSTITUTIONAL DEMOCRACY’
a. A brief account of education for blacks in South Africa before 1994
When slavery was abolished in 1833, it meant that the European farmers and traders who had settled in the Cape could no longer rely on the free manual labour of slaves. (33) They now needed a supply of disciplined labour that would be prepared to work for them for very little. Therefore, education was used as a tool of influencing blacks to join the ‘’unskilled’’ labour force, where they would work for white male dominated industries. (34) In order to achieve this outcome, education in South Africa was made to be systematically unequal: entrenching differing social values and behaviours. (35) Some key features in the education of blacks at that time were that, the education of children was separate (36) and not compulsory, because an unskilled black person would be limited to demanding at least half of what an educated and skilled black individual would demand; and was more likely to be amendable to discipline. (37) Education for black children lacked funding; and most importantly, the content of education was focused on teaching them how to work in the diamond/gold mines and factories of white industrialists. (38) Therefore, black education was focused only on techniques for survival and not higher intellectual or creative thinking.
Apartheid was a term invented in 1948, to describe the new form of government (which officially lasted until 1993). (39) However, it is submitted that, in terms of the education of black children, there was no difference between the colonial era (1665 – 1909) and the apartheid era (1948-1993). For example, reflected in Section 15 of the Bantu Education Act; (40) and the infamous speeches by Dr Verwoed, (41) was the advocacy for a different curriculum for different racial groups.
The negotiations held in 1991 and 1992 at the Convention for a Democratic South Africa (CODESA) and the Multi Party Negotiating Forum held in 1993 aimed to bring about an undivided South Africa, free from apartheid and founded on the values of ‘human dignity, the achievement of equality and the advancement of human rights and freedoms.’ (42)
A date was set for the first democratic elections and on 27th of April, millions of South Africans, including black South Africans cast their ballots, resulting in a democracy (43) with its vision and values prescribed by the Constitution (constitutional democracy). (44)
b. A brief explanation of ‘democracy’ and South Africa’s adopted model of democracy
There is no definition or exhaustive list of requirements for the principle of democracy provided for in the Interim and Final Constitutions. However, the pre-amble of our Constitution seems to imply that the principle of democracy has at its core value, an inherent direct and vertical relationship between the state and the citizens of South Africa, which is, inter alia, participatory and representative in nature. This is evident from the preamble’s provision that ‘[our ] democracy is one in which government is based on the will of the people.’ In other words, the principle of democracy can be interpreted to mean that, the people who act as the leaders of the country/ members of parliament are a direct reflection of free and fair elections (this speaks to both the representative and participatory nature). In the Doctors for life (45) case, it was held that our government is one that is ‘accountable, responsive and transparent and that makes provision for public participation in the law-making process’ (this speaks directly to the participatory nature).
c. The meaning of ‘Constitutional Democracy’ and the Role of the Bill of Rights
Similarly to the case of ‘democracy,’ there is no exact definition for Constitutional democracy. However, case law has assisted in expanding on the prominent features of a constitutional democracy. In S v Makwanyane, in order to ascertain the purpose of the Interim Constitution, (46) Chaskalson J looked at the preamble of the Promotion of National Unity and Reconciliation Act. (47) It states that, the Constitution provides a ‘historical bridge between the past of a deeply divided society…and a future founded on the recognition of human rights, democracy and…development opportunities for all South Africans…irrespective of sex.’ He further explained that the Constitution is the supreme law of the land which entrenches our democracy and human rights. In other words, our democracy is not only representative and participatory, but most importantly, it also derives, inter alia, its core values, fundamental and entrenched human rights, state responsibilities and obligations; as well as methods of interpretation and analysis from the provisions of the Constitution. This means that, in order for one to ascertain the nature of an existing state duty, one would need to draw on a relevant Constitutional provision. This is what makes South Africa’s Democracy, a Constitutional one.
The Bill of rights is responsible for regulating the ‘vertical’ relationship between the individual and the State. Unfortunately, the bargaining powers between the state and its citizen are inherently unequal, due to the state’s authority and capability to use force or commands within its territory. (48) Failure for citizens to adhere to such command is sanctioned through criminal law and criminal procedural laws, such as the Criminal Procedure Act. (49) Criminal conviction has the result of restricting the movement of individuals for prescribed periods of time. It also has the result of compromising human dignity and the enjoyment of life. For example, it becomes harder for one to integrate back into society after serving a sentence. It is because of the state’s monopoly on command and criminal sanction; as well as the harsh implications, thereof, that the Bill of Rights becomes a shield against state negligence or abuse. Unless the state was capable of maintaining an extremely high moral integrity, individuals are highly vulnerable. History indicates that this is an almost impossible ideal. Therefore, the 1996 Bill of Rights plays the cornerstone role of protecting individuals against abuse of state power and against the negligence of mandatory state obligations, such as making basic education ‘progressively accessible’ for all. Although the 1996 Bill of rights has also extended itself to protect individuals from other individuals/ private abuse, (50) this paper directly focuses on the direct vertical duties of the national, (51) provincial (52) and local (53) legislative (54) authorities, whose primary duty, inter alia, is to produce basic education laws which are substantively consistent with our Constitutional framework. It also focuses on non-administrative executive authority (55), also known as ‘party-political’ appointees who collectively head the government at national and provincial level. They, too, are bound by section 8 (1) (56) when making and implementing the law.