Long Walk to Constitutional Democracy: Part I

Thando Gumede:


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.

ABSTRACT

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.

PART I

INTRODUCTION

The year 2014 marks twenty years of South Africa’s democracy; and yet, it is still unclear as to whether or not South Africa is progressively realizing all the founding values of its Constitutional Democracy. 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 (12) 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 (13) which can be taken by the State (14) to make basic education ‘progressively accessible’ (15) to black (16) indigent girls, who live in extremely poor rural (17) regions (such as Alfred Nzo located in the Eastern Cape) (18) and survive on child grants; as well as qualify to attend ‘no fee’ paying schools. This paper has limited its scope of analysis to this category of individuals because they are the most vulnerable group of South African citizens: they are poor, black, reside in rural South Africa and, most importantly, they are female.

In places like Alfred Nzo, the legacy of apartheid has resulted in little or no access to water and sanitation; as well as poor infrastructure, low income and inappropriate personal and environmental hygiene practices.(19) In an attempt to cure these disparities, the preamble of the final Constitution, (20) has made a commitment to heal the divisions of the past, by establishing a society based on democratic values, social justice, fundamental human rights, equal protection of the law for all; as well as to indiscriminately improve the quality of life and to free the potential of all South African citizens. Whilst the state’s introduction of the ‘no fee’ paying system seems to be a step in the right direction in curing the racial inequalities of our past, it is questionable whether the biological differences between poor black boys and poor black girls is being treated with the same Constitutional rigour.

In Section 27 v Minister of Education, (21) Kollapen J put great emphasis on education’s crucial role in both freeing and unlocking the potential of each human being; and further described education as a ‘central and interlocking right in the architecture of the rights framework in the Constitution. (22) Collectively, the words of the honorary judge can be interpreted to mean that, education is an investment towards one’s human capital and that once one has acquired a full education, it enables one to, inter alia, think, speak and act freely; to express themselves intellectually and emotionally; and to fully engage the opportunities made available to them. In addition, he meant that, education is pivotal in realizing the other rights in the Constitution. For example, one cannot fully express themselves verbally, if one has not acquired the relevant communication and literacy skills. Therefore, along with equality, freedom and human dignity, education is the foundation upon which our Constitutional Democracy balances. Accordingly, access to basic education for young black girls in indigent rural communities should not be seen as a privilege but, as a Constitutional right, creating with it, duties which the State is obliged to progressively realize.

Further, Kollapen J also went on to hold that, because of South Africa’s previously unequal educational system and the visible disparities that continue to exist today, education is the gateway to the realization of South Africa’s envisioned Constitutional democracy; as well as the key to each South African citizen unlocking their ability to live a life of dignity and to participate fully in the affairs of society. (23) Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), (24) to which South Africa is bound, (25) supports this view by declaring the right to education, an indispensable means of realizing other human rights.

The complexity in this whole exercise, however, is that the South African Schools Act (26) does not provide a definition for the term ‘basic education.’ Therefore, it is difficult to ascertain, with certainty, the foundational elements which constitute the right to basic education and the reasonable measures which make it progressively accessible to all. However, the Act does make school attendance a compulsory feature of basic education. Section 3 of the Act provides that, a parent or guardian must cause their child to attend school from, at least, the age of seven up until the age of fifteen or up until grade nine (whichever occurs first). (27) Further, to show the legislature’s serious intentions regarding compulsory attendance, subsections (6) (a) and (b) of the Act provide that, failure to comply with this provision or anyone who prevents a child from attending school, without a just cause, is criminally liable. (28) From this provision it can be ascertained that, whilst a concrete definition does not exist, it is clear from the text that, the legislature intended for compulsory attendance to be a fundamental element in the provision and realization of basic education.

On the contrary, academic writers such as Chiedza Simbo argue that, the foundational element of basic education is the quality of basic education; and not whether or not children actually attend school. In her view, a child cannot be said to have acquired a basic education, if the substance of the education does not, in fact, result in the acquisition of numerical and literary skills which will allow them to be competent for tertiary education and the world of work.

This paper, however, deviates from the views of Simbo. instead, it follows the approach applied by the Constitutional Court in the Juma Musjid case, (30) where compulsory attendance was given great significance to the meaning and realization of the right to basic education. In favour of the Constitutional court’s approach I argue that, the quality of basic education is useless if children are not there to receive it. Therefore, compulsory attendance should be encapsulated/ read into the meaning of the state’s Constitutional mandate of making basic education ‘progressively accessible’ for all. For the State to merely establish ‘no fee’ paying schools, which can only be attended by boy children is not enough because, the right to access basic education is in danger of not being realized for girl children. 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. (31) Following from this, I further argue that, in order for indigent black girls from rural South Africa to be able to access their basic education and to accrue the benefits of education expounded upon by Kollapen J, there must be reasonable measures taken by the State to ensure that the biological predisposition of these girls does not hinder them from accessing basic education and accruing the benefits of a basic education. To this end I argue 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’ 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.

In conducting this analysis, this paper is broken down into seven parts: Part II provides the backdrop against which to understand the Constitutional transition from our past, to our present and future. Part III establishes Section 29 (1) as a socio-economic right and the relevance, thereof. Part IV looks into the meaning of the right to basic education, from an international and municipal law perspective. Part V makes compulsory attendance a foundational element of basic education. Thereafter, part VI discusses the substantive equality approach as a way of redressing the hindrance to education for these girls. And finally, part VII concludes and briefly sets out recommendations to be considered by the relevant organs of state and the legislature. In making an adequate analysis, I wish to use, mainly, the Hugo (32) case to advance some relevant arguments which could be used for or against my submission that the state should increase Norms and Standards School Funding and Social Welfare Grants.


1 Dun Laoghaire Institute of Art, Design & Technology Reducing Stigma and Increasing School Attendance Through Menstruation Education Applied Psychology; Third Year I.T. project..
2 Governing Body of the Juma Musjid Primary School &. Others v Essay N.O. and Others 2011 (8) BCLR 761 (CC).
3 National Coalition For Gay and Lesbian Equality and Another v. Minister of Justice OF 1999 (1) SA 6 (CC)
4 The Constitution of the Republic of South Africa, Act No. 108 of 1996.
5 Section 29 (1) (a) provides that ‘everyone has the right to… a basic education…’
6 Section 29 (1) (b) provides that ‘…the state, through reasonable measures, must make progressively available and accessible…’
7 South African Human Rights Commission, Report of the Public Hearing on the Right to Basic Education, pg 12, 2006. www.sahrc.org.za accessed August 28th 2014. The South African Human rights Commission describes accessibility to mean that, the state should move towards removing barriers, including discrimination, to further education. For purposes of this paper, the discrimination being spoken of is that of poor black girls who qualify to attend ‘no fee’ paying schools, but cannot attend/ access their education due to the hindrance presented by their menstruation.
8 This word refers specifically to the indigenous Africans.
9 The Rural Development Framework, May 1997, defines rural areas as ‘the sparsely populated areas in which people farm or depend on natural resources, including the villages and small towns that are dispersed through these areas. In addition, they include the large settlements in the former homelands, created by the apartheid removals, which depend for their survival on migratory labour and remittances.’
10 The Eastern Cape Province is situated along the south-east coast of South Africa. It has the third largest population in the country (seven million), representing 16% of the South African populace. Its non-urban population amounts to over four million, with a particularly high density of rural settlements. Unfortunately, the province also comprises of the country’s poorest, underdevelopment and unemployed populations. The province has seven district municipalities, namely: Oliver Tambo, Amatole, Western, Chris Hani, Joe Gqabi, Alfred Nzo and East Griqualand Kei. This research paper is pivoted on the characteristics of indigence which exists in these rural regions.
11 Dun Laoghaire Institute of Art, Design & Technology Reducing Stigma and Increasing School Attendance Through Menstruation Education Applied Psychology; Third Year I.T. project.
12 The Constitution of the Republic of South Africa, Act no 108 of 1996.
13 Section 29 (1) (a) provides that ‘everyone has the right to… a basic education…’
14 Section 29 (1) (b) provides that ‘…the state, through reasonable measures, must make progressively available and accessible…’
15 South African Human Rights Commission, Report of the Public Hearing on the Right to Basic Education, pg 12, 2006. www.sahrc.org.za accessed August 28th 2014. The South African Human rights Commission describes accessibility to mean that, the state should move towards removing barriers, including discrimination, to further education. For purposes of this paper, the discrimination being spoken of is that of poor black girls who qualify to attend ‘no fee’ paying schools, but cannot attend/ access their education due to the hindrance presented by their menstruation.
16 This word refers specifically to the indigenous Africans.
17 The Rural Development Framework, May 1997, defines rural areas as ‘the sparsely populated areas in which people farm or depend on natural resources, including the villages and small towns that are dispersed through these areas. In addition, they include the large settlements in the former homelands, created by the apartheid removals, which depend for their survival on migratory labour and remittances.’
18 The Eastern Cape Province is situated along the south-east coast of South Africa. It has the third largest population in the country (seven million), representing 16% of the South African populace. Its non-urban population amounts to over four million, with a particularly high density of rural settlements. Unfortunately, the province also comprises of the country’s poorest, underdevelopment and unemployed populations. The province has seven district municipalities, namely: Oliver Tambo, Amatole, Western, Chris Hani, Joe Gqabi, Alfred Nzo and East Griqualand Kei. This research paper is pivoted on the characteristics of indigence which exists in these rural regions.
19 Dun Laoghaire Institute of Art, Design & Technology Reducing Stigma and Increasing School Attendance Through Menstruation Education Applied Psychology; Third Year I.T. project.
20 The South Africa Act No.108 of 1996.
21 Section 27 v Minister of Education 2013 (2) SA 40 GNP.
22 Ibid. at para 2 and 3.
23 Section 27 v Minister of Education 2013 (2) SA 40 GNP at para 5.
24 General comment number 13, on the right to education, in respect of Article 13.
25 South Africa signed the ICESCR on the 3rd of October 1994 and in so doing, indicated its intention become a party to, and thus be bound by it.
26 Act No. 84 of 1996.
27 Section 3 (1) of the Act. ‘Subject to this Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first.’
28 ‘(6) Subject to this Act and any other applicable law— (a)any parent who, without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months; or (b)any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.’
29 Chiedza Simbo ‘Defining The Term Basic Education in The South African Constitution: An International Law Approach’ in Law, Democracy and Development (2012) vo16 477 – 503.
30 Governing Body of the Juma Musjid Primary School &. Others v Essay N.O. and Others 2011 (8) BCLR 761 (CC).
31 Dun Laoghaire Institute of Art, Design & Technology Reducing Stigma and Increasing School Attendance Through Menstruation Education Applied Psychology; Third Year I.T. project.
32 President of South Africa v Hugo 1997 (4) SA 1 (CC).