Long Walk to Constitutional Democracy: Part II

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.

Read Part I of Long Walk to Constitutional Democracy


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 II

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.


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. HTTP://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.
33 M.W Mwobe Education for Liberation.
34 M.W Mwobe Education for Liberation.
35 Catherine Albertyn ‘Substantive Equality and Transformation in South Africa’ 2007 23 S. Afr. J. on Hum. Rts. 253.
36 Natives were educated by the Missionary churches.
37 Peter Kallaway The History of Education under Apartheid from 1948- 1994: the doors of learning and culture shall be opened Pearson Education South Africa, 2002.
38 Ibid.
39 Ibid.
40 Act No. 47 of 1953.
41 H.F Verwoed’s address to the South Afrikan Senate on 7th June 1954. Rose, B and Tummer, R Documents in South Afrian Education ( 1975), A.d Donker, Johannesburg.
42 S1 of the final Constitution.
43 According to the English Oxford Dictionary democracy is a system of government by the whole population or all the eligible members of a state, typically through representatives.
44 Democracy founded on the 1996 Constitution and its values.
45 Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006).
46 Act No. 200 of 1993.
47 Act No. 34 of 1995.
48 Iain Currie and Johan De Waal The Bill of Rights Handbook 6th Edition pg 563 para 26.1.
49 Act No. 51 of 1977.
50 In terms of S 8 (2) of the final Constitution.
51 In terms of s 44 (1) of the final Constitution.
52 In terms of s104 (1) of the final Constitution.
53 In term of s156 (1) of the final Constitution.
54 This term refers to the institutions that exercise the legislative authority of the Republic: parliament, provincial legislatures and the municipal councils.
55 In terms of s85 of the final Constitution.
56 Which states that: ‘the Bill of Rights…binds the legislature, the executive, the judiciary and all organs of state.’
(Visited 13 times, 1 visits today)