Long Walk to Constitutional Democracy: Part III

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 and Part II 


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 III 

ESTABLISHING THE RIGHT TO BASIC EDUCATION AS A CONSTITUTIONAL AND SOCIO-ECONOMIC RIGHT

Academic writers, Iain Currie and Johan DeWaal, (57) explain that, socio-economic rights originate from the understanding that, human rights and the basic social conditions in which people live are fundamentally interconnected. (58) Unlike Civil and Political rights/ first generation rights that impose a negative duty on government not to act in a certain way, socio-economic rights are positive in nature, as they impose obligations on the State, to perform certain duties. (59)

The right to basic education for all, contained in s29 (1) (a) of the Constitution is considered a socio-economic right. According to the dissenting judgement of Froneman J in Road Accident Fund v Mdeyide, (60) the significance of our Constitution establishing basic education as a socio-economic right is so that, people disadvantaged by their social and economic circumstances ‘ become more capable of enjoying a life of dignity, freedom and equality.’ Further, in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes (61) Moseneke DCJ recognized that socio-economic rights reveal the presence of ‘a deep concern for the material inequality closely associated with past exclusion and poverty.’ As a socio-economic right, the state has a duty to do as much as it reasonably can to progressively realize the right to basic education for all.

At the World Conference on Education for All, in Thailand, Jomtien, (62) the right to basic education was recognized by the international community as having social, economic and political benefits that accrue to an educated person and populace. It is because of this fundamental recognition that this right has been provided for in international law instruments. For example: Article 11 of The African Charter on the Rights of the Child, to which South Africa is bound, states that, every child has the right to an education. (63) Further, and in line with this recognition, is section 29(1)(a) of South Africa’s Constitution which provides that ‘basic education’ is an unqualified/absolute human right that everyone in the Republic of South Africa entitled to, including poor black school girls. Theoretically, the consequence of basic education being an ‘unqualified/ absolute’ human right is that it is non-derogable: it cannot be limited, anyway, anytime or for any reason.

In this instance, it is also important to note two things: firstly, equality, too, is a non-
derogable right and is essential to our transition from a past riddled with exclusions and discrimination, to a new Constitutional regime, which is inclusive and transformative. (64) Secondly, basic education is a socio-economic right which is immediately realisable. This means that, it may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.’ The state is, in terms of that right, obliged, through reasonable measures, to make further education ‘progressively accessible.’ (65)


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.
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.’
57 The Bill of Rights Handbook by Iain Currie and Johan De Waal.
58 Ibid at pg 563 – 597.
59 Ibid.
60 2011 (2) (2) SA 26 (CC) 125.
61 2010 (3) SA 454 (CC) 142.
62 1990.
63 Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990), available at: http://www.refworld.org/docid/3ae6b38c18.html [accessed 14 October 2014].
64 Equality shall be discussed later, in part VI.
65 Governing Body of the Juma Musjid Primary School &. Others v Essay N.O. and Others 2011 (8) BCLR 761 (CC) at Para 37.