Balancing rights in education: applying the proportionality test

Abstract

Educators and learners know that they are entitled to the protection of their rights, but are uncertain to what degree this protection extends. Fundamental rights are not absolute and may be limited by the rights of others, by laws of general application and by the definitional parameters of rights as described in the Constitution. This article explains the process of applying the balancing of fundamental rights in terms of the proportionality test of the general limitation clause (section 36) of the Constitution.Other non-fundamental rights are also limitable in terms of the principles of South African law. Court cases in the education setting are discussed illustrating examples of conflicting rights in schools. Such situations are opportunities for educators to apply the Constitution in the classroom by teaching learners a set of values consistent with the Bill of Rights.