The challenges of litigating the right to basic education in South Africa: Is the right realisable immediately or subject to resource limitation?

Abstract

The right to education is embodied in section 29 of the South African Constitution. Section 29(1) distinguishes between the right to basic education and the right to further education: the former is unqualified, while the right to further education has an internal qualifier. Like other socio-economic rights in the Constitution – such as the rights to housing, healthcare, food, water and social security – the right to further education imposes a positive obligation on the state to take reasonable measures within available means to realise the right progressively. The courts’ approach to this duality has thus far been that the right to basic education, unlike the right to further education, does not depend on the availability of resources or progressive realisation: it is “realisable immediately”. The difficulty with this approach is that it assumes that the right to basic education can be enforceable without resource implications as a limitation common to all socio-economic rights. The purpose of this article is to interrogate this assumption. The central hypothesis is that the right to education can be better realised if it is understood as an economic right par excellence subject to the common limitations applicable to the enforceability of economic rights in South Africa and at the international level.