Slowly but surely: The substantive approach to the right to basic education of the South African courts post-Juma Musjid

Abstract

This article assesses the extent to which the South African Constitutional Court’s seminal findings in Governing Body of the Juma Musjid Primary School v Essa NO have bolstered the lower courts to give tangible content to the right to basic education. It is contended that the particular facts of Juma Musjid, which required the Constitutional Court to rule on the negative obligations of section 29(1)(a) of the Constitution, actually played a significant role in the Court’s unequivocal pronouncement that the right is unqualified. The Court’s ruling on the nature of section 29(1)(a) seems to have emboldened lower courts to adopt a substantive interpretation of the right. The article traces the lower courts’ judgments over a period of almost a decade and explores in detail how the right to basic education has been ‘filled out’ incrementally by these courts. The connection between the incremental approach and a conceptualisation of transformation that is cognisant of the changing context of our society is also explored in the article. It is argued that a case-by-case approach to litigating potential violations of the right to basic education ensures that the right is never fixed but keeps on evolving to keep abreast of changing forms of (in)justice in our society.