The Constitution in the Classroom: Law and Education in South Africa 1994 - 2008

Stu Woolman, Brahm Fleisch

Description

The law on education and educational practices in South Africa would exhaust the capacity of any meaningful monograph. Instead, the authors of this book engage six discrete topics that refl ect the broader currents and conflicts in South African education debates: (a) school choice; (b) school fees; (c) the right to an adequate basic education; (d) single medium public schools; (e) school governing bodies; and (f) independent schools. The book has two further aims. First: To move beyond the debates taking place separately in the education policy community and the legal academy, and to demonstrate how these disciplines, working in concert with each other, can advance our understanding of law and education in South Africa. Second: To show that the ANC’s complex education agenda must mirror the egalitarian, utilitarian, democratic, and communitarian commitments found within the Constitution. How these competing political claims refl ected in our basic law play themselves out in the enabling education legislation, the case law and government education policy, frames each topic assayed in this work.About the editor:Stu Woolman is the Academic Director at the South Africa Institute for Advanced Constitutional, Public, Human Rights and International Law.Brahm Fleisch is Associate Professor in the Division of Education Leadership and Policy Studies in Wits School of Education.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2009
• Nombre de lectures: 1
• EAN13: 9780981412450
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

The Constitution in the classroom: Law and education in South Africa 1994-2008

Stu Woolman & Brahm Fleisch

2009

The Constitution in the classroom: Law and education in South Africa 1994-2008

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-0-9814124-5-0

© 2009

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TABLE OF CONTENTS

ACKNOWLEDGMENTS

ABBREVIATIONS

INTRODUCTION: SOUTH AFRICA’S RECENT HISTORY OF CONTESTED CLASSROOMS

QUASI-MARKETS ANDDE FACTOSCHOOL CHOICE

ON THE CONSTITUTIONALITY OF SINGLE MEDIUM PUBLIC SCHOOLS

ON THE CONSTITUTIONALITY OF INDEPENDENT SCHOOLS THAT PROMOTE A COMPREHENSIVE VISION OF THE GOOD

ON THE RIGHT TO AN ‘ADEQUATE’ BASIC EDUCATION

DEMOCRACY, SOCIAL CAPITAL AND SCHOOL GOVERNING BODIES

CONCLUSION: ON THE CONSTITUTIONALITY OF SCHOOL FEES AND THE NARRATIVE ARC OF LAW AND EDUCATION IN SOUTH AFRICA

TABLES OF CASES

TABLE OF STATUTES, REGULATIONS AND INTERNATIONAL INSTRUMENTS

BIBLIOGRAPHY

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ACKNOWLEDGMENTS

Over the last several years, other academics who work in this particular domain have helped us to refine our arguments. We owe significant debts to Danie Brand, Rassie Malherbe, John Pampallis, Daria Roithmayr, Christina Murray, Jonathan Jansen, Matthew Chaskalson, Michael Dorf and William Simon. We should like to single out Michael Bishop for his especially important contribution to our understanding of the right to an adequate, basic education.

We have received additional constructive criticism from colleagues at seminars held at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), the University of the Witwatersrand School of Education, the Wits Institute for Social and Economic Research (WISER), the University of Pretoria’s Centre for Human Rights (CHR) and Columbia Law School.

We would like to thank the editors, and the anonymous referees, of several journals:Perspectives in Education, theSouth African Journal on Human Rights,Education & the Lawthe and Stellenbosch Law Review. Their interventions enabled us to make subtle, but important, corrections in course. These journals — and the publisher ofConstitutional Law of South Africa, Juta Law — have also proved extremely generous in permitting us to use material originally published in their pages. We would also like to thank the anonymous reviewers for this work: They saved us from making errors both large and small.

February 2009

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CODESA CRLC

EEA EFA ERLC ERP FRC GDoE GEC GEPA GER HoD MEC MPNF NCOP NECC NEPA NER NP PEPUDA

PIRLS RCL SACMEQ

SADTU SASA SGBA SGBs UNESCO

WCDoE

ABBREVIATIONS

Convention for a Democratic South Africa Commission for the Protection and the Promotion of Cultural, Religious and Linguistic Communities Educator’s Employment Act Education for All Education Labour Relations Council Education Rights Project Financing, Resourcing and Costs of Education Gauteng Department of Education General Education Certificate Gauteng Education Policy Act Gross Enrolment Ratio Head of Department Member of the Executive Council Multi-Party Negotiation Forum National Council of Provinces National Education Coordinating Committee National Education Policy Act Net Enrolment Ratio National Party Promotion of Equality and Prevention of Unfair Discrimination Act Programme in International Reading Library Representative Council of Learners Southern and Eastern Africa Consortium for Monitoring Education Quality South African Democratic Teacher’s Union South African Schools Act School Governing Body Association Social Governing Bodies United Nations Educational, Scientific and Cultural Organisation Western Cape Department of Education

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We would like to thank our parents for giving us the

best education possible.

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1 HAPTER C

I NTRODUCTION : S OUTH A FRICA ’ SRECENT HISTORYOFCONTESTED CLASSROOMS

Introduction: South Africa’s recent history of contested classrooms

This book does not claim to be a comprehensive text on law and education in South Africa. The law on education and educational practices in South Africa is too vast a subject to be covered in a single monograph. Instead, we have identified six themes that reflect the broader currents and conflicts in South African education debates: (a) school choice and school fees as understood through the rubric of the negotiated settlement and the consequent open texture of such legal texts as the Constitution, the National Education Policy Act (NEPA) and the South African Schools Act (SASA); (b) the right to a basic education and the right to instruction in a preferred language when viewed through the lens of the various freedoms enshrined in our Constitution; (c) the autonomy of school governing bodies and independent schools as refracted through SASA and our basic law’s complex commitment to participatory democracy, to freedom and to community rights.

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Origins

This book has its origins in innumerable conversations between two colleagues over a period of some four years. What initially struck us both, what dissatisfied us most, were rather the desiccated debates taking place in both the education policy community and the legal academy. Educators were perfectly content to discuss policy. But they appeared constitutionally incapable of discussing, in a meaningful or subtle fashion, the law and its ramifications for the state of education in this country. Legal academics, on the other hand, seemed uninterested in how primary and secondary schools actually work in South Africa. They engaged in the most arid and disengaged ruminations on what our basic law required. We quickly recognised how each discipline (with its own unique forms of analysis

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2Chapter 1

and discrete bodies of apposite literature) working in concert could advance our understanding of law and education in South Africa.

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Approach

It would be disingenuous to suggest that the authors have no political pre-commitments: we are both strong social democrats. However, that says virtually nothing about our approach to this book. What we have tried to do is engage with interesting arguments on the right, in the centre and to the left. And, in the end, we would be surprised if we did not find many of our friends and colleagues agreeing with some of our positions and dissenting vigorously from others.

We hope to engage our fellow scholars by offering clear and careful legal arguments supported by evidence provided by South African and international researchers on education. In many respects, the six substantive chapters in this book look like what litigators call Brandeis briefs: a legal argument supported by the best available empirical evidence.

The need for such ‘academic’ Brandeis briefs has been articulated above. When lawyers argue, they tend to cherry pick the evidence to be found in educational policy statements and the secondary literature. They are, after all, advocates. Educators, on the other hand, tend to eschew engagement with the sophisticated constitutional, statutory and regulatory arrangements that bracket education policy. Nor do you see most educators looking at legal texts for support of their propositions. Again, then, the purpose of this work is to demonstrate how each discipline is best informed by the other, and how, together, they produce a clearer conception of law and 1 education in South Africa.

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That said, Enver Motala and Jon Pampallis do stop to note the varying political axes around which education law and policy turn: ‘[L]aw and policy are unequivocal regarding the need to address both the ‘humanistic’ elements of r T e h c a o t n sa tr id u , ct E io n n ver an M d o i t s a s l u a e a s nd wh J i o c n h P a a re mp m al o li r s e d n o ar s r top wl t y o c n o o n t c e r t n he d va w r i y t i h ng ec pol n i o ti m c i a c l a d x e e v s elo a p ro m u e n n d t. w C h o i n ch ern e s du fo c r at d io e n mo l c a r w acy, an r d edr p e o s l s i i c n y g t hi u s r t n o : ric ‘[ a L l ] i a nj w ust a i n c d e, p e o n l s i u c r y ing ar a e u h n u e m q a u n ivo r c i a g l ht r s ega c r u d l i t n u g re t , he p n r e o e vi d i t n o g ad a d n res e s nv b i o r t o h nm th e e nt ‘h f u o m r ani p s a t r i t c i ’ ci e p l a e ti m o e n nts an o d f r a e c con u s n t t r a u b c i t l i i o ty n a r n e d i m s a s t u c e h s ed wh w ic it h h a c r o e nc m e o r r n e sf n o arro ec w o ly no c m o i n c ce r r e n g ed ner w a it i h on e , co h n u om a i n c r de s v o el u o rc p e me d n e t v . el Co p n m cer n n t s , f a or nd de c m o o m c p r e a t c i y t , iv r e e n d e r s e s ss i ing t hi e st i o n r t ic er al na i t n i j o u n s a ti l ce, co en o su m r y i ’ n : g E a h w u it m h a c n ons ri ti g t h u t t s ion c a u l lt j ur i e s , dic p ti ro n v ) i . din W g ool a m n an e a n n v d iro B n ot m h e a nt not f e o : r ‘T p h a e r [ t s i e c ] ip t a e t n io si n ons a  . n . d . ac r c e o c u o nt n a st b i i t li u ty ive ar o e f m th a e tc S h o e u d th wi A t f h ri c a once o rns tit f u o t r io e n c a o l no r m d i e c r r .. e . ge . n A er n a y ti a o t n t , em hu pt m  t a o n r e e r s a o d u ic rc at e e d th e e v s e e lo c p o m nf e l n ic t t , s and t — od i e n ny th t e he i d n i t s e t r i na c ti v o e na m l e e a c n o i n g om ea y c ’: ho E ft M h o e t s a e la val & ue J s P w a o m ul p d all d is o ‘ r E e d a u l c v a i t o i l o e nl c a e w to an t d he po c li o c n y st i i n tu p t o i s o t n -a l p t a e rt x h t ei a d nd So d u e t n h y A t f h ri e ca c ’ o i m n m E it M m ot e a n l t a t & o J op P e a n m n p e a ss lli a s n ( d e t d o s) pl E u d r u al c i a t t y io o n n a w n h d ic e h q it ui i t s y: pr t e h m e is i e m d’ p : ac S t W o o f ol st m a a t n e & po M lic B i i e s s ho o p n ‘L So a u w t ’s h A a f u r t i o c n a o n m e y d ’ u i c n at S io W n o ( o 2 l 0 m 0 a 1 n )1 & 4 M 30 B . is B h u o t p M (e ot d a s l ) a C a o n n d st P it a u m ti p o a n ll a i l s c t o h n e v n er w s r a it ti e o ( n 3 s 1 ( ) 2 t 0 h 0 a 8 t ) t 1 h 5 e , e q n u a o b t l i i n n g g S le W gi o sl o a l t m io a n— & S H AS B A o , th N a E ‘ P L A i , m E it E a A tio — n ‘ s i : s s l h e a ss re f d ul c so n m s e ti i t n ut i i t o s n o a r l i i ent e a r t p io re n t t a o ti t o h n, e c a o n re app v r a o lu pr e i s at o e f no t r he mat C i o v n e st f i r t a u m ti e o w n’ o . rk M & ot h a a l r a d a c n h d oic P e a s’ m i p n all W is ool sim a p n ly & f B a i i s l ho t p o ( t e a d k s) e ( c a o b g o ni v s e a ) n 1 c 4 e 9. of Se th e e al e s x o te S nt Wo to lm w a hi n ch & t H ho B s o e th ‘ a co ‘ r Li e m v i a t l a u ti e o s’ n , s’ a i nd S th W e oo v l a m ri a o n us et ri a g l h ( t e s d i s n ) t C h o e ns C t o it n u s t t i it o u n t a i l o l n a , w an of d S w o i u t t h h in Af F r C ic s a e ( c 2 2 e 9 di it i s o e n l , f, O p S, ul J l u i l n y2 v 0 er 0 y 6) d c if h f a e p re 3 n 4 t .  directions.

Introduction: South Africa’s recent history of contested classrooms 3

In the process of writing the chapters that make up this work, a fairly clear four-fold argument emerged.

The legal space we describe is variable. Its open texture is a function of negotiated settlements between political parties, state bureaucracies, national government, provincial government, unions, local communities, principals, teacher, parents and learners. These open spaces in the law expand and contract, at least at the penumbra, as a result of the political exigencies of a given historical moment.

Those exigencies have been subject to different characterisations. The standard account begins with the widely accepted, but radically incomplete, story of how the National Party’s belated attempts to decentralise control over public school education, and subsequent concerns about Afrikaner succession, resulted in the current, and significant, degree of constitutional and statutory control exercised by provincial governments, unions, 2 principals, parents, learners and school governing bodies (SGBs). Or, to put it more pointedly, the standard account emphasises how the fragility of the ANC-led government in 1994 required it to cede authority to multiple groups in order to avoid concentrating power in a group that might contest the government's new agenda.

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Indeed, we shall argue, as do Woolman and Bishop and Woolman and Botha, that harmonising these values [openness, democracy, human dignity, equality and freedom] is no easy task. Indeed, they invariably pull in different directions in every hard case that comes before the Constitutional Court (and any lower court with constitutional jurisdiction). Woolman and Botha note: ‘The[se] tensions ... are constitutive of the South African constitutional order ... Any attempt to eradicate these conflicts and to deny the distinctive meaning each of these values would do real violence to the constitutional text and deny the commitment to openness and to plurality on which it is premised’: S Woolman & M Bishop ‘Law’s autonomy’ in S Woolman & M Bishop (eds)Constitutional conversations(2008) 15, quoting S Woolman & H Botha ‘Limitations: shared constitutional interpretation, an appropriate normative framework & hard choices’ in Woolman & Bishop (eds) (above) 149.See also SWoolman & H Botha ‘Limitations’ in S Woolmanet al(eds) Constitutional law of South Africa(2 edition, OS, July 2006) chap 34. That account, as John Pampallis writes, turns primarily on the rearguard actions of the apartheid state to maintain white, privileged public schools. He first notes that: ‘In its dying days, the apartheid government took a significant step towards decentralising the white education system. After the government’s unbanning of the liberation movements in 1990, pressures began to build for the desegregation of white state schools ... In 1990, the Minister responsible for white education ... announced that white state schools would be allowed to change their status from the beginning of 1991. Three new school models were available: (1) Choosing Model A would result in the privatisation of the school; (2) A Model B school would remain a state school but could admit black students up to a maximum of 50% of its total enrolment; (3) A Model C school would receive a state subsidy but would have to raise the balance of its budget through fees and donations.’ J Pampallis ‘The nature of educational decentralisation in South Africa’ (Centre for Education Policy Development, Evaluation and Management) Decentralisation and Education