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VI. Domestic and international law obligations

Children’s Rights

South Africa is a party to a number of international human rights instruments relevant to the issues raised in this report.  These include the African Charter on Human and Peoples’ Rights; the United Nations (U.N.) Convention on the Rights of the Child; the African Charter on the Rights and Welfare of the Child; and the U.N. Educational, Scientific, and Cultural Organization (UNESCO) Convention against Discrimination in Education.199  South Africa signed the Covenant on Economic, Social and Cultural Rights on October 3, 1994, but has not yet ratified the treaty.  While this treaty does not technically bind South Africa, it is obliged under international law to “refrain from acts which would defeat the object and purpose of the treaty.”200

The South African constitution provides that international law must be considered in the interpretation of the bill of rights and legislation.201  International law becomes legally enforceable in South Africa once it has been enacted into domestic law.202  In the case of a self-executing provision in an international instrument that has been ratified by the South African parliament, such provision will become law.203

Implementation of children’s rights in domestic law

The South African constitution gives specific recognition to the rights of children, on a more generous basis than the rights of adults.204  It protects the rights of children to basic nutrition, health care and social services.  Children are to be protected from neglect and abuse, and have a right to security.  Exploitative labor practices, which infringe on the child’s ability to develop socially, mentally and intellectually, are prohibited.

In December 2002 the South African Law Commission205 approved a draft Children’s Bill,206 which aims to give effect to South Africa’s international obligations to promote, protect and develop and ensure the well being of children.  The bill consolidates and strengthens the structures designed to provide care and protection for children.  Proposed structures and services are envisaged to promote and monitor physical, intellectual, emotional, and social development of the child.  Following public comments to the draft, a revised bill is to be tabled in South Africa’s national parliament in the first quarter of 2004 for formal consideration. 

Chapter 4 of the draft bill protects the right to access to education and the right to be protected from economic exploitation, maltreatment, and abuse.  Recognition is given to undocumented migrant and refugee children and the protection of their rights.

Right to Education

The right to education is recognized by international law.207  At a minimum, states are obliged to provide free basic education, of which primary education is considered a component.208 

The right to education is enshrined in article 26 of the Universal Declaration of Human Rights, which provides that: “Everyone has the right to education.  Education shall be free, at least in the elementary and fundamental stages.  Elementary education shall be compulsory.”  The African Charter on Human and Peoples’ Rights provides that: “Every individual shall have the right to education.”209

Article 11 of the African Charter on the Rights and Welfare of the Child recognizes that: “Every child shall have the right to an education” and that basic education should be “free” and “compulsory.”210 States should progressively provide for the realization of “[f]ree and accessible” secondary education.  Article 28(1) the U.N. Convention on the Rights of the Child, in its protection of the right to education, requires states to endeavor “with a view to achieving [the right to education] progressively and on the basis of equal opportunity” to provide free and compulsory primary education available to all.  Both the African Charter on the Rights and Welfare of the Child and the U.N. Convention on the Rights of the Child call upon states to take measures to encourage regular attendance and to reduce dropout rates.211

Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), guarantees the right to education for everyone.  In particular, article 13(2) (a) provides that “primary education shall be compulsory and available free to all.”212 

While South Africa is not bound by the provisions of the ICESCR, the interpretations of the U.N. Committee on Economic, Social and Cultural Rights, the body responsible for monitoring compliance with the provisions of and interpreting the ICESCR, constitute useful guidance to states on the content of the right to an education, including a basic education and how to work towards the realization of the right to education.  In addition, the South African Constitutional Court has cited the U.N. Committee’s general comments in cases relating to social and economic rights.213  The state’s obligation rests on three fronts.  The state itself should not hinder the enjoyment of the right to education.  The state should take protective measures to prevent a third party from frustrating the enjoyment of this right.  Lastly, the state should take steps to assist individuals and communities to access this right.  These three steps and in particular the latter include providing infrastructure and adequate learning materials.214  Thus the state’s failure to prevent third-party interference, or to ensure that young children gain access to schools would indicate that the state is not fulfilling its obligations to protect the right to education.  The same is true in cases in which the state’s fails to prevent the owner of the property on which a school is located from closing off access to a school. 

In its General Comment on the right to education, the U.N. Committee on Economic, Social and Cultural Rights identified the essential elements to the right to education as including accessibility and availability.215


This relates to the state’s provision of facilities allowing the day-to-day function of the school itself.  Thus adequate buildings, learning materials, sanitation facilities and safe drinking water are some of the factors that would impact on the availability of education to all.216


Education should be physically and economically accessible to all without discrimination.  The school should be within safe reach or alternatively, means must be made available to ensure that children get to school.  In the context of learners at farm schools, this would include transport provision for learners, who travel long distances on foot, from their homes to school.  School fees should not in effect exclude enrollment.  There is recognition that education - particularly at the primary level - should be free for all. 

Implementation of the right to education in domestic law

The South African government has gone some way in incorporating international principles on the right to education into domestic law.  Section 29(1) (a) of the South African Constitution recognizes that everyone has a right to a basic education, thereby placing a primary obligation on the state.  Unlike some other social and economic rights, such as the right to health care, the right to a basic education is not qualified by language referring to the availability of resources and progressive realization of the right.  While basic education is broader than primary education, for the purposes of this report, primary education is the main content of the government’s obligation.217

The Schools Act elaborates on this right in its attempt to redress the past injustices based on discrimination in the provision of education.  Laws that segregated access to education on the basis of race have been repealed.

Of particular relevance to farm schools on private property, the 1995 White Paper on Education and Training states that “[t]he duty of public educational institutions is to facilitate the access to education of all eligible members of the public, not to frustrate such access.”218  The White Paper makes reference to those schools in 1995 that were in receipt of public funds such as subsidies for farm schools and unequivocally states that these schools “[h]ave an obligation to observe scrupulously the provision of the [South African] constitution with respect to rights such as non-discrimination and equal access to educational institutions.”219  The White Paper makes a further acknowledgement of the difficulties at farm schools, namely that “[t]he situation of farmworkers’ children may be a special case, since the farmer may be at one and the same time the owner and governing body of the farm school, the employer of the workers whose children attend the school, and the source of instructions for child labor.”220

Guidelines in policy making are formalized in the National Education Policy Act.221 Central to this statute is the inclusion of rights, which need to be considered in exercising the government’s powers.  They include:

- That every child has a right to a basic education and access to an education institution within or by an education department or education institution on any ground whatsoever.

- The right of the child in respect of his or her [access to] education.222

In furthering the constitutional and international law obligations, the policies of government should be designed to:

- Enable education systems to contribute to the full personal development of each student and to the moral, social, cultural, political and economic development of the nation at large.

- Achieve equitable education opportunities and the redress of past inequalities in education.223

A monitoring mechanism is included in the statute.  Section 8 provides that delivery and performance of education needs to be monitored annually or at specified intervals in order to “[assess] progress in complying with the provisions of the [South African] constitution.”   Where a provincial government is found to be in contravention with the constitutional obligations, the responsible political head will be required to respond within ninety days on how the situation will be corrected (section 6).

The Schools Act makes it compulsory for children to go to school between the first year of the educational program (grade one) to grade nine, or fifteen years old, depending on whichever occurs first.224 Section 5 of the Schools Act provides that “[a] public school must admit learners and serve their educational requirements….”225

In recognition of poor communities, the government has adopted an early childhood development program for children from birth to nine years of age “[t]o protect the child’s right to develop his or her full cognitive, emotional, social and physical potential.”226 Included in government programs are the improvement of the quality and effectiveness of teaching at essentially primary level schools and also the improvement of the functioning of the schools.  This program is to encourage enrollment of more children in primary schools in rural areas. 

Efforts have been made to make primary level education particularly for children on the margins of society free and accessible.  This is to be facilitated through weighted funding in favor of the poor - particularly those in rural communities.227

The legal framework put in place by the South African government is generally compliant with its international obligations.  In practice, as this report documents, the implementation of these laws can fail to respond to the needs of poor pupils at farm schools.  Frequently the specificities of their situation are not taken into account in the implementation of policy.  The effect is a failure by the state to fully guarantee the right to primary education for children living on commercial farms. 

[199] South Africa ratified the African Charter on Human and Peoples’ Rights on July 9, 1996; the U.N. Convention on the Rights of the Child on June 16, 1995; the Convention on the Elimination of All Forms of Discrimination against Women on January 14, 1996; the African Charter on the Rights and Welfare of the Child on January 7, 2000; and the U.N.E.S.C.O. Convention against Discrimination in Education on March 9, 2000.

[200] Vienna Convention on the Law of Treaties, article 18.

[201] The Constitution of the Republic of South Africa, 1996, section 39(1)(b) and section 233.  See also S v Makwanyane and another 1995 (3) SA391 (CC), paras 34-35 on application of international law in interpreting South African domestic laws and Bill of Rights.

[202] The Constitution of the Republic of South Africa, 1996, section 231(4).

[203] Ibid.

[204] The Constitution of the Republic of South Africa Act No. 108 of 1996, chapter 2, section 28.

[205] The South African Law Commission is a statutory law reform body established in terms of the South African Law Commission Act No. 19 of 1973.

[206] The draft Children’s Bill can be found online at

[207] U.N. Convention on the Rights of the Child article 28.  African Charter on the Rights and Welfare of the Child article 11; African Charter on Human and Peoples’ Rights, articles 17. International Covenant on Economic, Social and Cultural Rights, article 13.

[208] Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The right to education,” 1999, para. 9. 

[209] African Charter on Human and Peoples’ Rights, article 17(1).

[210] African Charter on the Rights and Welfare of the Child, article 11(3)(a).

[211] Ibid., article 11(3)(d) and the U.N. Convention on the Rights of the Child, article 28(1)(e).

[212] International Covenant on Economic, Social and Cultural Rights, article 13(2)(a) and (b).

[213] See Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1)SA 46 (CC), paras 39 – 45.

[214] U.N. Committee on Economic, Social and Cultural Rights, general comment 13, para 47.

[215] The U.N. Committee on Economic, Social and Cultural Rights, general comment 13, para 6.

[216] Ibid., general comment 13, para 6(a).

[217] The Committee on Economic, Social and Cultural Rights has opined, “While primary education is not synonymous with basic education, there is a close correspondence between the two.  In this regard, the Committee endorses the position taken by UNICEF: ‘Primary education is the most important component of basic education.’” Committee on Economic, Social and Cultural Rights, “General Comment No. 13: The right to education,” 1999, para. 9.

[218] Department of Education, White Paper on Education and Training, March 15, 1996, chapter 7, para 50.

[219] Ibid.

[220] Ibid., chapter 7, para 26.

[221] National Education Policy Act No 27 of 1996.

[222] Ibid., section 4 (a).

[223] Ibid., section 4 (b) and (c).

[224] South African Schools Act of 1996, section 3(1).

[225] Ibid., section 5 (3) (a).

[226] Early childhood development is defined as that which is required by a child to grow physically, mentally, emotionally, morally and socially.  See Department of education, Education White Paper 5 on Early Childhood Education: Meeting the Challenge of early childhood development in South Africa, May 2001, para 1.3.1.

[227] Department of Education, Plan of Action: Improving Access to Free and Quality Basic Education for All, June 14, 2003.

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