A PIECE OFFERING TO THE CONSTITUTIONAL COURT: DISSECTION OF EDUCATION: SECTION 29 RIGHT TO EDUCATION

A Writing to the Constitutional Court

For me, writing has always begun with the personal. Whether it’s a legal brief or a creative essay, my entry point is almost always my own experience or connection to the topic. During his 2020 Academy Award acceptance speech for Best Director, Bong Joon-ho shared a sentiment that resonated deeply with me: "The most personal is the most creative." He attributed this insight to the legendary Martin Scorsese, a lesson that shaped his own mastery. That moment put into perspective exactly what I have always aimed to do in my work: Make it personal.

To provide some background: the inception of this piece was a conversation. It began with us reminiscing about core memories from our high school years, shifted into a debate on the mathematical proof of the existence of God, and finally landed on the standard of education. As two legal minds who "geek out" about the law, it was inevitable that we’d end up viewing education through a legal lens. That is exactly what we did: we interrogated the state of education within the prism of the law. Enough thinking; it was time to write.

This brings us to the work at hand: a dissection of Section 29—The Right to Education—as espoused in the Constitution of the Republic of South Africa, 1996 (the Constitution). This section is built on four pillars, or sub-sections, and our objective is to translate that raw data into information that is digestible for everyone. Section 34 of the Constitution provides for the Right of Access to Courts, but I have mentally extended that principle to include a "Right of Access to Law." That is our goal: a presentation of a constitutional provision so accessible and "finely plated" that its meaning is available to all

EDUCATION: A MEANS TO KNOWLEDGE OR A MEANS TO AN END:

Before we can delve into the nity grities of the law, lets "take it back to the beach" (Shout out Shekinah x Kyle Deustch x Sketchy Bongo- Song titled Back to the Beach). To understand how the law governs the educational landscape of our society, we first need to define what Education actually is. Now, this is a dive, not a deep dive; we won’t be wading into the vast history or philosophy of education—that’s a project for a Master’s dissertation. For our purposes, we just need to understand the core

What is Education:

Wikipedia—I know, I know—actually provides the most relatable starting point. It defines education simply as "the transmission of knowledge." To put it into an equation: Person A (who possesses a set of knowledge) transfers it to Person B (who does not), resulting in both now holding that knowledge.

But what is "knowledge"? Merriam-Webster defines it as "information, understanding, or skill acquired through experience." However, there is a more evocative definition that I prefer: knowledge as "the sum of what is known; the body of truth, information, and principles acquired by humankind." I love this because it feels like sitting around a campfire, listening to your great-grandfather tell stories about the stars. When we put it all together, we see that Education is the transmission of that body of truth—a passing of the torch for the sum of everything we know.

So, to answer our question: is education a means to knowledge or a means to an end? On a literal reading, education in its pure form is a means to knowledge. But we live in a reality governed by physics, economics, ideologies, and law—both codified and uncodified. In a world with so many moving parts, education often shifts from being a tool for "know-how" to a means to an end. That "end" can be social status, financial benefit, or even power—where we have seen education used to oppress, indoctrinate, and strip away customs.

Education is two sides of the same coin. One side is the transmission of knowledge, empowerment, and non-materialistic growth—the pure form. I view this side as gathering around a bonfire, listening to the village elder share parables to pass on wisdom. The other side is the "Schooling Institutional Complex"—formal education—where you show up at 8:00 AM to be given words that don’t empower, delivered by a medium that isn't focused on transmitting the "body of truth" we spoke of earlier

The Law & Education: A Toxic Dance and a Potential Tango

"A Toxic Dance." We have seen the interplay between law and education result in toxic outcomes—outcomes that involved the perpetuation of racial segregation, hate, inequality, and the distortion of customs and traditions. This is a history we can never avoid when we talk about South Africa; we have seen these two forces utilized to colonize, terrorize, and strip people of their dignity. And all these atrocities were done with the full backing of the law.

That is the toxic dance. Apartheid was not just an ideology or a concept; it was a system built on laws that ensured its survival—a system that operated on hate and division based on skin color. SKIN COLOR!!! Let me pause right there. As law students, we learned that not all laws are right, and not all laws are moral. The toxic dance began when the law mandated an educational system designed for oppression and the eradication of identity. The Law said, "Education should be this way," and Education became a tool to strip a people of their very being.

"A Potential Beautiful Tango"

Education is a powerful tool for empowerment—not just for the individual, but for the community, the country, and the globe. What I’m putting forward is rooted in imagination. My fascination with Afrofuturism stems from a deep feeling that I am looking at a past where my ancestors lived, loved, and thrived. I see images of people with my skin tone in space, using portals to wash clothes or conversing on planets of lush green grass. This makes me think of pre-colonial history and "pure" education—where boys were taught the meaning of manhood, responsibility, and duty, and were bestowed with intrinsic values that advanced social justice. That is what Education and the Law could be: A Beautiful Tango where the Law advances an education that transforms society from individualism and division toward collectivity and unity. This is the true purpose of Section 29 of the Constitution—the Right to Education

The Right to Basic Education: A Section 29 Dissection

Section 29 of our Constitution provides for the Right to Basic Education. While it contains four sub-sections, we will focus on the first, as it encompasses the heart of the entire provision.

Section 29(1): Everyone has the right— (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible.

In dissecting this, we immediately hit a snag: the word "Basic." Personally, I think the drafters chose the wrong word. "Basic" can denote a standard—as if our right only covers the minimal or the bare necessity. You can see this "bare minimum" mindset in our reality, like the terrifying motion once brought to Parliament to reduce the Mathematics pass mark to 30%. However, "Basic" does not mean "minimum." Quite the opposite.

Here is the breakdown of what Basic Education actually entails:

1. The Scope (Grade R to 12): As clarified in the Equal Education judgment and the BELA Act of 2024, basic education covers Grade R through Grade 12. The National Senior Certificate is the finish line of this right.

2. The 4A’s (The Standard of Quality): Drawing from Mandla Seleoane and UN General Comment 13, education must be:

   • Available: The state must build functional schools and employ staff.

   • Accessible: Schools must be open to all without discrimination and must be affordable.

   • Acceptable: Education must be high-quality, not founded on the bare minimum. It must bestow the ability to navigate a world that seeks to manipulate us.

   • Adaptable: The curriculum must be flexible enough to meet the changing needs of a diverse society.

As Justice Nkabinde noted in the Juma Musjid case, this right is a driving force for the marginalized to lift themselves out of poverty. It’s about more than the job market; it’s about preparing us for citizenship rooted in Human Dignity, Equality, and Freedom.

That is what Basic Education entails. It covers Grade R through 12. It demands a standard of quality that is Available, Accessible, Acceptable, and Adaptable. Ultimately, it is a force that enables people to realize their full potential and participate meaningfully in society. The State has an unqualified obligation to provide this; they cannot hide behind a lack of funds. Through "reasonable measures," the State has a positive obligation to ensure that Basic Education reaches everyone—especially the previously disadvantaged, the poor, and the vulnerable—in line with the Constitution’s goal of substantive equality. Simultaneously, the State has a negative obligation: they must not interfere with or diminish the right to education where it already exists

I chose not to focus on the portion of the section dealing with "Further Education" because, in my view, Further Education becomes an option rather than a necessity once Basic Education fulfills its true mandate. That mandate is fundamentally simple: to impart the skills of critical thinking and problem-solving. These two skills are the essential ingredients for a societal transformation—one where every member is empowered and equipped to participate meaningfully in a society founded on Human Dignity, Social Justice, and Freedom.

Lived Realities: Realized or Unrealized

Thirty years since democracy and the birth of the 1996 Constitution, we still see pre-democratic conditions running amok in our society. Yet, I am an optimist. I believe we need to give our Constitution more time. It is only thirty years old—and I know how young that is because I am thirty myself. I can still move, I can still grow, and I can still improve how I apply myself to reality. That is how I view our Constitution: it can still move toward a direction where real transformation comes to fruition; it can still grow through the impact of a new generation of thinkers; and it can still get better through the new legal practitioners who will master its application.

I know the grim realities: the school sanitation crisis, the textbook crisis, the admission and placement struggles, infrastructure neglect, and systemic exclusion. These are the lived realities for many South Africans. Thus far, the State has a failing grade in its obligation to realize Basic Education—a failure evidenced by the constant litigation brought to hold them accountable.

It is possible that some of us won’t be here when the Right to Basic Education is fully realized, but I maintain my belief that it will happen. South Africa will be a utopia where every member of society has the abundance of opportunity to reach their full potential. That begins with Education taking center stage in the new dawn.

This is the piece I submit to the Constitutional Court as my application for the Clerkship class of 2027