Advancing the Right to Education in South Africa
James Rooney is one of the Oxford Human Rights Hub/Rhodes University Travelling Fellows. The Fellowship is a partnership between the Oxford Human Rights Hub, Rhodes University in South Africa, and the Legal Resources Centre (LRC), a pre-eminent South African public interest law firm. Two Oxford graduate students a year travel to Grahamstown, in South Africa’s Eastern Cape, for six months to intern at the LRC and research at the Rhodes Law Faculty. This blog post is the second instalment of a series in which James updates the Oxford Human Rights Hub on his work at the LRC. You can read the first instalment here.
I have been working at the Grahamstown office of the LRC for six weeks now. There are currently several very interesting cases passing through the office; in this blog I am going to focus on a few of the education cases which we are currently pursuing.
The LRC’s victory in the Linkside case led to a court order mandating the appointment of a claims administrator to oversee payment of Eastern Cape teachers who, from 2011 to 2014, had been left unpaid by the government. While this is a significant judgment, reimbursement relies upon a finding by the claims administrator that payment has not occurred. This in turn requires the schools to have kept logs accounting for the payment and non-payment of the staff that the claims administrator can review. As a result, the judgment has the unforeseen effect of excluding schools that did not have the capacity to maintain an accountant, which ultimately tend to be the schools most in need of money. Given this, alongside monitoring governmental compliance with the orders of the claims administrator following from the Linkside judgment, the LRC have also been inquiring into those outstanding schools, in pursuit of further litigation in this area, to ensure that the expanded right to education vindicated in Linkside can be realised for those schools that are in most urgent need.
This is far from the only area relating to the provision of basic education with which the LRC concerns itself. In the recent weeks, the office has been gathering information on schools in the area which lack basic sanitation provisions, with students having to resort in many instances to relieving themselves in dangerous pit latrines, or in the open on the outskirts of the school property. The aim of the LRC’s work is to persuade the court that, just as school furniture and textbooks have been found to be a necessary feature of a school for the purposes of a right to education, so too will the provision of appropriate sanitation provisions, as the LRC’s work has shown that the current absence of proper sanitation at schools is having an adverse effect on their attendance rates. It is hoped by the LRC that this chilling effect, compounded by the evident indignity and health hazards that come from practices such as open defecation, will be sufficient to demonstrate that proper sanitation is necessary to the promotion and fulfilment of the State’s duties to provide a basic education.
Along similar lines, another area the LRC are working on expanding the right to education concerns efforts to mandate the government to subsidise feminine hygiene products for girls attending disadvantaged schools. In this case the dignity concerns are compounded by sex equality concerns as, in the absence of having feminine hygiene products, schoolgirls have been missing school when on their period, and are thereby being placed at an undue educational disadvantage to their male classmates. Thus the right not to be unfairly discriminated against, as well as the right to basic education and to be treated with dignity, is engaged.
These cases are emblematic of the evolving nature of the right to basic education jurisprudence since the turn of this decade, and its potential for further elaboration. Alongside the considerable task of monitoring state enforcement of outstanding court orders, which have already expanded the meaning of the basic education right, the LRC is continuing to pursue new litigation to add further content to the right. I plan to use this first-hand experience to inform the research work I will be pursuing for the Rhodes Law Faculty. In the next blog post I will report on the other areas of human rights protection besides the right to education in which the office is currently building cases.