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CHILDREN'S RIGHTS TO EDUCATION IN SOUTH AFRICA TWENTY YEARS AFTER DEMOCRACY: A REFLECTION ON ACHIEVEMENTS, PROBLEMS AND AREAS FOR FUTURE ACTION

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Education is the most powerful weapon that can be used to change the world. These noble words by Nelson Mandela provide a yardstick against which South Africa can measure whether the rights of the child, key of which is the right to education, are progressively being realised. Towards this end, education is seen as the ultimate foundation and solution for the attainment of freedom, democracy and human rights; social justice and equality for South African children. Thus, the question remains: after more than twenty years of democracy, to what extent can South Africa pride herself of having achieved this noble goal? This article reflects on the national effort to realise the rights of children to education against the frameworks provided for in international and regional instruments. The latter require governments' commitment to ensure that the rights of children to education in particular, are implemented and respected. An analysis will be made on how the new democratic government has succeeded to reverse the discriminatory policies, law and practice of the apartheid era. It further discusses how the existing education system translates the attainment of children rights to education in terms of the standard and quality of teaching and learning; existing school facilities; racial segregation; human and financial resources; and safe school learning environment. The article concludes by identifying measures that need to be taken by all stakeholders in order to promote the realisation of children's right to education.
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CHILDREN’S RIGHTS TO EDUCATION IN SOUTH AFRICA TWENTY
YEARS AFTER DEMOCRACY: A REFLECTION ON ACHIEVEMENTS,
PROBLEMS AND AREAS FOR FUTURE ACTION
B.B. Chitsamatanga & N.S. Rembe
ABSTRACT
Education is the most powerful weapon that can be used to change the world. These noble words
by Nelson Mandela provide a yardstick against which South Africa can measure whether the rights
of the child, key of which is the right to education, are progressively being realised. Towards this
end, education is seen as the ultimate foundation and solution for the attainment of freedom,
democracy and human rights; social justice and equality for South African children. Thus, the
question remains: after more than twenty years of democracy, to what extent can South Africa
pride herself of having achieved this noble goal? This article reflects on the national effort to realise
the rights of children to education against the frameworks provided for in international and
regional instruments. The latter require governments’ commitment to ensure that the rights of
children to education in particular, are implemented and respected. An analysis will be made on
how the new democratic government has succeeded to reverse the discriminatory policies, law and
practice of the apartheid era. It further discusses how the existing education system translates the
attainment of children rights to education in terms of the standard and quality of teaching and
learning; existing school facilities; racial segregation; human and financial resources; and safe
school learning environment. The article concludes by identifying measures that need to be taken
by all stakeholders in order to promote the realisation of children’s right to education.
Keywords: Children’s rights; education; democracy; human rights; equality
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INTRODUCTION
Globally, the right to education continues to be given undivided attention due to its importance in
promoting global progress and advancement. Today education is seen as a human rights issue. It
is regarded as the formal process by which society conveys its accumulated knowledge, skills,
customs and values from one generation to another (Churr, 2015). Education provides people with
dignity, self-respect and self-assurance, and is an important basic human right on which the
realisation and fulfilment of other rights depend (Oosthuizen & Rossouw, 2001). Since the advent
of democracy, the discourse on children’s rights has focused on the realisation of the imperatives
enshrined in the Constitution of the Republic of South Africa of 1996 and in the Bill of Rights
with a particular expression of children’s rights (South Africa Constitution, 1996; Abrahams &
Matthews, 2011). The Constitution of South Africa reigns supreme and the “best interest of the
child” form the cornerstone of this legislation as highlighted in Section 28(2) (Power, 2015). One
such right, is the right to education which is the focal point of this paper.
The first part of the paper gives a definition of the right to education. This is followed by
brief background of the education system in South Africa during the apartheid era. An outline of
the education system after gaining democracy is discussed, together with international, regional
and national legislations which South Africa has acceded to in showing its commitment towards
the right to education. The review also discusses if race blindness has been redressed at policy
level and if the current education system translates to the right to education. The review suggests
that apartheid legacies that subsists within the education system largely contribute to a continuation
of profound inequalities and access to schooling, especially for those learners in rural and township
schools. It ends by recommending that the government should tap on pockets of good practices
from other countries on how to reduce the disparities in schools. There is need to revisit the sturdy
domestic legal framework that establishes the responsibilities of the state to promote the right to
education for all children as this may assist to expunge the relics of the apartheid legacies that
continue to torment the classroom setting of South African schools in the 21st century.
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DEFINITION OF THE RIGHT TO EDUCATIONx
For the purposes of this review, it is important that we define what is meant by right to education.
We shall use the definition provided for by Universal Declaration of Human Rights of 1948 in
Article 26 which states:
a) Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages, Elementary education shall be
compulsory. Technical and professional education shall be made generally
available and higher education shall be equally available on the basis of
merit.
b) Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental
freedoms. It shall promote understanding, tolerance and friendship among
all nations, racial and religious groups, and shall further the activities of the
United Nations for the maintenance of peace.
c) Parents have a prior right to choose the kind of education that shall be given
to their children.
In addition the definition of the right to education as stated in Article 1 of the Convention
against Discrimination in Education (UNESCO) of 1960 will also be adopted. This convention
clearly states that the term discrimination includes any distinction, exclusion, limitation or
preference which, being based on race, colour, sex, language, religion, political or other opinion,
national or social origin, economic condition or birth, has the purpose of nullifying or impairing
equality of treatment in education.
A FLASHBACK OF THE EDUCATION SYSTEM IN SOUTH AFRICA PRIOR TO 1994
An extrapolation of the apartheid era cannot not be ignored in the South African history prio 1994.
The education system in South Africa comprised of a complex history which is imperative as it
offers circumstantial information pertaining to the evolution of children’s rights in the country.
Firstly, children’s rights were grossly violated including those of their right to education and
human rights (Clark & Worger, 2016). During apartheid, education was the antithesis of race blind.
The distribution of school funding was skewed between the racial groups and became even more
unevenly allocated throughout the first half of the twentieth century (Moodley, 2004; Spreen &
Vally, 2006). If an institution wanted to receive financial aid it had to register and the government
decided upon the school syllabus that would be used. Thus, the enactment of the Bantu Education
Act 47 of 1953 was to ensure that “African education should be inferior to that of white education
and that Africans should only be trained to become unskilled labourers”. This ensured that the
education system then comprised of:
a) Nineteen district racially based departments, each serving racially different learners
and funded differently;
b) Funding for whites was ten times that of blacks learners;
c) Provision for education was unequal through:
Resources allocation – human and financial;
Policies;
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Curriculum Design;
Infrastructure; and
Teacher qualifications (Hyslop, 1999).
In addition, Mestry (2014) advances that, during apartheid, there was high teacher-learner
ratio in black schools at 1:39 as compared to white schools which had a teacher-learner ratio of
1:18. Mestry further advances that by 1994, the state’s annual per capita expenditure for learners
from the most advantaged schools showed stark differences as compared disadvantaged schools.
Thus when the apartheid era came to an end, one of its major priorities in South Africa was the
immediate redress of the prevailing disparities witihn the education sector.
A NEW DAWN A NEW ERA: SOUTH AFRICAN EDUCATION SYSTEM
When Nelson Mandela came into power, one major task of the new democratic government was
to re-construct and re-organise the South African education system. The South African Schools
Act (SASA) (Act No. 37 of 1997) catalysed by the Bill of Rights and the Republic of South African
Constitution of 1996 formalised the process of desegregation of schools. As a result of these
legislative and constitutional measures, the public schooling system in South Africa underwent
radical changes and the old system was dismantled to give way to a restructured system responsible
for policy frameworks, norms and standards and monitoring and evaluation (Christie, 2006). This
meant the language of equity and redress was not only given precedence but in the process, it was
critical for the government to be transparent towards:
Financing and how administration of the system and schools would be conducted;
Steps taken to work against the fundamental inequalities of the apartheid systems;
What and how to teach in the new system;
Identifying the assessment and accreditation criteria to be adopted;
Identifying professional development strategies of the educators (Chisholm, 2012;
Chrisite, 2006).
This created the opportunity for students from diverse cultural backgrounds to attend public
schools of their choice. At the centre of this was the Constitution of RSA which provided the basis
for transformation and development within the education system with the focus on:
policy reform through de-racialising schools;
Development of new curriculum to replace the apartheid ideology; and
Implementation of new funding system.
The new government hoped that this would assist and, as the preamble of the Constitution
states, to:
heal the divisions of the past;
establish a society based on democratic values;
promote social justice and fundamental human rights;
Improve the quality of life and free the potential of all citizens.
To this end, and in line with the preamble of the Constitution, it was critical that State
measures be implemented in order to ensure that recompense is brought about through adoption of
policy measures, treaties and conventions that talk to the right to education. Therefore, The
Universal Declaration of Human Rights (UDHR) of 1948, became the most basic and acceptable
international instrument adopted by South African government. Though the UDHR is not a legally
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binding treaty, it has since its inception inspired the adoption of a wide range of international
conventions that are legally binding to state parties and South Africa has committed itself to a
number of these instruments, as will be highlighted below.
INTERNATIONAL AND REGIONAL CONVENTIONS THAT TALK TO THE RIGHT TO
EDUCATION
Research by Sloth-Nielsen and Mezmur (2006) highlights that the rights of children are legally
defined in international and regional human rights treaties and conventions, and country-specific
legislations. The Office of the High Commissioner for Human Rights (1989) further adds that the
extent to which international instruments and laws are able to improve the lives of children across
the world is dependent on the degree to which State parties implement them and adopt domestic
measures to comply with the relevant obligations. Below are some of the conventions that South
Africa has acceded to that are central to promoting the right to education:
The International Covenant on Civil and Political Rights (ICCPR)[1966]; Articles (7,18,19
and 22);
The International Convention on Economic, Social and Cultural Rights (ICESCR) – Article
13 (1);
The Convention Against Torture (CAT)[1984];
TheConvention of the Elimination of All Forms of Discrimination against Women
(CEDAW)[1979];
The Convention on the Rights of the Child (CRC)[1989]; Section 29;
The African Charter on Human and PeoplesRights (ACHPR also known as the Banjul
Charter)[1981]; Article 18(3);
The African Charter on the Rights and Welfare of the Child (ACRWC)[1990].
Once ratified, these instruments are legally binding and form the basis for the legal
protection of human rights namely: civil and political rights; economic, social and cultural rights
and group rights. Education is embedded in all these rights, in particular the promotion of rights
of children and their right to education. On the other hand, the education system, in line with the
aforementioned instruments has also adopted and implemented a number of policies to promote,
redress all forms inequalities and ensure that the right to education in South African schools is
upheld.
PROGRESS IN POLICY AND CURRICULUM IMPLEMENTATION OF THE
EDUCATION SYSTEM SINCE 1994
The White Paper on Education and Training of 1995 was implemented to serve as a principal
reference point and to set new ground rules for the restructuring; transformation; and development
of new policies of the education system in South Africa (Department of Education, 1995). These
polices were centred on non-racism and equal rights and were embedded on three critical factors
– commonalities; reconciliation; and inclusion (Christie 2006). Most importantly, these were
formulated and implemented by tapping on the best practices with a vision that South African
learners would also be competitive at the international and regional level. The following policies
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have since 1994, also played a huge role in promoting and protecting the right to, in and through
education. These are:
South African Schools Act, No 84 of 1996 (SASA);
National Education Policy Act of 1996 (NEPA);
Multilingual Educational Policy (DoE, 1997);
Curriculum policy (DoE, 1997);
Employment of Educators Act, No 76 of 1998;
The Children’s Act No 38 of 2005;
South African Council for Educators Act, 31 of 2000;
No-fee Schools Policy (2006);
(i) Have we redressed race-blindness and the Right to Education for all at policy level?
A glance at the foregoing policies that have been implementation towards the right to education
for all learners since 1994, it can be argued that there is no doubt that between 1994 to date there
have been numerous attempts to modernise and transform the education system. These have
included radical changes to language policy; curriculum and assessment; funding; enrolment; pro-
poor programmes; teaching qualifications and staff development programmes; learner throughput;
infrastructure and resources (both human and financial). Each attempt has been drawn from
pockets of best practices in the international abd regional domain of education and customised to
fit the education system and experience of South Africa. For instance the foregoing views are
backed by Tomasevski in 2002 who stated that it was critical after apartheid era to guarantee that
the education system in South Africa would not be treated as a financial hub but as a means to curb
institutionalized racism vis-a-vis promoting the right to education of all learners.
As a consequence, a number of African students flocked historically white schools. This
move was also coupled with the fact that there were inherent beliefs that these schools offered
quality education, were better resourced and with better qualified teachers. For instance, a majority
of teachers had completed their initial training through a segregated education system, with the
understanding that they would be teaching students from a particular race group (Macha &
Kadakia, 2017). In addition, most of the African learners who flocked to historically white schools
had no choice but to commute to and from the townships. Thus, though there was evidence of a
water tight constitutional foundation (Grossen, Grobler and Lacante, 2017), it was clear that the
tenacity of structural inequalities were and still are deeply entrenched. This is a clear indication
that not all children in South Africa from all races have the right to education neither in practice
do they have equal access (Moodley, 2004). Moreover, the extant literature further suggests that:
there still exists a wide divide between the qualities of education provided in rich compared to
poor schools; racial discrimination is still rife, and many schools lack of resources - both human
and financial (Christie, 2006).
For instance, the Education Policy Unit in 2002 found out that the implementation of user
fees did not only exclude poor black people from penetrating historically white schools but also
meant that the richer white schools had more qualified teachers and a wide choice of subjects for
learners to choose from. This was and still is completely opposite for most of the township and
rural schools where teacher to learner ratio continues to be high with insignificant funding
(Marishane, 2017). For instance, the National School Register of Needs Survey showed that 27%
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of schools had no running water; 80% had no libraries and 78% had no computers (Department
of Education ,2001a). In May 2011 a report published by the national Department of Basic
Education (DoBE) highlighted that little had changed since year 2000. The report showed that of
the 24 793 public ordinary schools:
a. 3 544 schools still had no electricity, while a further 804 had
unreliable electricity source;
b. 2 401 schools had no water supply, while a further 2611 schools had
unreliable water supply;
c. 913 schools did not have any ablution facilities, while 11 500 where
still using pit latrines;
d. 22 938 schools had no stocked libraries, while 19 541 did not even
have space for a library;
e. 21 021 schools did not have any laboratory facilities, while 1 231
schools had stocked laboratories;
f. 2 703 schools had no fencing at all; and
g. 19 037 schools had no have a computer centres (Legal Resources
Centre, 2013).
In a report issued by South African Human Rights Commission, it emerged that over half
a million learners were being taught in conditions that seriously undermined the right (to, in, and
through) education as provided in the Bill of Rights (section 27(1) and 29(1) (South African Human
Rights Commission 2004). The foregoing views are supported by Arendse (2011). In addition, the
South African Human Rights Commission estimated that by 2004, nearly 16% of the children in
South Africa aged 6 14 years were not in school. While as far back as 2005 it was highlighted
that there was a shortage 57 000 classrooms. By 2018 the same problem was still in existence
particularly in the Limpopo and Eastern Cape Provinces. Thus these province still have a lot of
mud and wood schools (See Figure 1 and 2) and poor resources in township and rural schools are
still the order of the day. Thus Figures 1, 2 show the enduring infringement of human rights and
infrastructural disparity in South Africa schools. These stark differences exist in the same country,
province and town in some cases.
According to a study done by Ndimande (2012) learner ratio is worse off than what it was
during apartheid era with most schools having a ratio of 1:50 (or more). Sadly by 2013, the
situation had not changed, 93% of its schools did not maintain proper school libraries and 95% did
not have science facilities while, only half of South African’s schools having water and sanitation;.
In 2019 during the State of the Nation Address (SONA 2019), President Ramaposa revealed that
the country had implemented the Sanitation Appropriate for Education (SAFE) after identifying 4
000 schools that had improper sanitation (Figure 4 and 5). However, the statistics given during
SONA where not commensurate with figures given by DoBE, namely that by March 2018 there
were a total of 23 471 public schools and 8 679 had pit latrines. These pit latrines had led to loss
of life and severe injuries of learners, with some cases backdating to 2007 whereby the dignity,
health, security, right to light and the best interest of the child were compromised, a clear deviation
from what is provided in Article (1) (b) of the Convention against Discrimination in Education of
1960 as well as Section 28(2) of the Constitution. According to Section 27 in 2018, this illuminates
an audit trail that does not reflect accurate assessment of schools in need of SAFE. Moreover, this
indicates that South Africa is not living up to what is stated in Section 12, Article 4, of the”
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Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure”
that: “Plain pit and bucket latrines are not allowed at schools.”
It may be argued that education as a human rights issue remains elusive after more than 20
years of democracy leading to failure of attain social, economic and environmental justice despite
the measures that the government and the education system has taken. According to Grobbler,
Lacante and Len (2014), black learners who attend school in townships and rural areas are a huge
chunk consisting of 80% of South Africans’ enrolment in both elementary and secondary schools.
The painful part is that out of this 80%, only a meagre 1% will pass matric (Spaull. 2012).
Therefore, it would be abnormal for the state not to realise that these learners represent and play a
very critical role towards national educational progress. But, the question remains, 20 years after
democracy what has been done to alleviate the inherent problems that continue to be experienced
from generation to generation of learners.
Figure 1: Teaching and Learning conducted in a classroom with a leaking roof
Source: SECTION 27 (2016)
Figure 2: One of the mud schools which does not comply with Regulations Relating to Minimum Uniform
Norms and Standards for Public School Infrastructure of 2013
Source: Groundup (2018)
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Figure 3: Images of dilapidated pit latrine in at Junior Secondary School
Source Equal Education (2018)
Figure 4: Learners relieving themselves outside
Source: Ntshongwana and Damba-Hendrik (2018)
(ii) Major milestones in realising the right to education in South Africa since 1994
Scholars such as Lewin and Wang (2011) advance that despite the foregoing depictions which are
clearly a violation of the right to education of most learners particulalrly in rural and township
schools, the government has to be applauded for the positive steps that it has taken to promote the
right to education in schools. Statistics indicate that children constitute 38% of the population of
South Africa, which amounts to approximately 18.6 million individuals. In 2008, over 95% of
children between 12 and 15 years old were attending school. Lewin and Wang also show 99% of
enrolment from Early Childhood Development (ECD) phase and 88% in secondary schools. In
2009, there were 25 906 ordinary public schools in South Africa. KwaZulu-Natal had 6 091
whereas in the Eastern Cape there were 5 809, schools. In 2010 a total of 1 682 mobile classrooms
were installed in several schools (Mestry, 2014). As of 2010, close to 70% of schools in poor
communities were fee-free schools and fully state funded. For instance, the percentage of learners
aged 5 years and older who attended schools where no tuition fees were levied increased from
0,4% in 2002 to 65,4% in 2014, before stalling and moving sideways to 65,3% in 2016. The
number of public schools has also grown (Statistics South Africa-General Household Survey,
2016). Strides have also been made through the implementation of policies to promote nutrition
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among learners in schools through pro-poor programmes implemented by the government. Thus,
since 1994 the National School Nutrition Programme has been able to feed more than 8 million
learners out of a total of 12 million learners both in primary and secondary schools. As of 2016,
Statistics South Africa General household survey showed that more than three-quarters (77,1% )
of learners who attended public schools benefited from school feeding schemes in 2016, compared
to 73,1% in 2011. Learners in Limpopo (92,1%), Eastern Cape (90,0%), Mpumalanga (86,1%)
and Northern Cape (83,0%) were the most likely beneficiaries from this programme (Statistics
South Africa-General Household Survey, 2016). These provinces continue to be the most
improvised in South Africa.
Access to learner school transport has also been implemented to cater for those learners
coming from townships and rural areas. Furthermore gender parity has also been achieved. Out of
12 million learners that are at school, 49.8% of this total comprises girls. President Ramaphosa
also highlighted during SONA 2019 that financial year ending 2018 showed that a staggering 700
000 children had access to ECD which was now compulsory for every child in South Africa before
they enter grade one. In addition, it was highlighted that considerable progress has been made in
promoting SAFE sanitation in schools. However, inequalities still persist in some provinces,
particularly in infrastructure backlogs, learning outcomes and learning and teaching resources
(Macha & Kadakia, 2017; Dyantyi, 2020).
Therefore we ask: 20 years after democracy does equal access in terms of the
aforementioned exists in principle or does it still reflect legacies and smidgens of apartheid? Why
do we ask? The South African school system is currently crippled by a myriad of unfavorable
challenges that seriously undermine the language of human rights (Churr, 2015). The language of
rights marks privation and obscures this reality by presenting rights as if they are common to all
despite the fact that they are unattainable to the majority (Spreen & Vally, 2006). This is because
the majority of African students still live in rural areas and their access to school and the right to
equitable and quality education remains questionable. They still attend schools that were formally
segregated and managed by homelands departments of education (See Figures 1, 2, 4 and 5). This
is not in line with Article 2 of CRC which emphasises on provision of equal opportunities to all
learners. Many of these challenges have been frustrating and solutions have been sought diligently
(Churr, 2015) with notable achievement in some cases. However, and in other areas the status
quo subsists as shown below in Figure 6 of a picture which made headlines after learners were
separated in class because of race more than 20 years after democracy.
Figure 5: Pupils separated by race at a school 25 years after democracy
Source: North (2019)
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Ironically, these problems were foreseen by Alexander in his book titled “An Ordinary
country: Issues in the transition from apartheid to democratic South Africa. The author advanced
that the government of South Africa is guilty of using a “glacial tempo” regarding the right to
education concerning language, race, religion within a classroom setting (Alexander, 2002). For
instance:
The post-apartheid period has witnessed at best limited progress in reducing
shortfalls in schools facilities particularly in poor communities;
School related gender-based violence leading to high failure rates and high dropout
rates is prevalent;
Funding, retentions, retrieval and usage of learner and teacher support materials
remains poor; and (Mncube & Harber 2013; DoE, 2001).
The above factors suggest that the state appears to be failing to live up to its obligations as
underscored in Article 13(2) of the ICESCR to make education available, accessible, acceptable
and adaptable. Unfortunately, this has led to the prevalence of high dropout rates and School
Related Gender Based Violence (SRGBV) which continue to hamper the right to education of most
learners given the enduring statistics. These two phenomena are not only prevalent but are
interconnected with the problems associated with attaining the right to education in South Africa.
We argue that these two factors paint a desolate picture and water down the efforts that have been
injected since the advent of the democratic era. Each of these factors is examined below.
School drop-outs rates
Despite having high enrolment which may be mistaken for equal access to quality education for
learners, school dropout rates have reached a national crisis because they remain exceedingly high
(Lewin & Wang, 2011). Dropout rates are particularly high in secondary schools. Moreover, many
of these are at grades below the ones corresponding to ages of learners. Approximately 60% of
first graders will ultimately drop out rather than complete 12th Grade (Weybright, Caldwell, Hui,
Wenger & Smith, 2017). Likewise, by Grade 12, only 52% of the age appropriate population will
remain enrolled. The dropout rate between 2010 – 2013 was 46 – 49 % (Weybright, Caldwell, Hui,
Wenger & Smith, 2017). It is estimated that out of 100 learners that begin school in Grade One,
half will dropout and 40 will successfully complete exams, and only 12 will be eligible to pursue
higher education (Lamb & Markussen, 2011). Furthermore, research by Taylor , Van der Berg ,
Reddy and Janse van Rensburg, (2015) while 4% of learners dropout of school before completion
of primary school, only 44% of learners complete schooling. In 2017, the DoBE advanced that of
60% of learners that completed school, 44% dropped out (DoBE, 2017). Unfortunately, this has
also cascaded to university level. In 2014, of the 18% of the matriculates that gained entry into
university, 50- 60% dropped out during the first year (DoBE, 2016).
In addition, due to high poverty levels and social economic background, the government
has implemented a number of social grants however, these not alleviated poverty levels. For
instance, a General Household survey conducted in 2015 showed that over 70% of the 14 million
learners in South Africa walked to school every day. This exposed the learners to fatigue,
absenteeism, late coming and eventually dropping out of school (Statistics South Africa-General
Household Survey, 2015). In a bid to keep the learners from dropping out and repeating grades the
government implemented a system of progression to meet the grade despite failure to meet the
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promotion criteria to reduce dropout rates. For instance, in 2016 a total of 108 742 learners were
progressed to grade 12. Conversely, this appears to have affected matriculation pass rates with the
DoBE in 2011 advancing that 75–80% of South African schools are low-performing. The above
statistics buttress the reason why the South African education system has been accused of not
functioning satisfactorily (Churr, 2015); leading to delivery of pitiable quality education as wellas
the constitutional and human rights of the learners not being realised.
Accordingly, the state of education in South Africa today is dysfunctional and far worse
than it was under apartheid (Chisholm, 2012; Spaull, 2012). Jansen in 2018 also stated that
accusations that South African schools are dysfunctional should not come as a shock because 78%
of Grade 4 learners in South cannot read with understanding, while 9% of Grade 6 teachers cannot
pass a Grade 6 maths test despite the fact that the expected pass mark is a mere 30%. Therefore,
can we safely say that with all the policies that have been implemented since the dawn of
democracy has South Africa delivered the expected results, namely, promoting the right to
education? If so, why then do school continue to underperform? We advance that the answer to
these foregoing questions lies in Linda Chisholm contribution titled Apartheid education legacies
and new directions in post-apartheid South Africa”. This scholar suggests that despite all the
notable changes the apartheid legacy persists in subliminal ways - the presence of the past in the
present education system (Chisholm, 2012). This is a clear indication that there is a need to
identify pockets of good practices from other developing countries as well as, proactive strategies
that will enhance the quality of education, retain learners in schools, as well as promote their right
to education (Townsend , Flisher & King, 2007).
School related gender based violence (SRGBV)
School Related Gender Based Violence (SRGBV) is defined as acts or threats of sexual,
psychological violence occurring in and around schools, perpetrated unequal power dynamics
(UNESCO/UNGEI, 2015). South Africa has ratified a number of international and regional
instruments in a bid to prevent and respond SRGBV; thereby creating a safe learning environment
and enhancing the right to education. These include: The International Covenant on Civil and
Political Rights (ICCPR)[1966]; The Convention Against Torture (CAT)[1984]; The Convention
on the Rights of the Child (CRC)[1989]. There are also regional instruments which oblige South
Africa to protect children which include: The African Charter on Human and Peoples’ Rights
(ACHPR) also known as the Banjul Charter [1981] the African Charter on the Rights and Welfare
of the Child (ACRWC)[1990]. Like international law, the regional conventions ensure that state
parties offer protection to children, and the girl child in particular, of their rights to health and
education; from all forms of sexual exploitation.
South Africa also has a sturdy domestic legal framework that establishes the responsibility
of the State to protect learners from SRGBV such as: The Constitution of the Republic of South
Africa of 1996; Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of
2007; South African Schools Act, No 84 of 1996; Employment of Educators Act, No 76 of 1998;
South African Council for Educators Act, 31 of 2000; Children’s Act (No. 38 of 2005) as amended
by Children’s Amendment Act (No. 41 of 2007); and Protection from Harassment Act, (No 17 of
2011). However, high statistics on SRGBV against learners continue to be viewed as a disquieting
reality that inhibits a learner’s personal independence and right to education. Teachers and school
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111
principals are reported in many studies as perpetrators and key actors in transforming a school
culture that appears to legitimise; perpetuate violence and promote unquestioned routine practices
that lead to SRGBV in the form of corporal punishment, bullying and sexual harassment (Chikwiri
& Lemmer, 2014). For instance, in South Africa:
1.8 million of pupils between Grade 3 and Grade 12 have experienced SRGBV in
one form or another.
30% of sexual crimes are committed by adolescents - some as young as 10 years;
7.8% of girls between the ages of 7 and 18 are not attending school because of
pregnancy;
74% of schools in in KwaZulu-Natal experience corporal punishment (Chikwiri &
Lemmer, 2014; Donald, Lazarus & Lolwana, 2014; Joyner, 2017).
Though the existing literature shows that there are a myriad of factors that fuel SRGBV -
both social and political - such as inability to afford school fees and early pregnancy, the absence
of meaningful consequences for the perpetrators lends legality to their behavior (Dieltiens, 2001;
Jewkes & Abrahams, 2002; Duru & Balkis, 2018). These gaps may explain why SRGBV
continues with impunity and high prevalence in South African schools (Mcube & Harber, 2013).
A coverage of the above scholarly work lend support to what was alluded to by Le Roux and
Mokhele (2011) that “crime and violence in South Africa are a way of life”. However, credit must
be given to the government for the strides that it has taken to curb violence in South African
schools. A number of critical programmes to guide redress of sexual violence have been adopted
and implemented. These include: Guidelines for the Prevention and Management of Sexual
Violence and Harassment (2008) in public schools meant for complaints procedure for educators
and learners on sexual harassment; The Department of Basic Education’s Handbook for Learners
on How to Prevent Sexual Abuse in Public Schools (2010). All these are premised on the
importance of ensuring that the right to education, security of persons and promotion of human
rights of the learner are observed at all times.
Unfortunately, 20 years after democracy the same problem still subsists and as was
suggested by Foucault, learning institutions (South Africa) are full of cracks and silent shocks
(Foucault, 1988). Undeniably so, this shows that there is a need to re-examine the existing legal
frameworks. This will avoid the right to education of learners from being desecrated or learners
being subjected to inhuman treatment which breaches their fundamental human rights in schools.
In a society that is often perceived both domestically and internationally as one of the most violent
in the world, this in itself, justifies concerted action to break the cycle of violence that young
people are exposed to starting with the school environment.
WHERE ARE GOING WRONG TWENTY YEARS AFTER DEMOCRACY?
In this review we argue that the government has taken positive measures towards the realisation
of the right to education in terms of policy implementation, pro-poor school programmes, and also
being a signatory to a number of instruments that talk to the right education. Emphasis is made
particularly on the high budget allocation for education which commands a substantial slice of the
overall government expenditure as illustrated below in Figure 6. However, progress remains
questionable and vast inequalities remain.
Vol. 17, No.5 (2020), 99-118. ISSN: 1823-884x
112
Figure 6: The Projected 2017/2018 National Allocation
Source: Equal Education (2017)
However, the question remains: in light of the foregoing discussion, where are going wrong
20 years after democracy in realising the right to education for South African children and in
promoting the Mandela legacy? Did South Africa take drastic action soon after her attainment of
democracy or did it adopt a cosmetic policy implementation which covered deep fissures that need
to be closed up?
BY WAY OF CONCLUSION
A child's right to education is palpable from other socio-economic rights as provided for in the
South Africa Constitution which is hailed as one of the best in the continent. However, despite new
plans and existing efforts to improve the school system guided by a water tight constitution, it
appears the education system remains abysmal and indicative of apartheid legacies that subsists
within the education system. Policies in place appear to reflect a cacophony vis-a-vis on how the
right to education should be achieved. This has led to a continuation of profound inequalities and
access to schooling vis-a-vis the right to education especially for those learners in rural and
township schools. The current state of education system calls for a re-examination of how the
government of the Republic of South Africa has approached the education sector which falls short
of affording millions of children their right to education to its fullest extent, especially equal access
to schooling.
WAY FORWARD
The government should tap on pockets of good practices from other countries on how to reduce
disparities in order to enhance equal opportunities towards the right to education. Children rights
Vol. 17, No.5 (2020), 99-118. ISSN: 1823-884x
113
to education should be recognised and respected as part of our constitutional and of human rights
culture. Most problems affecting children’s right to education are a direct result of poor
governance, which is characterised by unabated corruption and lack of political will. Hence,
transparency and accountability cannot be understated throughout the whole education system.
Programmes that have been implemented to redress SRGBV, and promote retention of learners
in schools should be monitored and evaluated to gauge if they have achieved the initial stated goals
and objectives.
The much needed professional development programmes for teachers should also be
implemented. The state appears to be failing to live up to its obligation as underscored in Article
13(2) of the ICESCR to make education available, accessible, acceptable and adaptable. Therefore,
there is need to revisit the sturdy domestic legal framework that establishes the responsibility of
the state to promote the right to education for all children in South Africa. This may assist to
expunge the smidgeons of the apartheid legacies that continue to replicate weighty disproportions
within the classroom setting in the 21st century.
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ABOUT THE AUTHORS
DR BELLITA BANDA-CHITSAMATANGA
Oliver Tambo Chair of Human Rights Centre
University of Fort Hare
201104691@ufh.ac.za
PROF NASILA. S. REMBE
Oliver Tambo Chair of Human Rights Centre
University of Fort Hare
nsrembe@ufh.ac.za
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