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Alberta Journal of Educational Research, Vol. 68.1, Spring 2022, 75-88
© 2022 The Governors of the University of Alberta 75
Is South Africa Failing to Uphold its Human
Rights Obligation with Respect to Right to
Basic Education Through Extermination of
Pit Latrines in Schools? Implications for
Department of Basic Education
Bellita Banda-Chitsamatanga, Nomthandazo Ntlama-Makhanya
University of Fort Hare
The right to basic education of a child is a requirement of human dignity. South Africa, through
its new dispensation and conformity with human rights laws, is expected to transform and be
consistent with the provision of the Constitution of 1996 that promotes and protects the best
interest of the child. However, the current standards in a majority of South African schools,
particularly in impoverished provinces, has clearly demonstrated the urgent need for rapid
fundamental changes. This article provides a review of the constitutional right to basic education
with reference to the welfare of the learners in South African schools and raises questions as to
whether South Africa is out-of-depth in upholding its constitutional obligation with respect to the
right to basic education in the eradication of pit latrines in schools. It argues that the lack of
adequate resources in the provisioning of sanitation undermines many of the fundamental rights
that are entrenched in the Constitution 1996. An overview of the international conventions and
human rights treaties to which South Africa is a signatory is given, showing the country’s
commitment to protecting and improving the status and welfare of the children. Furthermore,
the second section intersects the right to basic education with the best interest of the child as
envisaged in South Africa’s legal framework. The final section details how despite legislation in
place, the existence of pit latrines in schools violates the right to life, health, and dignity of its
learners, particularly the right to basic education.
Le droit de l’enfant à l'éducation de base est une exigence de la dignité humaine. L'Afrique du Sud,
à travers sa nouvelle dispensation et sa conformité avec les lois sur les droits de l'homme, est
censée se transformer et être cohérente avec la disposition de la Constitution de 1996 qui promeut
et protège l'intérêt supérieur de l'enfant. Cependant, les normes actuelles dans une majorité
d'écoles sud-africaines, en particulier dans les provinces pauvres, ont clairement démontré le
besoin urgent de changements fondamentaux rapides. Cet article passe en revue le droit
constitutionnel à l'éducation de base en se référant au bien-être des apprenants dans les écoles
sud-africaines et soulève la question de savoir si l'Afrique du Sud perd pied quant à son obligation
constitutionnelle en ce qui concerne le droit à l'éducation de base dans l'éradication des latrines à
fosse dans les écoles. Il affirme que le manque de ressources adéquates pour la fourniture de
services d'assainissement porte atteinte à de nombreux droits fondamentaux inscrits dans la
Constitution de 1996. On présente un aperçu des conventions internationales et des traités relatifs
aux droits de l'homme dont l'Afrique du Sud est signataire, montrant l'engagement du pays à
B. Banda-Chitsamatanga, N. Ntlama-Makhanya
76
protéger et à améliorer le statut et le bien-être des enfants. En outre, la deuxième section met en
relation le droit à l'éducation de base avec l'intérêt supérieur de l'enfant tel qu'il est envisagé dans
le cadre juridique sud-africain. La dernière section détaille comment, malgré la législation en
place, l'existence de latrines à fosse dans les écoles viole le droit à la vie, à la santé et à la dignité
de ses apprenants, en particulier le droit à l'éducation de base.
The children’s right to basic education is of fundamental significance because it is “regarded as
one of the most crucial constitutional rights in the enjoyment of all other rights that are envisaged
in many national, regional and international instruments” (Churr, 2015, p. 2504). The right to
basic education is one of the most widely accepted of all human rights provisions, having been a
consistent feature of international conventions and human rights treaties since the establishment
of the United Nations (Beitier, 2006). Therefore, the extent of rights in, to, and through education
as detailed in the Convention on the Rights of the Child (CRC) and African Charter on the Rights
and Welfare of the Child (ACRWC) is significant and places a substantial burden on those who
have agreed to implement its principles in domestic law and policy. South Africa is not immune
to this assertion. Marishane (2017) further advanced that this right must not only be guaranteed,
but also be fulfilled to meet all children’s educational needs in a holistic manner. This occurs when
its three dimensions, namely: access, quality, and safe conditions are equally addressed (Arendse,
2011). However, to date, there still exists a disconnection between adequate infrastructure and
school safety, which has shaped and continues to shape the transformation of education in the
post-apartheid South Africa. According to a report by South African Human Rights Commission
(SAHRC; 2014), a majority of schools where safety and dignity are at risk still typically reflect the
demographic inequalities of apartheid. The report further stated that:
Those areas which lack water and sanitation mirror apartheid spatial geography. Former homelands,
townships and informal settlements are the areas in which communities and schools, which are black
and poor, predominantly do not enjoy these rights and many others. The lack of access to sanitation
has an impact on other rights including rights to dignity, education, health, safety and the environment
(SAHRC, 2014, p. 3).
Therefore, the main impetus of the paper is that South Africa has been put on the spotlight
concerning the provision of adequate and safe sanitation for its learners in its schools more than
25 years after democracy. A number of scholars have written on the right to education in the
country, however, little focus and attention has been given to how the continued existence of pit
latrines immensely contributes to the disparities in access to education amongst the rich and poor,
rural and urban. This has, in the process, raised pertinent questions on South Africa’s ability to
uphold basic and fundamental rights to access to education for all.
The Legislative Context in the Fulfilment of the Right to Basic Education
The achievement of the right to education is the first degree of realization in the process of
ultimately fulfilling all forms of education. The right to education is a basic human right that is
both intrinsically reasonable and socially indispensable that challenges the world to participate in
an education revolution that would see every child learning and participating in a child-centered
environment designed to meet the individual’s unique needs (Tarc, 2013). A more thorough
interpretation of the right to education is combined in General Comment No 11 and General
Is South Africa Failing to Uphold its Human Rights Obligation with Respect to Right to Basic Education Through
Extermination of Pit Latrines in Schools?
77
Comment No 13 of the International Covenant on Economic, Social, and Cultural Rights
(ICESCR) of 1999 whereby four essential elements of the right to education are availability;
accessibility, acceptability; and adaptability. This article is aligned with the importance of
availability and accessibility of safe sanitation for learners, in line with the promotion and
protection of their human rights in schools.
As such, these four elements, which are referred to as a collection of rights, which when taken
together constitute rights to, in, and through education as detailed in the Convention on the
Rights of the Child ([CRC]; Verhellen, 1993). The CRC, which is hailed as the turning point in the
history of children, contains the most comprehensive international statement of rights to and in
education (Lundy, 2015; Sloth-Nielsen, 1995). Moreover, it is the most ratified human rights
instrument with foundational principles that underpin other human rights concerning children.
These principles include: non-discrimination, best interests of the child, right to survival and
development, and the views of the child. The CRC is unique because it protects the broadest scope
of fundamental human rights ever brought together within one treaty—economic, social, cultural,
civil, and political and places equal emphasis on all these rights (Lundy, 2015). The CRC is
primarily concerned with four aspects of children’s rights, known as the four “Ps” namely:
participation by children in decisions affecting them; protection of children against
discrimination and all forms of neglect; prevention of harm to them; and provision of assistance
to children for their basic needs (ICESCR, 1999).
The best interest of the child is the most important feature of human rights law and the role
that it plays in children’s lives both at home and at school. This principle plays a critical role
because it is captured in a majority of the CRC articles, the ACRWC, and the South African
Constitution. Thus, the other remaining principles namely: non-discrimination by state parties of
children regardless of race, gender, ethnicity, or language, and child participation and decision
making are also human rights principles that talk to issues of inclusion and the value of children.
As such, state parties are expected to give recognition to the voices and participation of children,
particularly with regard to education and protection against all forms of humiliation and torture.
The African continent has also adopted the prescripts of the community of nations by adopting
the African Charter on the Rights and Welfare of the Child (ACRWC). The ACRWC is viewed as
the most prominent instrument dealing with children’s rights, and reinforces the standards of the
CRC (Ekundayo, 2015) from an African perspective. Both of these instruments complement each
other in putting the best interest of the child at the forefront continentally and internationally.
The ACRWC stresses the importance of the right to education and requires states to take special
measures to ensure access to education for disadvantaged children.
The above factors do not only entrench the domestication of international instruments, but
also their affirmation in local contexts, and South Africa is not an exception to the assertions. The
main prescript of the instruments mentioned above is to preserve and protect the interests of
children in all facets of their lives including access to education. Therefore, it is the prerogative of
the South Africa government to adhere to these rights in order to ensure that all children enjoy
their rights in establishments such as schools.
The Right to Basic Education in South Africa: Past and Present Realities
The major motivation of the inquiry into the manner in which South Africa has implemented the
right to basic education is the fact that it has subscribed to major international commitments in
relation to this right, including an assurance to the supremacy of her own Constitution 1996,
B. Banda-Chitsamatanga, N. Ntlama-Makhanya
78
which endorses the language of human rights. For instance, section 7(1) of the Constitution
describes the right to education as “the cornerstone of any modern, democratic society that aims
to give all citizens a fair start in life and equal opportunities as adults” (Constitution of the
Republic of South Africa, 1996). The 1996 Constitution, which is embedded on transformative
goals, reigns supreme and the best interest of the child is the cornerstone of advancing the right
to basic education as envisaged in section 28(2). Moreover, it aligns with the protection of learners
in schools. The right to basic education and best interest of the child are interrelated because they
both focus on children with regard to policy formulation, resource allocation, protection, non-
discrimination, survival, and development of learners within a school setting.
The two rights (basic education and best interests) are given effect by the adoption of the
Children’s Act 38 of 2005. The preamble of the Children’s Act is an extension of the democratic
values and fundamental human rights contained in the Constitution and it sees itself insubstantial
and paltry without reliance on international instruments in which South Africa is a signatory. The
Children's Act 38 of 2005 talks to the protection of children rights. Thus, the rights of children
surpass all other rights and interests (Songca, 2011). As such, schools are expected to conduct
themselves in line with the supreme law of South Africa by ensuring that best interests of the child
are not flouted.
Of further significance, the right of the child to basic education was affirmed by the adoption
of the South African Schools Act (SASA) and the National Education Policy Act (NEPA) in 1996.
The implementation of the right to education in all South African schools must abide by what is
contained in SASA and NEPA. According to Bloch (2009) and Sayed and Motala, (2012) SASA
fashioned a leeway for an autonomous approach to education in South Africa. As a result, a
majority of learners have gained access to basic education in which the state is expected through
reasonable measure to progressively make available. On the other hand, the promulgation of
NEPA was meant to bring the South African education policy in line with the constitution, which
supports the fundamental rights of all learners, particularly to the right to basic education (Van
der Vygver, 2012). The act also buttresses on the process of developing and implementing school
policies whereby school stakeholders such as the Department of Basic Education (DBE), School
Management Teams (SMT), the District Education Officer (DEO), School Governing Bodies
(SGBs), and parents were expected to work as a team (Mestry, 2017). The implementation of
NEPA somehow exerts considerable pressure on the South African government not only to oblige,
but also to adhere, provide, promote, and fulfil the right to basic education that is based on human
rights principles, while redefining the education system of South Africa based on equality. In
essence, both the SASA and the NEPA are policy guidelines that schools are expected to tap from
to ensure that all the constitutional obligations and legislative mandates of fulfilling the right to
basic education for all learners are achieved (Mestry, 2017).
Though the foregoing legislative context in the fulfilment of the right to basic education clearly
outlines that every school-going child be given the opportunity to learn in a safe and secure school
environment, the current status quo is reflective of the opposite (Marishane, 2017). Despite its
constitutionalized status as a human right, the South African education system is reeling from a
myriad of factors that affect the delivery of the right in question, which are traceable from the past
(Christie, 2006). The school system is affected by disparities in the provisioning of water and
sanitation, safe environment, and inadequate funding, which raise questions on the provisioning
of quality education to school-going children in South Africa (Spaull, 2012). The situation is acute
in rural areas that have always been at the receiving end of the fruits of the new dawn of democracy
whereby a number of learners have either met their death or been injured due to existing
Is South Africa Failing to Uphold its Human Rights Obligation with Respect to Right to Basic Education Through
Extermination of Pit Latrines in Schools?
79
hazardous school structures, such as pit latrines. Thus, instead of schools promoting the
realization of human rights, they have been labelled as places of violation of human rights due to
lack of access to basic sanitation, resulting in high absenteeism, poor classroom performance, and
early school dropout, death, and incidences of outbreak of major illness amongst learners (WHO
& UNICEF, 2013).
The Severity of Use of Pit Latrines as a Violation of Human Rights for Learners in
South African Schools
Since 1994, South Africa has made significant progress in improving the provisioning of quality
education in line with the prescripts of the new constitutional dispensation and especially of the
promotion of human rights. South Africa should be credited for the rights-oriented legal
framework in creating the standards against which rights may be enforced. However, scholars
such as Grossen et al. (2017 advanced that though there is evidence of a water tight constitutional
foundation in South Africa, it cannot be denied that the tenacity of structural inequalities are still
deeply entrenched. This part concretizes the argument herein that the right to basic education for
millions of learners is far from being fulfilled, taking into consideration that to date a majority of
rural schools in South Africa do not have provision for safe sanitation and still use pit latrines.
This is despite the fact that ICESCR in General Comment No 20, paragraphs 1 and 7 is explicit
that neither the right to human dignity nor the right to an adequate standard of living (Article 11
of the ICESCR) can be enjoyed without adequate sanitation. Thus, the problem is rooted in the
disconnection between adequate infrastructure and school safety that has shaped and continues
to shape the transformation of education in the post-apartheid South Africa.
For instance, there are a number of clauses in the Constitution, particularly in the Bill of
Rights, that implicitly refer to a right to basic sanitation and are fundamentally related to the
enjoyment of the right to dignity (Tissington, 2011). The right to sanitation as reaffirmed by the
UN Human Rights Council and the United Nations General Assembly in 2010 is legally binding
in international law and a distinct human right. These two organizations recommend a human
rights-based approach to education emanating within a framework of the realization of children’s
right to education which are embedded in equality, non-discrimination, and respect for the rule
of law. Moreover, in 2013 the Regulations on Minimum Norms and Standards in South Africa
advanced that the use of plain pit latrines be eradicated in schools.
However, to date there are still thousands of learners that are exposed to use plain pit latrines,
especially in rural schools, due to infrastructural backlogs, which are an impediment to positive
learning outcomes (Dyantyi, 2018; Macha & Kadakia, 2017). For instance, in 2018, Equal
Education highlighted that the South African government had failed in its commitment to ensure
that all schools have access to water and sanitation by 29 November 2016, as mandated by the
National Regulations Relating to Minimum Uniform Norms and Standards for Public School
Infrastructure (Arendse, 2011; Equal Education, 2018). A report by the Department of Basic
Education’s National Education Infrastructure Management System (NEIMS) in 2018 further
suggested that a total of 8702 schools South Africa used pit latrines as a form of sanitation. In the
State of the Nation Address (SONA) 2019, President Ramaphosa revealed that the country had
implemented the Sanitation Appropriate for Education (SAFE) after identifying 4000 schools
that had improper sanitation.
However, the statistics given during SONA 2019 were not commensurate with figures given
by DBE, namely that by March, 2018 there were a total of 23,471 public schools and 8679 had pit
B. Banda-Chitsamatanga, N. Ntlama-Makhanya
80
latrines. Thus, the existence of these pit latrines has led to catastrophic consequences with a
number of cases, some backdating to 2007, being tabled in the courts whereby the best interest of
the child was highlighted as the bone of contention. In addition, the ruling by the courts as a site
of struggle for upholding human dignity and security of learners has led to unanticipated
ambiguities, an indication that the education system is still failing to recognize the needs of its
learners in a holistic manner (Engelbrecht, 2006). This is despite the existing laws and policies
that are meant to protect the rights of learners and promote their social justice (Nkonyane, 2014).
Moreover, this cements 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 South African
Constitution. Furthermore, this illuminates an audit trail that does not reflect the accurate
assessment of schools in need of SAFE as reported by Section 27 in 2018. The foregoing assertions
further draw attention that South Africa is not living up to what is stated in Government Gazette
of the Regulations Relating to Minimum Uniform Norms and Standards for Public School
Infrastructure (2013). For instance, Regulation 12(4) clearly states that plain pit and bucket
latrines are not allowed in schools.
It cannot be denied that what is written in a majority of policy frameworks and regulations
meant to be implemented in schools is totally divorced from the situation on the ground because
the footprints of the apartheid education system subsist. Moreover, the quality and provision of
adequate resources in South Africa’s public education system continues to require substantial
reform (Franklin & McLaren, 2015). The extant literature abounds with evidence that points to
the undesirable consequences of failure to fulfil the right to basic education holistically through
adequate and safe school sanitation, which has in the process compromised the right to life,
health, dignity, and security of learners (Charles, 2019; Macupe, 2019; Mlaba, 2020; Ramaphosa,
2018).
Critical voices such as Bloch (2009), Fleisch (2006), and Pretorious (2014), posited that
despite the constitution being the supreme law, the education system in South Africa currently
remains in crisis, is dysfunctional, and has been termed a national disaster. This is despite the fact
that the gratification of the right to basic education is meant to be all-inclusive, taking into
consideration that the state has put in place a legislative and policy framework to meet its
obligations in this regard. Thus, since the state is viewed as the bearer of obligations with regard
to right to basic education, failure to comply with these obligations constitutes a human rights
violation, for which the state is accountable (Van der Berg, 2007) as in the case of Komape and
Others versus Minister of basic education (Shange, 2018).
Consequently, the traumatic death of children in South African schools because of the lack of
safe sanitation that should be foundational to a conducive school environment has touched and
continues to strike a painful chord in the hearts of many South Africans. This is made unbearable
by the continued manifestation of the past in terms of disparities in access to education and in
existing infrastructure, which has created a distinction between rural and urban schools. Most of
the schools that lack the basic infrastructure are from rural areas. At face value, the government
appears to be doing its best, but the impact of the past continues to be felt in rurally located
schools. For instance, Lumka Mthethwa’s death drew so much attention from the media and other
platforms that were castigating the DBE, the school in question, and the SGB on their recklessness
and lack of political will by cheating learners out of their rights to basic education. Whereas, the
death of Michael Komape, aged 5, in 2014 at Mahlodumela Primary School near Polokwane,
occurred at a time when the DBE was facing increasing pressure to fix school infrastructure as per
the standards and norms for school infrastructure in 2013, particularly pit latrines (Dyantyi,
Is South Africa Failing to Uphold its Human Rights Obligation with Respect to Right to Basic Education Through
Extermination of Pit Latrines in Schools?
81
2018). Both Komape and Mthethwa fell into pit latrines and drowned in human excreta. This led
to school toilets bring labelled as most dangerous place within school grounds, particularly for the
learners in Eastern Cape and Limpopo Province, who are without basic sanitation (Bhagwan,
2018). These two cases are just a tip of an iceberg in comparison to the number of learners that
have had their right to human dignity and right to basic education compromised by using pit
latrines in their respective schools. Below are some of the cases from electronic media including
pictorial evidence, which paint an accurate picture beyond what is provided through annual
reports, whereby learners have either been hurt or have died due to the existence of pit latrines in
their respective schools.
In 2013, Lister Magongwa, aged seven, died after the walls of a toilet collapsed on him at
Mmushi Primary School in Limpopo.
Oratile Diloane, another young learner from the North West, fell into an exposed pit latrine
in 2016 at Tlhotlheletsang Primary School, swallowed excrement, and was severely injured.
Six-year-old Siyamthanda Mtunu died in 2017 at Dalasile Primary School in Eastern Cape
Province after toilet walls collapsed on him.
In February 2020, a Grade 5 learner fell into pit latrine at Lebuaneng Primary School in
Mokopane, Limpopo Province.
Graphic Evidence of Pit Latrines in South African Schools
There exists a wave of graphic evidence through electronic media of pit latrines in South African
schools highlighting the inhumanity, degradation, and violation of the right to health, education,
and life that young learners are exposed to on a day-to-day basis as they attend school as depicted
below in Figures 1 through 3.
Figure 1
Graphic Evidence of Pit Latrines in South African Schools
Note. From Ngubane, N. (2019, June 11). Filthy pit latrines and no water at Pietermaritzburg primary
school. Groundup. https://www.groundup.org.za/article/parents-fear-their-children-will-drown-pit-
latrines-pietermaritzburg-school Copyright 2013 by N. Ngubane. In the Creative Commons.
B. Banda-Chitsamatanga, N. Ntlama-Makhanya
82
Figure 2
Graphic Evidence of Pit Latrines in South African Schools
Note. From Fihlani, P. (2018) South Africa’s school pit latrine scandal: Why children are drowning. BBC
News. https://www.bbc.com/news/world-africa-44329712. Copyright 2014 Gallo Pictures. In the
public domain.
Figure 3
Graphic Evidence of Pit Latrines in South African Schools
Note. From Caines, K. (2018, March 20). Third world horror: Girl, 5, drowns in school pit latrine.
9NEWS. Retrieved from https://www.9news.com.au/world/third-world-horror-five-year-old-girl-
drowns-in-school-pit-latrine-in-south-africa/7f189846-66d3-404b-9cd0-066b27efbdca Copyright 2018
Equal Education. In the public domain.
Is South Africa Failing to Uphold its Human Rights Obligation with Respect to Right to Basic Education Through
Extermination of Pit Latrines in Schools?
83
Linked with the above, it should be borne in mind that the State, particularly the DBE, stands
accused of failing to live up to what the country has acceded to in international and regional
instruments concerning adherence to the right to life, education, dignity, health, and safe
environment by ensuring that the sanitation for learners is fit for purpose and not a breach of
constitutional duties. Accordingly, Africa Check advanced that, these discriminatory and
retrogressive steps should have been a red flag not only for the DBE but for the SMTs, SGBs,
parents, teachers, and school heads as well, who are responsible for safety of learners in schools
and their right to human dignity (Hazvineyi, 2019). Thus, Heleba (2019) averred that a lack of
political will to budget for basic sanitation, and appreciation of the health benefits through basic
sanitation remains a major problem. A majority of learners across the country, especially in rural
schools, rely on pit latrines, though these have been labelled as unlawful, unsafe, and lacking in
privacy and do not promote the right to health. For instance, the age of learners that have either
been injured or have died due to derelict toilets in schools are in the Grade R (Foundation Phase)
phase who under normal circumstances are supposed to be accompanied to toilets that are
designed to accommodate their needs. Furthermore, the National Integrated Early Childhood
Development Policy of 2015 highlights that Government recognizes foundation phase as a
fundamental and universal human right to which all young children are equally entitled without
discrimination (Department of Social Development, 2015). Whereas, Article 24(2)(e) of the CRC
emphasizes that States parties must take appropriate measures to ensure that “all segments of
society, particularly children [enjoy] the advantages of hygiene and environmental sanitation.”
However, findings in a report by School Sanitation Management Handbook (report TT
699/16) illuminated that children either miss class waiting for toilets or leave school seeking a
place to relieve themselves. Moreover, their health is often compromised in the process as
illnesses are transferred in filthy toilets (Bhagwan, 2018). In light of the foregoing, it may be
concluded that there exists lack of effective management programmes, adequate resources, and
political will to meet the needs, dignity, and safety of learners (Bhagwan, 2018). For instance, a
reduction of National Budget in 2018 by the National Treasury for funding earmarked for school
infrastructure also showed that the government continues promote the apartheid legacy which
negatively impacts on poor schools with infrastructural deficits. Moreover, this was an indication
that the government was prepared to continue supporting discriminatory tendencies that hinder
the realisation of the right to basic education for millions of learners, particularly the core
sanitation infrastructure (Equal Education, 2018). Tsesane and Teffo (2020) advanced that the
latest cuts made to the education budget by Finance Minister Tito Mboweni, further save as a case
in point that these cuts will continue to deeply affect the water and sanitation situation in a
majority of schools, particularly in Limpopo and the Eastern Cape province.
The examples discussed herein and the extant literature show a high level of obliviousness of
the DBE in taking responsibility in the fulfilment of the right in question. Furthermore, use of pit
latrines in schools is reflective of the lack of respect for the right to dignity, health, and life,
respectively. One death of a school learner is too many and undermines the tone of the
Constitution, which requires the state to be role models in promoting the culture of respect for
human rights based on the values of the Constitution. The subjection of learners in rural locations
to unfriendly learning environments that compromise their dignity loses sight of the dramatic
change brought by the Constitution as highlighted in the preamble that seeks to “heal the divisions
of the past in the establishment of a just society” (1999, p. 1). It also minimizes every opportunity
that presents itself for all the learners to develop and reach their full potential while experiencing
the complete freedom in the enjoyment of their right to basic education.
B. Banda-Chitsamatanga, N. Ntlama-Makhanya
84
Conclusion
Though South Africa is signatory to a number of education rights in international and regional
instruments, it appears not to be implementing these commitments to the fullest extent,
particularly in domestic law. As such, this has cascaded down to school setup whereby the rights
promised and the rights delivered to promote basic education and adequate provision of
infrastructure (sanitation) for learners particularly in township and rural schools remains
questionable. This has led to court-based rulings as a way of adopting human rights language
rendering the commitment to realize the right to basic education for all learners. Lack of provision
of safe sanitation for a majority of learners through eradication of pit latrines questions section
195 of the Constitution and puts the education system under scrutiny whether it is capable of
fulfilling its obligations to realize the right to education using the maximum of its available
resources. This article further concludes that the DBE stands accused of acting irrationally by
ignoring the threats learners face in using pit latrines which have been termed unlawful, unsafe,
and a gross violation of basic human rights such as the right to education, life, and health as
captured in CRC, ACRWC, South African Constitution, SASA, and NEPA respectively. The civil
society as evidenced through electronic media has in the process also picked up the truncheon on
this issue that the intent and the purpose of domestic law that supports the right to basic education
is marred with high levels of incompetency. In conclusion, it has been seen that the prevalent
discrimination tendencies that learners in rural locations continue to be exposed to through use
of pit latrines exacerbates gross violation of human rights This indicates that the traces of
apartheid and systematic inequalities subsist and stands in the way of the attainment of equal
rights to basic education. Thus, the article further concludes that the right to basic education
remains a detached lexicon within the education system in South Africa due to failure by the DBE
to eradicate pit latrines as articulated in the existing legislation towards children’s rights.
Moreover, the subjection of learners to learning environments that are not fit-for-purpose is
totally divorced from the tone that is used in the Constitution as well as a host of other existing
education legislatives and frameworks which are non-discriminatory and seek to promote the
culture of respect for human rights for all learners. Therefore, this calls for a synergy between the
DBE by education stakeholders such as DEO, SMTs, SGBs, and parents to have the political will
toward eradication of pit latrines in South African schools while promoting and protecting the
best interest of the child so that the right to basic education is not a means in itself but a means to
an end.
References
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perspective. Potchefstroom Electronic Law Journal, 14(6), 97–127. https://doi.org/10.17159/1727-
3781/2011/v14i6a2610
Beitier, K. D. (2006). The protection of the right to education by international law: including a
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Dr Bellita Banda Chitsamatanga is Postdoctoral Fellow at the Oliver Tambo Chair of Human Rights
Centre at the University of Fort Hare in South Africa. She holds a PhD in Education, a Master’s in
Education and Honours in Education from the University of Fort Hare (South Africa) and a Bachelor of
Arts in English and Communication from the Zimbabwe Open University (ZOU). She has published on
gender issues in the higher education sector, right to education of children and school related gender-
based violence. Currently, she is an advisory board member South Africa International conference on
Education (African Academic Research Forum).
Professor Nomthandazo Ntlama-Makhanya is a Professor of Public Law and Acting Head: UNESCO
‘Oliver Tambo’ Chair of Human Rights, Nelson R Mandela School of Law, Faculty of Law, University of
Fort Hare. She has supervised doctoral and master’s dissertations and examined the same from other
institutions. Her research areas are: Constitutional Law, Human Rights Law and Customary Law and has
participated in various national and international conferences and also serves as a member of various
academic Journals. Prof Ntlama-Makhanya serves as a Commissioner in the South African Judicial
Services Commission (JSC) representing the Society of Law Teachers of Southern Africa and has acted as
a Judge of the Bhisho and Durban Divisions of the Eastern Cape and KwaZulu-Natal Provincial Divisions
of the High Courts. She continues to serve in various leadership capacities within and outside the
academia, has coordinated national and international conferences and is also as a Panel Member in the
National Doctoral Review Project in South Africa.
