THE RIGHT TO BASIC EDUCATION IN SOUTH AFRICA: EQUALITY DISCRIMINATION BY THE STATE

One of the effects of apartheid is inequality in the South African educational system.The Republic of South Africa's Constitution guarantees everyone the right to a basic education.However, the State did not make provision for free basic education for everyone but rather made provision for a market-related system of fees, wherein those who cannot afford the fees are protected against discrimination by providing free education.This resulted in disparities and inequality in the state school system, wherein ex-model C schools, now called higher quintile 4 and 5 schools, in affluent communities, could afford paying higher school fees as compared to low quintile 1, 2 and 3 schools in poorer rural communities.These lower quintile schools in many rural areas did not benefit from the apartheid regime in terms of infrastructure and resources.Many of these schools are still struggling due to past inequalities in apartheid South Africa and are battling to supplement state funding due to the low socio-economic status of parents in the community.The State is still experiencing challenges with infrastructure and the provision of adequate resources to fulfill this fundamental right to basic education more than thirty years after apartheid was abolished.The inability of parents or legal guardians to pay school fees has, arguably, led to a violation of the right to basic education by the State.Of great concern are the other fundamental rights that are affected by the right to basic education not being realized and consequently keeping the affected learners in their socio-economic state without the possibility of transformation and opportunities out of poverty.It must be emphasized how crucial it is to recognize the importance of the right to basic education in relation to other fundamental rights, considering that it is an empowerment right.The aim of this paper is to illustrate from a legal perspective, against the backdrop of relevant legislation, court cases, academic literature and internet sources that the State's failure to provide free basic education to all learners amounts to unfair discrimination.