Education and the law

Standing in your own way. How self-sabotage undermines access to education.

In South Africa, education is so highly regarded that the right to have access to basic education is protected in the Constitution as a fundamental human right. In general, this right allows for basic education to be available, accessible and of a good quality. For example, to have access to classrooms, teachers, textbooks and so on. Education is such an important aspect of a person's life that the South African Schools Act 84 of 1996 provides that parents and guardians of children between the ages of six and 15 years must enrol that child in school. A failure to do so without justifiable reasons is considered a crime and may lead to a fine or imprisonment. 

Considering the above, a child's education does not just rest in the hands of the parents or guardians, but also the children. Nelson Mandela said that “Young people must take it upon themselves to ensure that they receive the highest education possible so that they can represent us well in future as future leaders.” 

However, the right to have access to basic education can be influenced by a person's own actions. This article looks at instances when a child (in their capacity as a learner) may be denied the right to have access to education due to their own actions or those of the parent or guardian. 

A learner was sabotaged by their own conduct of bullying

Sometimes the conduct of a learner may be of such a nature that it is harmful to other learners, for example, in the case of bullying. South Africa has experienced a surge of bullying cases which have been so severe in some instances, that there are reports of the victim learners suffering from physical and mental health consequences. The question is, how does this impact a learner's human right to have access to education and should it mean that the bully and the victim must remain in the school in the name of protecting this right?

The circumstances are different depending on whether the bullying is taking place in a private or public-school setting. According to the South African Schools Act, a learner in a public school who is found guilty of serious misconduct (such as bullying) may be expelled. However, such expulsion is done by the Head of the Department of Education. If the learner is expelled from a public school, and s/he is of the compulsory school going age of between six and 15, then the Head of Department of Education must place that learner at another public school. However, in serious matters where there might be a danger to other students, the placement into another school might not take place and alternative educational options must be considered. 

In private schools, a learner may be expelled from school if s/he is guilty of breaching the school's code of conduct or the terms of the agreement entered into when s/he was admitted to the school. Therefore, a learner guilty of bullying in a private school may be expelled without the involvement of the Head of the Department of Education. Such a learner's parent or guardian would have to make alternative arrangements for such a child in another institution, they may also choose to approach a public school for admission.

This illustrates that a learner's actions can sabotage his/her own human rights and interrupt his/her access to education as the procedures leading up to the expulsion and after the expulsion can lead to a period where the learner will not attend school. 

A parent or guardian's conduct sabotaging the learner's rights 

The conduct of a parent or guardian of a learner is more likely to affect a learner's right to education from a private school's perspective. If the parent or guardian conducts him/herself in a manner that the school deems to be a breach of the agreement between the parties, then the private school may decide to terminate the agreement and effectively expel the learner from school. The parent or guardian's conduct may range from abusive conduct or failure to pay the fees of the private institution as agreed. 

In the case of A B v Pridwin Preparatory School (1134/2017) (2018) ZASCA 150, the Supreme Court of Appeal (“SCA”) dealt with a matter where a private school had terminated the agreements with a set of parents for their two minor children. The cancellation was based on the parents' conduct as a result of harassing school staff on more than one occasion. The parents argued that the cancellation of the agreement infringed on their children's right to access to education. The SCA found that it is only the State that has the responsibility to provide basic education, private institutions do not carry this obligation. It was also found that in this instance, it was the parents of the children who bore the responsibility of ensuring that they did not do anything to jeopardise the children's right to education. 

If a learner is expelled from a private school as a result of the parents or guardians actions, it does not take away the right to have access to education as the learner can still be placed in a public school. However, it might lead to an interruption in the education for a while. 

Conclusion

What should be noted is that the right to access to education is not absolute and can sometimes be limited or interrupted by the learner or his/her parents or guardians. It is important to continuously bear in mind that a learner who desires to exercise this right must do so with consideration for those around them in the learning institution. The responsibility to not interfere with others also extends to the parents or guardians of the learner in some circumstances. 

Did you know…The right to have access to basic education allows for basic education to be available, accessible and of a good quality.