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35 S. Afr. J. on Hum. Rts. 1 (2019)

handle is hein.journals/soafjhr35 and id is 1 raw text is: SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 2019, VOL. 35, NO. 1, 1-24 https://doi.org/10.1080/02587203.2019.1590916 ORIGINAL ARTICLE The right to basic education: a comparative study of the United States, Inda and raz Faranaaz Veriava' and Ann Skeltonb aSection27, Braamfontein, Johannesburg, South Africa; b Faculty of Law, University of Pretoria, Pretoria, South Africa The developing South African jurisprudence on the right to basic education suggests that the courts have adopted a substantive approach to interpreting the right. The Supreme Court of Appeal in its judgment in the case of Minister of Basic Education v Basic Education for All held that every learner is entitled to a textbook in every subject at the commencement of the academic year. The judgment further explicitly noted that the corollary to this entitle- ment is the duty of the state to provide these textbooks to each and every learner. The lower courts have similarly identified other entitlements that make up the content of the right to basic educa- tion. However, while the courts appear to be firmly veering in the direction of a substantive approach to interpreting the right to basic education, no discernable test for determining the content of the right is apparent from the jurisprudence. Furthermore, many of the education provisioning cases have necessitated repeated visits to court and increasingly creative, even coercive remedies to ensure compliance with court orders. This article will, therefore, undertake a comparative study of the United States, India and Brazil. It will examine the approach of the courts in each of these jurisdictions to interpreting the right. It will examine the efficacy of some of the remedies adopted by the courts in each of these jurisdictions to realise the right, whilst simultaneously medi- ating the institutional concerns in respect of the doctrine of the separation of powers. It will further examine the role of civil soci- ety in education litigation in each of these jurisdictions. The aim of the article is to draw on the lessons provided by each of these comparative jurisdictions so as to strengthen public interest litiga- tion in respect of the right to basic education in South Africa. ARTICLE HISTORY Received 21 March 2018 Accepted 22 August 2018 KEYWORDS Basic education; socio- economic rights; public- interest action; comparative law 1. Introduction1 7.7 Background Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to a basic education. This right is described as an 'unqualified' CONTACT Faranaaz Veriava 0 fveriava@polity.org.za (D Section27, Braamfontein, Johannesburg, South Africa 1 This article has relied extensively on the comparative chapter of the doctoral study of Faranaaz Veriava. It also draws on research conducted for a three-country study on the right to education led by Ann Skelton. See A Skelton 'Strategic litigation impacts: Equal access to quality education' (2017). C 2019 South African Journal on Human Rights < Taylor & Francis Taylor&Francs Group

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