10 Potchefstroom Elec. L.J. 1 (2007)

handle is hein.journals/per2007 and id is 1 raw text is: PER 2007(1)

E Bray
1     Introduction
The right to education is a universally recognised socio-economic human right
and is similarly guaranteed and protected in section 29 of the Constitution.1
Owing to the nature of education and training, cultural rights2 are inextricably
interwoven with the right to education.
The state as primary provider of education has undertaken to respect, protect,
promote and fulfil this right,3 bearing in mind, though, that human rights are not
absolute and that their nature and scope may be modified by internal qualifiers
(modifiers) and their application restricted in terms of the general limitation
clause whenever appropriate. In South African practice it means, for example,
that a learner has a right to basic education and the right to receive such an
education in a language of choice in a public school where such an education is
reasonably practicable.4
It is in this context that the relevant human rights and their application by the
Supreme Court of Appeal in The Western Cape Minister of Education v The
Governing Body of Mikro Primary School are scrutinised. Broadly speaking,
the case dealt with the right to education in a democratic school education
system and the legal status of the public school in education in South Africa.
*   Department of Constitutional Law, International Law and Indigenous Law, UNISA.
1  Constitution of the Republic of South Africa, 1996 (hereafter Constitution).
2   Eg the right to a language and religion of choice.
3  Constitution, s 7.
4   Constitution, s 29(1)-(2).
5   The Western Cape Minister of Education v The Governing Body of Mikro Primary School
2005 10 BCLR 973 (SCA). Although both the court a quo (below) and the court in casu
refer to the Western Cape Minister of Education, the author prefers the correct title, ie,
Member of the Executive Council responsible for education in the Western Cape Province
(hereafter referred to as the MEC).


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