Moko v Acting Principal of Malusi Secondary School (CC) (unreported case no CCT297/20, 28-12-2020) (Khampepe J (Mogoeng CJ, Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring))

It is every parent’s desire to see their child flourish to their greatest potential academically and achieving their dreams. In fact, in African tradition to raise a child is to make an investment for oneself in that when the child becomes an adult and is able to participate in the labour market, that child will never simply forget about where they came from. Late former President Nelson Mandela once said: ‘Education is the most powerful weapon which you can use to change the world’. This basic right to education is enshrined in s 29 of the Constitution.

However, it is concerning that since the dawn of the Constitution, South Africa (SA) still has students who are denied access to basic education, putting their careers on hold as evidenced in the recent case of Moko.

The Constitutional Court (CC) recently handed down a judgment in an urgent application for direct access to the CC. The central question before the CC was whether there had been a violation of the right to education in s 29(1) of the Constitution.

The applicant, Mr Moko, was a grade 12 leaner who, on the morning of 25 November 2020, arrived at his school in Limpopo to write the Business Studies Paper 2 as part of the matric examination. He was stopped at the school gate by the first respondent, the Acting Principal of Malusi Secondary School, because he had failed to attend certain extra lessons. Mr Moko was informed that he needed to fetch his parents or guardians, in order to discuss the missed extra lessons, and not to return to the school without them. Mr Moko left to find his guardians, but being unable to do so, returned to the school, alone, sometime later. By the time he returned, the examination was underway. The Acting Principal refused to allow Mr Moko entry into the examination room and Mr Moko subsequently missed the examination.

Various meetings with the Acting Principal and members of the Limpopo Department of Education ensued and Mr Moko was informed that he would only be able to write the supplementary examination in May 2021. Aggrieved by this decision, as he wished to pursue tertiary education at the start of 2021 and writing the examination in May would delay this, Mr Moko brought an urgent application to the High Court for an order that he be given an opportunity to write the missed examination. The High Court struck the matter off the roll for lack of urgency.

Mr Moko applied for leave to approach the CC directly, and on an urgent basis, for an order that the conduct of the Acting Principal was inconsistent with the right to basic and further education in terms of s 29(1)(a) and (b) of the Constitution and that he be afforded the opportunity to write the examination before the marking of the other matric examination scripts and the release of the other matric results.

Mr Moko submitted that this matter was urgent because, if he did not sit the examination imminently, it would affect his ability to pursue further studies at an institution of higher learning in February 2021. On the matter of direct access to the CC, Mr Moko contended that it would be in the interests of justice for the CC to determine the matter, as the matter was struck off the urgent roll in the High Court and a determination of the matter on the ordinary roll in the High Court would leave him without effective relief.

On the merits, Mr Moko submitted that his right to basic education in terms of s 29(1)(a) of the Constitution was infringed by the conduct of the Acting Principal. He contended that the conduct also amounted to a violation of his right to further education in s 29(1)(b) of the Constitution because, if he was only allowed to write the examination in May 2021, he would be unable to begin tertiary education in February 2021.

The Acting Principal did not oppose the application brought by Mr Moko to the CC. The second to fourth respondents, the Member of the Executive Council (MEC) and Head of the Department of Education, Limpopo and the Minister of Basic Education (collectively, the Department), and the fifth respondent, Umalusi, also did not oppose the application. The Department filed written submissions to assist the CC in its determination of the matter, in which they offered Mr Moko the opportunity to write the missed examination in January 2021. The matter was determined on the papers without an oral hearing.

The CC, in a unanimous judgment penned by Khampepe J (Mogoeng CJ, Jafta J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring) granted leave to the applicant to approach the CC directly on an urgent basis. It held that a lack of urgent relief could have a significant adverse effect on Mr Moko’s future and that the urgency of the matter was undeniable. It further held that the circumstances in the matter were of an exceptional nature and Mr Moko had raised compelling reasons for direct access. It was, therefore, in the interests of justice to grant leave to approach the CC directly and on an urgent basis.

The CC highlighted the transformative role of education in SA and the importance of education for individuals and society as a whole. It found that the matric examinations fall within the purview of ‘basic education’, the right to which is protected by s 29(1)(a) of the Constitution. It held that the Acting Principal had both a positive obligation to give effect to that right and a negative obligation to not interfere with Mr Moko’s right to basic education. The Acting Principal’s conduct that resulted in Mr Moko missing the examination clearly amounted to a violation of the right to basic education. The CC also noted that an undue delay in the completion of his school education, as a result of the conduct of the Acting Principal, would similarly have an adverse effect on Mr Moko’s right to further education, protected by s 29(1)(b) of the Constitution.

As a result, the CC declared the conduct of the Acting Principal to be a violation of the right to education in s 29(1) of the Constitution. It ordered the Department and Umalusi to follow through with their offer to allow Mr Moko the opportunity to write the examination at the start of January 2021 and to release the result of that examination simultaneously with the general release of the 2020 National Senior Certificate examination results.

Conclusion

I agree with the held CC’s decision that the Acting Principal violated the right to education bestowed to Mr Moko. Most importantly, s 29 must be understood in the light of the aim of education. Education must be aimed at the full development of the human personality and instil a sense of dignity. It should be aimed at enabling all persons to effectively participate in a free society. In the first instance, education should confer the ability to appreciate and exercise human rights; it should also develop learners’ ability to make political and civil choices. Secondly, education should confer the necessary skills to enable recipients to enjoy and appreciate human existence, and participate in the economy.

To this end, the content of the curricula forms an important part of the right to education and should provide the necessary skills to participate fully in society. The right to education imposes an obligation on the state to put in place and maintain an education system, with educational programmes available in all its forms and at all levels. The state has to take steps to ensure that there are functioning educational institutions with education programmes and educators throughout its territory. The government also needs to educate all school structuring bodies of the importance of the right to education.

Sipho Tumelo Mdhluli LLB (University of Limpopo) is a legal practitioner at Lekhu Pilson Attorneys in Middelburg.

This article was first published in De Rebus in 2021 (March) DR 32.