9th JUNE 2003

Mr. Chair, Honourable Members,

The Law and Transformation Programme is grateful for this opportunity to address the Parliamentary Portfolio Committee on Social Development Hearings on the Taylor Report.

The Law and Transformation Programme is a project of the Centre for Applied Legal Studies (CALS). CALS is an independent, grant-funded research unit at the University of the Witwatersrand. Our Mission Statement commits us to promoting democracy, justice, equality and peace in South Africa and to addressing and undoing our country’s legacy of oppression and discrimination through the realization of human rights for all South Africans under a just constitutional and legal order by:
-undertaking rigorous research, writing, analysis and briefings;
-teaching and providing public education and training;
-the collection and dissemination of information and publications; and
-legal advice and litigation, participation in policy formulation, law reform, dispute resolution and institutional development co-ordination.

In 2002, the Law and Transformation Programme received a grant to initiate an education rights project, which aims to address poverty and inequality in school education through an integrated programme of research, litigation and advocacy.
It is on the subject of education that we address the Committee today.


The underlying rationale for a comprehensive social protection package (‘CSP’ in the Report) is to "provide a basic means for all people living in the country to effectively participate and advance in social and economic life, and in turn to contribute to social and economic development". (p. 41). To enable persons to achieve this goal the Report requires that "there should be certain basic requirements that should be available to all, and not be subject to being traded off against each other." One of the key components identified in this package is the provision of certain basic services deemed crucial to enable a person to live and function in society. These services include free primary and secondary education (p. 42). But despite such clear identification of its vital role in the CSP, the Report fails to make any clear recommendations in respect of education in Chapter 7 (pp. 59-61) or anywhere else in the Report.

The right to education

Chapter 7 of the Report provides an analysis of children’s rights under the South African Constitution. It notes the state’s obligations in respect of Section 28(1) of the Constitution, and notes that these obligations are of an especially strong kind, because they are not, like many other socio-economic rights clauses, subject to the adoption of "reasonable legislative and other measures" or made conditional on progressive realisation within the state’s available resources. The Report also notes South Africa’s obligations in respect of the international instruments dealing with children’s rights that have been ratified by South Africa. These include the African Charter on the Rights and Welfare of the Child and the United Nation Convention on the Rights of the Child. Based on this analysis, it then details various recommendations to rectify the current policy framework to give effect to South Africa’s socio-economic rights, particularly those necessary for the realisation of the CSP.

However, notably absent from the analysis in Chapter 7 is comment on the state’s obligations in respect of Section 29(1)(a), which provides for the right to basic education. Section 29(1)(a), like Section 28(1), is an unqualified socio-economic right and is accordingly also a right which places stronger obligations on the state in respect of education than the qualified socio-economic rights. The international instruments referred to above also detail states parties’ obligations in respect of the right to education. These include requiring that state parties make primary education freely available and progressively introduce free education at the secondary level.

How can these obligations influence policy in South Africa?

In a recent submission to the National Department of Education, the Law and Transformation Programme referred to Section 29 (1) (a) of the Constitution, as a "policy structuring device". The Bill of Rights is not simply a document by reference to which political and social disputes are settled in a legal setting. A definition of the right to basic education is (or at least it should be) the point of departure for all the public education officials when determining the level of resources required for public education and the manner in which these resources should be allocated. In the provision of basic education, we submit that the constitution requires that the right be prioritised over the budget, rather than the budget over the right.

Be that as it may, Honourable Members will be aware that the Constitutional Court is the final arbiter of precise meaning and application of the provisions of the Bill of Rights.

The Court has yet to pronounce on the form of inquiry necessary to determine whether or not a violation of Section 29 (1) (a) has occurred in any given case. In Government of the Republic of South Africa v Grootboom, Yacoob J held that to find a violation of the right to housing in Section 26, the Court need only consider whether the state’s measures to realise the right were reasonable. It was not immediately necessary to determine the content of the right. He came to this conclusion on the basis of the injunction contained in Section 26 (2) that the state take "reasonable measures within its available resources to achieve the progressive realisation" of the right. In a later judgement, the Court made explicit the implication in Yacoob’s judgement that the right to housing does not imply a minimum basic package of goods and services should be available to all on demand.

But there is no reasonableness qualifier in Section 29 (1) (a), simply an assertion of the right to basic education. It is difficult to see, therefore, how any assessment of whether or not the state is fulfilling its obligations under Section 29 (1) (a) can proceed without an attempt to determine the scope and content of the right.

Whatever that content is, it must imply an obligation to provide schools in adequate numbers and of an adequate standard. It must also create an obligation that the state ensure that children can access them. That the state’s duty under Section 29 (1) (a) is not subject to a "progressive realisation" qualifier implies that the right must be accessible to all on demand, irrespective of their ability to pay for it.

Access Costs

Now, leaving the specific content of the right to education aside – that is, what the right requires children must be available to learners once they set foot inside the classroom, our analysis of the right to basic education has an important implication for social security provision. This implication relates to school access costs.

Throughout these Hearings, Honourable Members have heard and will continue to hear submissions highlighting the burdensome costs of education, such as uniform, transport to school, fees and textbooks. The impact of these costs in South Africa’s poorest households is to draw much needed resources away from other basic necessities in order to fund the education of a child.

The Law and Transformation Programme is of the view that school access costs place an unreasonable burden on many poor households wishing to access schools. We submit that, to comply with its constitutional obligations, the state must take steps either to increase cash grants to poor families in order to wholly subsidise these costs, or to step in and provide free of charge the services in respect of which they are usually incurred.

The Programme has recently completed an investigation into the impact of school access costs on households in Sol Plaatje, an informal settlement which was relocated last year from Soweto to an abandoned mine near Roodepoort, to the west of Johannesburg. The investigation’s primary aim was to examine the relationship between the community’s relocation and access to schools. To this end, the report presents and discusses data on a range of school access costs, such as uniforms, school fees, transport and textbooks.

To give Honourable Members some impression of the burden actually placed on poor households by school access costs, our research report (entitled "Relocation and Access to Schools in Sol Plaatje") detailing our findings is attached to our written submission to this Committee.

The report disaggregates school access costs by item and income group, and concludes that access costs help to retard school attendance in Sol Plaatje.

We found that those households in which children regularly attend school bear a significant financial burden in the context of already dire poverty. The median income in Sol Plaatje is R640 per month. Between a third and a half of households in the settlement live in poverty, on an absolute measure of R490 per month. Around 20% live in what might be called "ultra-poverty" using an absolute measure of R245 per month. The "expanded" unemployment rate in Sol Plaatje is 41%.

The Access Cost Burden

School access costs were defined in the report as those items of expenditure which are normally entailed in sending a child to school. The sums quoted in the report represent the amounts respondents said they actually spent on school fees, school uniforms, transport expenses and textbooks. In our view this list is not exhaustive, but it does cover items which are indisputably required to access basic education.

The data indicate an average education access cost burden of 16% in Sol Plaatje. This figure drops to 6% - and average of around R40 per month - when transport costs are excluded. More information is given in Section 2.4 of the research report.

It must be noted that transport costs in Sol Plaatje are exceptionally high, and are likely to be significantly higher than many formal settlements with a comparable socio-economic profile – although they may give some idea of the costs of school transport in more rural communities. Nonetheless, there is no reason to suppose that other access costs in Sol Plaatje are significantly higher or lower than in other similar communities.

Education Access costs are regressive

Another important finding from our research is that education access costs are regressive. Because demand for access to education is inelastic, poorer households are likely either to spend a higher proportion of their income on school access costs than richer households, or not send their children to school at all. School access costs therefore have the same impact as a regressive tax (especially given that parents are legally obliged to ensure that their children attend school), since there is almost no way for parents to avoid paying without withdrawing their children from education altogether, there being no cheaper alternative to public schooling. For example, the average access burden (excluding transport) for households with an income of less than R200 was 13%, while the burden for households receiving over R1200 per month was just 2% (excluding transport).


194 (around 17%) of children in the sample of households we extracted from Sol Plaatje, were out of school. High transport costs were given as the main reason in respect of 147.

Twelve respondents indicated that they were unable to meet a combination of costs associated with schooling. Transport was just the largest of these.

During our qualitative research, we found that households in Sol Plaatje are sometimes forced to choose which of their children go to school and which stay at home.

For example, throughout the early part of 2002, Maxwell Nqeno’s family scraped together the taxi fare to get him to school and back, but money could not be spared to do the same for either of his two younger brothers Sakhise and Wandise, in Grades 10 and 8 respectively. Eventually, Maxwell became so tired of being late for school because of the erratic taxi service between Sol Plaatje and Diepkloof that he used the transport money his parents gave him to construct a back-yard shack on a rented plot within walking distance of his school. He fed himself on the money left over after his monthly rent, and lived alone in Diepkloof during school terms in his Matric year.

The proportion of children out of school in Sol Plaatje, expressed as a proportion of all school-age children also varied significantly with income. Just under 50 of children of school-going age in households receiving less than R200 per month were not attending school, although many of them were registered. This figure drops to around 8% for households with an income of over R1000 per month.

Of course, more research is required to confirm that our findings in Sol Plaatje are representative of other similarly placed communities across South Africa, and to investigate the impact of school access costs in rural areas, for example. But, our research, taken together with the qualitative data from around South Africa presented to Honourable Members today by other civil society groups, is an important first step in identifying and tackling the difficulties poor people must face to access schools.

Assistance with Access Costs

There is currently no nation-wide programme of subsidies for school access costs.

While there is a legal framework for granting the poorest families exemptions from paying school fees, our research suggests that it is ignored in many of the schools which serve Sol Plaatje’s learners. The Law and Tranformation Programme is also currently involved in dozens of cases where school fees are being levied illegally. We suspect that this is the tip of the iceberg.

Even if exemption policies were implemented, many poor parents are likely still to find themselves paying school fees, since fees in the poorest schools are so low that even poor households do not qualify for full exemptions.

There is a particularly heavy burden for those households with more than one child at the same school. While the School Fee Exemption Regulations require School Governing Bodies to take into account the number of dependents a parent or caregiver has, they are placed under no duty to vary the value of the exemption accordingly.

Transport assistance is provided on a local or provincial level in some areas, and it is encouraging to note that the Gauteng Department of Education is currently developing a school transport policy.

The National Department of Education is equivocal in its commitment to transport assistance. In a recent report on the financing of public schools, the Department mused both that learner transport may be the responsibility of another government department and that providing learner transport may unfairly subsidise families which live far from public schools by choice.

In our view, neither of these considerations amount to good arguments for withholding transport assistance from poor families.

We are unaware of any social assistance available for to meet textbook and uniform costs. Although the Department of Education is examining ways to lower the costs of these items to households, it is likely that poor parents will continue to have to meet significant education costs for the foreseeable future.


The Law and Transformation Programme is therefore of the view that the Report should have included a recommendation in respect of free education in its "policy recommendations to address problems, gaps and inconsistencies of the current social security paradigm for children".

The Report should also have made clear that "free education" entails the provision of free school transport services, school books and school uniforms for poor learners and an expansion of the school feeding scheme to pre-primary and secondary schools, and not merely the absence of school fees.

When determining the nature and extent of the CSP, the Department for Social Development should work together with the Department of Education to provide relief for poor households from school access costs.

Thank you.

For further information, contact:

Stuart Wilson
Centre for Applied Legal Studies
Wits University
011 717 8609
[email protected]