The Constitution in the Classroom: Law and Education in South Africa 1994 - 2008

About the publication The law on education and educational practices in South Africa would exhaust the capacity of any meaningful monograph. Instead, the authors of this book engage six discrete topics that refl ect the broader currents and conflicts in South African education debates: (a) school choice; (b) school fees; (c) the right to an adequate basic education; (d) single medium public schools; (e) school governing bodies; and (f) independent schools. The book has two further aims. First: To move beyond the debates taking place separately in the education policy community and the legal academy, and to demonstrate how these disciplines, working in concert with each other, can advance our understanding of law and education in South Africa. Second: To show that the ANC’s complex education agenda must mirror the egalitarian, utilitarian, democratic, and communitarian commitments found within the Constitution. How these competing political claims refl ected in our basic law play themselves out in the enabling education legislation, the case law and government education policy, frames each topic assayed in this work. About the editor: Stu Woolman is the Academic Director at the South Africa Institute for Advanced Constitutional, Public, Human Rights and International Law. Brahm Fleisch is Associate Professor in the Division of Education Leadership and Policy Studies in Wits School of Education.Publishe

The Selfless Constitution : experimentation&flourishing as the foundations of South Africa's basic law

The way the vast majority of us think about the self, consciousness and free will is incorrect – dramatically out of step with what the majority of neuroscientists, cognitive psychologists scientists and analytic philosophers have to say about those subjects. One consequence of these erroneous views is that the manner in which the majority of us understand ‘freedom’ – as a metaphysical term and as a political concept -- is sharply at odds with how things actually are. We replicate similar kinds of errors when we think about how various forms of human association are constructed and how change actually occurs within such associations. Once again, epistemological fallacies with regard to social theory have the consequence of leading us to attribute far greater ‘freedom’ to groups than they actually possess. This second misattribution of autonomy results in institutional political arrangements and constitutional doctrines at odds with what we know about the human condition. As things stand, the various models of political theory with which the South African Constitutional Court operates rest upon a belief that the rights and freedoms enshrined in the Final Constitution should enable individuals to exercise relatively unfettered control over decisions about the intimate relationships and the various practices deemed critical to their self-understanding. However, individual autonomy as a foundation for constitutional theory overemphasizes dramatically the actual space for self-defining choices. In truth, our experience of personhood, of self-consciousness, is a function of a complex set of narratives over which we exercise little in the way of (self) control. The involuntary and arational nature of identity formation – at the level of both the individual and the social -- requires a constitutional theory that supplants the model of a rational individual moral agent which undergirds much of our current jurisprudence with a vision of the self that is more appropriately located within and determined by the associations to which we all belong. Despite the involuntary and arational nature of identity formation, we can live within communities that determine the greater part of the meaning we make, and still remain committed to the possibility of significant change (for the better) within those communities. This thesis then goes on to explain how a commitment to experimentalism in the political domain, when married to a robust conception of basic entitlements and citizenship, services human flourishing. (To expand the conditions for flourishing, however, is not to make us metaphysically ‘free’ to ‘will’ our actions: a commitment to flourishing reflects an attempt to create an environment in which all inhabitants of South Africa have the opportunity to live lives worth valuing.) Experimental constitutionalism dovetails with a very modest, naturalized account of flourishing because both accounts (1) take the radical givenness of existing constitutive attachments seriously; (2) recognize the boundedness of individual and collective rationality; and (3) describe various kinds of feedback mechanisms that allow for error correction and the enhancement of the conditions of being. Experimental constitutionalism, in particular, enables more citizens to see what ‘works’ and what doesn’t – both with respect to the means and the ends of our existence. Experimental constitutionalism offers the promise of improving the conditions for being by suggesting a range of alterations in constitutional doctrine and a host of changes in the manner in which many political institutions operate. In South Africa, the innovations associated with experimental constitutional design embrace: (1) a doctrine of constitutional supremacy that maintains a meaningful equilibrium with a doctrine of separation of powers, and thus sets relatively clear guidelines for how authority for constitutional interpretation might best be shared by the judiciary, the legislature, the executive and non-state-actors; (2) the use of various standard judicial mechanisms – such as cost orders, court procedures, amici and intervenors, expanded constitutional jurisdiction and structural injunctions – to create bubbles of participatory democracy better able (than courts or legislatures) to resolve various kinds of polycentric conflict; (3) an approach to limitations analysis that provides a better process than ‘balancing’ for experimentalist adjudication; and (4) greater roles for Chapter 9 Institutions with respect to investigation, information-sharing and norm-setting; and (5) a principle of democracy that invites public participation in law-making that will both elicit better information about which government policies work best and effect widespread reflection about the meaning of those constitutional norms that govern our lives. The thesis then (a) mines the brief historical record of two important policy areas – Housing and Education – to show how the principles of experimental constitutionalism have already been put to work and (b) re-examines six Constitutional Court cases to demonstrate how the dual commitment to experimental constitutionalism and flourishing might generate more optimal outcomes.Thesis (LLD)--University of Pretoria, 2008.Public Lawunrestricte

Moral luck : exploiting South Africa's policy environment to produce a sustainable national antiretroviral treatment programme

What kinds of social policy interventions will enable South Africa to offer a universal, free and sustainable antretroviral treatment programme? Some commentators assert that government's best chance at offering such a programme will require the use of compulsory licenses and that the state's failure to make use of such a weapon is a failure to discharge its constitutional duties. The authors demur. The threat of a compulsory license is only as good as the ability to make use of such a license. South Africa currently lacks the basic science community, reverse engineering capacity and fine chemicals industry necessary to make good on such a threat. The government's best hope for discharging the duties imposed by the Constitution is a systematic, structural intervention: the implementation of a socio-industrial policy that leverages existing industrial capacity and voluntary licenses in a manner that generates price reductions and offers an uninterrupted sustainable local supply. However, voluntary licenses will only create downward pressure on prices when South Africa is able to establish a robust generics pharmaceutical industry. Such an industry can be created with appropriate tax relief, investment credits, technology transfer and assured access to active pharmaceutical ingredients. South Africa's industrial, legal and financial resources can thereby be profitably exploited in a manner that progressively achieves a comprehensive and coordinated antiretroviral treatment programme

Where dignity ends and uBuntu begins : an amplification of, as well as an identification of a tension in, Drucilla Cornell’s thoughts

In the decade or so in which Professor Cornell has engaged South Africa's jurisprudence, her name has become synonymous with academic discourse on the values of dignity and uBuntu. As colleagues and collaborators, it is often hard to know where Drucilla Cornell's thoughts on these subjects end and one's own ruminations begin. What follows then is an amplification of, or a riff upon, Professor Cornell's lead essay: 'Is there a difference that makes a difference?' Contestation is not on the cards

Intellectuals and democracy : Frank I Michelman's imagination and South Africa's constitutional jurisprudence

Every good idea begins somewhere. (Sometimes it begins in many places at the same time - such confluence being the hallmark of cogent currents of contemporary thought.) The symposium that gave rise to this festschrift for Frank Michelman took its cue from a symposium held at Harvard Law School earlier in 2012 to acknowledge his astonishing career. Professor Drucilla Cornell recognised early on that many South African legal scholars and jurists who might have wanted to attend the symposium would be unable to do so. She suggested that we might hold a similar symposium here in South Africa and threw her considerable weight behind the endeavour. Of course, no symposium would have been possible had Professor Michelman himself not been willing to undertake the journey to this home away from home.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3603am201

Defending discrimination : on the constitutionality of independent schools that promote a particular, if not comprehensive, vision of the good life

This article attempts to answer the following two linked, but distinct, questions. First, to what extent does our current legal regime tolerate independent schools that advance particular, if not comprehensive, visions of the good life? Secondly, to what extent may such independent schools discriminate between learners in terms of admissions policies or expulsion procedures in order to further their legitimate, constitutionalsanctioned religious, cultural or linguistic ways of being in the world? AFRIKAANS : Hierdie artikel beantwoord die vraag tot watter mate dit vir onafhanklike skole aanvaarbaar is om teen leerders te diskrimineer ten einde die legitieme grondwetlike oogmerke van verskeie godsdienstige, kulturele en taalgemeenskappe te bevorder. 'n Noukerige analise van die Grondwet bring aan die lig dat enkelmedium-openbare skole, geloofsgebaseerde skole of kultureelhomogene openbare skole nie grondwetlik gewaarborg word nie, maar dat artikel 29(3) wel aan leerders en hul ouers die reg verleen om uit hul eie sak onafhanklike skole te bou wat hul voorkeurmedium van onderrig aanbied, wat 'n spesifieke kulturele etos versterk, of wat 'n omvattende godsdientige opvatting van "die goeie lewe" bevorder. Die antwoord op die vraag oor die mate waartoe hierdie artikel 29(3)-skole mag diskrimineer, is te vind in 'n noukeurige analise van die Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Behoorlik uitgelê, voorsien PEPUDA dat onafhanklike skole 'n taalkundige, kulturele en godsdienstige voorstelling van die goeie lewe bevorder op 'n wyse wat op die oog af diskriminerend lyk. Die toelatingsbeleide of uitsettingsprosedures wat deur onafhanklike skole gebruik word, mag tussen leerders diskrimineer so lank as wat die diskriminasie (a) die legitieme taalkundige, kulturele of godsdienstige doelwitte van die skool bevorder; (b) dit doen deur middele te gebruik wat noukeurig ontwerp is om hierdie doelwitte te bevorder; en (c) nie die waardigheid van die leerder aantas nie

L'etat, C'est Moi : why provincial intra-governmental disputes in South Africa remain ungoverned by the final constitution and the Intergovernmental Relations Framework Act - and how we can best resolve them

No abstract available

Down on the farm and barefoot in the kitchen: farm labour and domestic labour as forms of servitude

This article evaluates the claim that working conditions for farm workers and domestic workers in South Africa can be analysed in terms of the constitutional prohibition against servitude. Recent research and statistics suggest that for most of these workers the conditions fit the accepted definition of servitude. Although a finding that the constitutional right to be free from servitude has been violated is not a straightforward matter, the existing research provides the empirical and legal predicates for such a finding. The appropriate remedy for violations of the 1996 Constitution's prohibition against servitude is the creation, by the state, of a comprehensive and coordinated programme designed to realise the manumission of these workers. The use of law as a tool for social transformation has inherent limits. At a minimum, however, a legal finding of such a constitutional infraction obliges the state to employ all available means at its disposal to restore the dignity of these workers. No one may be subjected to slavery, servitude or forced labour. (Constitution of the Republic of South Africa, Section 13)