right to education article in south africa

The Right to Basic Education

Introduction

Education rights are contained in section 29 of the South African Constitution. In terms of section 29 everyone has the right to a basic education, including adult basic education; [1]  and to further education, which the state, through reasonable measures, must make progressively available and accessible. [2] These rights place a duty on the state to respect an individual’s right to education. It also imposes a positive obligation on the state to promote and provide education by putting in place and maintaining an education system that is responsive to the needs of the country.

The Aims of Education

Rights to education must be understood in light of the aim of education. Education should be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. [3] The right to education as described above is based on the premise that education is a precondition for the exercise of other rights. If guaranteed, it has the ability to unlock the enjoyment of other human rights and ultimately empower individuals to contribute and participate meaningfully in a free society.

Analysis of the Constitutional Framework

The right to basic education, including adult basic education, unlike other socio-economic rights in the Bill of Rights, is neither formulated as a right of access nor subject to internal qualifiers. The right to basic education is immediately realisable, as confirmed by the Constitutional Court in the Juma Masjid Case: [4]

“Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to reasonable legislative measures’. The right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and democratic society based on human dignity, equity and freedom.”

This means unlike other socio-economic rights where the state need only demonstrate that it has allocated resources rationally, the right to basic education must be prioritised regardless of the State’s other budgetary commitments. It can only be limited in such a way that is compliant with section 36, as the Court has stated.

While maintaining that this right is not subject to resource constrains, the content and meaning of this right is yet to be interpreted by a court, particularly with reference to the standard of education that is protected by the right.

The Provision of the Right to Basic Education

In understanding the provision of the right to basic education, we should be guided by the preamble of the Constitution, which gives purpose and meaning to the Constitution. It states that the task ahead is to:

“Heal the division of the past and establish a society based on democratic values, social justice and fundamental rights; ... [and] improve the quality of life of all citizens and free the potential of each person.” [5]

Also important in defining the meaning of the right to education is the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is arguably the most significant international convention, which recognises the right of everyone to education. [6] Although not ratified by South Africa, it can be used to guide South Africa’s relatively young socio-economic rights jurisprudence. [7]

General Comment No. 13, published by the Committee on Social, Economic and Cultural Rights (CESCR) of the ICESCR, states that while the exact standard protected by the right may vary according to conditions prevailing in a particular State, education in all its forms and at all levels shall exhibit the following interrelated and essential features: availability, accessibility, acceptability and adaptability. [8]

• Availability - functioning educational institution must be available to all learners. This entails the provision of buildings, sanitation facilities for both sexes, teaching material, libraries, computer facilities and access to the internet. [9]
• Accessibility - has three overlapping dimensions: non-discrimination, physical accessibility and economic accessibility; meaning education must be affordable, within safe physical reach, and must be granted on a non-discriminative basis. [10]
• Acceptability - the form and substance of education, including curricula and teaching methods, have to be acceptable. This refers to the relevance, appropriateness and quality of education, subject to educational objectives required. [11]
• Adaptability - education has to be flexible so it can adapt to societal changes and respond to the needs of learners within their diverse social and cultural settings. [12]

The Notion of Reasonableness

Several claims have been made against the State in the Constitutional Court for the enforcement of other socio-economic like health, housing and social security. This has allowed the Court to scrutinise the reasonableness of Government’s actions to provide for those rights. The notion of reasonableness has become the standard against which the Constitutional Court assesses Government’s compliance to meet its constitutional obligations in respect of qualified socio-economic rights. [13]

An application to review the reasonableness of the right to basic education has not yet been made. This means Government’s compliance to meet its constitutional obligation with regards to the right to education cannot be assessed.

In the Grootboom case, the Constitutional Court detailed the standard of 'reasonableness’ in the context of assessing the State’s positive obligation to realise socio-economic rights. The following criteria can be distilled from the judgement.

In order for a government programme to be deemed reasonable, it must display the following characteristic:

• be comprehensive and co-ordinated with a clear description of responsibilities amongst the various spheres of government, with the national government having overreaching responsibility;
• be capable of facilitating the realisation of the right;
• be reasonable both in conception and implementation;
• be balanced and flexible and make appropriate provision for crises and for short-, medium and long-term needs;
• it cannot exclude a significant segment of society; and
• it must include a component that responds to the urgent needs of those in the most desperate situations and the state must plan, budget and monitor measures to address immediate needs and the management of crises.  [14]

The Constitutional Court further stated that a court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. [15]

Considering that this standard of ‘reasonableness’ was established for a qualified socio-economic right, an appealing case can be made that, an application to review the reasonableness of an unqualified socio-economic right, such as education, is desirable and probably necessary.

[1] http://www.info.gov.za/documents/constitution/1996/a108-96.pdf [2] ibid. [3] http://www.un.org/en/documents/udhr/ [4] http://www.saflii.org.za/za/cases/ZACC/2011/13.html [5] http://www.info.gov.za/documents/constitution/1996/a108-96.pdf [6] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx [7] http://www.saflii.org.za/za/journals/PER/2011/34.html#sdfootnote100sym [8] http://www.unhchr.ch/tbs/doc.nsf/0/ae1a0b126d068e868025683c003c8b3b?Opendocument [9] ibid. [10] ibid. [11] ibid. [12] ibid. [13] http://www.saflii.org.za/za/journals/PER/2011/34.html#sdfootnote100sym [14] Sandra Liebenberg, http://www.communitylawcentre.org.za/projects/socio-economic-rights/Research [15] http://www.saflii.org/za/cases/ZACC/2000/19.pdf

Anele Mtwesi – [email protected] Researcher Helen Suzman Foundation

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Potchefstroom Electronic Law Journal (PELJ)

On-line version  issn 1727-3781, per vol.18 n.7 potchefstroom  2015, http://dx.doi.org/10.4314/pelj.v18i7.01 .

Realisation of a child's right to a basic education in the South African school system: Some lessons from Germany

C Chürr

LLB, LLM (UP), LLD (UNISA). Associate Professor, School of Law, University of South Africa. Email: [email protected]

Education has, since the beginning of time, been regarded as the formal process by which society conveys its accumulated knowledge, skills, customs and values from one generation to another. Today, education is a human right, and the right to education and specifically the right to (a) basic education is acknowledged and emphasised worldwide. In South Africa the right to a basic education is entrenched in the Constitution of the Republic of South Africa, 1996 and is regarded as one of the most crucial constitutional rights, particularly because it promotes economic and social well-being. However, the South African school system is crippled by a myriad of unfavourable challenges, situations and circumstances which will be discussed throughout the article. Many of these challenges, situations and circumstances are frustrating and solutions have been sought diligently - many with success and many without success. The focus in this article falls on the questions of whether the current South African school system sufficiently realises the constitutional rights of learners and whether an alternative school system could lead to the increased fulfilment and realisation of South African children's rights (with a specific focus on the rights to a basic education, equality and dignity). The article therefore deals with the "acceptability" of the South African school system. A comparative analysis with Germany will be done and the German school system will be used as a valuable framework in order to propose an alternative school system for South Africa.

Keywords : Basic education; tripartite school system; equality; dignity; right to basic education; International Instruments; learners

It is a greater work to educate a child, in the true and larger sense of the word, than to rule a state. 1

1 Introduction

Education has, since the beginning of time, been regarded as the formal process by which society conveys its accumulated knowledge, skills, customs and values from one generation to another. Today, education is a human right, and the right to education and specifically the right to (a) basic education is acknowledged and emphasised worldwide. 2 In South Africa the right to a basic education is entrenched in the Constitution of the Republic of South Africa, 1996 (hereafter "the Constitution") and is regarded as one of the most crucial constitutional rights, particularly because it promotes economic and social well-being.

Section 29 of the Bill of Rights in the Constitution guarantees the right to a basic education. The state is required to "protect, respect, promote and fulfil" the right to education. 3 This can be done only if laws and regulations are passed by government, policies are developed, and relevant programmes are established. The right to education is justiciable and the state can therefore be confronted and challenged in court if it does not succeed with its constitutional obligations regarding education. 4

Education is also regarded as one of the most valuable requirements pertaining to global progress and advancement. Not only does it equip the learner with the necessary abilities and skills for a meaningful occupation, but it is also a suitable instrument to convey the fundamental tone of a human rights culture to a young and upcoming generation. Moreover, education is a way to set people free from their lack of knowledge, false notions and fear. Education furnishes people with dignity, self-respect and self-assurance, and is an important basic human right on which the realisation and fulfilment of other rights depend. 5

Education and the right to a basic education are not only of cardinal importance on a national level, but also on an international level. Many national constitutions worldwide make provision for the right to (a basic) education. One can thus say that meaningful and significant existence is dependent worldwide on education.

The South African school system is crippled by a myriad of unfavourable challenges, situations and circumstances. These include inequalities in the school environment, the lack of quality education in a safe environment, insufficient funds for the provision of basic education, inadequate buildings, a shortage of qualified and skilled educators, and the inability of the school system to cater for learning differences, to mention only a few. Many of these challenges, situations and circumstances are frustrating and solutions have been sought diligently - many with success and many without success.

Thus, the South African school system is suffering a great ordeal. This was confirmed by the South African Minister of Basic Education, Mrs Angie Motshekga, when she stated the following: "Let's face it: Education is in a severe crisis. We have a big problem". 6 Moreover, there seems to be a strong increase in the percentage of school dropout rates 7 as well: 8

It is clear from Table 1 that the school dropout rates increase almost every year. It is also expected that the dropout rate for 2014 will be higher than in 2013 (the statistics for 2014 have not yet been finalised).

One can therefore argue that it is obvious that drastic action should be taken in order to save the school system from further downfall and destruction. It appears that the mainstream school system in South Africa does not function satisfactorily and that other alternatives (and possibly another school system) should be considered.

The focus in this article falls on the questions of whether the current South African school system sufficiently realises the constitutional rights of learners and whether an alternative school system could lead to the increased fulfilment and realisation of South African children's rights (with a specific focus on the rights to a basic education, equality and dignity). The article therefore deals with the "acceptability" (see paragraph 2.2 below) of the South African school system.

The following issues are discussed in this article: The right to a basic education, related constitutional rights, the German tripartite school system with its focus on the individual and learning differences, the South African school system with its focus on mainstream education, and relevant international instruments.

The German school system was selected for the purposes of this article in order to illustrate that a tripartite school system (as in Germany) can be to the benefit of all learners if such a system is applied properly and with due care. A tripartite school system provides for learners' diverse individual learning backgrounds, as well as their different learning aptitudes, skills, talents and interests. Such a school system would certainly be beneficial for a diverse country such as South Africa.

It should be kept in mind that Germany has one of the world's best education systems and is one of today's most important industrial nations - thanks to its education system that is flexible and that properly provides for diversity (also see paragraph 4.1.7 below). Therefore, South Africa can learn some valuable lessons from Germany with regard to Germany's tripartite school system and education rights. 9

2 The right to a basic education in South Africa

The right to a basic education is enshrined in section 29(1)(a) of the Constitution -for both adults and children. Section 29 consists of a group of education rights and is also known as a "hybrid" right because section 29(1) typifies the socio-economic nature of the right, while sections 29(2) and (3) are categorised as civil and political rights. There is an obligation on the state in terms of section 29(1) to make education available and accessible to everyone; the Constitution explicitly guarantees the right to a basic education. 10 However, it is important to note that section 29 does not specify the content and quality of the education that the state must provide, 11 nor has the South African Constitutional Court considered the scope and content of the right to a basic education. 12 One should also note that section 29 does not refer to all universally accepted education rights. 13 Free and compulsory education does not form part of the right to a basic education, although provision is made for compulsory education in section 3(1) of the South African Schools Act. 14 There is also no explicit right of equal access to educational institutions, but it can be assumed that this right is absolutely and completely enclosed and protected by section 9 of the Constitution, which specifically deals with equality. 15

An important question pertaining to section 29 is:

[D]oes section 29 promise merely a place to go to school, or does it provide for an 'adequate' education? 16

It is submitted that the right to a basic education compels the state to provide adequate education in order for the right to be enjoyed and fulfilled. 17 The right to a basic education can therefore be described as:

... an unqualified right requiring the priority attention of the State, also in respect of budgetary allocations. This requires the State to provide sufficient schools, educators and support, and other incidental services in order to ensure reasonable access to basic education for everybody. The right refers to education up to a level of functional literacy, in other words, reading, writing, arithmetic, and an elementary knowledge or awareness of economics, culture and politics. 18

With regard to the meaning of "adequate" education, Malherbe submits as follows: 19

In the South African context 'adequate' education could refer to a standard of education that empowers people to rise above the poverty cycle and compete effectively in the labour market, enables people to understand and enjoy their newly acquired democratic values, rights and freedoms, encourages people to participate in and protect the fledgling democratic system, and enhances their dignity and feeling of self-worth as human beings.

The right to a basic education is also a second-generation right and gives "manifest expression to essentially first generation rights". 20 The enforcement of second-generation rights is problematic, however, and specific questions must be asked. Firstly, what precisely is meant by "basic education", and, secondly, can the state be held liable by a court of law to provide adequate basic education for individuals? 21

2.1 What precisely is meant by "basic education "?

It is difficult to determine the exact or precise meaning of the term "basic education". However, before the concept of basic education can be explained, it is necessary to define "education". Education can be defined as follows: 22

Education in its broadest, general sense is the means through which the aims and habits of a group of people [live] on from one generation to the next. Generally it occurs through any experience that has a formative effect on the way one thinks, feels, or acts. In its narrow, technical sense, education is the formal process by which society deliberately transmits its accumulated knowledge, skills, customs and values from one generation to another.

The concept of "basic education" can be explained as follows: 23

Basic education is that whole range of educational activities in different settings that aim to meet basic learning needs. It comprises both formal schooling (primary and sometimes lower secondary) and a variety of non-formal, informal, public and private educational activities offered to meet the defined basic learning needs of people of all ages.

It can therefore be submitted that the difference between basic education and education is that basic education focuses on the "stage" when children first start learning (their basic learning needs), and education focuses on the overall transmission of aims, values and habits from one generation to another.

The concept of basic education can also be defined as follows:

[D]aardie tipe opvoedende onderwys wat 'n leerder ontvang en wat hom [en haar] toerus met die basiese vaardighede van funksionele geletterdheid (wat die basiese vaardighede van lees, skryf en rekenkunde insluit) sowel as 'n basiese kennis en bewustheid van ekonomie, kultuur en politiek. 24

With regard to the interpretation of the concept of basic education, the Department of Education noted the following in its White Paper on Education and Training: 25

Basic education is a flexible concept which must be defined so as to meet the 'learning needs appropriate to the age and experience of the learner, whether child, youth or adult ...', and should also provide access to nationally recognised qualifications.

The term "basic education" in section 29(1) of the Constitution must therefore be construed in the light of what the state can afford. In other words, basic education should fulfil the "learning needs appropriate to the age and experience of the learner, whether child, youth or adult". 26 As already mentioned, section 29(1)(a) of the Constitution does not stipulate that all education is free and compulsory. It does, however, make provision for the educational rights of impoverished children and does not "preclude a sliding scale of fees" in relation to parents' children who are enrolled at public schools. 27

There are several academics and scholars who argue that the South African definition of basic education is too narrow. The reason for this argument is simple: Learners who barely completed Grade 9 are not properly equipped with the necessary knowledge, skills and experience to "tackle" the outside world. 28 The consequence of this is that they will be unable to develop to their full potential, to live and work with dignity, pride and self-respect, and to improve the quality and virtues of their lives. 29 It is submitted that basic education should include the whole schooling career of a learner. That is, basic education should not be defined in terms of age or the completion of a specific level of schooling; it should rather include primary as well as secondary education. 30

Thus, basic education:

...should evolve with increasing educational standards and capacities in South Africa, in order to meet the changing requirements of a dynamic society in the process of political and social transformation. 31

Basic education must also provide learners with the foundation to be successful and flourish in society, including the minimal necessary learning equipment and tools of literacy and numeracy. 32

2.2 Can the state be compelled by a court of law to provide basic education for individuals?

Section 7(2) of the Constitution imposes an obligation on the state to "respect, protect, promote and fulfil the rights in the Bill of Rights". Every obligation imposes a related set of duties on the state, namely: 33

(a) respect: the state is required to avoid measures that prevent children's enjoyment of the right to basic education; (b) protect: the state is required to prevent other parties such as parents and caregivers from interfering with and hindering children's enjoyment of the right to basic education; (c) promote: the state has the duty to encourage and promote educational participation and to make citizens aware of their educational rights; and (d) Fulfil: the state must take positive measures that enable all children to enjoy the right to basic education.

The following case makes it clear that there are positive and negative obligations on the state to give effect to the right to a basic education: In Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995, 34 the court stated as follows: 35

[The right to [a] basic education] creates a positive right that basic education be provided for every person and not merely a negative right that such person should not be obstructed in pursuing his or her basic education.

It is therefore submitted that the right to a basic education imposes both positive and negative obligations on the state to provide for education. With regard to the positive obligation, the state is required to take effective steps in order to guarantee that every child has access to educational facilities and that every child benefits from the right to education. The negative obligation, on the other hand, poses a duty on the state and its agencies not to impede or hinder children's access to education. 36

To summarise, the state has the following obligations in terms of section 29 of the Constitution: 37

(a)to provide for adequate basic education; (b)to ensure effective access to public educational institutions; (c) to ensure, where reasonably possible, that a course of education is conducted in the official language or languages of the learners' choice in public educational institutions; and (d)to monitor the introduction of standards and the observance of equivalent standards in the so-called "independent" educational institutions 38 , as well as the registration of these institutions.

In addition, the state also has the obligation in terms of article 13(2) of the International Covenant on Economic, Social and Cultural Rights (hereafter "the ICESCR") to make education available, accessible, acceptable and adaptable. This is also known as the "4-A Scheme". 39

The "4-A's" are interrelated and essential features of education and contribute to the successful provision of the right to a basic education: 40

In order to fulfil its constitutional obligations, the state has established a mainstream and inclusive school system. This school system aims at being inclusive, efficient, and attentive to the quality of learning conditions and outcomes. 41 However, many questions remain: Does the South African school system realise a child's rights to a basic education? How inclusive is the school system? Can an inclusive school system sometimes lead to the exclusion of certain learners? Does an inclusive system infringe upon a child's rights to equality and dignity? Is an inclusive mainstream school system in the best interest of the child? These questions will be addressed in paragraph 4.2.3 below. However, before addressing these questions, one needs to understand the way in which the courts adjudicate the right to a basic education and how the right to a basic education relates to other constitutional rights.

2.3 Adjudication of the right to a basic education

There is a compendium of socio-economic rights, which compendium includes rights of access to adequate housing, health-care services, sufficient food and water, and social security. The right to a basic education is part of this compendium of rights. It is important to bear in mind that a child's right to a basic education is distinguishable from other socio-economic rights in the Constitution in the sense that it is not dependent on the progressive realisation thereof.

The way in which the courts adjudicate the right to a basic education differs from the way in which other socio-economic rights are adjudicated. An explanation of how the adjudication of the right to a basic education differs from the adjudication of the right to housing can be summarised as follows: On the one hand, section 26(1) of the Constitution provides that everyone has the right to have access to adequate housing. In terms of this right, the state has the duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to have access to adequate housing. 42 In other words, the state is obliged to take progressive steps to realise this right over a period of time. This means that the state needs to consider its available resources, but it does not mean that any person is entitled to insist on, or to demand, a house immediately. 43 On the other hand, section 29(1)(a) of the Constitution provides that everyone has the right to a basic education, including adult basic education. In terms of this right, the state is not required to realise the right to a basic education over a period of time - the right to a basic education is immediately realisable and does not carry the same limitations as other socio-economic rights contained in the Constitution (such as the right to access to adequate housing). The case of Governing Body of the Juma Musjid Primary School v Essay 44 serves as a good example of how courts adjudicate the right to a basic education. The facts of this case are that the High Court authorised the eviction of a public school conducted on private property and the eviction order had a major impact on the learners' right to a basic education in terms of section 29(1) of the Constitution and on the best interests of the children in terms of section 28(2) of the Constitution. This case therefore ended up in the Constitutional Court, which confirmed that the right to a basic education is not subject to progressive realisation. The court held that: 45

[i]t is important ... to understand the nature of the right to 'a basic education' under section 29(1)(a). Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be 'progressively realised' within 'available resources' subject to 'reasonable legislative measures'. The right to a basic education may be limited only in terms of a law of general application which is 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'.

It is clear from the above that the right to a basic education is a cardinal socioeconomic right which aims to promote, improve and develop a child's personality, talents, and mental and physical abilities to their fullest extent. The importance of education, especially basic education, can be emphasised again - it is nearly impossible to "survive" without education in an educated world. Education gives human beings the power to claim and realise their other rights, and the right to a basic education is seen as a "central facilitative right in South Africa's constitutional democracy". One can thus argue that through (a) basic education people are better able to recognise the value of their human rights and are in a better position to exercise the full range of these rights. 46

2.4 The relationship between section 29 of the Constitution and other fundamental rights

The right to (a basic) education cannot be seen as a separate right. This right and many other rights are interdependent. One of the rights that may be relevant is the right to mother tongue education (and language rights). Section 29(2) of the Constitution states that everyone has the right to receive education in the official language or languages of his/her choice in public educational institutions where such education is reasonably practicable. Section 30 of the Constitution stipulates that everyone has the right "to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights". Section 31 of the Constitution makes provision for persons to belong to a cultural, religious or linguistic community. This section stipulates that these persons "may not be denied the right, with other members of that community - (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society". 47

Moreover, in order to indicate how the right to (a basic) education may affect other rights, the table below will illustrate the rights to education, rights in education and rights through education protected in the Constitution: 48

As already noted, these rights are mutually dependent, and when the right to education is under consideration it is important to interpret it in the context of the Bill of Rights. The ethical standards for a democratic system of education are set through the right to equality (section 9 of the Constitution) and the right to human dignity (section 10 of the Constitution). It is stipulated that: 49

...every child - regardless of race, gender, culture, language, religion, ability or disability - is equally entitled to learn, under conditions that respect, protect and promote the inherent human dignity of each child.

Moreover, the South African Constitution is mainly and unequivocally "an egalitarian constitution". 50 In other words, the focal point of this Constitution is equality. It can therefore be said that the organising principle of the South African Constitution is to prevent or proscribe unfair discrimination between individuals. 51

Because equality and human dignity are seen as the cornerstone of a democratic system of education, it is necessary to discuss these two concepts briefly.

2.4.1 The right to equality

Sections 9(1) and (2) of the Constitution stipulate that:

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. ...

Sections 9(3) and (4) stipulate further that unfair discrimination against any person (directly or indirectly) is prohibited. The right to equality is concerned with the protection and safeguarding of the equal worth of the bearers of this right. Equivalently, the right to equality is not a right to equal treatment, but rather a right "to have one's equal worth with others respected, protected, promoted and fulfilled". 52

Moreover, the Promotion of Equality and Prevention of Unfair Discrimination Act 53 deals with the promotion and advancement of equality on the one hand and clearly stipulates which reactive measures are available where the right to equality is violated on the other hand. The reactive provisions include inter alia the prohibition of unfair discrimination and related encroachments on the right to equality. 54

However, the equality provision in the South African Constitution does not preclude or prevent the state from making classifications. The explanation for this is that there are various reasons why classifications between people are permissible and why these people may also be treated differently. One should not forget that the classification of people into different groups and the provision of different treatment for different groups can be done only if "the criteria upon which the classifications are based are permissible". 55 The purpose of the classification will determine whether such classification is permitted. 56 This approach was confirmed by the South African Constitutional Court in the case of Prinsloo v Van Der Linde. 57

Thus, in order to climb the "equality ladder" successfully, it will almost always be required to prove "unfair discrimination" and not just a mere claim to equality. It seems as if the South African courts view the right to equality in section 9 of the Constitution as "little more than a guarantee of non-discrimination". 58

It is thus clear from the above that there is no prohibition on classifying or distinguishing between persons with differences - provided that such classification or distinguishing is permissible and does not constitute unfair discrimination.

Consequently, the right to equality also includes equal education and/or equal educational opportunity. This means that learners are protected against discrimination in education based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Lastly, the distribution of resources and supplies in education must be equitable and unbiased across all communities in proportion to what is needed. 59

2.4.2 The right to dignity

Section 10 of the Constitution stipulates that "everyone has inherent dignity and the right to have their dignity respected and protected". Moreover, dignity is not only a constitutional right, but it also has foundational value. This means that the right to dignity enlightens, enlivens and leads all other constitutional rights. Moreover, the right to dignity is seen as a promise and pledge to human dignity which is inseparably connected to the humanity and mortality of the bearer of rights. 60

The importance of the right to dignity was also explicitly emphasised in the case of S v Makwanyaane: 61

Recognising a right to dignity is the acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many other rights that are specifically entrenched. 62

It can also be unequivocally stated that the right to dignity is pivotal to democracy. 63 One can also argue that, without the recognition and enforcement of the right to dignity, the progress and advancement of a country will be severely hampered.

In short: Dignity promotes and respects the level of autonomy of the individual, protects and safeguards an individual's worth in society, and recognises and emphasises that all human beings have equal worth and value. 64 In other words: The right to human dignity protects and safeguards the inherent worth of every person. 65 Every person qualifies automatically as a bearer of the right to dignity, since every person is human and the inherent worth that attaches to the reality and certainty of being human is therefore protected by this right. One can say that the right to dignity is an extraordinary right, as it is not earned and cannot be abandoned. 66

Furthermore, it is also clear that dignity and equality go hand in hand, since dignity is pertinent when one needs to establish whether discrimination on an unstipulated ground exists, whether such discrimination is unfair, and whether unfair discrimination (if found) is justifiable and admissible as stipulated in section 36 of the Constitution. 67

Learners' rights to dignity in education are also protected in the sense that schools must respect the inherent dignity of every learner, which means that a favourable environment of respect and tolerance in the classroom must be created in order to avoid practices and disciplinary policies that cause harm, mistreatment or humiliation to learners. Self-confidence and self-expression must be promoted and encouraged. 68

Moreover, the Constitution of Germany expressly provides for the right to equality and the right to dignity and will be discussed below. It is wise to first discuss the German school system, as the discussion will provide the necessary background information on how a tripartite school system functions. A school system similar to the German school system will be proposed for South Africa, and the German school system can therefore be used as a framework.

3 The right to (basic) education in Germany - a brief overview

Es gibt nur eine Sache auf der Welt, die teurer ist als Bildung: keine Bildung! 69

Germany has a Constitution that is similar to the South African Constitution. Chapter 1 of the German Constitution (Grundgesetz für die Bundesrepublik Deutschland), 70 also known as the Basic Law, consists of basic rights ( die Grundrechte) and promotes and encourages the values of human dignity, equality and liberty. 71

Article 1 (human dignity) of the German Constitution emphasises the importance of human dignity:

(1) Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.

(2) Das Deutsche Volk bekennt sich darum zu unverletzlichen und unveräußerlichen Menschenrechten als Grundlage jeder menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt.

In other words, article 1 makes it clear that:

(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. 72

Article 3 (Equality) of the German Constitution provides that:

(1) Alle Menschen sind vor dem Gesetz gleich. (2) Männer und Frauen sind gleichberechtigt. Der Staat fördert die tatsächliche Durchsetzung der Gleichberechtigung von Frauen und Männern und wirkt auf die Beseitigung bestehender Nachteile hin.

(3) Niemand darf wegen seines Geschlechtes, seiner Abstammung, seiner Rasse, seiner Sprache, seiner Heimat und Herkunft, seines Glaubens, seiner religiösen oder politischen Anschauungen benachteiligt oder bevorzugt werden. Niemand darf wegen seiner Behinderung benachteiligt werden.

Thus, article 3 emphasises the importance of the right to equality by providing that:

(1) All persons shall be equal before the law. (2) Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist. (3) No person shall be favoured or disfavoured because of gender, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability. 73

Moreover, Germany has a written Constitution, codified in a single document. Germany has sixteen different states and each state also has its own state Constitution, which is partly modelled on the Basic Law, but each state Constitution also has an identity of its own. However, in terms of article 28 (the principle of homogeneity), all state Constitutions are obliged to comply with the fundamental principles of the Basic Law. 74

The development of the German school system varied from that of other European countries, inter alia because of the unification of East and West Germany. The Unification Treaty (Einigungsvertrag) was concluded between the Federal Republic of Germany and the German Democratic Republic in 1990 and brought unity in the areas of culture, education and science. Fundamental provisions are included in this treaty in order to establish a common, comparable basic structure in education -specifically in the German school system. It is important to remember that each state has its own Constitution, which means that each state has its own educational legislation and educational administration. In other words, a federal principle with regard to educational policy is followed. This means that the educational legislation and educational administration are primarily the responsibility of each state. The federal government therefore plays only a subordinate role. However, under the Basic Law and the Constitutions of each state, the entire German school system is under the supervision of the state as stipulated in article 7 of the German Constitution. 75

However, the right to education, and more specifically the right to basic education, are not explicitly provided for in the German Constitution, although it is regarded as an important basic right. There are several ongoing debates and demands with regard to human rights and one of the demands is to explicitly enshrine the right to education in the Basic Law. 76 Nevertheless, article 5(3) of the Constitution stipulates that:

...arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

Article 7 of the Constitution states that the entire German school system shall be under the supervision of the state. It also provides for the right of parents and guardians to decide whether or not their children shall receive religious instruction. The right to establish private schools is also guaranteed in this section.

Title Eight of the Social Code 77 is also important with regard to the right to education, since this code:

...grants every young person the right to obtain assistance for his or her development and the right to an education that makes the young person a responsible member of the community.

In general, the school-going age in Germany is six years and attending school is compulsory. Compulsory education can be divided into two parts, namely: 78

(a) Full-time compulsory education. This education lasts for a period of ten years. 79 Children attend four years 80 of primary school and thereafter education in comprehensive schools which are also known as "secondary-school stage I". These schools are divided into secondary general schools, intermediate schools and grammar schools. 81 Therefore, within this selection of schools, learners can complete their compulsory full-time education. (b) Continued compulsory schooling in secondary school, which is also known as "secondary-school stage II". These schools mainly consist of vocational schools.

Moreover, since 2012 career orientation has become compulsory for all learners and begins at the age of 14 years. This orientation forms part of all school subjects, with an emphasis on individualised approaches. Thus, the process of career and academic orientation in the German education system can be illustrated as in Table 3 : 82

Table 3 thus emphasises the importance of the core elements of career orientation. These elements are of importance for the design and aim of the German school-specific process of career and academic orientation. In a nutshell - the three most important steps pertaining to career orientation are as follows:

(a) Firstly, individual potentials, aptitudes and career possibilities are identified. (b) Secondly, specific employment opportunities are explored and considered. (c) Thirdly, a decision is made in respect of the individual's career path.

It is clear from the above that the German education system equips each learner with the necessary knowledge and information in respect of his/her career opportunities. Moreover, career orientation at school level has become more and more important, since it provides the learner with concise and accurate information pertaining to career opportunities; it encourages confidence when career decisions need to be made; and such career orientation contributes to a more effective and productive workforce, as the learner is already aware of what the career entails.

4 South Africa and Germany: A brief comparison

In South Africa, section 3(1) of the South African Schools Act 83 stipulates that schooling is compulsory for children aged seven to 15 years or attendance in Grades 1 to 9, whichever comes first. In Germany, the minimum age for the end of compulsory schooling can be summarised as follows: 84

At the age of six: (i) Children are required to attend school (the cut-off date is always the first day of June). The obligation to attend school full-time continues for nine or ten years (in terms of the education acts or the compulsory education acts of the Länder, respectively 85 ). At the age of 15: (i) The period of compulsory schooling ends in most of the Länder (in terms of the education acts or the compulsory education acts of the Länder, respectively).

Compulsory education in Germany is structured into three phases, as in Table 4 . 86

The different phases of education in South Africa can be categorised as follows:

(a) Foundation phase (Grades R-3) (b) Intermediate phase (Grades 4-6) (c) Senior phase (Grades 7-9) (d) Further education and training phase (Grades 10-12)

(e) Higher education

In short, children in South Africa may begin their school career with Grade 0 from the age of four. This is also known as "reception" or Grade R. Grades 1 to 9 are compulsory for all children and are categorised as General Education and Training (GET). Grades 11 and 12 are known as Further Education and Training (FET) and are not compulsory. However, on completion of Grade 12, learners receive a matriculation certificate which is required to enter tertiary/higher education (university).

In Germany, the Basic Law (Grundgesetz - RI) and the Constitutions of the Federal States (Länder) (R12-27) have several fundamental provisions pertaining to schools that also have a bearing and impact on primary schools. The legal basis for the Grundschule, also known as the first compulsory schooling for all children, can be found in the Education Acts (R85, R87, R89, R91, R93, R96, R98, R100, R102-103, R105, R107, R113, R115-117), the Compulsory Schooling Acts (R108) and the Schulordnungen (school regulations). These Acts are enacted by the German Ministries of Education and Cultural Affairs in the Länder. 87

4.1 The education/school system in Germany

Jeder Mensch hat das Recht auf Bildung. 88

4.1.1 A short history

The Second World War had an enormous impact on the German education system. Not only were universities and schools destroyed, but the education system was plagued by a shortage of teachers and resources. Moreover, the Cold War divided Germany between the two opposing blocs and a multitude of valuable educational talents were lost, since many Jewish scholars had been driven from their positions by the Nazis. At this time the education systems of East Germany and the Soviet sector of Berlin were reformed. The reforms were often referred to as the "Sovietisation of education". In 1945 the Soviet military authority established the German Central Administration for National Education and administered the elimination of private schools in East Germany and the Soviet sector of Berlin. 89 The current German school system will be discussed below.

4.1.2 Grundschule (primary school)

From Grades 1 to 4, all children attend Grundschule, where the basic skills and knowledge are taught to them. 90 The main purpose of the Grundschule is to promote, advance and foster children with diverse individual learning backgrounds and learning aptitudes and capabilities. In this context children are provided with a solid basis for independent thinking, reasoning, learning and working. Moreover, the Grundschule aims to provide its children with the necessary basis for the next level of education as well as for lifelong learning. 91 From Grade 5 and onwards children are evaluated for the next level of schooling. In other words, children are separated into "different" schools according to their academic performance and the wishes of their families. 92 These schools can be divided into three different types of schools, namely: Hauptschule, Realschule and Gymnasium. There is also an alternative to these schools, namely the Gesamtschule, which will be discussed in paragraph 4.1.4 below.

4.1.3 The tripartite system of secondary schools in Germany 4.1.3.1 The Hauptschule (basic general education)

The Hauptschule is for learners who want to do an apprenticeship after leaving school. Learners are prepared for "working life", and practical knowledge and skills are emphasised and encouraged. Learning also takes place at a slower pace. Most learners also attend vocation-oriented courses/modules once or twice a week by doing an internship at a company. Vocational education in Germany is recognised internationally and is also to the benefit of the particular learners, because learning and education occur at more than one place. 93

The Hauptschule lasts for five years 94 and after completion of the Hauptschule, learners receive a "Hauptschulabschluss". This is also known as a school-leaving certificate, which is awarded to learners who graduate from a Hauptschule. 95

In this way, practical and theoretical training are optimally linked and learners are adequately prepared to successfully enter the world of work. Examples of apprenticeships are those for electricians, mechanics, salespeople and office clerks.

4.1.3.2 The Realschule (more extensive general education)

The Realschule makes provision for extended general education. Learners are trained to flourish in mid-level jobs/careers. Learners are also allowed to learn a second foreign language and they learn more independently than in the Hauptschule. The Mittlere Reife is the school-leaving certificate which is awarded to learners who have completed the Realschule. It is usually awarded after ten years of schooling. 96

4.1.3.3 Das Gymnasium (intensified general education)

The Gymnasium makes provision for advanced general education. This type of school prepares learners for university or for dual academic and vocational credentials. Subjects such as German, foreign languages, mathematics, science and history are learnt through the Gymnasium. Two foreign languages are also learnt. Learners attend this school for eight or nine years before they can write the final examination, the Abitur in their Grade 12 or 13. The Abitur is an examination of vital importance in order to gain university admission/entrance. 97 Once a learner has completed Realschule or Hauptschule, there are several ways he/she can continue his/her secondary education in order to eventually pass the Abitur. 98

4.1.4 Die Gesamtschule: An alternative to the traditional three-tier school system

This type of school is also known as a comprehensive school. Despite children's different performances, these children are not divided into the tripartite system of secondary schools. Instruction/education is given collectively to these children.

A distinction is also made between two types of Gesamtschulen (comprehensive schools), namely cooperative comprehensive schools and integrated comprehensive schools. The cooperative comprehensive Gesamtschulen's main goal is to make the transmission between the Hauptschule, Realschule and Gymnasium easier and uncomplicated by merging/uniting the three tracks in the same school. The integrated comprehensive Gesamtschulen can be described as integrated, since the merging/uniting of the Hauptschule, Realschule and Gymnasium is educationally and organisationally cohesive. 99

The Hauptschule, Realschule and Gymnasium offer a single course of education, which means that this course of education is related to a certain school-leaving certificate. 100

4.1.5 Compulsory curricula in Germany

In Germany (in all Länder), compulsory curricula exist for all subjects in all types of compulsory schools (see Table 5 ). 101

Thus, the basic education system in Germany aims to achieve the following: to carry children forward from learning-by-playing at preschool level to more systematic forms of school learning, and to seek to adapt the subject matter taught and methods employed to the learners' requirements and capabilities. The Grundschule lays the foundations for secondary education. It endeavours to provide learners with a structured understanding of the impressions they gain from the world around them and to develop their psychomotor abilities and patterns of social behaviour.

Furthermore, the most important goals with regard to basic education are:

...to make learning as effective as possible for every child and, in this way, to ensure equality of opportunity from the very beginning of organized instruction. 102

There is thus a strong emphasis on child-centred methods of learning, which emphasis attempts to provide a favourable learning environment with wide-ranging experiences and practices that will support and promote the development of the whole child. 103

To summarise: The Grundschule, Hauptschule, Gymnasium and Gesamtschule strive to achieve the following objectives: 104

(a) to promote the full intellectual, emotional and physical development of children (Children are taught how to be independent, how to make informed decisions and how to deal with personal, social and political responsibility.);

(b) to provide the necessary education in accordance with the child's academic knowledge and also taking into consideration age-related conceptual faculties;

(c) to increase the degree of specialisation by considering every child's abilities and inclinations; and

(d) to maintain an open education system that permits transfers from one type of school to another type of school after an orientation phase.

4.1.6 Vocational Education and Training (VET) at upper-secondary level

The VET system is described as a dual system, since training is done in two places of learning, namely at companies and at vocational schools. The duration of training is normally three years but it may vary from state to state. 105

The aim of "dual training" is to provide basic vocational training, qualifications and competences which are required to "practise an occupation as a skilled worker in a changing world of work". The successful completion of this kind of training enables the trainee to practise an occupation as a qualified, skilled worker. There are currently 346 recognised training occupations. The only requirement for VET is the completion of compulsory full-time education. 106

4.1.7 Criticism of the German tripartite education system

There is of course (as with any other education system in the world) also criticism of the tripartite education system of Germany. The most important criticism levelled at this system is the existence of possible social inequality on the basis of social background, language and immigrant status. 107 Another point of criticism levelled at the tripartite education system was that children were separated too early and should have been separated at a later age. In response to this, Chancellor Angela Merkel argued that the results of the Programme for International Student Assessment (PISA) were not proof that the tripartite education system was at fault. In other words, the criticism could not be ascribed to a tripartite system error, but had to be attributed to human mistake(s), and these can certainly be remedied and resolved. 108 Since the criticism, Germany has focused on reforming its education system.

Despite the criticism, Germany still has one of the world's top education systems. Germany is currently eighth in The World Top 20 Education Poll 2014 Final Rankings. 109 Moreover, Germany is (owing to its school system) one of today's leading industrial nations. One should remember the following: 110

It was Germany that first developed the modern research university. In Germany, they found in the Gymnasium a model for secondary schools designed to prepare students for the modern research university. And it was Germany that provided in the Realschule and - later in the dual system - two of the world's most compelling models for supplying a nation with highly trained workers in every field of endeavour.

Migrantenfamllien 15-25; Schubert Biddungssystem 12-17; Theobald Biddungsunglecchheiten 410.

Moreover, Germany's flexible and adaptable combination of formal schooling together with the VET system signifies a very powerful and influential approach to provide learners with "skills, knowledge and motivation that could prove decisive on a national scale in international competition". 111

Germany is also often referred to as Europe's economic engine and its success in this sphere is based mainly on the quality, excellence, creativity, skill and dexterity of its labour force. 112 It is submitted that this can be directly attributed to the country's education system, which caters for learning differences.

4.2 The education/school system in South Africa

The school system in South Africa can be described as a "mainstream" school system. This means that, from Grades 1 to 7, all children attend primary school and, from Grade 8 and onwards, children attend high school (secondary school). Children are not separated into "different" schools according to their academic performance, 113 since the main focus is on inclusive, Outcomes-based Education (OBE). 114 However, this system is in the process of being revised, improved and renamed as "Schooling 2025". Schooling 2025 is a new action plan to improve the education system in South African schools. It aims to improve and promote all aspects pertaining to education, such as teacher recruitment, learner enrolment, school funding, mass literacy and numeracy, and the overall quality of education. This new action plan (this new curriculum) will enable learners to be educated in their mother tongues for the first three years of their schooling. English will still be a compulsory subject, but will not replace the mother tongue or home language in the early grades. Each grade will have its own study programme. 115 The plan seems to favour a strong bilingual education and mother tongue-based multilingual education model where instruction or academic content is taught in a home language (mother tongue or first language) and a second language; or where a child begins his or her educational career in his or her mother tongue, with later transitions to additional languages. 116

There is also the Curriculum and Assessment Policy Statement (CAPS). CAPS provides clear guidelines and directives on what educators (teachers) should teach and assess on a grade-by-grade and subject basis. 117 CAPS is defined as follows: 118

A National Curriculum and Assessment Policy Statement is a single, comprehensive, and concise policy document, which will replace the current Subject and Learning Area Statements, Learning Programme Guidelines and Subject Assessment Guidelines for all the subjects listed in the National Curriculum Statement Grades R-12.

The Department of Basic Education is responsible for the implementation of CAPS. The implementation has already taken place. CAPS was implemented as follows: 119

(a) In 2012 in the foundation phase (Grades 1-3) and Grade 10. (b) In 2013 in the intermediate phase (Grades 4-6) and Grade 11. (c) In 2014 in the final school year (Grade 12).

For the sake of completeness, it is necessary to give a brief overview of the school system in South-Africa.

4.2.1 Pre-primary/preschool

Preschools make provision for children between the ages of four and seven. These schools are normally divided into two grades, namely Grade R for children of four years who turn five before 30 June, and Grade 1 for children of five years who turn six before 30 June. Compulsory education begins in Grade 1, as already said. It is permissible to enrol children in Grade R or Grade 1 a year later if the parents or guardian of the child believe that the child is not "school-ready". Some schools insist that a child begin with Grade 1 only at the age of seven. The main focus areas of children's learning in preschools are literacy, numeracy and life skills.

4.2.2 Primary school

Primary schools make provision for children from their reception year to Grade 6. The reception year is non-compulsory and formal schooling starts in Grade 1. Primary schools are divided into junior primary and senior primary. Junior-primary schooling continues for three years and children are taught basic subjects such as reading and writing, mathematics and, in most instances, are introduced to a second language. Children between the ages of ten and twelve years attend senior-primary school. Besides mathematics and language skills, these children learn subjects such as history, geography, life skills and science. Moreover, their writing and speaking skills in respect of a second language are also developed and expanded.

Assessment in primary schools is conducted through Annual National Assessments (ANAs) and is unvarying across South Africa. Assessment takes place in literacy and numeracy in the foundation stage (Grades 1-3) and in numeracy and languages in the intermediate phase (Grades 4-6).

4.2.3 Secondary school

Secondary education is also divided into two phases, namely the junior and senior phases. Learners are allowed to study two or three languages, and secondary school also enables learners to extend and intensify their knowledge of numerous academic subjects. One can thus say that secondary education prepares and equips learners for further study, which then enables them to follow a career of their choice. Learners study at least four subjects from the following areas: general studies, commercial studies, the natural sciences, technical studies, the arts, agriculture, and domestic science. Grades 10 to 12 are optional.

Furthermore, certificates are awarded to learners who complete Grades 10 and 11, but the National Senior Certificate (NSC) is awarded only when a learner completes Grade 12. The NSC is the equivalent of a high-school diploma and is better known as a matriculation or matric certificate.

In order to obtain an NSC, learners are obliged to take a minimum of six subjects. Learners are also permitted to add three additional subjects, but these three additional subjects are non-compulsory. The compulsory subjects are two languages (the mother tongue plus an additional language), mathematics and life orientation. Learners have a choice of two (or more) other subjects.

However, despite new plans and efforts to improve the school system, it seems that the South African school system is still not functioning satisfactorily. It appears that mainstream education in South Africa does not work either, since the school system does not make provision for the needs of learners who cannot cope in mainstream education nor does it make provision for children with specific skills, talents and aptitudes. In other words, it seems that the current inclusive mainstream school system of South Africa does not cater satisfactorily for learning differences, which means that the system excludes some learners (with different aptitudes, skills, talents and interests) from realising their right to a basic education to its fullest extent. The ripple effect of this is that there might be an infringement/violation of these children's constitutional rights to equality and dignity. Furthermore, one needs to ask whether mainstream schooling is really in the best interests of the child as provided for in section 28(2) of the Constitution, and whether it makes provision for children with "mainly practical talents" or children "whose predisposition lies between theoretical and practical extremes of the psychological range" to "compete" with children "who are theoretically inclined"? The answer to these questions is that it does not. 120 The reason for this is that children's aptitudes, skills and talents vary and equal educational opportunities (and the prevention of unfair discrimination) can be promoted only when children follow different curricula in accordance with their aptitudes, skills and talents and not on the basis of social background and/or race. Furthermore, high-school dropout rates in South Africa are evidence that the mainstream school system is not working and that drastic action needs to be taken in order to accommodate learner differences. 121

The current mainstream school system of South Africa reminds one of the well-known folk tale about the tree-climbing competition in Animal Land. The participants are Leopard, Elephant, Turtle and Monkey. It is obvious that it is impossible for all of the participants (especially the Elephant and Turtle) to climb a tree, since all the participants have different aptitudes, skills and talents. In other words, the competition is not in the best interests of all participants (all children), and nor does it make provision for all participants' rights to equality and dignity.

The question now is: What should or could be done in order to enhance learner differences? It is submitted that all children (learners), regardless of their social background and/or race, should be entitled to an education appropriate to their learning needs, aptitudes, skills and talents. Children with different learning needs, aptitudes, skills and talents need different curricula.

5 A proposed school system for South Africa?

The success of any country, whether it is social, financial or economic success, depends on how its citizens are educated. To put this differently: the performance and well-being of education (and school) systems worldwide have become an important indicator of a country's success or failure and have both economic and social importance when countries are seeking greater ecological sustainability and inclusive economic growth. It is, therefore, hard to imagine that any government would not support and encourage a quality system of education for all.

On the basis of the above discussion, it appears that a system similar to Germany's school system would be favourable for South Africa, since such a system gives better effect to the realisation and fulfilment of a child's right to a basic education, with specific emphasis on the right to equality and the right to dignity. With regard to the right to equality, the German system does not focus solely on the equal treatment of every child, but rather on promoting, protecting and respecting every child's equal worth. In other words, children have equal opportunities within the school and education context, but in different ways (different curricula) according to their aptitudes, skills and talents. 122 With regard to dignity, it seems that the South African school system does not sufficiently acknowledge the fact that each child is unique, with different learning needs (with specific reference to mainstream education). It seems, therefore, that the German school system makes better provision for children's different learning needs and the uniqueness of the individual to such an extent that every individual's (child's) potential and intrinsic worth are promoted, protected and respected to the best of the system's capacity. 123

A proposed school system for South Africa would not need to be exactly like the German one, but the German tripartite school system could be used as a framework. It is proposed that the following school system be considered in South Africa in order to realise a child's right to a basic education to its fullest extent: 124

(1) School W (equivalent to the Grundschule) where all learners (children) attend Grades 1 to 4. During this stage, all the basic skills and knowledge are taught to them. (2) School X (equivalent to the Gymnasium) where provision is made for the theoretically inclined learner (high academic performance) whose work-related objective is a "leading intellectual position". (3) School Y (equivalent to the Hauptschule) where provision is made for basic general education for learners who mainly have practical skills and talents (technical, mechanical, entrepreneurial, etc.) and whose occupational objective is an "instruction-following" position. Learners should also have the opportunity of acquiring an additional certificate in order to gain access to university education. (4) School Z (equivalent to the Realschule) where provision is made for adequate education for those learners whose "predisposition lies between the theoretical and practical extremes of the psychological range" and who aim for careers/occupations with "increased responsibilities". Learners should also have the opportunity of acquiring an additional certificate in order to gain access to university education.

However, there can still be comprehensive secondary schools (such as the Gesamtschule) that any child can attend and which offer all the necessary subjects with regard to the whole range of qualifications.

Of course, the development of such a system is not without challenges and would be bound to attract criticism, but at least it would be an improvement. It is submitted that the proposed South African school system would be better able to surmount barriers such as discrimination on the basis of social background, language and immigrant status (the biggest criticism levelled against the German tripartite system), 125 since the South African Constitution explicitly prohibits such discrimination in terms of section 9, and South Africa is well advanced with the application thereof, not only in schools, but also in the workforce.

The school system proposed for South Africa would strive to put the child first, and it would have to be kept in mind that the different types of schools are to be designed to suit different children with different aptitudes, talents, skills (learning needs) and interests, and not different social groups or different races or different languages. No child should be forced into an academic education that bores the child to rebellion, or which causes huge amounts of stress or frustration, merely because that type of school education is considered more socially desirable by society.

In conclusion, adopting a VET system similar to the German VET system 126 would be highly beneficial to South Africa, since it would reduce school dropout rates and unemployment rates. School leavers would have the opportunity to undertake VET training after the completion of compulsory schooling in order to start off with successful occupations as highly skilled workers. A VET system would build skills such as:

...the ability to set work goals, create plans to achieve them and working in a disciplined way to implement and execute that plan, being an effective member or leader of a team and the ability to think analytically and creatively. 127

The adoption of VET would without a doubt strengthen the nation's economic activity.

6 Conclusion

The South African education system is undoubtedly a high-cost, low-performance system where the full realisation of a child's right to a basic education is not satisfactorily adhered to in terms of section 29 of the Constitution. Moreover, the best interests of children in terms of section 28 of the Constitution are also not promoted adequately, and children's rights to equality and human dignity 128 seem to be infringed as well. The time is therefore ripe for a change in the system. Of course, such a change would not take place without problems and/or challenges, but when such change occurs step by step and systematically, it would be likely to succeed.

It is obvious that the proposed school system would not work if there were inequalities of any nature. 129 It is therefore also crucial that children be assessed and evaluated objectively and that the importance of objective and unbiased assessment and evaluation be promoted and encouraged. 130 Moreover, the assessment and evaluation should not be based on a child's performance in tests and examinations only, but also on the child's aptitude, skills, talents and interests. In addition, the success of the proposed school system would depend on teachers being well trained for teaching in such a system. It would accordingly be advantageous in future to employ only newly qualified teachers who have been trained for teaching in a new school system.

Furthermore, the main purpose of the proposed school system in South Africa should be the promotion, advancement and fostering of children with diverse individual learning backgrounds and learning aptitudes, skills, talents and interests. A culture of diligence should, in other words, be fostered: children have different abilities, but every child can reach his/her educational goal - it might just require a different route or a longer journey. When such a purpose is accomplished, children will be provided with a solid basis of independent thinking, reasoning, learning and working. 131 Also, this would lead to a fuller realisation of the child's right to a basic education, as well as his/her right to equality and human dignity, and it would also be in the best interest of the child.

The proposed school system should strive to achieve the following goals: 132

(a) to promote the full intellectual, emotional and physical development of children; (b) to provide satisfactory education in accordance with children's academic knowledge and prowess; (c) to increase the degree of specialisation with regard to children's aptitudes, skills, talents and learning differences; (d) to maintain an open education system that permits the transfer from one school type to another school type after proper orientation; (e) to drastically improve teacher quality; and (f) to provide reports based on a continuous, data-based, problem-centred examination of the South African education system.

Moreover, such a school system in South Africa, like that of Germany, may serve as a good instrument in:

(a) empowering people to escape the poverty cycle and compete effectively in the labour market;

(b) enabling people to understand and enjoy their democratic values, rights and freedoms; (c) encouraging people to participate in and protect the fledgling democratic system; and (d) most importantly, enhancing their dignity and feeling of self-worth as human beings. 133

Lastly, it is submitted that the proposed school system would, to a much greater extent than the current South African school system, progressively realise the constitutional rights specified in sections 7(2) and 29 of the South African Constitution.

When children are educated, the following must always be remembered:

Everybody is a genius. But if you judge a fish by its ability to climb a tree, it will live its whole life believing that it is stupid. 134

BIBLIOGRAPHY

Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 3 SA 165 (CC)

Governing Body of the Juma Musjid Primary School v Essay 2011 7 BCLR 651 (CC)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)

Prinsloo v Van Der Linde 1997 6 BCLR 759 (CC)

S v Makwanyane 1995 6 BCLR 665 (CC)

Legislation

South Africa

Constitution of the Republic of South Africa, 1996

Constitution of the Republic of South Africa Act 200 of 1993

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

South African Schools Act 84 of 1996

Compulsory Schooling Acts (R108)

Constitutions of the Federal States (Länder) (R12-27)

Education Acts (R85, R87, R89, R91, R93, R96, R98, R100, R102-103, R105, R107, R113, R115-117)

Grundgesetz für die Bundesrepublik Deutschland R1 (German Basic Law) Sozialgesetzbuch VIII [SGB VIII], Dec 8, 1998, BGBl I at 3456, as amended (Title Eight of the Social Code)

International instruments

Convention on the Rights of the Child (1989)

International Covenant on Economic, Social and Cultural Rights (1966) Universal Declaration of Human Rights (1948)

Government publications

White Paper on Education and Training (Gen N 196 in GG 16312 of 15 March 1995)

Unification Treaty/Einigungsvertrags (BGBl 1990 II S889)

Internet sources

Brown K 2014 Best Practices in Mother Tongue-Based Multilingual Education http://sites.miis.edu/katiebrown/files/2014/06/K-Brown-Best-Practices-Report.pdf accessed 28 January 2015

Bundesrepublik Deutschland 2015 Grundgesetz für die Bundesrepublik Deutschland http://www.dejure.org/gesetze/GG accessed 21 January 2015

Department of Basic Education 2011 Curriculum Assessment Policy Statements (CAPS) http://www.education.gov.za/Curriculum/CurriculumAssessmentPolicyStatements/tabid/419/Default.aspx accessed 28 January 2015

Fitzgerald E 2005 Education in South Africa http://www.sitemaker.umich.edu/356.fitzgerald/outcomes_based_curriculum accessed 27 January 2015

Louw W 2015 On the Upcoming 2014 Matric Results http://www.equaleducation.org.za/article/2015-01-02-on-the-upcoming-2014-matric-results accessed 26 January 2015

Malone S 2007 Mother Tongue-Based Multilingual Education: Implications for Education Policy http://www.sil.org/sites/default/files/files/mtbmle_implications_for_policy.pdf accessed 28 January 2015

Nel CA 2014 Onderwys in Groot Krisis, sê Angie http://www.netwerk24.com/nuus/2014-12-06-onderwys-in-groot-krisis-s-angie accessed 6 January 2015

National Economic and Social Rights Initiative 2014/2015 What is the Human Right to Education? https://www.nesri.org/programs/what-is-the-human-right-to-education accessed 6 January 2015

Nuffield Foundation 2013 Towards Universal Participation in Post-16 Mathematics: Lessons from High-performing Countries. Country Profile: Germany (Rhineland-Palatinate) http://www.nuffieldfoundation.org/sites/default/files/files/GERMANY%20(R-P)%20country%20profilev_FINAL.pdf accessed 21 January 2015

Organisation for Economic Co-operation and Development 2006 The Programme for International Student Assessment http://www.oecd.org/pisa/pisaproducts/39725224.pdf accessed 15 October 2014

Organisation for Economic Co-operation and Development 2010 Germany: Once Weak International Standing Prompts Strong Nationwide Reforms for Rapid Improvement http://www.oecd.org/pisa/pisaproducts/46581323.pdf accessed 29 January 2015

Palmer E 2007 Germany - Children's Rights: International and National Laws and Practice http://www.loc.gov/law/help/child-rights/pdfs/ChildrensRights-Germany.pdf accessed 6 January 2015

Rose S and Beutner M 2014 VET and Education System in Germany http://evive.eduproject.eu/wp-content/uploads/EVive_Educational-VET-System-in-Germany.pdf accessed 6 January 2015

United Nations Educational, Scientific and Cultural Organization 2000 World Declaration on Education for All: Meeting Basic Learning Needs http://www.unesco.org/education/wef/en-conf/Jomtien%20Declaration%20eng.shtm accessed 30 October 2014

World Top 20 2014 Education Poll 2014 Final Rankings http://www.worldtop20.org accessed 29 January 2015

LIST OF ABBREVIATIONS

ANAs Annual National Assessments

BGBl Bundesgesetzblatt

CAPS Curriculum and Assessment Policy Statement

Brit J Educ Stud British Journal of Educational Studies

CRC Convention on the Rights of the Child

DoBE Department of Basic Education

EJELP European Journal for Education Law and Policy

EPC Educational Programs Committee

FET Further Education and Training

GET General Education and Training

GIJPAI Governance: An International Journal of Policy, Administration, and Institutions

HSRC Human Sciences Research Council (South Africa)

ICESCR International Covenant on Economic, Social and Cultural Rights

MJ The Monitor Journal

NESRI National Economic and Social Rights Initiative

NSC National Senior Certificate

OBE Outcomes-based Education

OECD Organisation for Economic Co-operation and Development

PELJ Potchefstroom Electronic Law Journal

PISA Program for International Student Assessment

SACG South African Child Gauge

TSAR Tydskrif vir die Suid-Afrikaanse Reg

UNESCO United Nations Educational, Scientific and Cultural Organization

VET Vocational Education and Training

Funding of the research conducted for this article was provided by the Alexander von Humboldt Foundation 1 Channing Works 379. 2 It is important to note that most of the resources used in this article refer to "a right to education". However, the Constitution refers to "a right to a basic education". For the purposes of this article (and to be consistent and in line with the Constitution), the author will refer to "a right to a basic education". 3 It is important to differentiate between "the right to education" and the "right to a basic education". The right to education is "broader" than the right to a basic education, since the right to a basic education refers only to a person's basic learning needs (such as literacy, expression, numeracy and problem solving) and the basic learning content (such as knowledge, skills, values and attitudes). The right to education is a universal entitlement to education and also includes the responsibility to provide basic education for all individuals. In other words, the right to education is not restricted to basic education: it is something more - it is a tool that improves the quality of life. (See, in general, UNESCO 2000 http://www.unesco.org/education/wef/en-conf/Jomtien%20Declaration%20eng.shtm . 4 Pendlebury 2008/2009 SACG 25. 5 Oosthuizen and Rossouw 2001 Koers 656; also see Devenish Constitution 153. 6 Nel 2014 http://www.netwerk24.com/nuus/2014-12-06-onderwys-in-groot-krisis-s-angie . 7 "Dropout rates" refers to the percentage of children who do not complete school. Also see the discussion in para 4.2.3 and para 5 below. 8 Louw 2015 http://www.equaleducation.org.za/article/2015-01-02-on-the-upcoming-2014-matric-results . 9 It must be kept in mind that Germany has 16 different states (Länder) and a full discussion of the educational situations in all of these states does not fall within the scope of this article. 10 Arendse 2011 PELJ 97. 11 Taiwo Implementation of the Right to Education 116. 12 Arendse 2011 PELJ 98. 13 Universally accepted rights are the following: the right to education, equal access to educational facilities, freedom of choice, education in the language of one's choice, the right to establish private educational institutions, availability, accessibility, acceptability and adaptability. Also see Malherbe "Education Rights" 400-402. 14 South African Schiools Act 84 of 1996. 15 Malherbe 2000 EJELP 51. With regard to the right to education for the "girl child", see Mwambene "Girl Child's Right to Education" 219-235. 16 Taiwo Implementation of the Right to Education 116. 17 See, in general, Ex parte Gauteng Provincial Legislature/ In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 3 SA 165 (CC) paras 8-9. 18 Ta iwo Implementation of the Right to Education 117. 19 Malherbe 2008 TSAR 274-275. 20 Devenish Bill of Rights 398. 21 Devenish Bill of Rights 398. 22 Dewey Democracy and Education 1 -4. 23 HSRC and EPC Report on Education 141. 24 Oosthuizen and Rossouw 2001 Koers 662. 25 The Whtte Paper on Education and Training was published on 15 March 1995 (Gen N 196 in GG 16312 of 15 March 1995) in terms of the obligations under s 32(a) of the Interim Constitution of the Republcc of South Africa 200 of 1993. 26 Bray "South African Schools Act" 279. 27 Devenish Bill of Rights 400. 28 See para 4 below for a discussion on compulsory school attendance. 29 Khoza Socio-economic Rights 420. 30 Taiwo Implementation of the Right to Education 122. 31 Devenish Bill of Rights 398. 32 Devenish Bill of Rights 398. 33 Pendlebury 2008/2009 SACG 22. 34 Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constttutionaiity of Certain Provisions of the Gauteng Schooi Education Bill of 1995 1996 3 SA 165 (CC). 35 Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionaiity of Certain Provisions of the Gauteng Schooi Education BUI of 1995 1996 3 SA 165 (CC) para 9. Although this case was decided under the Interim Constitution (Constitution of the Republic of South Africa 200 of 1993), it is still of great value because it emphasises the state's duty to promote and to give effect to the right to a basic education. 36 Pendlebury 2008/2009 SACG 19. 37 De Groof "Some Comments and Questions" 63. 38 The South African Schools Act 84 of 1996 makes provision for two types of schools, namely, public schools and independent schools. Public schools are controlled by the state, whereas independent schools are privately governed and administered. Independent schools/institutions are required to register with the state and standards not lower than those of similar public schools/institutions must be upheld by these independent schools/institutions. 39 See the discussion on the ICESCR in para 6.2 below. 40 Pendlebury 2008/2009 SACG 20; see also Coomans 2007 SIM Special 20 137-138. 41 Pendlebury 2008/2009 SACG 20; also see Coomans 2007 SIM Special 20 137-138. 42 Government of the Repubicc of South Africa v Grootboom 2001 1 SA 46 (CC). 43 See, in general, Liebenberg Socio-economic Rights 233-242. 44 Governing Body of the Juma Musjid Primary School v Essay 2011 7 BCLR 651 (CC). 45 Governing Body of the Juma Musjid Primary School v Essay 2011 7 BCLR 651 (CC) para 37. See also Arendse 2011 PELJ 116. 46 Pendlebury 2008/2009 SACG 21. 47 A full discussion of all these rights does not fall within the scope of this article. For a detailed discussion, see the book of Liebenberg Socio-economic Rights. 48 Pendlebury 2008/2009 SACG 21. 49 Pendlebury 2008/2009 SACG 20. 50 Krüger 2011 Equal Rights Review 27. 51 Krüger 2011 Equal Rights Review 27. 52 Rautenbach "Bill of Rights" para 1A57.1. 53 Promotion of Equaiity and Prevention of Unfair Discrimination Act 4 of 2000. 54 Krüger 2011 Equal Rights Review 27. 55 Albertyn "Equality" para 4.1. 56 Albertyn "Equality" para 4.1. 57 Prinsloo v Van Der Linde 1997 6 BCLR 759 (CC). 58 See, in general, Van de Lanotte, Sarkin and Haeck Equaiity 141. 59 NESRI 2014/2015 https://www.nesri.org/programs/what-is-the-human-right-to-education . 60 Haysom "Dignity" para 5.2.1. 61 See S v Makwanyane 1995 6 BCLR 665 (CC) para 328. 62 Haysom "Dignity" para 5.2.1. 63 Haysom "Dignity" para 5.2.1. 64 Haysom "Dignity" para 5.2.2. 65 Rautenbach "Bill of Rights" para 1A57.1. 66 Rautenbach "Bill of Rights" para 1A58.1. 67 Haysom "Dignity" para 5.2.2. 68 NESRI 2014/2015 https://www.nesri.org/programs/what-is-the-human-right-to-education . 68 Haysom "Dignity" para 5.2.1. 69 Said by JF Kennedy, the 35th President of the United States of America. It can be translated as there is only one thing in the world which is more expensive than education: no education! 70 The German Constitution is also known as the Basic Law of the Federal Repubiic of Germany (Grundgesetz für die Bundesrepublik Deutschland R1). 71 Robbers German Law 44. 72 See, in general, Battis and Gusy Staatsrecht 234-241; also see Bundesrepublik Deutschland 2015 http://www.dejure.org/gesetze/GG . 73 See, in general, Battis and Gusy Staatsrecht 234-241; also see Bundesrepublik Deutschland 2015 http://www.dejure.org/gesetze/GG . 74 Robbers German Law 44. 75 Hörner et al Education Systems 302. 76 Kunze Recht auf Bildung 93. 77 Sozialgesetzbuch VIII [SGB VIII], Dec 8, 1998, BGBl I 3456. Also see Palmer 2007 http://www.loc.gov/law/help/child-rights/pdfs/ChildrensRights-Germany.pdf 90; Ohnesorge Kinder- und Jugendhilfe 6-7. 78 Rose and Beutner 2014 http://evive.eduproject.eu/wp-content/uploads/EVive_Educational-VET-System-in-Germany.pdf 2-3. 79 This may vary from state to state. For example, the state of Bavaria is different. 80 This varies from state to state. For example, primary school lasts for 6 years in the states of Berlin and Brandenburg. 81 This may vary from state to state, since some states also have an alternative to the traditional three-tier school system, namely "die Gesamtschule". 82 Rose and Beutner 2014 http://evive.eduproject.eu/wp-content/uploads/EVive_Educational-VET-System-in-Germany.pdf 2-3. 83 83 South Afrccan Schools Act 84 of 1996. 84 Melchiorre At What Age? 64-65. 85 "Länden may be translated as "states". 86 Nuffield Foundation 2013 http://www.nuffieldfoundation.org/sites/default/files/files/GERMANY°/o20(R-P)°/o20country°/o20profilev_FINALpdf . 87 Lohmar and Eckhardt Education in Germany 103. 88 Article 26 of the Allgemeine Erklärung der Menschenrechte (Universa/ Declaration of Human Rights (1948)) which states that everyone has a right to education. Also see the discussion in para 6.1 below. 89 Andell 2008 MJ 16. 90 Grundschule lasts for six years in Berlin and Brandenburg. 91 Lohmar and Eckhardt Education in Germany 103. 92 Plötzgen Blldungssystems 37-44. 93 Plötzgen Blldungssystems 37-44; also see Andell 2008 MJ 16-17. 94 This may also vary from state to state. 95 Andell 2008 MJ 16-17. 96 Brenner Schule in Deutschland 44-46. 97 Rösner Schulsystem in Deutsch/and 74-75. 98 Rösner Schulsystem in Deutsch/and 74-75. 99 Andell 2008 MJ 16 17. 100 There are also additional/alternative school types in different Länder (states), which offer several courses of education. They are: Werkreasschule (Baden-Württemberg); Mittesschule, Wirtschaftsschu/e (Bayern); Integrierte Sekundarschule (Berlin); Oberschule (Brandenburg); Sekundarsch ule, Oberschule (Bremen); Haupt- und Realschule, Stadtteilschule (Hamburg); Verbundene Haupt- und Realschule, Mittelstufenschule, Förderstufe (Hessen); Regionale Schule (Mecklenburg-Vorpomern); Oberschu/e (Niedersachsen); Reasschule plus (Rheinland-Pfalz); Erweiterte Realschule, Gemeinschaftsschule (Saarland); Mittelschule (Sachsen); Sekundarschule (Sachsen-Anhalt); Gemeinschaftsschule, Regionalschule (Schleswig-Holstein); Regelschule, Gemeinschaftsschule (Thüringen). 101 Lohmar and Eckhardt Education in Germany 117-118. 102 Woodill, Bernhard and Prochner Early Chlldhood Education 224. 103 Woodill, Bernhard and Prochner Early Childhood Education 224. 104 Lohmar and Eckhardt Education in Germany 113. 105 Hippach-Schneider, Krause and Woll Vocational Education 24-26. 106 Hippach-Schneider, Krause and Woll Vocational Education 24-26. 107 This was according to the PISA (Program for International Student Assessment) undertaken by the OECD (Organisation for Economic Co-operation and Development) at schools in participating countries. See a summary of the 2006 findings at OECD 2006 http://www.oecd.org/pisa/pisaproducts/39725224.pdf 31-37. Also see OECD 2010 http://www.oecd.org/pisa/pisaproducts/46581323.pdf . 108 Andell 2008 MJ 17-19. Also see Freitag and Schlicht 2009 GIJPAI 47-72; Diefenbach 109 The World Top 20 Education Poll is an international project which examines, monitors and ranks more than 200 countries' education systems in order to improve learner development between the ages of 3 and 25. The main purpose of this project is "to assure that every child on the planet has an opportunity to reach their full potential, with access to quality education in a safe and nurturing environment". See World Top 20 2014 http://www.worldtop20.org . 110 OECD 2010 http://www.oecd.org/pisa/pisaproducts/46581323.pdf 202. 111 OECD 2010 http://www.oecd.org/pisa/pisaproducts/46581323.pdf 202, 214. 112 OECD 2010 http://www.oecd.org/pisa/pisaproducts/46581323.pdf 202, 215. 113 It is important to note that provision is made for special schools where disabled children are able to receive education. 114 OBE can be described as "an approach to learning that seeks to link education more closely to the real world, giving students skills to access, criticize, analyse and practically apply knowledge, rather than simply absorb and repeat it parrot-fashion". (See, in general, Fitzgerald 2005 http://www.sitemaker.umich.edu/356.fitzgerald/outcomes_based_curriculum ). 115 DoBE Reaissation of Schooinng 2025 12-14. 116 DoBE Realisation of Schooiing 2025 12-14; also see Brown 2014 http://sites.miis.edu/katiebrown/files/2014/06/K-Brown-Best-Practices-Report.pdf 3-6; Malone 2007 www.sil.org/sites/default/files/files/mtbmle_implications_for_policy.pdf . 117 CAPS provides guidance for teachers with regard to week-by-week planning; it gives direction and guidance in terms of pacing and progression and it provides clear guidelines in terms of assessment requirements. 118 DoBE 2011 http://www.education.gov.za/Curriculum/CurriculumAssessmentPolicyStatements/tabid/419/Default.aspx . 119 DoBE 2011 http://www.education.gov.za/Curriculum/CurriculumAssessmentPolicyStatements/tabid/419/Default.aspx . 120 The answer(s) to the questions that were asked in para 2.2. Also see a discussion on the right to equality and the right to dignity in paras 2.4.1 and 2.4.2. 121 See Table 1 above for dropout rates. 122 See the discussion on equality in para 2.4.1 above. 123 See the discussion on dignity in para 2.4.2 above. 124 Ertl and Phillips 2000 Brtt J Educ Stud 394. 125 See the criticism levelled at the German tripartite education system in para 4.1.7 above. 126 See para 4.1.6 for a discussion on the German VET system. 127 OECD 2010 http://www.oecd.org/pisa/pisaproducts/46581323.pdf 214. 128 See paras 2.4.1 and 2.4.2 above. 129 See para 4.1.7 above. 130 In other words, South Africa needs to create a welfare society with an emphasis on supporting every individual regardless of economic or social background. 131 See para 4.1.2 above. 132 See also para 4.1.5 above. 133 Malherbe 2008 TSAR 274-275. Also see para 2 above. 134 Albert Einstein as quoted in Kelly Rhythm of Life 80.

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South Africa’s classrooms should have a ‘box’ of languages to help children learn: new bilingual education policy is a start

Professor of African Language Studies, University of the Western Cape

Lecturer on the New Generation of Academics Programme (nGAP) in African Language Studies, University of the Western Cape

Disclosure statement

Russell H. Kaschula receives funding from the National Research Foundation and the National Department of Higher Education and Training (UCDG Grant funding)

Mbali Sunrise Dhlamini does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

University of Western Cape provides support as a hosting partner of The Conversation AFRICA.

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Language has always been used as a political football in South Africa. This can be traced back to the competing English and Dutch colonisers, from the 17th to the early 20th centuries, each group trying to assert linguistic as well as economic and social control.

Later, language was used to divide and rule under apartheid. For instance, the racist regime created “homelands” – areas of self-determination for Black South Africans – that were linguistically bounded; all isiXhosa speakers, for example, were relegated to the same area where they were forced to live and study.

Today the country has 12 official languages . The bill of rights grants everyone the right to access education in the “official language or languages of their choice” and use these languages for cultural and religious purposes. But what’s the reality? Do the official languages, as recognised by the constitution, represent and accommodate all speech communities in South Africa, especially to promote fair and equal access to education? And are those 12 recognised language varieties really free to be used equitably as languages of instruction in the education system? The short answer to these questions is “not yet”.

Read more: Sign language is now official in South Africa - how this will help education in Deaf schools

The government is trying to change this. In May 2024 the Department of Basic Education announced a strategy to progressively introduce mother tongue based bilingual education in schools from grades 4 to 7. Currently schools can teach in pupils’ mother tongues until grade 3, when children are usually 8 or 9 years old, and must then shift entirely to English in grade 4. The new policy will see English used alongside mother tongue languages when learning content subjects, while English is also taught as a subject, from grades 4 to 7.

There is ample research from South Africa and elsewhere in the world that shows learners benefit most from being taught in their mother tongue while simultaneously learning English as a subject and as a tool to enhance mother tongue education.

We are linguists involved in language policy formulation and implementation. We believe that, if planned properly and in close consultation with experts, the new policy is an opportunity to promote equity and redress the past politics of language.

An ongoing approach

The new policy is not unique. Several countries, among them France , Japan and China , have used mother tongue based bilingual education for decades. The same happens in Wales, where Welsh has been prioritised alongside English, and in New Zealand, where learners are empowered to use Maori alongside English, with positive educational results .

Vietnam is a good example of how successful this approach can be. Many learners speak minority languages. They are taught in those languages in their formative years while learning Vietnamese as part of a mother tongue bilingual approach, allowing them to transition to being taught in Vietnamese. This has greatly improved the country’s educational results .

And using mother tongues as a basis for learning alongside another language or varieties already happens informally in many South African classrooms. Content subjects are taught in various languages or varieties, sometimes called dialects, many of which are not the country’s 12 official languages.

Read more: Lessons from Africa prove the incredible value of mother tongue learning

More formal approaches to mother tongue based bilingual education exist, too. In 2020, grade 12 learners in the Eastern Cape could choose to write their trial exams (precursors to the school-leaving final exams) for mathematics and science in isiXhosa, the province’s most common mother tongue .

Rolling out the policy

The Department of Basic Education must ensure that it rolls out the new policy in a carefully scaffolded way right up to grade 12, allowing all mother tongue languages to flourish alongside English. It must also supply bilingual and multilingual learning materials. And assessment must be done in the language in which the learner was taught.

Read more: Multilingualism must be celebrated as a resource, not a problem

Methods of assessment would therefore need to change to accommodate language varieties used in classrooms. It would be disadvantageous for learners to be allowed to use other language varieties during learning and teaching but then to be expected to switch to a monolingual mode during assessments. The key to such an approach would be to use translanguaging throughout the schooling process. This involves letting the teacher use any language or variety that the learner understands best and even to make use of multiple languages if needed.

Ideally, teachers and learners need a metaphorical box of languages in the classroom. When required, they can dip into the “box” and use whatever language varieties are appropriate to aid cognition and learning, including assessment. We emphasise that it would be ideal to also examine those learners in the language varieties in which they are taught, as with the Eastern Cape example.

Language should be used in South African schools to empower learners rather than leave them stranded. The mother tongue based bilingual education policy is a big step towards making this a reality.

• Bilingualism
• Teaching language
• African languages
• Mother tongues
• Bilingual education
• Teaching and learning
• South African languages
• South African schools

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Transform your parenting: 7 game-changing tips to connect with your child

Want to better understand your child try these 7 effective parent-kids bonding tips to create a safe space for difficult conversations.

The first step for parents , towards building bonds with their kids , is to understand the importance of adapting communication techniques to each child’s unique personality and developmental needs, especially for children with special needs. Strategies like reflective listening, using playfulness in conversations, encouraging storytelling and non-directive communication foster a safe, open and supportive environment.

In an interview with HT Lifestyle, Monica S Kumar, Social and Development Expert and Founder of BloomBuds ASD Life Trust, suggested the following tips for helping parents effectively connect with their children, promote emotional intelligence and ensure that their children feel heard and understood in a nurturing parent-child relationship -

1. Tailor communication styles to your child’s personality

While age is a major factor in communication, it’s also important to consider each child’s unique personality. Children have different communication preferences, and understanding this allows parents to develop a deeper connection.

• Recognise Individual Communication Needs: For children with special needs, particularly those with Autism Spectrum Disorder (ASD) or ADHD, a customized approach can be even more essential. Many children with ASD find verbal expression challenging, so parents can use techniques like visual aids and social stories to bridge communication gaps. Active listening can be particularly beneficial for children who may struggle with verbal expression. Involving stakeholders, NGOs support parents of children with special needs by providing tools and strategies to enhance active listening, making sure each child is fully understood.

2. Use reflective listening beyond words

Reflective listening is a vital communication tool that goes beyond just paraphrasing what a child says—it also involves recognizing the emotions behind their words and responding accordingly.

• Identify and Label Emotions: When a child talks about an experience, try to identify the emotions behind their words. For example, if they say, “No one played with me at recess,” you could respond with, “It sounds like you felt lonely today.” This not only helps the child feel understood but also helps them develop emotional intelligence by associating emotions with their experiences.
• For children with special needs, such as those on the autism spectrum or with ADHD, emotional recognition can be especially challenging. Programs designed to train parents of children with ASD or ADHD focus on recognizing emotional cues that may not always be verbal. Workshops provided by specialized support organizations educate parents on emotional identification, helping children navigate the complex world of emotions, which is particularly difficult for those who may not communicate their feelings clearly.

3. Incorporate playfulness in conversations

Playfulness can be an effective way to break down barriers in communication with children, especially when dealing with sensitive topics.

• Role-Playing Scenarios: Engaging in role-playing games can make it easier for children to express emotions they find difficult to explain. For instance, using stuffed animals to act out situations can allow children to project their feelings onto the characters, providing insight into their emotional world.
• Humour as an Icebreaker: Light humor can help ease tension during difficult conversations. Sharing a funny anecdote or gently teasing can make children feel more comfortable and willing to talk about their concerns without fear of judgment.
• In specialized programs for children with autism, playful interactions like role-playing games and sensory activities encourage self-expression in ways that words may not. Such activities also help parents and children understand each other’s emotional worlds better, fostering deeper connections.

4. Encourage narrative building

Children’s cognitive and emotional development can benefit greatly from constructing narratives around their experiences. Encouraging children to describe events as stories helps them process emotions and articulate their thoughts more effectively.

• Daily Storytelling Time: Ask open-ended questions that prompt more detail, such as, “What was the best part of your day?” or “How did that make you feel?” This helps children reflect on their emotions and practice communicating them clearly.
• For children with special needs, narrative-building can become a vital tool to help them connect with their experiences and emotions. Therapists often encourage parents of children with ASD and ADHD to engage in structured storytelling activities, where children are given space to process their day in a way that feels safe and accessible. Organizations focusing on ASD provide workshops that teach parents how to engage in non-judgmental and compassionate dialogue, reducing communication barriers for their children.
• Some tools that can help with narrative building are picture cuttings and drawings of different situations and emotions made available to the children with Autism and allow them to touch, relate to those situations, and express their emotions.

5. Focus on non-directive communication

Non-directive communication is a style in which the child leads the conversation while the parent provides support without taking control.

• Let Them Lead the Conversation: When a child starts talking about something important to them, avoid immediately offering advice or solutions. Instead, allow them to explore the topic fully and share their thoughts. This helps build confidence in their ability to communicate openly.
• In cases where children with ASD or ADHD struggle to initiate or lead conversations, non-directive communication strategies can be adapted to allow them to feel in control without pressure. Support organizations provide tailored guidance to parents on how to give their children with special needs the space to express themselves at their own pace, reinforcing their confidence in communicating.

Again, toys and images of different kinds can motivate the children to narrate incidents that otherwise may not be on top of their minds. We can recall when a child with Autism once told us that there is music in the school bus, the seats are blue and the ‘didi’ (support staff) sits with him in the bus.

6. Normalise difficult conversations

Children often shy away from sharing difficult or “taboo” topics because they fear their parents’ reactions. By normalizing these conversations, parents create a safe space where children feel free to discuss anything without fear of judgment or punishment.

Unlike other children, those with special needs, particularly those on the autism spectrum, also find it difficult to discuss uncomfortable or socially complex topics. By promoting open dialogue and ensuring they feel safe to express their thoughts, parents can help children with special needs navigate challenging conversations in a supportive environment.

While casually chatting and playing, we often ask young boys and girls if anyone pushed them, touched them inappropriately, didn’t play with them, etc. The process of normalizing difficult conversations eliminates the fear and taboo.

7. Role of NGOs in supporting parents and children

Organizations dedicated to special needs advocacy serve as a bridge for families, particularly those with children who face unique challenges. By offering practical tools, counseling, and support groups, these organisations help parents navigate the unique challenges of communication. These initiatives ensure that children with special needs can develop healthy, open relationships with their parents.

• Counselling and Emotional Support: Raising children with special needs can sometimes feel isolating for parents. Many NGOs offer emotional support and counseling services to help parents manage the emotional demands of caregiving and foster healthier family dynamics. As parents work towards establishing better communication, it is important to remember that the goal is not perfection but progress. Every conversation is an opportunity to connect, understand, and nurture the relationship with their children, ultimately raising confident and emotionally secure children.

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