An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
All state schools will be forced to be totally dependent on the state for funding. In many former Model-C schools, parents pay the salaries of some of the teachers. In other words, if parents are forced to stop contributing school fees, some teachers would have to lose their jobs.
This would lead to over-crowded classes. Furthermore, the fees are also used to maintain schools – payment of electricity, equipment and other things that are used in the provision of education. So, we might end up with an education that is free but in shambles.
Mamaila does not address the fact that the present system allows parents with money to buy a better education for their children. In effect it condemns children of poor parents to a third rate education merely because they were born poor. This means that poor children will never have anything close to the opportunities for betterment that children of rich parents will take for granted.
The system seems extremely unfair and flies in the face of the egalitarian values enshrined in our Constitution. Mamaila does have a point though, because “leveling down” the education standards will be harmful to society as a whole.
What to do?
A first step is to ensure that parents who cannot pay school fees do not have to pay. To ensure this system is implemented in practice, the government should have a system in place to compensate schools who waive the school fees of poor learners. In the absence of such a system, principals will have a huge incentive to force parents to pay – regardless of the means at their disposal.
Throwing more money at poor schools may be necessary but will probably not in itself make a huge difference to the standard of schooling. Given the lack of skills amongst teachers and the difficulties of learning in the kind of socio-economic milieu in which many poor kids live, it will require something close to a miracle to create a relatively egalitarian education system of an adequate standard.
But given the fact that the state has a duty in terms of section 29 of the Constitution to provide basic education to all, more radical steps may be needed. What about passing legislation that requires richer schools to mentor poorer schools? In monetary terms this would constitute a kind of double redistributive tax on rich parents because when they pay for school fees those fees will indirectly also benefit poor learners.
Maybe I am naive, but the benefits of my plan would go far beyond the money involved. As parents with resources get involved with poorer schools, those schools and their governing bodies will acquire skills to manage their schools better. And the extra teachers paid for by the rich parents school fees could be required to do extra lessons at poorer schools.
Will this work? I have no idea, but surely the present system is so unfair and unjust that something will have to be done.