right to education – horizontal application – eviction - amicus curiae - Constitutional Court

SERI, together with the Centre for Child Law, has been granted leave to intervene as amicus curiae in the Constitutional Court case of Governing Body of Juma Musjid Primary School and Others v Essay NO and Others. The Juma Musjid is a public school in the Durban City Centre, situated on land owned by a trust. The trust seeks to eject the school from its property because the Department of Education will not agree to pay any more than R3 000 per month in rent for the property. The trust was granted an ejectment order by the High Court. In its appeal, the school contends that the trust, as a quasi-public body, owes it a public law duty not to unreasonably interfere with the right to education of its learners. Allowing the ejectment order to stand, the school argues, will unjustifiably interfere with its learners’ rights to basic education in s 29 (1)(a) of the Constitutional Court. 

In its submissions to the Constitutional Court, SERI contends that the right to basic education is horizontally applicable between private persons. Even if the trust is a purely private body, it should not be permitted to unjustifiably interfere with the school’s learners’ rights to basic education. SERI submits that the Department of Education has adopted an unduly inflexible approach to the trusts request for it to pay rental for the benefit of the use of its property. To allow the ejectment order to stand in these circumstances would amount to an unjustifiable infringement of the school’s learners’ rights of access to education. It would also render the procedural requirements set out in section 33 of the South African Schools Act meaningless. SERI therefore submits that the ejectment order should be set aside because it was granted in circumstances where neither the trust nor the Department of Education had acted in compliance with their constitutional obligations.

The case was heard on 31 August 2010, with the Constitutional Court handing down a provisional order on 7 September 2010, setting aside the eviction order. Judgment was handed down on 11 April 2011.

  • Judgment (11 April 2011) here.
  • Order (7 September 2010) here.
  • Article in the Business Day "KwaZulu-Natal school fights eviction order" by Ernest Mabuza (1 September 2010) here.
  • Read the amici curiae heads of argument (13 August 2010) here.