Procedure or principle: the role of adjudication in achieving the right to education

Journal article

The aims of this article are twofold. The first is to examine and critically assess the principles behind the Court’s approach to these cases. Is the Court ultimately declaring that procedures are more important than substance, and that its primary role in this contested field is to ensure that a potentially unruly executive plays by the rules of the game? Is its view rather that its role is to facilitate and encourage democratic engagement, and that disputes are best addressed by judicial exhortation to key actors to co-operate in a spirit of partnership in the achievement of the constitutional mandate? Or can these cases be understood instead as furthering a reflexive law approach by facilitating experimentalism, under the wonderfully revealing title of polyarchic deliberative democracy?

The second aim of this paper is to examine more broadly the potential and limitations of the role a court can play in relation to a right, such as the right to education, which presents many difficult choices as to priorities of expenditure, and where rights of learners themselves may be in conflict with each other in conditions of resource scarcity or institutional capacity. Given that the Court is required to adjudicate the dispute in the form presented to it in the litigation, and given its limited capacity to consider the dispute in its broader context, is the court justifiably limiting its role to insisting that proper procedures be followed and leaving substantive outcomes to other decision-makers, provided they fall within a broad ambit of rationality? Or is it a serious abdication of its judicial responsibility to insist that the right to education is respected, protected and fulfilled for each and every individual learner? The discussion below analyses each of the three cases closely, in an attempt to address both these aims simultaneously.

Authors: Fredman, S

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Juta Law
• Journal: Constitutional Court Review
• Volume: VI
• Pages: 165-198
• Publication date: 2016-01-01
• Acceptance date: 2016-05-11
• ISSN: 2073-6215