Case Note on Education
A REVIST TO THE IMPORTANCE OF EDUCATION: MOKO v ACTING PRINCIPAL
OF MALUSI SECONDARY SCHOOL
INTRODUCTION
It is often stipulated that “justice delayed is justice denied,” so to is a person’s future
heavily interrupted by a forced delay in education. This is so because, just as the delay
in justice could lead to degradation of evidence and other factors, the delay in
education could lead to unforeseen consequences such as the unavailability of school
fees at a later date. Such a matter is exacerbated by the global situation at the present
moment with the COVID-19 pandemic, placing ordinary life activities such as attending
school on hold. It is a matter of uncertainty when normalcy as known to human beings
shall return. The question therefore stands as to whether it is necessary to deprive
students from writing their matric examinations on the basis of insignificant issues such
as failure to attend extra lessons especially when it is not certain that it will be possible
for them to write in the next available sitting? Is failure to attend extra lessons more
important than the exercise of the right to education to the extent of depriving a student
from writing an exam?
This was answered in Moko v Acting Principal of Malusi Secondary School, which shall
be discussed below and in which judgment the Constitutional Court reiterated that
there are only a few things as important to the growth of society as education. This
article traces the ever-present importance of education through the above-mentioned
judgment.
FACTS
The case concerns Mr Moko, a student at Malusi Secondary School in Limpopo who
sought the assistance of the court on an urgent basis to protect his right to education.
The case arose after Mr Moko was denied access to write the Business Studies Paper
2 exam on the 25th of November in 2020, as part of the Matric examinations. On the
same date, Mr Moko and two other students arrived at school and were met by the
acting principal who disallowed them access into the school premises. This was on
the basis of all three students having failed to attend certain extra lessons. The three
were then instructed to go home and fetch their parents supposedly for the purposes
of deliberating on the matter. They were only to return to the school with their parents.
As instructed, Mr Moko left the school but unfortunately was unable to locate any of
his guardians. In consequence, Mr Moko returned to the school alone to find the gates
locked. At the time of his arrival the examination had already begun and since Mr Moko
was without any of his guardians, the acting principal, therefore, deprived the applicant
from writing the examination. The following day, Mr Moko returned to the school with
his uncle and met with the acting principal in order to discuss what had previously
occurred. At this point, Mr Moko was informed that he could only sit for the
supplementary exam in May 2020.
Dissatisfied with this decision, in consequence of the fact that he would only be able
to complete his matric examinations at that late stage which would largely affect his
entry into University, Mr Moko launched an urgent application in the High Court for an
order that he be given an opportunity to write the missed examination immediately.
The High Court struck the matter of the roll for lack of urgency. The court concluded
that Mr Moko would be given the opportunity to write in May 2020 and that there was
therefore no need for the issue to be treated as urgent. With the view that the
determination by the High Court would not be advantageous to him, Mr Moko then
approached the Constitutional Court directly on an urgent basis.
THE APPLICANT’S ARGUMENT
Mr Moko argued that the conduct of the acting principal, in sending him home to get
his parents, which led to him arriving late and being denied entry into the exam,
violated his right to basic education under section 29(1)(a) of the Constitution as well
as his right to further education in section 29(1)(b). He based this on the fact that the
delay in his completed matric results, if he is only able to write the missed exam in the
following year would mean he will be unable to begin further education at a higher
education institution at the beginning of 2021.
ISSUES
The Court had to deal with the principle question of whether the acting principal’s
actions had infringed the applicant’s rights under section 29(1)(a) and (b) of the
Constitution. The respective rights are the right to basic education and the right to
further education.
RATIO DECIDEDI
The Constitutional Court held that matric exams fell within the meaning of basic
education protected by the constitution. In so doing the court had to first determine
where basic education ends and where further education began. Khampepe J held
that school education culminating in the qualification of the National Senior Certificate
is basic education under section 29(1)(a) and this includes grade 12 and the matric
examinations. She further held that to limit the right to basic education either to only
primary school education or education up until Grade 9 or the age of 15 would be an
excessively narrow approach to the term which would fail to give effect to the
transformative purpose and historical context of the right as intended by the
Constitution.
It was held that the acting principal had a duty to not impair or diminish a learner’s right
to basic education and as such had a duty not to prevent Mr Moko from writing his
examinations. Being the acting principal at a state school, meant he was an organ of
state, carrying both a negative obligation not to infringe a learner’s right to basic
education and also a positive obligation to ensure that the right is protected and
realised. Access to a school was held to be a necessary condition in realising the right
to education whilst access to an examination, especially one that is vital to completing
one’s schooling, was also held to be an important element for the achievement of this
right. The first respondent had both a positive and negative duty to allow the applicant
to write the examination unless there was an acceptable basis for not doing so.
Refusing the applicant entry into the school, without adequate reason and preventing
him from writing the examination, especially when his lateness was due to the acting
principal’s fault, undeniably breached the right to basic education. This was especially
so since none of the respondents sought to provide any acceptable basis for such
conduct.
The court therefore concluded that there had been a violation of the right to basic
education. However, the court did not discuss in much detail the potential infringement
to the right to further education but stressed that “a year lost can never be recovered.”
This was in light of Head of Department, Department of Education, Free State
Province v Welkom High School, which considered that many learners simply cannot
afford to add an extra year to their studies. The court ordered the educational
department to grant Mr Moko the opportunity to write the missed Business Studies 2
examination at the start of January 2021. The court stipulated that his results must be
released with other 2020 National Senior Certificate examination results. In closing
Khampepe J expressed that she hoped “that no other pens have to be taken away
before the various role-players in our education system fully realise the critical
importance of the right to education, especially in a nascent democracy like ours,
which recognises the transformative nature of education and entrenches it as a socioeconomic right in our Constitution.”
CRITICAL ANALYSIS- THE IMPORTANCE OF EDUCATION
In the Moko case the court emphasised the importance of education by stipulating that
“there are few things as important for the flourishing of a society and its people as
education. Through education, doors are opened to opportunities that were only before
ever dreamt of. I am not exaggerating when I say that education changes lives. It
enriches and develops our children so that they may reach the height of their potential.
And, as our citizens are empowered through education to improve their future and
achieve their dreams, our nation will undoubtedly prosper too.” In South Africa
education is viewed as a priority for various reasons. Some of the reasons include but
are not limited to the process of healing the divisions of the past as during the apartheid
era education was not accessible to all. The educational system in South Africa is also
clustered with challenges such as many South Africans being unable to afford to
educate their children. In some areas with child headed families these children are
unable to attend school as they are expected to stay at home and take care of other
children(http://tisoskillsfund.co.za/importance-education-south-africa/ The importance
of education in South Africa.)
The above problems highlight that serious battles in achieving the right to education
are already in existence to the extent that South Africa simply cannot afford other
unnecessary hinderances to this right such as denial into examinations for reasons
such as failure to attend extra lessons or to bring parents to school when instructed to
do so. In a developing country such as South Africa, attaining education means the
ability for many to provide for their families as well as the betterment of living
circumstances. The importance of the right must, therefore, always be emphasised.
RECOMMENDATIONS
In light of the actions of the acting principal in the Moko case, it is submitted that the
organs of state who assist in the furtherance of constitutional rights should not press
a soft-pedal on their roles when exercising such roles. In particular, principals are
reminded, through the case, to vehemently further the right to education and not hinder
it as such conduct would defeat the spirit, purport, and purpose of the Constitution as
a whole. It is further submitted that awareness must be raised in schools to students
with regard to the enforcement of any possible infringed educational rights. This comes
after a close reading of the facts, as shown that three students were initially denied
access. It is possible that the other 2 students also failed to write but were unaware of
the steps to take in order to remedy the situation as Mr Moko did. It should in the last
instance be emphasised to school administrators that when it comes to education time
is of the essence in achieving such a right, as sternly stated by the learned Justice
Khampepe “a year lost can never be regained.”
CONCLUSION
It is evident from the events of this case, that although the right to education has long
been entrenched into the South African Constitution, there are still discrepancies on
the amount of emphasis to be placed on the right as well as a lack of understanding
on how such a right should be achieved. Such a lack of emphasis and understanding
necessitated this revisit to the importance of education. The court in the Moko case,
concluded that denying a student access into school as well as denying them entry
into the exam for no justifiable reasons violates their right to basic education and that
such conduct was unacceptable. This conclusion is premised on the grave importance
of education in South Africa which cannot be de-emphasized. Bearing this judgment
in mind, it is concluded that role players in the achievement of the right to education
must ensure the right is indeed implemented and achieved instead of hindering the
same right they are expected to uphold.
Koshesayi Madzika LLB LLM (NMU) is a student,
References
Moko v Acting Principal of Malusi Secondary School (CCT 297/20) [2020] ZACC 30
Head of Department, Department of Education, Free State Province v Welkom High
School [2013] ZACC 25; 2014 (2) SA
http://tisoskillsfund.co.za/importance-education-south-africa/
education in South Africa”
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