The report contains findings and recommendations of a national investigative hearing held by the Commission during 13-15^th June 2016 shortly after a number of schools in Vuwani, Limpopo were closed as a result of protest related action. The Commission as a constitutional body is empowered to investigate human rights violations and to make suitable findings and recommendations to the State on measures to be taken in redress where human rights have been violated.

 Stakeholders including government departments at national and provincial levels, trade unions, non-governmental organisations, school principals and community leaders were invited to make submissions to the hearing.

 The hearing was catalysed by the Commission’s mandate to children in terms of Section 28(2) of the Constitution, which stipulates that a child’s best interests are of paramount importance in every matter concerning the child. In this regard the Commission emphasised its ongoing concern about the impact of public protest related action on the rights of children to a basic education. The Commission had been monitoring the closure of schools due to protest related action through its provincial offices over a period of time, however, the widespread adverse impacts to learners, the school community and school infrastructure necessitated convening a national hearing to probe the adverse impacts more fully. 

 The Commission recognises the right to assemble, peacefully and unarmed, and the need to protect and respect the exercise of this right in a democratic South Africa. However, the Commission also recognises that the right to protest does not include that which is criminal or unjustifiably impinges on other protected basic rights.  In particular, the right to protest should not infringe on children’s constitutional right to basic education.  South Africa’s constitutional commitment to the right to education is recognition that education is a fundamental and facilitative right, which must be fulfilled in order for other rights in the Bill of Rights to ultimately be enjoyed. Where other rights are exercised at the cost of the right to education without justification, the rights of learners are violated.

 Having monitored protest action over a period of five years, the Commission noted with concern the worrying trend that some protests appeared to specifically target schools and other educational institutions. Apart from obvious impacts where there is damage to infrastructure, and disruption to learning, some learners face indirect adverse consequences when protest related actions are directed at their schools including being prevented from accessing school feeding programs for meals on which they depend. In addition, parents fearful for the safety of their children, fall foul of the South African Schools Act, as they keep their children from school in affected areas. Preventing a learner under the age of 15 years from accessing education is deemed a criminal offence in South African law.

 The Commission’s probe considered the extent to which protest related action has affected basic education, the adequacy of policy and measures in place at local, provincial, and national levels in detecting and preventing public protests; whether early warning, and monitoring mechanisms are in place to ensure that schools are secure and threats to continued learning are mitigated. The roles and responsibilities of different stakeholders was closely considered during the hearings, in particular the Commission considered measures in place such as codes, guidelines to ensure that stakeholders such as communities, leaders, and school governing bodies fulfil their responsibility in the context of protests.

 In its treatment of the issues the Commission, received frank responses from the Respondents. According a premium to the rights of children and the right to basic education, the Commission found that:

1. 1. that the right to a basic education is adversely affected by protest-related action which arises from causes that in most cases may be unrelated to the provision of basic education.
2. that learners are often either physically barred or intimidated from attending school and that infrastructure on which learners rely to access education is damaged or destroyed.
3. that both the Department of Basic Education (DBE) and the South African Police Service (SAPS) response has, in some cases, been slow, and no uniform policy or approach was evidenced to deal with such incidents;
4. that the lack of effective communication between authorities and affected communities resulted in communities seeking ways to draw attention to their plight and targeting schools even though by targeting schools children’s right to a basic education is undermined.
5. that at the time of its hearing, no reported action has been taken against persons who deliberately interfere with the right to a basic education; and
6. that ad-hoc, uncoordinated, slow and inadequate responses by authorities affects the recovery process for schools which have been affected.

 The Commission recommended a number of remedial actions to each of the stakeholders, calling for the promotion of a shift in understanding, so that schools are seen to belong to communities, and; that education be given the priority and attention it deserves. Recommendations for early warning systems, adequate resourcing, effective information and communication, coordination and planning were also issued by the Commission.

 The national hearing into The Impact of Protest-Related Action on the Right to a Basic Education in South Africa is part of a wider response by the Commission to promote and protect the right to a basic education. This wider response includes a body of work including investigations into the delivery of primary learning materials; poverty traps and social exclusion of children in South Africa and the development of a Charter of Children’s Basic Education Rights.

 Ends

Issued by the South African Human Rights Commission

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