70 Ethics in Higher Education: Values-driven Leaders for the Future
contains a justiciable Bill of Rights, and the state is required to respect,
protect, promote and fulfil the rights in the Bill of Rights.^6 The Bill of
Rights binds the legislature, executive, judiciary and all organs of state;^7
and may also bind a natural or juristic person if, and to the extent that, it
is applicable, taking into account the nature of the right and the nature of
any duty imposed by that right.^8
The right to education is contained in section 29 of the Constitution.
In terms of section 29(1)(b), everyone has the right to further education,
“which the state, through reasonable measures, must make
progressively available and accessible”. Unlike the right to basic
education contained in section 29(1)(a), which is not so qualified, the
realisation of the right to further education is expressly circumscribed by
the principle of progressive realisation. However, unlike the other socio-
economic rights contained in the Constitution that are also subject to
progressive realisation, the wording of section 29(1)(b) does not
expressly make the right subject to “available resources”.
The right to higher education is also well-established under
international law.^9 Starting with the Universal Declaration of Human
Rights (1948), article 26(1) thereof states that “[e]veryone has the right
to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available
and higher education shall be equally accessible to all on the basis of
merit.”
6
7 Section 7(2) of the Constitution.^
8 Section 8(1) of the Constitution.^
9 Section 8(2) of the Constitution.^
Section 39(1)(b) of the Constitution requires that, when interpreting the Bill of
Rights, a court “must consider international law”; and section 233 of the
Constitution requires that, when interpreting any legislation, a court “must prefer
any reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is inconsistent with
international law”.