There probably are times you feel as if it’s You vs the World or You vs Everyone Else. Luckily, you have rights. Human Rights. Like hidden shields that can protect you in the battles you are facing albeit the battle of basic education, freedom of speech, healthcare, or equality.

Humans are however not the only creatures with rights. In this issue we also discuss the recent and relevant Constitutional Court case which provides the SPCA with the necessary powers to protect animals by way of private prosecution.

Enjoy the read!
JJR Inc. Team

From the ancient Khoisan reverence of the eland to the contemporary conception of the dog as “man’s best friend”, humans and animals have a storied relationship – one that is a part of the fabric of our society, homes and lives. Even though most animals are big and strong they need their two-legged companions to protect them from those with ill intentions.

On 8 December 2016 the Constitutional Court made the following groundbreaking judgment: “…the National Society for the Prevention of Cruelty to Animals (SPCA) must incorporate private prosecutions of animal cruelty… as to not render the animal protection regime a toothless tiger.”¹

In this landmark decision the highest court of the land found in favour of the SPCA when asked if the SPCA has the right to privately prosecute any person suspected of animal cruelty. The question arose from an incident that took place in November 2010 in which two camels were allegedly sacrificially slaughtered.²

After the matter was brought under the National Prosecuting Authority’s attention, it was decided that no charges will be instituted against the purported offenders.³ The SPCA then applied to the High Court for an order allowing them to privately prosecute the case further.⁴ Both the High Court and Supreme Court of Appeal denied the SPCA’s application. The SPCA persisted, and continued to petition to the Constitutional Court.

The Constitutional Court’s decision opens the door for the SPCA to no longer only be the proverbial dog, barking at the intruder, but the court has given the Society the “teeth” to prosecute an alleged offender, when the state decides not to institute legal proceedings.

¹ National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another. Case CCT 01/16. 2016 ZACC 46. Judgment Date 8 December 2016. Paragraph 48 on page 21.

² Paragraph 4 on page 4 of the above judgment.

³ Paragraph 4 on page 5 of the above judgment.

⁴ Paragraph 9 on page 5 and 6 of the above judgment.

In terms of Section 5 (3) (a) of the South African Schools Act No 84 of 1996 no learner may be refused admission to a public school on the grounds that his/her parents are unable to pay or has not paid the school fees as determined by the Governing Body. However, this Act does not make provision for independent “private” schools with regard to fees.

The right to education

Section 5 (3) (a) of the South African Schools Act No 84 of 1996 has incorporated Chapter 2 Section 29 (1) (a) of the Constitution of the Republic of South Africa 1996 in terms of which everyone has the right to basic education. Therefore, no child can be sent home or refused to participate in certain activities or sports due to arrears school fees ¹. Public schools must provide for equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees.² This means that should parents find themselves retrenched during the third term of school, they can apply for subsidiary for the tuition of the last term and their child/children can continue their education.

Private schools

The South African Schools Act ³ does not make provision for independent “private” schools. Private schools are governed by the Private Schools Act No 104 of 1986, which does not make any mention of arrears school fees and whether or not children are still allowed their right to basic education if their parents find themselves in a financial struggle. The Private Schools Act focuses more on the regulations of a school itself and how to become a private school.

Problems

The problem relating to this is the fact that the children suffer. At the time of entering their children into a private school, the parents are financially stable. However, what happens if a parent suddenly finds him/herself retrenched? Furthermore, the above problem is aggravated by the fact that private schools are struggling to obtain funds from the Government for subsidies. Race-based inequalities in subsidies to independent schools have been eliminated since 1994. Since then, subsidy levels have differed somewhat per province. But extreme pressure on the non-salary components of provincial education budgets, especially in 1997/98 and 1998/99, has resulted in a sharp decline in the per learner value of independent school subsidies, and considerable uncertainty as to the future trend of independent school funding by provincial education authorities.⁴

¹ South African Schools Act No 84, Section 41 (7)

² South African Schools Act No 84 of 1996, Section 39(2) (b)

³ South African Schools Act No 84 of 1996

⁴ South African Schools Act No 84 of 1996: Rules and Regulations

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This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.