By Shaatirah Baboo Hassim
The right to basic education is a cornerstone of the South African post-apartheid constitutional dispensation. It refers to the right of every learner to free and accessible learning mechanisms. Naturally, in 2023, this must also dovetail with digital access for all learners if South Africa intends on keeping pace as best it can in the age of the fourth industrial revolution. This right is also embedded in the nation’s policy and jurisprudence as one that is immediately realisable and of utmost importance for learners to adequately, and sustainably, participate in modern society. Despite this, the digital literacy of learners in South Africa remains in a woeful state and the gap in computer training and internet access between private and public education is stark.
Many South African schools, particularly those serving rural areas and predominantly poor and Black learners, lack sufficient infrastructure to provide such training and access, actively limiting learners’ rights to basic education. This digital divide has been exacerbated by the pandemic – with over 12 million children affected over the past two and a half years. The importance of digital access, both in terms of speed and capacity, became apparent during the Covid-19 pandemic to bridge the gap in
the remote education of learners.
Challenges to digital education are not new phenomena in South Africa. Nationally, only 22% of households have a computer while only 10% have an internet connection. In the North West and Limpopo provinces, only 3.6% and 1.6% respectively, have access to the internet at home. In 2018, the National Education Infrastructure Management System (NEIMS) found that only 4 675 out of 23 471 of
schools had internet connectivity for teaching and learning. The NEIMS report highlighted that state and private sector initiatives to provide historically disadvantaged schools with IT infrastructure are disjointed, poorly co-ordinated and unsustainable. Another critique is that there is an over reliance on the private and non-profit sectors to bridge the digital divide among learners in South Africa.
Such challenges have been amplified by the Covid-19 pandemic. An April 2021 NEIMS report found that only 0.55% of public schools have access to the internet. Fifty-eight percent of public schools do not have access to computers. UNICEF and the Daily Maverick have reported that learners in South Africa lost substantial amounts of school days since the pandemic began. This figure ranges between 60% and 75% of lost learning time. This has resulted in the loss of significant time at critical stages of development for learners across various age groups.
Such time lost is compounded by the inability of most learners to benefit from online learning resources during this period as access to digital technology and online tools as well as resources, are non-existent. It is abundantly clear that even if a pandemic and national lockdown were foreseen, South Africa would not have been sufficiently prepared to accommodate learners in the digital space with online learning. Learners have been left adrift during this tumultuous time, abandoned in situations of staggered
learning and other barriers such as school transport being affected, shortage of learning materials and skills necessary to navigate online learning platforms which will not be remedied over a short period of time. Some studies put the learning time lost to learners as a result of the pandemic to 2015 level – a regression by five years.
The right to basic education is ingrained in South African law and policy. Section 29(1)(a) of the Constitution of the Republic of South Africa sets out this fundamental right which provides that “everyone has the right to access basic education …”. The right to basic education is distinct in that it is immediately realisable. The Constitutional Court in Governing Body of the Juma Musjid Primary School & Others v
Essay confirmed this, noting that: “The right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and
democratic society based on human dignity, equity and freedom.”
This means that the state cannot use budgetary constraints as a viable defence in not providing internet services and infrastructure to schools across South Africa. The obligation on the state to provide digital resources to learners is as integral a part of the right to basic education. Inadequate resources of this nature profoundly undermine the right to access to education.
The ineffectiveness of the state in dismantling barriers to digital access is underscored by the fact that multiple national policies exist that indicate it is readily aware of its obligations in this regard. The Department of Basic Education’s (DBE) Norms and Standards for Public Infrastructure (2013) place specific obligations on the DBE to provide access to internet infrastructure. These obligations must be met within
a certain timeframe, which the state is not in a position to do.
The three main domestic policies currently in place in this regard are South Africa Connect (SA Connect) and Universal Service and Access Obligations (USAOs) which are obligations imposed by the Independent Communications Authority of South Africa on telecommunications operators and, lastly, a recent White Paper on e- education published by the South African government. In addition, MTN, Vodacom,
Telkom and Cell C declared specified education websites as zero-rated in terms of data to promote access to these resources. The White Paper, to this day, remains a strong founding document informing and guiding all subsequent legislation and policies on the matter, albeit it lacks a diversified approach to South African schools and instead opting for a "one-size-fits-all" approach. SA Connect, the state’s primary broadband access policy, and USAOs, suffer from similar setbacks, as outlined in the
“Access Denied” report, by the Global Human Rights Clinic at University of Chicago Law School. The report highlights a lack of a coordinated strategy, funding and adequate infrastructure as barriers to the policies meeting their targets.
The digital rights of children are also reinforced by international law, which is applicable in South Africa. The United Nations’ Committee on the Rights of the Child emphasised the importance of children’s rights in relation to digital media at its Day of General Discussion in 2014. An important aspect to consider is the impact of digital technologies on children’s rights through the lens of the Convention on the Rights of
the Child (CRC). Although written before the present contours and consequences of the digital environment could be foreseen, the CRC was highly prescient in emphasising the importance of communication contexts as crucial means by which children can exercise their rights.
The right to non-discrimination contained in Article 2 of the CRC embodies one of the four general principles of the CRC and, as such, is of utmost importance for children in the digital environment. Indeed, the underlying idea of this article is that children have a right not to be discriminated against. As a gateway for many forms of provision and participation, internet access is being taken for granted as a means of ensuring child rights, and in consequence, lack of (sufficient or reliable) access is a pressing
problem for large groups of children across the world. These are often those who are
already vulnerable or marginalised in society.
According to the UN Committee on the Rights of the Child, the right to non- discrimination requires states to actively identify those children or groups of children that may need special measures for the recognition and exercise of their rights. Thus, it is important to sustain and extend policies to overcome digital exclusion in its different forms.
The promise of international law is a unified society where every member’s rights are valued equally, and so any right forming part of its architecture must be considered and implemented seriously at the national level. The South African government would do well to remember this.
In the turbulent world we find ourselves in as of 2023, the importance of internet access and digital literacy is clear. Notwithstanding the strides made by the South African government to improve access to electronic platforms for learners, it is imperative that it ensures that all schools are equipped with adequate infrastructure and resources to provide internet access to every single school across the country.
The DBE is obliged to advance digital rights for learners for them to develop skills which will benefit them in the future, bearing in mind the shift into a global world of technology and a digital economy. This article draws attention to the various violations by the state to prioritise the objectives of the minimum norms and standards, including access to electronic connectivity for all learners across the country. Of particular concern is the fact that the government has failed to ensure that the international conventions which they have ratified are consistently adhered to. The Minister of Basic Education must be held responsible and accountable for lack of monitoring, implementation, and compliance. Taking the above into account, only time will tell if South Africa’s digital divide will ever be truly bridged.
Shatirah Baboo Hassim is an attorney in the Legal Resources Centre’s education focus area. She has a deep passion for social justice law, especially children rights and barriers that they face.
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