Legal Norms and the Capabilities Approach (CA): Reinterpreting Children's Right to Access to Basic Education

AuthorMashele Rapatsa - Gaedupe Makgato - Tshepo Mashile
PositionSenior Lecturer, School of Law, University of Limpopo, South Africa - Magistrate, Administration of Justice. Private Bag F19, Francistown, Botswana & PhD Candidate, University of South Africa - Attorney, Mkhonto and Ngwenya Inc. P O Box 12265, The Tramshed, Pretoria 0126
Pages40-53
ACTA UNIVERSITATIS DANUBIUS Vol. 12, no. 2/2016
40
Legal Norms and the Capabilities
Approach (CA): Reinterpreting
Children’s Right to Access to Basic
Education
Mashele RAPATSA
1
, Gaedupe MAKGATO
2
, Tshepo MASHILE
3
Abstract: This article discusses access to basic education as a constitutionally entrenched legal n orm.
It presents an exposition of inherent interdependence between rights-based approaches to child
development and theoretical underpinnings founded in the Capabilities Approach (CA). The article is
considerate of the fact that every progressive developmental state needs literate and educated citizenry
to achieve sustainable economic and human development, and thus secure social stability and human
well-being. It relies on the Constitution, 1996’s foundational values and theoretical connotations
founded in Sen and Nussbaum’s Capabilities Approaches. Nussbaum is the focal point because her
account of the CA is linked with fundamental ideals of constitutional law and rights-based approaches
to development. It proposes a pattern of combining and using frameworks of rights and capabilities to
move beyond promises made through legal instruments. It is asserted that access to equitable and
quality basic education is yet to be achieved in South Africa. It remains a distant dream owing to narrow
interpretations and dual system of private -public education, under which quality education is
commodified and only accessible to the wealthy few. Thus, to improve access to quality basic
education, we ought to understand that laws are normative standards that n eed to be complimented by
strong moral and ethical commitments in ord er to be responsive to children’s and society’s social
developmental needs.
Keywords: constitutional law; right to basic education; capabilities approach; human rights;
transformation
1
Senior Lecturer, School of Law, University of Limpopo, South Afri ca. PhD candidate, University of
Groningen (the Netherlands), Address: Private Bag X1106, Sovenga 072 7, Tel.: +27152683193,
Corresponding author: mashele.rapatsa@ul.ac.za.
2
Magistrate, Administration of Justice. Private Bag F19, Francistown, Botswana & P hD Candidate,
University of South Africa, Address: 1 Preller St, Pretoria, 0002, South Africa, E-mail:
gmakgato@gmail.com.
3
Attorney, Mkhonto and Ngwenya Inc. P O Box 1226 5, The Tramshed, Pretoria 0126, E-mail:
maikhutso86@gmail.com.
AUDJ, vol. 12, no. 2/2016, pp. 40-53

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