Towards successful schooling: The role of courts and schools in protecting conflicting individual educator and learner rights

Abstract

Conflict frequently arises between the individual rights of individuals. In resolving such conflicts, the relevant rights have to be balanced in order to reach a just equilibrium (interpreted as parity). At school level, different individuals have needs and interests that are not necessarily in harmony. This may lead to tension between individual rights. Such tension is overlaid in South Africa with its specific history of racial, ethnic, linguistic and religious conflict. Section 36 of the Constitution of the Republic of South Africa, known as the limitation clause, is a rights-balancing mechanism that makes specific provision for the criteria to be considered when conflicting rights and interests are claimed. It is also, therefore, a mechanism for peaceful co-existence between individual claimants. In this regard, the Constitutional Court in SATAWU v Garvas emphasised the fact that a balancing process is needed when any limitation is placed on the rights of individuals, in order to ensure that such a limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Attention is drawn to the fact that exercising individual rights and freedoms does not extend to individuals who use their rights and freedoms in an unaccountable manner leading to the violation of others' rights. The Constitutional Court subsequently cautioned that if individual rights are used in such a way, the beneficiaries thereof will lose constitutional protection.