Abstracts

16 realizability is universal basic education, but the reality of limited resources leads to inequalities. In the realm of education, the existence of the incrementalistic principle is clearest, as the primary concern of the courts is to increase the scope of which features constitute basic educational needs. Reasonability continues to serve as a standard in determining whether the government has made strides at rectifying inequalities ( Governing Body of the Juma Musjid Primary School et al v. Juma Musjid Trust et al [ Juma Musjid ], 2011, p. 19). The principle of immediate realizability is derived from the Constitutional Court’s decision in Juma Musjid , a case that pitted private property rights against children’s rights to basic education. Juma Musjid Trust was a private estate that rented land to the Juma Musjid Primary School. When the school failed to pay rent, the trust ordered an eviction. In response, the school argued that the eviction would interfere with their obligation to fulfill the right to education. Juma Musjid established that the positive right to basic education places the duty on private parties of noninterference with the right’s fulfillment. Most importantly, however, the court cemented a distinction between basic and higher education. Whereas higher education (beyond secondary) must be made progressively available, as is the case with other socioeconomic constitutional rights, basic education must be immediately realizable ( Juma Musjid , 2011). Minister of Basic Education v. Basic Education for All (2015) , decided upon by the Supreme Court of Appeals, was a case that dealt with the failure of the provincial government of Limpopo to deliver textbooks in a timely fashion to students. It was among the most notable education cases for the reason that the court emphasized a link between education and equality, thereby adding a layer of discriminatory offense to right to education violations. Required textbooks were determined to be central components of the right to education. The court decided that books required by the education system must be provided to every learner in every grade, thereby setting precedent that materials needed for the act of learning are constitutionally guaranteed. Operating under the same logic, the High Court decided in Madzodzo et al v. Minister of Basic Education et al (2014) that access to desks and other critical school furniture is inherent in the right to education. In that case, the schools did not have adequate furniture, which the court considered a serious impediment to the delivery of the right to basic education. This case reaffirmed the immediate realizability of basic education, particularly in regard to implements for learning. What these socioeconomic rights cases amount to is a pattern of legal development that is not reflective of progressive realization as it has been defined in the collective consciousness of the government, constitution, and courts. While this phrase has been traditionally understood to imply increasing accessibility, the courts operating under the reasonable measures test have applied the idea in a different way. Rather than spreading a fully realized image of the rights to encompass greater and greater portions of the population, the court test has resulted in the incremental achievement of the right through its components. In the following section, I argue for the existence of the extraconstitutional doctrine of incrementalism that underpins the judicial system’s decision making. Incrementalism in the South African Legal System The delineation of case law, discussed previously, serves to highlight the court system’s expanding paradigm of incrementalism: running water, electricity, sanitation in housing, health standards, privacy, timely delivery of medication, medical training, the condition of respect from private parties, textbooks, and school furniture all exist as sub- rights of housing, health care, and education that have been brought into existence through court decisions. Noticeably absent from the landmark cases of socioeconomic rights are ones that deal with accessibility alone . Rather, all that I have listed, which are archetypal of landmark cases dealing with Sections 26, 27, and 29 of the Bill of Rights, concern the expansion of the definition of the rights instead of the expansion of the body of beneficiaries. The South African constitution, in