Inclusion in South African schools rests on policy and school discretion, and section 29 has yet to bite

Introduction

Section 29(1)(a) of the Constitution says everyone has the right to a basic education, and unlike the further education right in section 29(1)(b) it carries no promise of progressive realisation and no reference to available resources (Republic of South Africa, 1996). Ally and Kazim (2024) read it as immediately realisable. Section 9(3) separately bars unfair discrimination on grounds that include disability. On paper, then, a learner with a disability holds about as strong a claim as a constitution can give. In practice the same learner’s route into a classroom runs through a 2001 White Paper, a patchwork of departmental policies and, since December 2024, an amended Schools Act (Department of Education, 2001; Republic of South Africa, 2024).

This paper argues that inclusion in South African schooling is still carried mainly by policy and by the discretion of schools and officials, and that section 29 has not yet been made to bite on it. The courts have given the basic education right real content for textbooks, furniture, teachers and food (Ally and Kazim, 2024), but the content for inclusion has come largely from one High Court order and from policy documents whose own timetable has run out (Malematja, 2025; Department of Education, 2001). The Basic Education Laws Amendment (BELA) Act changes who decides on admission and language, which matters for inclusion, yet it is not the dedicated statute that Malematja (2025) has in mind. I should say that most of the classroom evidence is small-scale and qualitative, so I use it to show a pattern and not to measure one. The paper moves from the rights themselves to White Paper 6, then to the pandemic as a test, then to admission and language under the BELA Act, and ends with what a dedicated duty could and could not do.

What section 29 gives and what the courts have added

Ally and Kazim (2024) start from an oddity. The Constitutional Court has been reluctant to accept a minimum core for socio-economic rights since Mazibuko, yet for basic education the courts have never expressly rejected one, and lower courts have gradually said that the right includes textbooks, classroom furniture, basic infrastructure, enough teachers, transport and, more recently, school meals. They suggest that courts should go a step further and specify minimum outcomes such as reading for meaning, and link those to the inputs needed to reach them (Ally and Kazim, 2024). It is a sensible proposal. The catch, as far as I can tell from their account, is that disability appears in it only through Blind SA, a case about accessible formats of published works, so the minimum content they trace is largely content for learners without a disability (Ally and Kazim, 2024).

The nearest thing to a disability-specific minimum is the High Court’s order in Western Cape Forum for Intellectual Disability. The court held that section 29(1)(a) has positive as well as negative dimensions. The state made no direct provision for children with severe or profound intellectual disabilities, whose only education came from non-governmental special care centres that received a smaller subsidy per child than mainstream or special schools, and the court found the right infringed (Western Cape Forum for Intellectual Disability, 2010). It rejected the resources defence, because the applicant asked for available funds to be spread fairly and not for full provision. It also held that White Paper 6 and the statutes relied on did not authorise a limitation of these children’s rights, since a policy is not a law of general application, and it granted a structural interdict that required reasonable measures and a sworn report within twelve months (Western Cape Forum for Intellectual Disability, 2010).

That last point about policy is the hinge of this paper. If a policy cannot justify limiting a right, it is hard to see how a learner could rely on the same policy to demand anything (Western Cape Forum for Intellectual Disability, 2010), and it seems to follow that the inclusion framework the state actually has is something the state may follow or not (Malematja, 2025). I would be careful about how far one order can carry the argument. It is sixteen years old, it came from a High Court and it concerned one group of learners. Malematja (2025) cites it, but none of the 2021 to 2025 sources I read treats it as the start of a line of cases that spelled out what inclusion requires of a particular school or province.

White Paper 6 and the implementation gap

White Paper 6 was published in July 2001 and its ambitions were specific. It estimated that about 260,000 disabled children and youth of school-going age were out of school, with an upper limit of about 280,000. It proposed converting about 30 primary schools, one in each of 30 pilot districts, into full-service schools and expanding to roughly 500, upgrading special schools into resource centres for neighbouring schools, and setting up district-based support teams, all across three phases that ended in 2021 (Department of Education, 2001). The twenty years are over. Malematja (2025) says the time for keeping inclusive education as a policy aspiration has long passed, and the White Paper’s own calendar seems to support him.

Teachers working in the structures the White Paper created describe the gap well enough. Hugo and Mobara (2024) listened to teachers in full-service schools and report themes of support from school management, discipline, teaching methods, language issues, religion and parent involvement, concluding that the needs of teachers whose schools were turned into full-service schools have to be attended to. Malahlela and Johnson (2024) interviewed ten teachers from five mainstream schools and found adequate theoretical knowledge of inclusive education policies but limited self-efficacy to apply it. Their suggested remedy is collaboration between special schools as resource centres, full-service schools and mainstream schools, plus continuing professional development, which is more or less the architecture the White Paper drew in 2001 (Malahlela and Johnson, 2024; Department of Education, 2001).

The rural picture is thinner still. Sepadi (2025) interviewed six educators at two rural primary schools in the Tzaneen Circuit of Limpopo and reports limited knowledge of autism, mostly gained informally, positive but strained attitudes towards inclusion, overcrowded classrooms and a lack of specialist support. Nthontho and Naidoo (2025), in an integrative review of articles from 2020 to 2025, find gaps in data, terminology, learner participation and resources for neurodivergent learners despite legislative backing, and they call the barriers a case for systemic reform. Neither study is large, and the first rests on six people. Still, they point the same way as the teachers in Hugo and Mobara (2024) do, which gives me some confidence that the pattern is real.

Money is part of this, although the sources I have say little about it. At the 2026 budget vote the minister listed inclusive education among core priorities and set out R307 million for learners with disabilities within R32.7 billion of conditional grants (Gwarube, 2026). That is under one per cent of the grants named. Conditional grants are not the only money reaching learners with disabilities, and I could not see from the speech how special school budgets sit alongside the line, so I would not read much into the ratio. What can be said is that it appears as a grant allocation and not as a duty a learner could point to, which is the difference Malematja (2025) is worried about.

The pandemic as a test of the inclusion framework

Kamga (2021) gives the clearest legal account of what happens when the pressure comes. Using the litigation in Centre for Child Law v Minister of Basic Education as his main case, he argues that South Africa complies with the international regime on inclusive basic education in its norms, yet government failed learners with disabilities during COVID-19. The directions for a phased return to school excluded those learners and required special schools to close where social distancing was impossible, which he says violated the right to inclusive education and substantive equality, and he points to reasonable accommodation as the way to advance those rights (Kamga, 2021). I find the point about norms and conduct useful because it names the gap precisely.

What the episode suggests is that inclusion gave way first. A framework that depends on policy and goodwill can be set aside in a regulation written under time pressure, and a learner then has to litigate to be counted. Ally and Kazim (2024) show that courts will order concrete inputs once someone brings a case, but the cases they trace were mostly about learners in general. For learners with disabilities, the same logic would need a statement of what a school or province must supply before a crisis arrives (Kamga, 2021; Ally and Kazim, 2024).

Admission, language and the BELA Act

The BELA Act is the main legislative event of the last few years, and it touches inclusion mostly through admission and language. Veriava (2024) calls the Bill one of the most important reforms to basic education law since 1994 and focuses on its limits on the policy-making powers of school governing bodies over language and admission. She argues that the Constitutional Court’s school governance cases recognised the racial and spatial injustice of access to well-resourced schools and required governing bodies to consider wider systemic concerns, and that the Bill codified those principles (Veriava, 2024). The cases support her reading. In Hoërskool Ermelo the Constitutional Court held that a governing body sets language policy but must exercise that power consistently with section 29(2), and that the Head of Department may withdraw the function on reasonable grounds if the process is fair (Hoërskool Ermelo, 2009).

Rivonia Primary School did something similar for admission. The Court held that a governing body sets the admission policy and may fix the school’s capacity, but that the Head of Department keeps ultimate control over admissions, and that a policy has to be applied flexibly and not rigidly (Rivonia Primary School, 2013). The Act now builds on that. According to the amending text it revises the admission policy provisions and the Head of Department’s authority, adds appeal procedures, recognises South African Sign Language as an official language for learning, and allows the Head of Department to direct a school to use more than one language of instruction (Republic of South Africa, 2024). The President announced on 20 December 2024 that the Act was being brought fully into operation (Ramaphosa, 2024). For a learner who needs Sign Language, or a school place with support, the shift in decision-making towards the department is potentially important.

Language is the clearest place to see how admission and inclusion overlap. Quan, Fambasayi and Ferreira (2024) argue that the right to education is fully realised only when learners understand the language of instruction, that the departmental policy of moving from mother tongue to English in Grade 4 creates inequality, and that disputes turn on whether the governing body or the Head of Department decides. They recommend that the Head of Department look at spare capacity, at whether similarly resourced schools exist for learners excluded by language, and at feeder-zone geography, and that schools not refuse applicants because their language choice differs (Quan, Fambasayi and Ferreira, 2024). They also note that the language norms treat a request from 40 learners in Grades 1 to 6, or 35 in Grades 7 to 12, as the practicability threshold. It is worth asking how a small group, such as learners who use South African Sign Language at a given school, would fare against a number like that, although the sources do not answer it (Quan, Fambasayi and Ferreira, 2024; Republic of South Africa, 2024). Sibanda and Tshehla (2025) show the other side in one Gauteng township primary school that moved to English from the Foundation Phase. Interviews with four teachers and three parents suggest English created barriers because it was not the learners’ everyday language and the teachers themselves struggled with it, and the authors call the decision ill-conceived.

Two things follow for inclusion. The first is that the Act gives the Head of Department more room to override a school’s language choice, but Sibanda and Tshehla (2025) describe a policy shift at a single school, so a lot depends on whether officials use the room. The second is that the operating detail is not yet settled. Draft regulations on admission were gazetted for comment in August 2025, and at the May 2026 budget vote the minister still described draft regulations on admissions, school capacity and learner pregnancy as published for public comment (Gwarube, 2025; Gwarube, 2026). I could not confirm anything later than that. Until final rules exist, how a school’s capacity statement is applied to a learner who needs extra support will remain a matter of local discretion (Veriava, 2024).

What a dedicated duty would add, and where it would stop

Malematja (2025) argues for an Act of Parliament written specifically for inclusive education. His reasoning is that the basic education right includes children with disabilities, that South Africa has accepted treaty obligations to realise it through legislative and other measures, and that a framework statute would foster accountability and define consequences for the persistent exclusion of children with disabilities (Malematja, 2025). I think the logic holds. A statute can say what a school or province has to provide, who is accountable if it does not, and what a learner or a court can do next. That would give the Western Cape Forum reasoning something firmer to stand on, because the thing being relied upon would be a law and not a policy (Western Cape Forum for Intellectual Disability, 2010).

A statute would have limits too. It cannot produce teachers who know how to teach an autistic child, or reduce a class of sixty, and the studies of Sepadi (2025) and Malahlela and Johnson (2024) suggest those are the day-to-day barriers. It could also be passed and then treated like White Paper 6, as an aspiration. The lesson I take from Ally and Kazim (2024) is that the law works best when it states minimum content in terms a court can check, covering inputs such as accessible materials, trained teachers and district support teams, and outcomes such as a learner being able to read for meaning. A statute written that way would take the White Paper’s promises and turn them into things a learner can ask for.

Conclusion

Section 29 and section 9 give learners with disabilities strong rights, and the courts have shown, in Western Cape Forum and in the textbook, infrastructure and nutrition cases, that they will give those rights concrete content when asked (Ally and Kazim, 2024; Western Cape Forum for Intellectual Disability, 2010). The framework that is supposed to deliver inclusion remains largely policy. White Paper 6 set out its architecture and its timetable, the timetable has ended, and the teachers and reviews I read describe structures that exist but are thinly supported (Department of Education, 2001; Hugo and Mobara, 2024; Nthontho and Naidoo, 2025).

The BELA Act moves some decisions about admission and language towards the department, and in doing so it may help learners excluded by a school’s choices, although the regulations that give it practical shape were still in draft at the last official statement I could verify (Veriava, 2024; Gwarube, 2026). My position is that this is useful but insufficient. Inclusion needs a duty with minimum content, a named accountable body and a remedy when it fails, which is the case Malematja (2025) makes, and the evidence reviewed here suggests that he is right about the gap even if the classroom studies are too small to say how large it is (Kamga, 2021; Sepadi, 2025).

Reference list

Ally, N. and Kazim, T. (2024) Lessons from the ‘minimum core’ approach to the right to basic education in South Africa. African Human Rights Law Journal, 24(1), pp. 179-208. doi:https://doi.org/10.17159/1996-2096/2024/v24n1a9

Hugo, A.J. and Mobara, N. (2024) The voice of a group of teachers in full-service schools in South Africa. African Journal of Disability, 13, article a1134. doi:https://doi.org/10.4102/ajod.v13i0.1134

Kamga, S.D. (2021) COVID-19 and the violation of the right to basic education of learners with disabilities in South Africa: an examination of Centre for Child Law v Minister of Basic Education. Journal of African Law, 65(S2), pp. 347-360. doi:https://doi.org/10.1017/S0021855321000309

Malahlela, M.K. and Johnson, E. (2024) South African teachers’ application of inclusive education policies and their impact on learners with learning disabilities: implications for teacher education. Education Sciences, 14(7), article 743. doi:https://doi.org/10.3390/educsci14070743

Malematja, S. (2025) The right to basic education for children with disabilities: South Africa’s quest for an inclusive education system. Southern African Public Law, 40(1), article 15804. doi:https://doi.org/10.25159/2522-6800/15804

Nthontho, M. and Naidoo, S. (2025) Re-imagining education rights: inclusive framework for neurodivergent learners in South Africa. South African Journal of Childhood Education, 15(1), article a1675. doi:https://doi.org/10.4102/sajce.v15i1.1675

Quan, G.M., Fambasayi, R. and Ferreira, T. (2024) Transforming education through mother tongue language as a language of instruction in South Africa. African Human Rights Law Journal, 24(1), pp. 264-291. doi:https://doi.org/10.17159/1996-2096/2024/v24n1a12

Sepadi, M. (2025) Inclusive education in resource-constrained settings: exploring mainstream teachers’ curriculum knowledge and practices for autistic learners in South Africa. Frontiers in Education, 10, article 1641336. doi:https://doi.org/10.3389/feduc.2025.1641336

Sibanda, R. and Tshehla, L.P. (2025) From mother tongue to English: a language policy shift at a multilingual township school in Gauteng. South African Journal of Childhood Education, 15(1), article a1598. doi:https://doi.org/10.4102/sajce.v15i1.1598

Veriava, F. (2024) The Basic Education Laws Amendment Bill: a case study in transformative constitutionalism beyond the courts. African Human Rights Law Journal, 24(1), pp. 153-178. doi:https://doi.org/10.17159/1996-2096/2024/v24n1a8

Legislation and case law

Department of Education (2001) Education White Paper 6: Special needs education – building an inclusive education and training system. Pretoria: Department of Education. Available at: https://www.education.gov.za/Portals/0/Documents/Legislation/White%20paper/Education%20%20White%20Paper%206.pdf (Accessed: 18 October 2026).

Gwarube, S. (2025) Minister Siviwe Gwarube gazettes BELA regulations for public comment, media statement, 6 August. Available at: https://www.gov.za/news/media-statements/minister-siviwe-gwarube-gazettes-bela-regulations-public-comment-06-aug-2025 (Accessed: 18 October 2026).

Gwarube, S. (2026) Basic Education Department Budget Vote 2026/27, speech, 26 May. Available at: https://www.gov.za/news/speeches/minister-siviwe-gwarube-basic-education-dept-budget-vote-202627-26-may-2026 (Accessed: 18 October 2026).

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (2009) [2009] ZACC 32; 2010 (2) SA 415 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2009/32.html (Accessed: 18 October 2026).

MEC for Education in Gauteng Province and Others v Governing Body of Rivonia Primary School and Others (2013) [2013] ZACC 34; 2013 (6) SA 582 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2013/34.html (Accessed: 18 October 2026).

Ramaphosa, C. (2024) President Cyril Ramaphosa on commencement of Basic Education Laws Amendment Bill, statement, 20 December. Available at: https://www.gov.za/news/media-statements/president-cyril-ramaphosa-commencement-basic-education-laws-amendment-bill-20 (Accessed: 18 October 2026).

Republic of South Africa (1996) Constitution of the Republic of South Africa, 1996. Available at: https://www.gov.za/documents/constitution/chapter-2-bill-rights (Accessed: 18 October 2026).

Republic of South Africa (2024) Basic Education Laws Amendment Act 32 of 2024. Government Gazette 51258, 16 September 2024. Available at: https://www.parliament.gov.za/storage/app/media/Acts/2024/Act_32_of_2024_Basic_Education_Laws_Amendment_Act.pdf (Accessed: 18 October 2026).

Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Another (2010) [2010] ZAWCHC 544; 2011 (5) SA 87 (WCC). Available at: https://www.saflii.org/za/cases/ZAWCHC/2010/544.html (Accessed: 18 October 2026).