Question 1 (100 Marks) Read the following extract and see the instructions that follow:
The education process essentially involves two parties: the learner and the educator. One receives education, and the other provides it. One pays to be provided with education (through parents in the form of school fees or tax), and the other is paid to provide it. One undergoes compulsory education, and the other follows a career choice to educate. One has expectations; the other has responsibilities. One has no collective voice, and the other is organised in a union or unions. This is an oversimplified way of stating that we are dealing with two opposites within the education sector (each with its own complex constitutional, educational, labour and political issues).

According to the international McKinsey report on world school systems, the quality of an education system cannot exceed the quality of its teachers. The report clearly shows that if one should remove all equipment (computers, interactive boards, chairs and tables) from a classroom, and be left with nothing but a dedicated educator, education will still take place. Education, therefore, is not possible without the educator (McKinsey & Company, 2007). Education is one of the non-negotiable aspects of most societies, and, in South Africa, this right is enshrined in the Constitution of the Republic of South Africa, 1996 (Constitution). In terms of section 29(1)(a) of the Constitution, everyone has a right to a basic education. Therefore, all learners have the right to a basic education. On the other hand, educators – being employees (Rossouw, 2012) – enjoy labour rights. Section 23 of the Constitution provides that everyone has the right to fair labour practices and every worker has the right to form and join a trade union, to participate in the activities and programmes of a trade union, and to strike.

While the Constitution protects both teachers’ right to strike and our learners’ right to a basic education, these two are sometimes in conflict, despite the fact that section 28(2) of the Constitution explicitly states: “A child’s best interests are of paramount importance in every matter concerning the child”. Conflict between learners’ and educators’ rights occurs when teachers’ unions conduct strike actions in a way that diminishes the quality and duration of learners’ classroom education
or when educators strike just before or during an examination (Horsten & Le Grange, 2012).

The two most recent strikes in education were marked by intimidation of non-striking educators, violence and disruption of classes, and even intimidation of learners travelling to school. Educators took part in protest actions at several schools on a single day and disrupted schooling where non-strikers were employed (Calitz & Conradie, 2013). This gave rise to the question of the right to strike as opposed to the right to a basic education and quickly became a political ‘hot ball’. In 2011, for example, the Democratic Alliance (DA) proposed a Private Members’ Bill, through which they sought to limit educators’ right to strike (James, 2011). This was immediately rejected by the majority teachers’ trade union, the South African Democratic Teachers Union (SADTU).

Required:

As the Applied Research for Law Practitioners module is reaching a point of culmination, you are tasked to write a 12–15-page research proposal for an undergraduate mini dissertation.

The research theme is balancing the constitutional right to strike with the constitutional right to a basic education.

Guidelines:

• Please note that the number of pages includes your title, table of contents, and bibliography pages.
• The topic of the research must not be used as a title of the research; you must create your own title and research question based on this theme.
• Your research proposal must include:

o Title page.

o Table of contents.

o Introduction and background information.

o Research question.

o Premise.

o Assumptions.

o Hypothesis.

o Aims and objectives.

o Research methods.

o Discussion of preliminary sources.

o Outline.

o Time schedule.

o Conclusion.

o Bibliography.

Answers to Above Research Proposal

Answer: The main purpose of preparing this proposal is to critically analyse the conflict between two constitutionally protected rights in South Africa, which is mainly the right of educators to strike and the right of learners to receive a basic education. The recent strikes undertaken by teachers’ unions have resulted into a critical debate and legal discussion in the areas of disruption, intimidation and violence during strike actions.