House Chair, the DA supports the ratification of this covenant. However, we do not support the declaration to be made in regard to articles 13 and 14, which provides that South Africa will give progressive realisation to the right of education within its legislation and available resources.
The reason why we do not support this is in line with, unfortunately, the very late submission from the Human Rights Commission. Our jurisprudence indicates that our courts have already interpreted the obligations of government with regard to the realisation of socioeconomic rights to mean "within maximum available resources". This is in line with the covenant.
The department's wish to make a declaration confining government's obligations to progressive realisation within this legislation and available resources will in all likelihood be seen internationally as a deliberately retrogressive measure that diminishes the reach and purpose of the covenant.
In the Constitutional Court cases of Grootboom and Mazibuko, the court said that any deliberately retrogressive measure would require the most careful consideration. It would also need to be fully justified by reference to the totality of the rights provided for in the covenant and in the context of the full use of the maximum available resources. We have seen no such justification.
In addition, there is no distinction made in the proposed declaration between basic education which is a fundamental right in terms of section 29(1) of the Constitution, which is immediately realisable in terms of the unanimous judgment given by judge Nkabinde in the matter of the Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others, and further education for which progressive realisation is permitted in terms of the Constitution.
The declaration will also thus appear to be in conflict with our Constitution by trying to limit all education to progressive realisation within available resources.
The DA accordingly will support this item but with these reservations.