## Facts

- A public primary school operated on land owned by a private religious trust under an arrangement contemplating rental payments by provincial education authorities.
- The education department fell into arrears and did not regularize the school’s continued occupation of the property.
- The trust terminated the arrangement and obtained a High Court eviction order against the provincial education authorities, which would effectively displace the school and its learners.
- Appellate relief in other courts failed, leaving the eviction order in place.
- The school governing body and parents/guardians sought constitutional relief, arguing the eviction implicated learners’ right to basic education and the best interests of the child.
- The Constitutional Court provisionally set aside the eviction order pending further consideration and steps to protect learners.
- During the proceedings, the education department arranged alternative placements for affected learners at other public schools to prevent interruption of schooling.

## Issues

1. Whether an eviction order displacing a functioning public school unjustifiably limited learners’ right to a basic education and the constitutional requirement that children’s best interests be treated as paramount.
2. Whether a private landowner permitting a public school on its property bears constitutional obligations affecting learners’ access to basic education.
3. Whether the state education authorities complied with their constitutional duties to secure continued access to basic education before eviction could be implemented.
4. Whether the High Court’s eviction order was constitutionally valid given its failure to account for and protect learners’ rights when granting relief.

## Decision

- The Constitutional Court held the eviction order was constitutionally defective to the extent it failed to consider and protect learners’ rights to basic education and their best interests.
- The Court recognized that the right to basic education is immediately enforceable and any limitation must be justified under the general limitations analysis.
- The Court held the private trust bore a negative constitutional duty not to act in a manner that unreasonably impairs learners’ right to basic education, while retaining its property rights.
- The Court permitted eviction only after being satisfied that adequate alternative school placements had been secured so that learners would not be left without access to basic education.
- The Court emphasized that courts granting eviction relief affecting children’s schooling must craft orders that protect constitutional rights, including by conditioning or suspending enforcement where necessary.

## Legal Principles

- The constitutional right to a basic education is not qualified by progressive realization or resource constraints; it is immediately enforceable, subject only to justified limitation under general limitation standards.
- A child’s best interests must be treated as paramount in matters that materially affect the child, including orders that disrupt schooling.
- Private parties can bear constitutional duties where their conduct affects constitutional rights; in this setting, the duty was primarily negative (to avoid unreasonable impairment of access to basic education).
- The state bears the primary positive obligation to provide basic education and must take reasonable, effective steps to prevent disruption to learners when disputes over school premises arise.
- Eviction remedies affecting learners must be structured to prevent unconstitutional interruption of access to basic education, including through conditions tied to confirmed alternative arrangements.

## Conclusion

The Court invalidated the eviction order insofar as it ignored learners’ constitutional rights, affirmed that basic education is immediately enforceable, recognized a private owner’s negative duty not to unreasonably impair that right, and allowed eviction only once the state had secured adequate alternative schooling to protect learners’ continued access to education.


Governing Body of the Juma Musjid Primary Sch. v. Essay N.O., 2011 (8) BCLR 761 (S. Afr. Const. Ct. 2011)