CONCLUSIONES Y RECOMENDACIONES

The South African Constitution is the supreme law of the country, any law inconsistent with the South African Constitution is invalid.335 The South African Constitution creates

a system of co-operative government where government functions are decentralised to ground level. Section 104 of the South African Constitution, read with Schedule 4 determines that education is shared between the national and provincial spheres of government. This means that they have concurrent legislative powers with regard to school education in South Africa. The National as well as the Provincial departments of basic education may enact cyber bullying legislation.

As already mentioned, public schools are organs of state.336 However, this does not

mean that the public school forms part of a specific sphere of government, but that the public school renders a public service, education, and is thus part of public administration and subject to the South African Constitution.337 A public school is also

a “juristic person”.338 This means that the school is recognised as a legal entity, and

has the capacity to perform public functions. The governing body of a school acts as functionary of the school and is responsible for the governance of the school.339 This

means that a governing body acts on behalf of the school, and must have the best interests of the school at heart.340 Schools, as organs of state, must comply with the

South African Constitution and the obligations placed on them by the South African Constitution.341 All legislation and policy governing education in South Africa must be

in line with the South African Constitution.342 The South African Constitution contains a

Bill of Rights with fundamental human rights and the South African Constitution has bestowed a sacred trust on South African courts to protect human rights.343

Furthermore, section 7(2) of the South African Constitution contains a mandate that the State must respect, protect, promote, and fulfil the rights in the Bill of Rights.

335 South African Constitution (note 10) at section 2.

336 South African Constitution (note 10) at section 239(b)(ii). 337 Mikro Primary School (note 35).

338 Schools Act (note 1) at section 15. 339 Schools Act (note 1) at section 16.

340 Barry, B. Schools and the Law: A participant’s guide. 2006 Juta at 71. 341 Id at 8.

342 Ibid.

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IHRL also forms part of South African national or domestic law, and informs the interpretation of the rights in the Bill of Rights. In terms of section 39(1) of the “Interpretation clause”:

When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law.

This section provides for the interpreters of human rights to include the values of the South African Constitution in interpretation of the Bill of Rights and to consider international law. It further provides that foreign law may be considered. International law will include both binding and non-binding international law.344 Section 233 of the

South African Constitution provides that a court interpreting any legislation is to prefer an interpretation which is in accordance with international law over any interpretation which is not in accordance with international law.

Section 231 of the South African Constitution determines the following with regard to international agreements.

1. The negotiating and signing of all international agreements is the responsibility of the national executive.

2. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).

3. An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.

4. Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by parliament is law in the Republic unless it is inconsistent with the South African Constitution or an Act of Parliament.

5. The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.

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According to section 232 of the South African Constitution, customary international law is part of the South African law if it is not inconsistent with the South African Constitution.

When international human rights treaties are ratified, governments must put into place measures and legislation to fulfil their obligations. South Africa is bound by international law, which implies that schools as organs of state are also bound by IHRL and are thus mandated to protect and promote human rights in schools.345 Thus, all

the human rights discussed in this chapter are informed by IHRL.